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HomeMy WebLinkAbout06- Planning ;ITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Michael E. Hays, Director Subject: Appeal of Planning Commission action to uphold the Development Review Committee's approval of Del, panning & Building Services Development Permit II No. 97-13 Date: October 23, 1997 MCC Date: November 3, 1997 Synopsis of Previous Council Action: OCT 2 3 1997 N/A PYC7 rD� Recommended Motion: That the Mayor and Common Council close the public hearing; deny the appeal and approve Development Permit II No. 97-13, based on the Findings of Fact. f �6 ichael Hays Contact person: Michael E Hays Phone: 384-5357 Sul,,, _,ing data attached: Staff Report Ward(s): 3 FUNDING REQUIREMENTS: Amount: N/A Source: (Acct No ) N/A (Acct Description) Finance: Council Notes: Previously - # 7 Agenda Item No /11677 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT SUBJECT: APPEAL OF PLANNING COMMISSION ACTION TO UPHOLD THE DEVELOPMENT REVIEW COMMITTEE'S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97-13; MAYOR AND COMMON COUNCIL MEETING: NOVEMBER 3, 1997 OWNER: MANO MANAGEMENT COMPANY 500 INLAND CENTER DRIVE SAN BERNARDINO, CA 92408 (909)884-2171 APPLICANT: GRESHAM, SAVAGE, NOLAN & TILDEN C/O MARK OSTOICH 600 NORTH ARROWHEAD AVENUE, SUITE 300 SAN BERNARDINO, CA 92401 (909)884-2171 REQUEST/LOCATION The appellant, Central City Company/Carousel Mall, is appealing the Planning Commission's October 7, 1997 action to uphold the Development Review Committee's September 11, 1997 approval of Development Permit Type II No. 97-13, a proposal to initiate Phase I of the Inland Center Mall Expansion Project by constructing a two-level 165,000 square-foot anchor department store to be occupied by Robinson's-May and a four-level parking structure. The project is located at 500 Inland Center Drive within the CR-1, Commercial Regional (Malls), land use district. The appellant is asking that the Mayor and Common Council overturn the Development Permit approval (Refer to Exhibit 1, Letter of Appeal). BACKGROUND Development Permit Type II No. 97-13 was approved by the Environmental/Development Review Committee on September 11, 1997. The E/DRC's action was appealed on September 25, 1997 by Central City Company (Carousel Mall) to the Planning Commission. The Planning Commission reviewed the appeal at their October 7, 1997 public hearing and upheld the E/DRC's approval. For further background, refer to the attached Planning Commission Staff Report (Exhibit 4). Appeal of Planning Commission Action to Uphold the Development Review Committee's Approval of Development Permit Type II No. 97-13 Mayor and Common Council Meeting: November 3, 1997 Page 2 of 5 KEY POINTS * The proposed initiation of Phase I of the Inland Center Mall Expansion consisting of a department store and parking structure was found to be in conformance with the General Plan and Development Code. * The project was found to be within the scope of the project analyzed in the certified Final EIR and, therefore, did not require further environmental review pursuant to CEQA, Public Resources Code §21166 and CEQA Guidelines 14 CCR §15162. * The appellant was properly notified and given copies of the entire contents contained in the Development Permit case file upon request. APPELLANT'S GROUNDS FOR APPEAL & STAFF RESPONSE The appellant's grounds for appeal are contained in a letter dated October 21, 1997 (Refer to Exhibit 1 for specific language). The appellant's six (6) grounds for the appeal are summarized below. Appeal Point ##1: The appellant was denied due process rights and precluded from effective representation of and participation in the E/DRC meeting of September 11, 1997,,-by not receiving the proposed Findings of Fact, Conditions of Approval, and other documents pertaining to the review of Development Permit Type II No. 97-13 until after the DRC meeting. Staff Response: The appellant received all of the information that was available in the case file each time a request was made. The Findings of Fact were distributed at the September 11, 1997 E/DRC meeting and read into the record prior to the Committee's action. The conditions of approval from the Planning Division were also available that morning in draft form. All other conditions of approval and standard requirements were received during the meeting and net available in final form until the following day, September 12, 1997. It is standard operating procedure for the E/DRC to present the conditions and standard requirements to the applicant during the meeting verbally and in draft format. The final conditions, standard requirements, and letter of approval are collated and given to the applicant following the E/DRC meeting. Appeal of Planning Commission Action to Uphold the Development Review Committee's Approval of Development Permit Type II No. 97-13 Mayor and Common Council Meeting: November 3, 1997 Page 3 of 5 Appeal Point #2: Any permits granted for the Inland Center Mall Expansion are in connection with the approval of Development Agreement No. 91-01 which is invalid as a matter of law and is currently pending before the San Bernardino County Superior Court. Staff Response: Refer to Exhibit 2, September 30, 1997 Response from City Attorney's Office to Planning Commission Regarding Appellant's Grounds for Appeal". Appeal Point #3: Resolution No. 96-84 which certified the Final Environmental Impact Report (EIR) for the mall expansion and adopted and authorized the execution of Development Agreement No. 91-01 has been set aside by a Judgment executed on September 17, 1997 by Judge Edwards. Staff Response: Refer to Exhibit 2, September 30, 1997 Response from City Attorney's Office to Planning Commission Regarding Appellant's Grounds for Appeal". Appeal Point #4: A minor modification "approved by the DRC" violates City Development Code §19.40.040 which describes the mandatory contents of Development Agreements. Staff Response: Pursuant to Development Code §19.60.030, minor modifications may be granted by the Director of Planning and Building Services, not DRC, for the placement of structures or a decrease/increase in the density or intensity of a project up to a maximum of 10% change. Only when the change is more than 10% shall an amendment to the original Development Agreement be required. Minor Modification No. 97-04 was approved by the Director for the following two adjustments which constituted less than a 10% change: 1. The gross floor area of the planned anchor stores within Phase I of the development was modified from the approved 160,000 and 140,000 square feet, respectively, to 165,000 and 135,000 square feet not to exceed the aggregate square-footage of 540,000 as approved by the City through Development Agreement No. 91-01. Appeal of Planning Commission Action to Uphold the Development Review Committee's Approval of Development Permit Type II No. 97-13 Mayor and Common Council Meeting: November 3, 1997 Page 4 of 5 2. Phase I of the Inland Center Mall Expansion Project originally showed the development of two new anchor stores on the eastern portion of the mall. This was modified to show the development of the Robinsons-May department store on the west side of the Mall in the approximate location of the department store shown as being in Phase II. Appeal Point #5: The E/DRC and Planning Commission had inadequate facts and information on which to base its approval of Development Permit Type II No. 97-13. Staff Response: The final reviewing authority for Development Permits Type II is the Development Review Committee. Development Permit Type II No. 97-13 was routed to the E/DRC on July 28, 1997 for review. At the E/DRC meeting of August 14, 1997, the Committee asked for site plan, floor plan, and elevation revisions. Revised plans were received by Staff and routed to the E/DRC on September 4, 1997. After reviewing the proposal once again with the revisions, the E/DRC approved Development Permit Type II No. 97-13 on September 11, 1997. All facts and information were presented to the E/DRC since the project's first submittal on July 24, 1997. Revised plans were requested to clarify questions brought up by the E/DRC on August 14, 1997 pertaining to building design, handicap access, fire sprinklers, landscaping, and a more detailed building floorplan. Appeal Point #6: Staff, the DRC, and the Planning Commission relied on the Office of the City Attorney and its deputies for legal advice and counseling on the processing of Development Permit Type II No. 97-13. The appellant believes the City Attorney has a conflict of interest in that he accepted a donation from the Agents responsible for submitting.the Development Permit application. Staff Response: The City Attorney's Office will respond separately to this point at the Mayor and Common Council meeting of November 3, 1997. Appeal of Planning Commission Action to Uphold the Development Review Committee's Approval of Development Permit Type II No. 97-13 Mayor and Common Council Meeting: November 3, 1997 Page 5 of 5 STAFF RECOMMENDATION Staff recommends that the hearing be closed and that the Mayor and Common Council: 1. Deny the appeal; and 2. Approve Development Permit Type II No. 97-13 based on the Findings of Fact (Exhibit 3 - Attachment B) and subject to the Conditions of Approval and Standard Requirements (Exhibit 3 - Attachment E). Prepared for: MICHAEL E. HAYS, Director of Planning & Building Services by GUSTAVO J. ROMO, Assistant Planner EXHIBITS 1 - Letter of Appeal 2 - September 30, 1997 Response from City Attorney's Office to Planning Commission Regarding Appellant's Grounds for Appeal 3 - Appeal to Planning Commission Staff Report with Attachments EXHIBIT "1" LAW OFFICES OF MARLENE A. FOX A PROFESSIONAL CORPORATION 2031 ORCHARD DRIVE. SUITE 200 MARLENE A. FOX NEWPORT BEACH, CA 92660 - _ -; - (714) 975-8444 RECE11 _ I -Dt w FAX (714) 975-8447 DELIVERED BY COIIRIER •97 OCT 22 A10 :38 October 21, 1997 Mayor Tom Minor and Members LETTER OF APPEAL of the Common Council City of San Bernardino 300 North "D" Street San Bernardino, CA 92418-0001 Re: APPEAL OF PLANNING COMMISSION ACTION OF OCTOBER 7, 1997 Upholding DRC Approval of Development Permit Type II, No. 97-13, Phase I - Inland Center Mall Expansion (Robinsons-May) , (500 Inland Center Mall) ; APPELLANT: CENTRAL CITY COMPANY/CAROUSEL MALL Our File No. 09450 Dear Mayor Minor and Members of the Common Council : This Office represents the Central City Company and the Carousel Mall and on its behalf, submits this Appeal to the Common Council pursuant to City of San Bernardino Municipal (Development) Code §19 .52 . 100, appealing the action by the Planning Commission on October 7, 1997, upholding the DRC approval of Development Permit No. 97-13, described more fully above. The required Appeal fee in the amount of $75.00 was transmitted with a cover letter to the City Clerk in connection with this written Appeal. It is our understanding that there is no specific Appeal Form and that the written Appeal may be submitted and is acceptable in letter form, stating the grounds of the Appeal and accompanied by the requisite Appeal fee. Please note this Appeal Letter will be transmitted by FAX to the City on this date and the original, together with the Appeal fee, will be delivered by courier to the City on Wednesday, October 22, 1997, the 15th day of the Appeal period. GROUNDS FOR THE APPEAL This Appeal is brought on each and all of the following grounds : 1. Since October 1992 Appellant and Appellant' s counsel has repeatedly requested a full and fair opportunity to participate in Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 2 the processing on matters involving the ICM Expansion. We have repeatedly requested that we be provided in advance, copies of any and all pertinent documents to allow Appellant a full and fair opportunity to participate in public hearings. We specifically requested that we be provided in advance with copies of staff reports and other pertinent public records in the file, including submittals by the Applicant and inter-office memos. Our repeated requests for public records and advance notice of hearings was re- asserted numerous times during the processing of the ICM Expansion by the Planning Commission and Common Council in March and April 1996 . The Planning Department and DRC was reminded of that continuing request by the undersigned at the August 27, 1997 DRC meeting. In addition, formal written requests were again made to the Planning Department on September 9 and September 10, 1997 for copies of any and all documents that would be considered by the DRC at its meeting on this Project, on September 11, 1997 . As has happened in the past, the documents requested were not made available to Appellant until after the conclusion of the September 11, 1997 DRC meeting, at which the DRC approved Development Permit Type II, No. 97-13 . Withholding the proposed Findings of Fact, the Conditions and other pertinent documents pertaining to the review of Development Permit No. 97-13 denied Appellant its due process rights and precluded a effective representation of and participation by Appellant in the DRC meeting on September 11, 1997 prior to the approval of the Development Permit . Appellant contends it has the right to participate in the public hearing process, including the processing of approval of Development Permit No. 97-13 by the DRC and asserts it has been denied its rights under City Code, under the State of California Public Records Act, the California Environmental Quality Act, the State Planning and Zoning Code and the Constitutions of the State of California and of the United States by virtue of the fact that the Planning Commission upheld the DRC approval . 2 . The second ground of this Appeal is based on the fact that any permits granted for the Inland Center Mall Expansion would be in connection with the approval on April 1, 1996 by the Common Council, approving and adopting Development Agreement 91-01 ("DA 91- 01") . The second ground of this Appeal is based on the fact that DA 91-01 is invalid as a matter of law as it was not executed on behalf of the only other named party to the Agreement, other than the City of San Bernardino, to-wit : Mano Management Company, Inc. , the owners of the ICM. Since DA 91-01 was not executed by an authorized Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 3 officer of the named party, Mano Management, Inc. , the Development Agreement is invalid as a matter of law. This matter is currently being presented to the San Bernardino County Superior Court for judicial determination. 3 . This Appeal is brought on the basis that Resolution 96- 84, enacted by the Common Council of the City of San Bernardino on April 1, 1996 and approved April 3 , 1996, is not severable. Resolution No. 96-84 certified the Final EIR for the ICM Expansion Project and adopted and authorized execution of DA 91-01 to "govern the expansion of the ICM. " Resolution 96-84 must be set aside by the Common Council pursuant to the Judgment executed by James A. Edwards, Judge of the San Bernardino Superior Court on September 17, 1997 wherein he Ordered that the City vacate and set aside its certification of a portion of the Final EIR. The Order issued by Judge Edwards cannot be complied with unless the Council meets in public hearing and sets aside Resolution No. 96-84 . The Council must thereafter adopt a new Resolution. Resolution No. 96-84 is no longer valid by Order of the Court and therefore approval of Development Permit 97-13 by the DRC, under the authority of Resolution 96-84 and DA 91-01, is invalid as a matter of law. A public hearing must be conducted and the defective Resolution and defective EIR must be set aside. Without a valid EIR, there can be no valid Development Agreement . The mechanics of responding to the Court' s Order must be complied with before any further action can be taken with regard to the approval of a Permit for the ICM Expansion.- Appellant notes that the Planning Commission Staff Report for the October 7, 1997 Commission hearing on Appellant' s Appeal contained a copy of Executive Order 97-1, executed by Mayor Tom Minor on September 26, 1997 which purports to vacate and set aside the April 1, 1996 Certification of a portion of the Final EIR for the Inland Center Mall Expansion; purports to direct the City Clerk to annotate Resolution 96-84 to indicate it is affected by the Executive Order and purports to direct all City Departments to refrain from approving any construction activities related to the cinema complex expansion pending full compliance with CEQA environmental review requirements for that portion of the project . Appellant contends that the Executive Order 97-1, executed by the Mayor on September 26, 1997, violates the Writ of Mandate issued by the Court in Case Co. SCV 29232 . Appellant further maintains that the Executive Order must be rescinded so that the Council action of April 1, 1996 can be remanded as required, to the full Council, as required by law. Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 4 4 . The fourth ground of this Appeal is based on the fact that the minor modification approved by the DRC violates City Development Code §19 .40 . 040 which sets forth the mandatory contents of a Development Agreement. Development Code §19 .40 . 040 (1) (D) provides that the maximum height and size of proposed structures contemplated by development agreement must be included as mandatory contents of the DA. Accordingly, as the City Code assigns such importance to the size and height of structures which are approved in connection with an approved development agreement, changes of the height and size (square footage) of a building, particularly a building as significant as a major department store or so-called "anchor store, " cannot be considered a minor modification and must be considered at a Noticed public hearing as required by Government Code 965868 . Government Code §65868 requires that an amendment to a development agreement must be discussed at a Noticed public hearing and must be approved by Ordinance, subject to a referendum. Appellant submits that amending a recorded Development Agreement, as to one of its mandatory provisions, cannot qualify as a "minor modification. " 5 . This Appeal is brought on the further grounds that the DRC and Planning Commission had inadequate facts and information on which to base the DRC approval and P.C. affirmation of that approval for Development Permit 97-13 and therefore, the approval must be set aside. 6 . This Appeal is based on the further ground that staff, the DRC and the Planning Commission relied on the Office of the City Attorney, James F. Penman and Deputies from the City Attorney' s Office under his supervision and control, for legal advice and counseling with regard to the processing of Development Permit Type II, No. 97-13 . Appellant has recently learned that the City Attorney has a conflict of interest in that the City Attorney accepted a significant donation from the Agents responsible for the processing of these Applications . Appellant submits that the donation was of a sufficiently large amount to suggest that the City Attorney has a conflict and cannot be unbiased in his dealings with the processing of the Inland Center Mall Expansion plans . For that reason, the entire proceeding by the DRC and Planning Commission have been tainted and must- be set aside. REQUEST FOR APPEAL HEARING Appellant respectfully requests that the Common Council set this matter for public hearing before the Council on a date certain after November 5, 1997 and that Appellant be given a minimum of 15 days prior Notice of the date of the public hearing at which the Appeal will be heard by the Council. Appellant makes this request Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 5 so that Appellant will be provided sufficient time within which to prepare its evidence for submittal to the Council prior to the Appeal hearing. Any questions or responses to this Appeal should be transmitted to this Office, at the address listed above on our letterhead. Should you have any questions whatsoever, or require further amplification of the grounds for the Appeal, please do not hesitate to contact us at this Office. On behalf of our client, the Central City Company, we thank the Council for its consideration of this Appeal. Please note that we will provide the Council with evidence, both documentary and oral, to support the grounds of this Appeal. Respectfully submitted, LAW OFFICES OF MARLENE A. FOX By: ) MARLENE A. FOX MAF/Lgl CC: Mr. Robert D. Curci Mr. John M. Coombe COPY BY FAX ORIGINAL HAND DELIVERED ON 10/22/97 EXHIBIT 112" CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM TO: Planning Commission FROM: Henry Empeno, Jr., Deputy City Attorney DATE: September 30, 1997 RE: Response to Appeal by Central City Company/Carousel Mall (Attorney Marlene A. Fox) of Development Permit Type II No. 97-13 This is my response to the second and third grounds of the Appeal: 2. DP No. 97-13 is based upon Development Agreement 91-01, the validity of which has been challenged in two pending court cases. No court order or judgment has yet been issued which invalidates Development Agreement 91-01. In the court cases, the City contends that Development Agreement 91-01 is valid and was properly executed by Mano Management Company, Inc. 3. The appellant misstates the facts and mischaracterizes Judge Edwards' decision in one of the pending court cases. I have reviewed the Judgment dated September 17, 1997. Judge Edwards has not invalidated Resolution No. 96-84, which approved Development Agreement 91-01 and certified the Final EIR. Judge Edwards has directed the City to vacate and set aside its certification of that portion of the Final EIR that pertains to the multi-screen theater complex. The City has complied with the Court's decision by the Mayor's issuance of Executive Order 97-1, copy attached. The City's processing and approval of DP No. 97-13 is consistent with the Court's decision. HENRY EMPENO, JR., Deputy City Attorney [attachment] cc: James F. Penman, City Attorney Michael Hays, Director of Planning & Building Services HE:ao(VRoss2.mcm] i City of San Bernardino INTEROFFICE MEMORANDUM OFFICE OF THE MAYOR TO: All Department Heads FROM: Mayor Tom Minor SUBJECT: EXECUTIVE ORDER 97-1 DATE: September 26, 1997 COPIES: File on April 1, 1996 by way of Resolution 96-84, the Common Council of the City of San Bernardino approved Development Agreement 91-o1 for the expansion of the Inland Center Mall and by that same Resolution certified the Final Environmental Impact Report relating thereto. Subsequent to that action, suit was filed in the San Bernardino County Superior Court as Case No.SCV29232 against the City of San Bernardino and others claiming thatt ere had been certain non compliance with the California Environmental Quality Act ('CEQA") , which suite was entitled Central City Company v. City of San Bernardino, et al. Trial has now been completed in that suite and the Court has issued its Writ of mandate to the City providing, in part, that the City: "Vacate and set aside the April 1, 1996 Certification of that portion of the Environmental Impact Report that pertains to the multi-screen movie theater complex." To comply with the Writ of Mandate, in my capacity as Mayor of this City, and by this Executive Order, I hereby: (1) Vacate and set aside the April 1, act6Rcertification eferred of that portion of the Final Environmental Imp Po Resolution 96-84 that pertains to the multi-screen movie theater complex; (2) Direct the City Clerk to annotate Resolution 96-84 to indicate that it is affected by this Executive order, and inform related Departments thereof; and, (3) Direct all City Departments to refrain from approving any construction activities related to the cinema complex expansion pending full compliance with CEQA environmental review requirements for that portion of the project. 4,^ Dated: 2 C' �7 T m Minor Mayor Approved as to form and- legal content: es F. Penman, City Attorney EXHIBIT 113" CITY OF SAN BERNARDINO - MEMORANDUM TO: PLANNING COMMISSION FROM: MICHAEL E. HAYS, DIRECTOR DEPARTMENT OF PLANNING AND BUILDING SERVICES SUBJECT: APPEAL OF DEVELOPMENT REVIEW COMMITTEE'S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97013 DATE: PLANNING COMMISSION MEETING OF OCTOBER 7, 1997 AGENDA ITEM: # 4 OWNER: Mano Management Company 500 Inland Center Drive San Bernardino, CA 92408 APPLICANT: Gresham, Savage, Nolan & Tilden c/o Mark Ostoich 600 North Arrowhead Avenue, Suite 300 San Bernardino, CA 92401 REQUEST The appellant, Central City Company/Carousel Mall, is appealing the Development Review Committee's September 11, 1997 approval of Development Permit Type II No. 97013, a proposal to initiate Phase I of the Inland Center Mall Expansion Project by constructing a 165,000 square-foot, two-level, anchor department store to be occupied by Robinson's-May and a four-level parking structure. The project is located at 500 Inland Center Drive within the CR- 1, Commercial Regional (Malls), land use district. The appellant is asking that the Planning Commission overturn the approval (Refer to Attachment A, Letter of Appeal). Neither the appellant nor a representative was present at the E/DRC meeting of September 11, 1997. BACKGROUND Development Agreement No. 91-01, which was approved by the Mayor and Common Council on April 1, 1996, authorized in concept the addition of up to a total of three new anchor stores within the boundaries of Inland Center Mall. An aggregate of 540,000 square feet was approved for the mall expansion with 300,000 square feet for Phase I and 240,000 square feet for Phase II. EIMBIT "4" CITY OF SAN BERNARDINO - MEMORANDUM TO: PLANNING COMMISSION FROM: MICHAEL E. HAYS, DIRECTOR DEPARTMENT OF PLANNING AND BUILDING SERVICES SUBJECT: APPEAL OF DEVELOPMENT REVIEW COMMITTEE'S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97013 DATE: PLANNING COMMISSION MEETING OF OCTOBER 7, 1997 AGENDA ITEM: # 4 OWNER: Mano Management Company 500 Inland Center Drive San Bernardino, CA 92408 APPLICANT: Gresham, Savage, Nolan & Tilden c/o Mark Ostoich 600 North Arrowhead Avenue, Suite 300 San Bernardino, CA 92401 REQUEST The appellant, Central City Company/Carousel Mall, is appealing the Development Review Committee's September 11, 1997 approval of Development Permit Type II No. 97013, a proposal to initiate Phase I of the Inland Center Mall Expansion Project by constructing a 165,000 square-foot, two-level, anchor department store to be occupied by Robinson's-May and a four-level parking structure. The project is located at 500 Inland Center Drive within the CR- 1, Commercial Regional (Malls), land use district. The appellant is asking that the Planning Commission overturn the approval (Refer to Attachment A, Letter of Appeal). Neither the appellant nor a representative was present at the E/DRC meeting of September 11, 1997. BACKGROUND Development Agreement No. 91-01, which was approved by the Mayor and Common Council on April 1, 1996, authorized in concept the addition of up to a total of three new anchor stores within the boundaries of Inland Center Mall. An aggregate of 540,000 square feet was approved for the mall expansion with 300,000 square feet for Phase I and 240,000 square feet for Phase Ii. Appeal of DPII97013 500 Inland Center Drive Planning Commission Meeting October 7, 1997 Page 2 of 4 In connection with the Development Agreement, an Environmental ImpTh EIR wa s c ertified prepared pursuant to the California Environmental Quality Act (CEQA). on April 1, 1996 by City Resolution No. 96-84. The EIR described the expansion project for Inland Center Mall as including, among other things, the construction of up to three new major anchor stores and the construction of four multi-level parking structures. Minor Modification No. 97004 was approved on September 10, 1997 by the Director to modify the gross floor area of the planned anchor stores from 160,000 and 140,000 square feet (as indicated in the Development Agreement) to 165,000 and 135,000 square feet, respectively, not to exceed the aggregate of 540,000 square feet. In addition, the location of the anchor store within Phase I was modified from the eastern portion of the mall to the west side. Development Permit Type II No. 97013 was submitted to Staff on July 24, 1997 and scheduled for review on the August 14, 1997 Environmental and Development Review Committee agenda. The E/DRC commented on the project, requested revisions to the plans, and continued the item to September 18, 1997 in order to give the applicant adequate time to submit revised plans. The applicant was able to submit the revised plans earlier than expected, and the item was re- scheduled for the E/DRC meeting of September 11, 1997. A copy of the Mitigation Monitoring Reporting Plan from the certified EIR was re-distributed to the E/DRC on September 10, 1997 for its convenience (Refer to Attachment F). In addition, the project Findings of Fact and Environmental Compliance Review were handed to the E/DRC at the start of the meeting on September 11, 1997 and read into the record (Refer to Attachments B and C). The E/DRC found that the project met all provisions of the Development Code and approved it with conditions and standard requirements. APPELLANT'S GROUNDS FOR APPEAL The appellant's grounds for the appeal are contained in a letter dated September 25, 1997 (Refer to Attachment A for specific language). In summary, the appellant states the following four points as grounds for the appeal: (1) The appellant was denied due process rights and precluded from effective representation of and participation in the E/DRC meeting of September 11, 1997, by not receiving the proposed Findings of Fact,-conditions of Approval, and other documents pertaining to the review of Development Permit Type II No. 97013; (2) Any permits granted for the Inland Center Mall Expansion are in connection with the approval of Development Agreement No. 91-01 which is invalid as a matter of law and is currently pending before the San Bernardino County Superior Court; (3) Resolution No. 96-84 which certified the Final Environmental Impact Report (EIR) for the mall expansion and adopted and authorized the execution of Development Agreement No. 91-01 has been set aside by a Judgment executed on September 17, 1997 by Judge Edwards; and Appeal of DPII97013 500 Inland Center Drive Planning Commission Meeting October 7, 1997 Page 3 of 4 (4) The E/DRC had inadequate facts and information on which to base its approval of Development Permit Type II No. 97013. ANALYSIS OF GROUNDS FOR APPEAL (1) The appellant received all of the information that was available in the case file each time a request was made. The Findings of Fact were distributed at the September 11, 1997 E/DRC meeting and read into the record prior to the Committee's action. The conditions of approval from the Planning Division were also available that morning in draft form. All other conditions of approval and standard requirements were received during the meeting and not available in final form until the following day, September 12, 1997. It is standard operating procedure for the E/DRC to present the conditions and standard requirements to the applicant during the meeting verbally and in draft format. The final conditions, standard requirements, and letter of approval are collated and given to the applicant following the E/DRC meeting. (2) Refer to Attachment D. (3) Refer to Attachment D. (4) Development Permit Type II No. 97013 was routed to the E/DRC on July 28, 1997 for review. At the E/DRC meeting of August 14, 1997, the Committee asked for site plan, floor plan, and elevation revisions. Revised plans were received by Staff and routed to the E/DRC on September 4, 1997. After reviewing the proposal once again with the revisions, the E/DRC approved Development Permit Type II No. 97013 on September 11, 1997. All facts and information were presented to the E/DRC since the project's first submittal on July 24, 1997. Revised plans were requested to clarify questions brought up by the E/DRC on August 14, 1997 pertaining to building design, handicap access, fire sprinklers, landscaping, and a more detailed building floorplan. CONCLUSION The proposed initiation of Phase h of the Inland Center Mall Expansion consisting of a department store and parking structure was found to be in conformance with the General Plan and Development Code. Furthermore, the project was found to be within the scope of the project analyzed in the certified Final EIR and, therefore, did not require further environmental review pursuant to CEQA, Public Resources Code §21166 and CEQA Guidelines 14 CCR §15162, as outlined in Attachment C. Appeal of DPII97013 500 Inland Center Drive Planning Commission Meeting October 7, 1997 Page 4 of 4 RECOMMENDATION Staff recommends that the hearing be closed and that the Planning Commission: 1. Deny the appeal; and 2. Approve Development Permit Type II No. 97013 based on the attached Findings of Fact (Attachment B) and subject to the Conditions of Approval and Standard Requirements (Attachment E). Respectfully Submitted, VUL- MICHAEL E. AYS Director of Planning and Building Services GUSTAVO J. ROMO Assistant Planner Attachments: A Letter of Appeal B Development Permit Findings of Fact C Environmental Compliance Review D City Attorney's response to second and third grounds of appeal and attached Executive Order No. 97-1 E Development Permit Type II No. 97013 Letter of Approval with Conditions of Approval and Standard Requirements F Copy of Mitigation Monitoring Reporting Plan 09/25/97 17:34 12714 975 8447 YARLENE A FUl ***** PLEASE GIVE TO MR. GUS ROMO ATT'ACEAMNT "A" *k*** OR THE SECRETARY TO THE PLANNING COMMISSION ASAP. THANKS- LAW OPPICES of MARLTlNE A. Fox A PROFESSIONAL CORPORATION 2o31 ORCHARD DRIVE, SUITE 200 MANL[NC A. OPDX - NEWPORT 91rACH, CA VaeeO 17141 075-8444 FAX(714) 07•-0447 FAX COVER SHEET DATE: SEPTEMBER 25, 1997 TO: THE CITY OF SAN BERNARDINO PLANNING COMMISSION RE: APPEAL, OF DEVELOPMENT PERMIT NO. 97-13; ICM - ROBINSON'S-MAY FAX NUMBER: (909) 384-5080 MESSAGE- MR. ROMO or SECRETARY TO PLANNING COMMISSION: ATTACHED IS THE APPEAL FILED ON BEHALF OF THE CENTRAL CITY COMPANY OF THE ABOVE-IDENTIFIED DEVELOPMENT PERMIT (97-13) AND COPY OF CHECK FOR $126.00 APPEAL FEE- ORIGINAL OF APPEAL AND THE CHECK WILL BE 14 DELIVERED BY FEDERAL EXPRESS, FRIDAY, SEPTEMBER 26, 1997 IN THE MORNING. PLEASE REFER ANY QUESTIONS OR NOTICES TO THIS OFFICE. PLEASE ADVISE OF THE DATE CERTAIN FOR HEARING BEFORE THE COMMISSION ASAP. RESPECTFULLY, MARLENE A- FOX, ATTORNEY FOR CENTRAL CITY TRANSMITTED BY LAW OFFICES OF MARLENE A. FOX - FAX: (714) 975-8447 TOTAL NUMBER OF PAGES, INCLUDING THIS COVER SHEET: 6 IF YOU DO NOT RECEIVE ALL PAGES, PLEASE CALL AS SOON AS POSSIBLE: (714) 975-8444 CHARGE: Our File No. 09450 CCC V. CITY OF SAN BERNARDINO Sender of this Transmittal is: MARLENE A. FOX 09/25/97 17:35 '2714 975 8447 MARL.ENE A FOX I.AW OIFFICES OF MAaimN$ A. Pox A PROFESSIONAL CORPORATION MARLSN( A. FOX 2031 ORCHARD DRIVE.SUITE 200 NEWPORT BEACH. CA oaBSO (714) 975-8444 FAX 1714) 075-8447 TRANSMITTED BY FAX September 25, 1997 The City of San Bernardino NOTICE OF FILING APP Planning Commission C/o Department of Planning and Building Services and Office of the City Clerk 300 North "DII Street San Bernardino, CA 92418-0001 Re: Appeal of Development Permit Type II No. 97-13 Phase I - Inland Center Mall Expansion Robinsons-May (500 Inland Center Mall) ; Our File No. 09450 Appellant - Central City Company/Carousel Mall Dear Chairman and Members of the Planning Commission: APPEAL OF DRC DECISION OF SEPTEMBER 11, 1997 The Central City Company and the Carousel Mall submit this Appeal to the Planning Commission pursuant to City of San Bernardino Municipal Code 519.52.090, hereby appealing the action by the DRC on September 11, 1997, approving Development Permit No. 97-13, described more fully above, on behalf of the owner and attorney agents of the Inland Center Mall. we understand that there is an Appeal fee of $126.00 that must accompany the written Appeal. Further, we have been advised by Mr. Gus Romo of the City of San Bernardino Planning Department, that there is no specific Appeal Form and that the written Appeal may be submitted in letter form, stating the grounds of the Appeal and accompanied by the Appeal fee. Accordingly, transmitted herewith please find our Corporate Check No. 5804 made payable to the City of San Bernardino, in the amount of $126.00 as payment of the Appeal fee on behalf of this Appeal submitted on behalf of the Central City Company and the Carousel Mall. This letter will be transmitted by FAX to the City on this date and the original, together with the Appeal fee will be sent by Federal Express - Overnight Priority for delivery to the City in the morning of Friday, September 26, 1997, the 15th day of the Appeal period. 09/25/97 17:38 V714 975 8447 HARLENE A FOX City of San Bernardino Planning Commission September 25, 1997 Page 2 GROUNDS FOR THE APPEAL This Appeal is brought on each and all of the following grounds: 1. Going back to November 1994, Appellant has continuously, consistently and persistently requested that Appellant be given full opportunity to participate in the public review roc z a ssfor any approvals that are part of the ICM Expansion Project. regard we requested that we be provided in advance, copies of any and all pertinent documents as well as Notices of public hearings, including, submittals by the Applicant, Staff Reports, Inter-office Memos, etc. That request for public records and advance Notice of hearings was re-asserted numerous times during the processing of the ICM Expansion by the Planning Commission and the Common Council. The Planning Department and DRC was reminded of that continuing request by the undersigned at the August 27, 1997 DRC meeting. Formal written requests were again made on September 9 and September 10, 1997 to Mr. Romo of the Planning Department for copies of any and all documents that would be considered by the DRC at its meeting on September 11. The documents requested were not made available to Appellant until after the conclusion of the September 11, 1927 _DRC meeting, at which the DRC approved Permit No. 97-13 . Withholding the proposed Findings of Fact, the Conditions and other pertinent documents pertaining to the review of Development Permit No. 97-13 denied Appellant its due process rights and precluded effective representation of and participation by Appellant in the DRC meeting on September 11, 1997, prior to the approval of the Development Permit. Appellant contends it has a right to participate in the public hearing process, including the processing of approval of Development Permit 97-13 by the DRC and asserts it has been denied its rights under City Code, under the State of California Public Records Act, the California Environmental Quality Act, the State Planning and Zoning Code and the Constitutions of the State of California and of the United States. 2. This Appeal is brought on the grounds that any permits granted for the Inland Center Mall Expansion would be in connection with the approval on April 1, 1996 by the Common Council, when it approved and adopted Development Agreement 91-01 ("DA 91-01") . the second ground of this Appeal is based on the fact that DA 91-01 is invalid as a matter of law as it was not executed on behalf of the only other named party to the Agreement, other than the City of San Bernardino, to-wit: Mano Management Company, Inc. , the owners of the ICM. Since DA 91-01 was not executed by an authorized officer of named party, Mano Management, Inc. , the Development Agreement in invalid; this matter is currently pending before the San Bernardino V V 1 09/25/97 17:36 12714 975 8447 MARLENE A FOb City of San Bernardino Planning Commission September 25, 1997 Page 3 County Superior Court and set for hearing on this issue, among other issues, on October 21, 1997. 3 . This Appeal is brought on the basis that Resolution 96- 84, enacted by the Common Council of the City of San Bernardino on April 1, 1996 and approved April 3, 1996, is not severable. Resolution No. 96-84 certified the Final EIR for the ICM Expansion Project and adopted and authorized execution of DA 91-01 to "govern the expansion of the ICM. " Resolution 96-84 must be set aside by the Common Council pursuant to the Judgment executed by James A. Edwards, Judge of the San Bernardino Superior Court on September 17, 1997 wherein he ordered that the City vacate and set aside its certification of a portion of the Final EIR. That Order cannot be complied with without the Council meeting in public hearing and setting aside Resolution No. 96-84 and thereafter adopting a new Resolution. Resolution No. 96-84 is no longer valid by Order of the Court and therefore approval of Development Permit 97-13 by the DRC, under the authority of Resolution 96-84 and DA 91-01, is invalid as a matter of law. A public hearing must be conducted and the defective Resolution and defective EIR must be set aside. Without a valid EIR, there can be no valid Development Agreement. The (60, mechanics of responding to the Court's Order must be complied with before any further action can be taken with regard to the approval of a Permit for the ICM Expansion. 4 . This Appeal is brought on the further grounds that the DRC had inadequate facts and information on which to base its approval of Development Permit 97-13 and for that reason, the approval must be set aside. REQUEST FOR APPEAL HEARING Appellant respectfully requests that the Planning Commission set this matter for public hearing before the Commission on a date certain and that Appellant be given a minimum of 15 days prior notice of the date of the public hearing at which time the Appeal will be heard by the Commission to allow Appellant sufficient time within which to prepare its evidence for submittal to the Commission. Any questions or responses to this Appeal should be transmitted to this Office, as Counsel for Appellant Central City Company/ Carousel Mall. Should you have any questions, please do not hesitate to contact us at the number and address listed above on this letterhead. 09/25/97 17:37 12714 975 8447 YAYt1 n A FOIL City of San Bernardino Planning Commission September 25, 1997 Page 4 On behalf of our client, the Central City Company, we thank the Commission for its consideration of this Appeal. Respectfully submitted, LAW OFFICES OF MARLENE A. FOX By: A. PDX MAF/Lgl ORIGINAL BY FEDERAL EXPRESS OVERNIGHT PRIORITY CC., Planning Director Secretary to Planning Commission San Bernardino City Clerk Robert D. Curci 09/25/97 17:57 'V714 975 8447 riARLirNE A FUb LAW OFFICES PROFESSIONACORPORAT ON OX 5804 GENERAL ACCOUNT 2oaI ORCHARD oR.surrE 200 97""4 SEPTEMBER 2 5 �8 9 7 +ortp/tom NEWPORT BEACH,CA 926W Po YME CITY OF SAN BERNARDINO 1 $ 126 no/1.005 ORDER OF ONE HUNDRED And TWENTY-SIX DOLLARS and no/1005~�-- °""~""""""pOLLAR3 �= California_.State Bank i d"`"'cw°'°um (ON BEHALF OF CENTRAL APPEAL FEE for Appeal of 9/11/97 CITY GO.) i FOR_ ' 13xC-la-FROtl`nL--OF-nEV�-pE-MT" 97-113 xCM EXPANSIOIiI' 804tt' is L 2 2 2 3 768 31: 009-63826211" i i ATTACHMENT "B" FINDINGS OF FACT DEVELOPMENT PERMIT TYPE II NO. 97-13 PHASE I OF INLAND CENTER MALL EXPANSION (ROBINSONS-MAY) 500 INLAND CENTER DRIVE (APN: 136-531-04) PAGE 1 OF 2 1. The proposed development is one permitted within the subject zoning district and complies with all of the applicable provisions of this Development Code, including prescribed development/site standards and any/all applicable design guidelines. Pursuant to Development Code Section 19.06.020(I)(6), department stores (general merchandise) are permitted uses in the CR-1 land use district subject to the approval of a development permit. The proposed department store and parking structure comply with all applicable provisions of the Development Code. As such, the proposal will improve and not impair the character of the CR-1 land use district. 2. The proposed development is consistent with the General Plan. The proposal is consistent with General Plan Policy 1.3.11, which states that it shall be the policy of the City to "allow for the introduction of major regional-serving commercial uses which may currently not be present and could significantly benefit the City, provided that they do not incur unacceptable adverse economic impacts, in areas between downtown and the Tri- City/Commercenter area (I1.1, I1.4-I1.9, I1.11, and I1.12)". 3. The proposed development would be harmonious and compatible with the existing and future developments within the land use district and general area, as well as with the land uses presently on the subject property. The proposal is part of an existing retail mall. The expansion of the mall has already been approved through a Development Agreement and does not entail any other use than that provided by said agreement. As such, the proposed development would be harmonious and compatible with the existing and future development. 4. The approval of the Development Permit for the proposed use is in compliance with the requirements of the California Environmental Quality Act and Section 19.20.030(6) of the Development Code. The proposed project's potential to cause a significant effect on the environment has previously been identified in the EIR certified by Resolution No. 96-84 adopted by the Mayor and Common Council on April 1, 1996. As such, no susequent environmental analysis is required prior to taking action on this project. FINDINGS OF FACT DEVELOPMENT PERMIT TYPE II NO. 97-13 PAGE 2 OF 2 5. There will be no potentially significant negative impacts upon environmental quality and natural resources that could not be properly mitigated and monitored. As identified in the certified EIR, the project is subject to the mitigation measures identified in the Mitigation Monitoring and Reporting Program (Refer to Development Agreement No. 91-01, Exhibit G). Prior to the issuance, of grading and building permits and any certificate of occupancy, the mitigation measures must be in place. 6. The subject site is physically suitable for the type and density/intensity of use being proposed. The site is physically suitable for the type and density/intensity of the project being proposed as evidenced by project compliance with all applicable Development Code Standards.public utilit es 7. There are adequate provisions for public access, water, sanitation, detrimental public health and services to ensure that the proposed use would not be and safety. All agencies responsible for reviewing access, and providing water, sanitation and other public services have all had the opportunity to review the proposal, and none have indicated an inability to serve the project. The proposal will not be detrimental to the public health and safety. 8. The location, size, design, and operating characteristics of the proposed development would not be detrimental to the public interest, health, safety, convenience, or welfare of the City. The proposal is in compliance with all applicable Development Code Standards and is consistent with the General Plan as noted previously in the Findings of Fact. The proposal will not create any significant noise, traffic, or other conditions or situations that have not been identified in the Mitigation and Monitoring Report(Refer to Development Agreement No. 91-01, Exhibit G). As such, the proposal will not be detrimental to other permitted uses in the vicinity and will not create any situation adverse to the public interest, health, safety, convenience or welfare of the City. ATTACHMENT "C" CITY OF SAN BERNARDINO ENVIRONMENTAL COMPLIANCE REVIEW FOR DEVELOPMENT PERMIT TYPE II NO. 97-13 Applicant: Mano Management Company, Inc. c/o Gresham, Savage, Nolan & Tilden 600 North Arrowhead Avenue, #300 San Bernardino, CA 92401 Prepared By: Gustavo J. Romo Assistant Planner September,11, 1997 CITY OF SAN BERNARDINO PLANNING AND BUILDING SERVICES ENVIRONMENTAL COMPLIANCE REVIEW FOR DEVELOPMENT PERMIT TYPE II NO. 97-13 A. BACKGROUND INFORMATION AND OVERVIEW 1. APPLICATION NUMBER: Development Permit Type 11 No. 97-13 2. OWNER: Mano Management Co., Inc. 3. APPLICANT: Gresham, Savage, Nolan & Tilden 4. CITY CONTACT AND PHONE NUMBER: Gustavo J. Romo Assistant Planner (909)384-5057 5. PROJECT DESCRIPTION AND LOCATION: The applicant proposes to initiate Phase I of the Inland Center Mall Expansion Project as outlined in Development Agreement No. 91-01 which was approved by the Mayor and Common Council on April 1, 1996 (Refer to Development Agreement No. 91-01, effective May 1, 1996). The project consists of the following: (a) construction of a 165,000 square-foot, two-level, anchor department store to be occupied by Robinson's- May; and (b) construction of a four-level parking structure to accommodate 1,297 automobiles. Development Agreement No. 91-01 authorized the construction of a total of three new anchor stores within the boundary of Inland Center Mall, having a total of 540,000 square feet, with 300,000 square feet of such expansion being within Phase I and the remaining 240,000 square feet within Phase 11 of the mall expansion. The project is located at 500 Inland Center Mall. 6. ENVIRONMENTAL SETTING: Development Agreement No. 91-01 was approved by the Mayor and Common Council on April 1, 1996. In connection with the Development Agreement, an Environmental Impact Report (EIR) was prepared pursuant to the California Environmental Quality Act (CEQA). The EIR was certified on April 1, 1996 by City Resolution No. 96-84. City of San Bernardino Environmental Compliance Review Development Permit Type 11 No. 97 713 September 11, 1997 Page 2 of 4 The EIR described the expansion project for Inland Center Mall as including, among other things, the construction of up to three new major anchor stores and the construction of four multi-level parking structures (Refer to the Project Description for the EIR, pp. 7-20). By reason of the foregoing, the proposed construction of the Robinson's-May department store and one multi-level parking structure is within the scope of the project analyzed in the certified EIR; therefore, pursuant to CEQA, Public Resources Code §21166 and CEQA Guidelines 14 CCR §15162, no further or subsequent environmental review is required. 7. GENERAL PLAN DESIGNATION: CR-1, Commercial Regional (Malls) 8. SUMMARY: 1. The proposed construction is for one of the three major anchor stores described in Phase I of the approved Development Agreement No. 91-01. 2. The square-footage of the proposed construction is within the limitations described in Phase I of the approved Development Agreement No. 91-01. 3. The EIR prepared and certified for Development Agreement No. 91-01 included within the project scope the construction of the department store and the multi- level parking structure which are the subject of this application. 4. CEQA Guidelines §15162 indicate that no subsequent EIR need be prepared for any project where the project has no significant effects not discussed in the previous EIR. 5. The analysis of the current application indicates that it presents no significant effects not discussed in the previous EIR. 6. As a consequence of the foregoing, no subsequent environmental analysis is required prior to taking action on the application. City of San Bernardino Environmental Compliance Review Development Permit Type II No. 97-13 September 11, 1997 Page 3 of 4 9. ENVIRONMENTAL DETERMINATION On the basis of this environmental compliance review: XX The proposed project's potential to cause a significant effect on the environment has previously been identified in the EIR certified by Resolution No. 96-84 adopted by the Mayor and Common Council on April 1, 1996. PLANNING AND BUILDING SERVICES DEPARTMENT CITY OF SAN BERNARDINO, CALIFORNIA Gustavo J. Romo Assistant Planner Name and Title Signa re September 11 1997 Date City of San Bernardino Environmental Compliance Review Development Permit Type H No. 97-13 September 11, 1997 Page 4 of 4 i ATTACHMENT "D" CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM TO: Planning Commission FROM: Henry Empeno, Jr., Deputy City Attorney DATE: September 30, 1997 RE: Response to Appeal by Central City Company/Carousel Mall (Attorney Marlene A. Fox) of Development Permit Type II No. 97-13 This is my response to the second and third grounds of the Appeal: 2. DP No. 97-13 is based upon Development Agreement 91-01, the validity of which has been challenged in two pending court cases. No court order or judgment has yet been issued which invalidates Development Agreement 91-01. In the court cases, the City contends that Development Agreement 91-01 is valid and was properly executed by Mano Management Company, Inc. 3. The appellant misstates the facts and mischaracterizes Judge Edwards' decision in one of the pending court cases. I have reviewed the Judgment dated September 17, 1997. Judge Edwards has not invalidated Resolution No. 96-84, which approved Development Agreement 91-01 and certified the Final EIR. Judge Edwards has directed the City to vacate and set aside its certification of that portion of the Final EIR that pertains to the multi-screen theater complex. The City has complied with the Court's decision by the Mayor's issuance of Executive Order 97-1, copy attached. The City's processing and approval of DP No. 97-13 is consistent with the Court's decision. HENRY EMPENO, JR., _ Deputy City Attorney [attachment] cc: James F. Penman, City Attorney Michael Hays, Director of Planning & Building Services HE:ao[Wosslmem] i City of San Bernardino IN'T'EROFFICE MEMORANDUM OFFICE OF THE MAYOR TO: All Department Heads FROM: Mayor Tom Minor SUBJECT: EXECUTIVE ORDER 97-1 DATE: September 26, 1997 COPIES: File Of On April 1, 1996 by way of Resolution 96-84, the Common Council of the Cot ythe San Bernardino approved Development Agreement 91-01 for the exp Inland Center Mall and by that same Resolution certified the Final Environmental Impact Report relating thereto. Subsequent to that action, suit was filed in the San Bernardino County Superiorgs Court erease been 29232 against non compliancetwithBtheaCal California tEnvirolnmental Quality which suite was entitled Central City COMP v. city of Quality Act ("CEQA") , San Bernardino et al. Trial has now been completed in that t that the City Court has issued its writ of mandate to the City providing, in P ar "Vacate and set aside the April 1, 1996 Certification pertains o to tthe portion of the Environmental Imp a multi-screen movie theater complex." To comply with the writ of Mandate, in my capacity as Mayor of this City, and by this Executive Order, I hereby: (1) Vacate and set aside the April 1, 1996 certification of that portion of the Final Environmental Impact Report referred to in Resolution 96-84 that pertains to the multi-screen movie theater complex; (2) Direct the City Clerk to annotate Resolution 96-84 to indicate that it is affected by this Executive Order, and inform related Departments thereof; and, (3) Direct all City Departments to refrain from approving any construction activities related to the cinema complex expansion pending full compliance with CEQA environmental review requirements for that portion of the project. Dated:ated- - �7 T m Minor Mayor Approved as to form and legal content : es F. Penman, City Attorney is 0�Rr1 ARQ�tio 1 on ATTACHMENT IT" Q Kati 9 C I T Y O F 5an Bernardino D E P A R T M E N T OF P L A N N I N G A N D B U I L D I N G SERVICES M I C H A E L E H A Y S D I R E C T O R September 11, 1997 Gresham, Savage, Nolan& Tilden Attn: Mark A. Ostoich 600 North Arrowhead Avenue, Suite 300 San Bernardino, CA 92401 RE: DEVELOPMENT PERMIT TYPE II, NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson's-May); 500 Inland Center Drive (APN: 136-531-04). Dear Mr. Ostoich: At their meeting of September 11, 1997, the Development Review Committee approved your request to initiate Phase I of the Inland Center Mall Expansion Project to construct a 165.000 square foot two level anchor department store to be occupied by Robinson's-May and a four- level parking structure at the property referenced above. As all findings have been made relating to Development Permits (Section 19.44.060 of the San Bernardino Development Code) and Design Review (Section 19.38.040), your proposal has been approved subject to the attached conditions of approval and standard requirements. Pursuant to San Bernardino Development Code Sections 19.52.080 and 19.52.100, Development Permits shall become effective 15 days following the final date of action by the Development Review Committee unless an appeal is filed. All appeals shall be submitted in writing with the appropriate fee to the Department of-Planning and Building Services within 15 days of the final decision and shall clearly state the basis of the appeal. If no appeal is filed pursuant to the above provision of the San Bernardino Development Code, the action of the Development Review Committee shall be final. 3 0 0 N O R T H D S T R E E T , S A N B E R N A R D I N G , C A L I F O R N I A 9 2 4 1 8 - 0 0 0 1 (909) 394 -S071 /S057 • F A X (909) 384 -5080 j DPII-97-13 500 Inland Center Drive Page 2 of 2 Attached are the project findings of fact and the conditions of approval and standard requirements from the following City divisions/departments and public agencies: X Planning Division (Planning & Building Services Department) X Building Division (Planning & Building Services Department) X Public Works/Engineering Department X Water Department X Fire Department X Parks and-Recreation Department X Public Services Department • Police Department • GTE Telephone Operations If you have any questions pertaining to this approval or the attached conditions of approval and standard requirements, please contact me at (909)384-5057. Respectfully, -x Z6;w- Gustavo J. Romo Assistant Planner cc: Case File Development Agreement No. 91-01 Case File FINDINGS OF FACT DEVELOPMENT PERMIT TYPE II NO. 97-13 PHASE I OF INLAND CENTER MALL EXPANSION (ROBINSONS-MAY) 500 INLAND CENTER DRIVE (APN: 136-531-04) PAGE 1 OF 2 1. The proposed development is one permitted within the subject zoning district and complies with all of the applicable provisions of this Development Code, including prescribed development/site standards and any/all applicable design guidelines. Pursuant to Development Code Section 19.06.020(I)(6), department stores (general merchandise) are permitted uses in the CR-1 land use district subject to the approval of a development permit. The proposed department store and parking structure comply with all applicable provisions of the Development Code. As such, the proposal will improve and not impair the character of the CR-1 land use district. 2. The proposed development is consistent with the General Plan. The proposal is consistent with General Plan Policy 1.3.11, which states that it shall be the policy of the City to "allow for the introduction of major regional-serving commercial uses which may currently not be present and could significantly benefit the City, provided that they do not incur unacceptable adverse economic impacts, in areas between downtown and the Tri- City/Commercenter area (I1.1, 11.4-I1.9, I1.11, and I1.12)". 3. The proposed development would be harmonious and compatible with the existing and future developments within the land use district and general area, as well as with the land uses presently on the subject property. The proposal is part of an existing retail mall. The expansion of the mall has already been approved through a Development Agreement and does not entail any other use than that provided by said agreement. As such, the proposed development would be harmonious and compatible with the existing and future development. 4. The approval of the Development Permit for the proposed use is in compliance with the requirements of the California Environmental Quality Act and Section 19.20.030(6) of the Development Code. The proposed project's potential to cause a significant effect on the environment has previously been identified in the EIR certified by Resolution No. 96-84 adopted by the Mayor and Common Council on April 1, 1996. As such, no susequent environmental analysis is required prior to taking action on this project. FINDINGS OF FACT DEVELOPMENT PERMIT TYPE II NO. 97-13 PAGE 2 OF 2 5. There will be no potentially significant negative impacts upon environmental quality and natural resources that could not be properly mitigated and monitored. As identified in the certified EIR, the project is subject to the mitigation measures identified in the Mitigation Monitoring and Reporting Program (Refer to Development Agreement No. 91-01, Exhibit G). Prior to the issuance, of grading and building permits and any certificate of occupancy, the mitigation measures must be in place. 6. The subject site is physically suitable for the type and density/intensity of use being proposed. The site is physically suitable for the type and density/intensity of the project being proposed as evidenced by project compliance with all applicable Development Code Standards. 7. There are adequate provisions for public access, water, sanitation, and public utilities and services to ensure that the proposed use would not be detrimental to public health and safety. All agencies responsible for reviewing access, and providing water, sanitation and other public services have all had the opportunity to review the proposal, and none have indicated an inability to serve the project. The proposal will not be detrimental to the public health and safety. 8. The location, size, design, and operating characteristics of the proposed development would not be detrimental to the public interest, health, safety, convenience, or welfare of the City. The proposal is in compliance with all applicable Development Code Standards and is consistent with the General Plan as noted previously in the Findings of Fact. The proposal will not create any significant noise, traffic, or other conditions or situations that have not been identified in the Mitigation and Monitoring Report(Refer to Development Agreement No. 91-01, Exhibit G). As such, the proposal will not be detrimental to other permitted uses in the vicinity and will not create any situation adverse to the public interest, health, safety, convenience or welfare of the City. CONDITIONS OF APPROVAL DEVELOPMENT PERMIT TYPE II NO. 97-13 PHASE I OF INLAND CENTER MALL EXPANSION (ROBINSONS-MAY) 500 INLAND CENTER DRIVE (APN: 136-531-04) PAGE 1 OF 3 1. Within two years of development approval, commencement of construction shall have occurred or the permit/approval shall become null and void. In addition, if after commencement of construction, work is discontinued for a period of one year, then the permit/approval shall become null and void. PROJECT: Development Permit Type H No. 97-13 EXPIRATION DATE: September 11, 1999 2. The review authority may, upon application being filed 30 days prior to the expiration date and for good cause, grant one time extension not to exceed 12 months. The review authority shall ensure that the project complies with all current Development Code provisions. 3. In the event that this approval is legally challenged, the City will promptly notify the applicant of any claim or action and will cooperate fully in the defense of the matter. Once notified, the applicant agrees to defend, indemnify, and hold harmless the City, its officers, agents and employees from any claim, action or proceeding against the City of San Bernardino. The applicant further agrees to reimburse the City of any costs and attorneys' fees which the City may be required by a court to pay as a result of such action, but such participation shall not relieve applicant of his or her obligation under this condition. - 4. Construction shall be in substantial conformance with the plan(s) approved by the Director, Development Review Committee, Planning Commission or Mayor and Common Council. Minor modification to the plan(s) shall be subject to approval by the Director through a minor modification permit process. Any modification which exceeds 10% of the following allowable measurable design/site considerations shall require the refiling of the original application and a subsequent hearing by the appropriate hearing review authority if applicable. a. On-site circulation and parking, loading and landscaping; b. Placement and/or height of walls, fences and structures; C. Reconfiguration of architectural features, including colors, and/or modification of finished materials that do not alter or compromise the previously approved theme; and, d. A reduction in density or intensity of a development project. CONDITIONS OF APPROVAL DEVELOPMENT PERMIT TYPE II NO. 97-13 PAGE 2 OF 3 5. No vacant, relocated, altered, repaired or hereafter erected structure shall be occupied or no change of use of land or structure(s) shall be inaugurated, or no new business commenced as authorized by this permit until a Certificate of Occupancy has been issued by the Department. A temporary Certificate of Occupancy may be issued by the Department subject to the conditions imposed on the use, provided that a deposit is filed with the Department of Public Works prior to the issuance of the Certificate. The deposit or security shall guarantee the faithful performance and completion of all terms, conditions and performance standards imposed on the intended use by this permit. 6. This permit or approval is subject to all the applicable provisions of the Development Code in effect at the time of approval. This includes Chapter 19.20 - Property Development Standards, and includes: dust and dirt control during construction and grading activities; emission control of fumes, vapors, gases and other forms of air pollution; glare control; exterior lightning design and control; noise control; odor control; screening; signs, off-street parking and off-street loading; and, vibration control. Screening and sign regulations compliance are important considerations to the developer because they will delay the issuance of a Certificate of Occupancy until they are complied with. Any exterior structural equipment, or utility transformers, boxes, ducts or meter cabinets shall be architecturally screened by wall or structural element, blending with the building design and include landscaping when on the ground. 7. The developer is to submit a complete landscape and irrigation plan(5 sets) to the Public Works Department with the required fee for review (Note: issuance of a building permit by the Department of Planning and Building Services does NOT waive this requirement). No grading permit will be issued prior to approval of the landscape and irrigation plans. The landscape and irrigation plans shall comply with the "Procedure and Policy for Landscaping and Irrigation" provided by the Department of Parks and Recreation and included with their standard requirements. 8. Parking structure shall accommodate a minimum of 1,297 standard parking spaces, including required handicap stalls. New striped parking not within the parking structure shall meet all dimensional and landscaping requirements of Chapter 19.24 of the Development Code. Wheel stops are prohibited. 9. Trash enclosures shall be constructed in accordance with the Department of Public Works specifications. 10. All illuminated sign, building, and parking lot lights shall be located, aimed, and/or shielded to prevent lights from shining or reflecting on adjacent property. CONDITIONS OF APPROVAL DEVELOPMENT PERMIT TYPE II NO. 97-13 PAGE 3 OF 3 11. Signs are not a pan of this approval. Applicant must submit a sign permit application and obtain approval from the Planning Division prior to obtaining any building permits for signs. 12. All mitigation measures identified in certified EIR and listed in the Mitigation Monitoring and Reporting Program are incorporated herein as project Conditions of Approval. 13. Demolition permits shall be obtained for the demolition and removal of the portion of the mall associated with the Robinsons-May attachment. 14. The developer shall indicate the location of the covered drop-off facility for public transit riders adjacent to the Mall and coordinate with OMNITRANS prior to plan check submittal. 15. This approval is subject to all applicable provisions of Development Agreement No. 91- 01. 16. This permit or approval is subject to the attached conditions or requirements of the following City Departments or Divisions and public agencies: a. Building Services Division of the Planning and Building Services Department b. Public Works/Engineering Department c. Water Department d. Fire Department e. Parks and Recreation Department f. Public Services Department g. Police Department h. GTE Telephone Operations STANDARD REQUIREMENTS BUILDING AND SAFETY DIVISION DPII-97-13 (APN: 136-531-04) 1. Submit plans prepared by a Registered Architect or Civil or Structural Engineer. 2. Submit a complete lateral and structural analysis prepared by a Registered Civil or Structural Engineer or Architect. 3. Submit State of California Title 24 Energy Calculation Forms for non-residential buildings including a signed compliance statement. 4. Submit floorplan of existing structure. Label all uses and existing materials of construction. 5. Submit four (4) complete sets of construction plans including: (5 sets if requesting expeditious review) a. Copy of letter of DPII approval and conditions (4) b. Soils and/or liquefaction report (4) C. Energy Calculations (4) d. Structural Calculation (4) i 6. Submit a preliminary (soils and geology with liquefaction analysis) report prepared by a person licensed to do so. 7. Submit a single line drawing of the electrical service. Show all equipment, conduit and i wire sizes and types. Show the service ground size and grounding electrode. 8. Submit panel schedule(s) and electrical plans. 9. Permit is required for demolition of existing portion (entrance to mall for Robinsons- May). 10. Submit a plan of the heating, ventilating or air conditioning system. (Clearly identify the location and rating of the equipment and the sizes and material of all ducts, registers and the location of all fire dampers). Show means of providing mechanical ventilation as required by the 1994 Uniform Building Code. Page 1 of 2 i DPII-97-13 -continued- 11. Submit gas pipe loads, sizing calculations and isometrics, if applicable. 12. Provide a plot plan showing the location of the proposed sewer system. 13. Submit isometric plans of the cold and hot water and drain waste and vent systems, if applicable. 14. Show compliance with Title 24 for disabled access. 15. Fire sprinklers required: Plans for fire sprinklers shall be submitted to Fire Department and approved prior to installation. No building inspections shall be performed beyond "framing and ventilation" until fire sprinkler plans are approved. 16. City of San Bernardino named as certificate holder for Worker's Compensation Insurance. 17. Assessor's Parcel Number 18. Contractor's City license. 19. Contractor's State license. 20. Sewer capacity rights from Water Department, (909)384-5093, Neil Thomsen. 21. School fees from Unified School District, (909)381-1179. 22. Plan check time is approximately 5 to 6 weeks. Expeditious plan check time is approximately 10 working days. Contact Development Services for possible expeditious review (909)384-5057. 23. Prior to plan check submittal, contact the Development Services Division for plan check fees at (909)384-5071. Page 2 of 2 STANDARD REQUIREMENTS DEPARTMENT OF PUBLIC WORKS/ CASE NO. DP1197--13 CITY ENGINEER DESCRIPTION: 165.000 SF DEPT. HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (NEW ROB/NSON-MA12 PAGE NO: NOTE TO APPLICANT: Where separate Engineering plans are required, the applicant is responsible for submitting the Engineering plans directly to the Engineering Division. They may be submitted prior to submittal of Building Plans. 1. Drainage and Flood Control a) A local drainage study will be required for the project. Any drainage improvements, structures or storm drains needed to mitigate downstream impacts or protect the development shall be designed and constructed at the developer's expense, and right-of-way dedicated as necessary. b) All drainage from the development shall be directed to an approved public drainage facility. If not feasible, proper drainage facilities and easements shall be provided to the satisfaction of the City Engineer. c) Applicant shall ffitigate on-site storm water discharge sufficiently to maintain compliance with the City's NPDES Storm Water Discharge Permit Requirements. A "Notice of Intent (N01)" shall be filed with the State Water Quality Control Board for construction disturbing 5 acres of more of land. d) The City Engineer, prior to grading plan approval, shall approve an Erosion Control Plan. The plan shall be designed to control erosion due to water and wind, including blowing dust, during all phases of construction, including graded areas which are not proposed to be immediately built upon. Page 1 of 8 Pages W1 V97 i I STANDARD REQUIREMENTS DEPARTMENT OF PUBLIC WORKS/ CASE NO. DPII 97-13 CITY ENGINEER DESCRIPTION: 165,000 SF DEPT. HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (NEW ROBINSON-MAY) PAGE NO: i 2. Grading and Landscaping a) If more than 1' of fill or 2' of cut is proposed, the site/plot/grading and drainage plan shall be signed by a Registered Civil Engineer and a grading permit will be required. The grading plan shall be prepared in strict accordance with the City's "Grading Policies and Procedures" and the City's "Standard Drawings", unless otherwise approved by the City Engineer. i b) If more than 5 trees are to be removed from the site, a tree removal permit conforming to the requirements of Section 19.28.090 of the Development Code shall be obtained from the Department of Planning and Building Services prior to issuance of any grading or site development permits. c) If more than 5,000 cubic yards of earthwork is proposed, a grading bond will be required and the grading shall be supervised in accordance with Section 7012(c) of the Uniform Building Code. I d) A liquefaction evaluation is required for the site. This evaluation must be submitted and approved prior to issuance of a grading permit. Any grading requirements recommended by the approved liquefaction evaluation shall be incorporated in the grading plan. e) A site-specific geologic investigation shall be conducted by the applicant's Geologist and reviewed by the City Geologist. The purpose of the investigation is to comply with the Seismicity/Liquefaction section of the Mitigation Monitoring and Reporting Program (MMRP). This investigation shall be completed, reviewed and accepted by the City prior to issuance of any grading permits for this project. If faulting is found to occur on the site, then all structures intended for human occupancy shall be set back from the fault as recommended in the geologic investigation. Page 2 of 8 Pages 9/11/97 i STANDARD REQUIREMENTS DEPARTMENT OF PUBLIC WORKS/ CASE NO. DPII 97-13 CITY ENGINEER DESCRIPTION: 165,000 SF DEPT HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (NEW ROB/NSON-MAID PAGE NO: f) An on-site Improvement Plan is required for this project. Where feasible, this plan shall be incorporated with the grading plan and shall conform to all requirements of Section 15.04-167 of the Municipal Code (See "Grading Policies and Procedures"). g) Retaining walls, block walls and all on-site fencing shall be designed and detailed on the On-site Improvement Plan. This work shall be part of the On-site Improvement permit issued by the Department of Public Works/City Engineer. h) The on-site improvement plan shall include details of on-site lighting, including light location, type of poles and fixtures, foundation design, conduit location and size, and the number and size of conductors. Photometry calculations shall be provided which show that the proposed on-site lighting design will meet the intensity and distribution criteria specified by the City Police Department. i) The design of on-site improvements shall also comply with all requirements of The California Building Code, Title 24, relating to handicap parking and accessibility, including retrofitting of existing building access points for handicap accessibility, if applicable. j) A handicap accessible path of travel shall be provided from the public way to the building entrance. All pathways shall be paved and shall provide a minimum clear width of 4 feet. Where parking overhangs the pathway, the minimum paved width shall be 6 feet. k) A reciprocal easement shall be recorded prior to grading plan approval if reciprocal drainage, access, sewer, and/or parking is proposed to cross lot lines, or a lot merger shall be recorded to remove the interior lot lines. Page 3 of 8 Pages W11197 _STANDARD REQUIREMENTS DEPARTMENT OF PUBLIC WORKS/ CASE NO. DPII 97-13 CITY ENGINEER DESCRIPTION: 165.000 SF DEPT. HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (NEW ROBINSON-MA)9 PAGE N0: 1) The project Landscape Plan shall be reviewed and approved by the City Engineer prior to issuance of a grading permit. Submit 5 copies to the Engineering Division for Checking. m) An easement and covenant shall be executed on behalf of the City to allow the City to enter and maintain any required landscaping in case of a owner neglect. The Real Property Section for execution by the property owner and shall ensure that, if the property owner or subsequent owner(s) fail to properly maintain the landscaping, the City will be able to file appropriate liens against the property in order to accomplish the required landscape maintenance. A document processing fee in the amount of 200.00 shall be paid to the Real Property Section to cover processing OWN costs. This easement and covenant shall be executed by the property owner prior to plan approval unless otherwise allowed by the Director of Public Works/City Engineer. 3. Utilities a) Design and construct all public utilities to serve the site in accordance with City Code, City Standards and requirements of the serving utility, including gas, electric, telephone, water, sewer and cable TV (Cable TV optional for commercial, industrial, or institutional uses). b) A City owned and maintained sewer lift station presently serves the Inland Center Mall. It is anticipated that this project will cause the overall discharge from the M_ all to exceed the current design capacity of the lift station. Therefore, the applicant shall fund a study to determine the adequacy of the existing lift station to accept the additional sewage that will be generated by this project. The applicant shall be responsible for the cost of upgrading the lift station and local sewer lines to provide additional capacity for this project and future phase in accordance with the approved Development Agreement. Page 4 of 8 Pages 9111)97 STANDARD REQUIREMENTS_ DEPARTMENT OF PUBLIC WORKS/ CASE NO. DPII 97-13 CITY ENGINEER DESCRIPTION: 165,000 SF DEPT. HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (NEW ROB/NSON--MA)Q PAGE NO: c) Backflow preventers shall be installed for any building with the finished floor elevation below the rim elevation of the nearest upstream manhole. d) Underground sewer and storm drain lines shall be relocated, if necessary, i to cleat'new building foundations. i i e) Sewer main extensions required to serve the site shall be constructed at the Developer's expense. Sewer systems shall be designed and constructed in accordance with the City's "Sewer Policy and Procedures" and City Standard Drawings. f) Utility services shall be placed underground and easements provided as required. g) All existing overhead utilities adjacent to or traversing the site on either side of the street shall be undergrounded in accordance with Section 19.20.030 of the Development Code. h) Existing Utilities which interfere with new construction shall be relocated at the Developers expense as directed by the City Engineer, except overhead lines, if required by provisions of the Development Code to be undergrounded. See Development Code Section 19.30.110. Page 5 of 8 Pages W1 V97 STANDARD REQUIREMENTS DEPARTMENT OF PUBLIC WORKS/ CASE NO. DPII 97-13 CITY ENGINEER DESCRIPTION: 165,000 SF DEPT. HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (NEW ROBINSON-MAID PAGE NO: 4. Street Improvement and Dedications a) All public streets within and adjacent to the development shall be improved to include combination curb and gutter, paving, handicap ramps, -sti=eet lights, sidewalks and appurtenances, including, but not limited to traffic signals, traffic signal modifications, relocation of public or private facilities which interfere with new construction, striping, shall be accomplished in accordance with the City of San Bernardino "Street Improvement Policy" and City "Standard Drawings", unless otherwise approved by the City Engineer. Street lighting, when required, shall be designed and constructed in accordance with the City's "Street Lighting Policies and Procedures". Street lighting shall be shown on street improvement plans except where otherwise approved by the City Engineer. b) Street improvement shall be designed and constructed for this project in accordance with requirement of the Mitigation monitoring and reporting program (MMRP) for Development Agreement No. 91-01. These mitigation measures are referenced as "Year 2000 Mitigation Measures" and begin on page 14 of the MMRP. 5. Required Engineering Permits a) Grading permit (If applicable.). b) On-site improvements construction permit (except buildings - see Planning and Building Services), including landscaping. c) Off-site improvements construction permit. Page 6 of 8 Pages 9/11/97 i STANDARD REQUIREMENTS DEPARTMENT OF PUBLIC WORKS/ CASE NO. DPII 97-13 CITY ENGINEER DESCRIPTION: 165.000 SF DEPT. HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (NEW ROB/NSON-MA11 PAGE NO: 6. Applicable Engineering Fees' a) Plan check and inspection fees for off-site improvements - 4% and 4%, respectively, of the estimated construction rose of the off-site improvements. b) Plan check and inspection fees for on-site improvements (except buildings - See Planning and Building Services) - 2% and 3%, respectively, of the estimated construction costa of the on-site improvements, including landscaping. c) Plan check and inspection fees for grading (If permit required) - Fee Schedule available at the Engineering Division Counter. d) Traffic systems fee in the approximate amount of $130,000. This fee will be credited on a dollar for dollar basis against the cost of street improvements required for this project, which are identified in the MMRP as "Year 2000 Mitigation Measures", up to the total amount of the traffic systems fee paid by this project. e) Drainage fee in the approximate amount of $22,700. Based on 157.500 Square Feet @ $0.405 per square foot for the first 3,000 square feet of impervious building area, then $0.139 per square foot of remaining impervious lot area or fraction thereof. All Fees are subject to change without notice. - 2Estimated Construction Cost for Off--Site Improvements is based on a list of standard unit prices on file with the Department of Public Works/City Engineer. 3 Estimated Construction Cost for On-Site Improvements is based on a list of standard unit prices on file with the Department of Public Works/City Engineer. Page 7 of 8 Pages 9/11/97 i I STANDARD REQUIREMENTS_ DEPARTMENT OF PUBLIC WORKS/ CASE NO. DP/I 97-13 CITY ENGINEER DESCRIPTION: 165,000 SF DEPT. HEARING DATE STORE AND PARKING STRUCTURE AGENDA ITEM LOCATION: INLAND CENTER MALL (MEW ROBINSON-MAY) PAGE NO: f) Sewer Connection fee in the approximate amount of $12,600. Based on 165.000 Square Feet of Bldg Area @ $229.15 per 3,000 square feet or fraction thereof. g) Sewer inspection fee in the amount of 1 Based on 1 connection @ $19.32 per connection. i Page 8 of 8 Pages "�7 1 � -..- - - • 7lJD�r� � i �Gr71/ -�/ t � i t SAN BERNARDINO MUNICIPAL WATER DEPARTMENT STANDARD REQUIREMENTS Review of Plans: 1/ t'-- 11 - q� 1 1-5 Date Compiled: Owner/Developer: MAN 1"`r`t���a�-.�v�r �� Compiled By: � Type of Project. �. .J�{ F.l ' 1 S Number of Units: Location: WATER DEPARTMENT EN�GIIN�EEERING: Contact: I ui p1� t Phone: �4 G;�J�I Fax: Note: All Water Services are Subject to the Rules&Regulations of the Water Department. it • Size of Main Adjacent the Project: ikQ D►.( 'Sh MA ©� �t 1-ovJ • Approximate Water Pressure:— Elevation of Water Storage: Hydrant Flow® 20 psi: > (5co 6 ❑ Type, Size, Location, and Distance to-Nearest Fire Hydrant: tom, 2 WA,-e, F •011TS I#J VAS10QS 1--GA i t oo S O,J-S 171✓ ❑ Pressure Regulator Required on Customer's Side on the Meter. ❑ Off-site Water Facilities Required. ❑ Area Not Served by San Bernardino M cipal Water Department. i Rt m Coments: D �� •" M'F'R OUAL.ITY CONTROL: ,ct• Phone :M-S/XR Fax: )(R-P.P. Backflow Device Required at Service Connection. Double Check Backflow Device Required at Service Connection. Backflow Device to be Inspected Before Water Service can be Activated. ❑ No Backflow Device Required at This Time. ENVIRONMENTAL CONTROL./INDUST UAL•WASTE* Contact: L7l oo C� Phone: 550 Fax: 364 .!"T�/� Note: No Brine Regenerative Water Softeners May be Installed, Unless Holding and Hauling is Provided for the Brine. All Interceptors yti41-be a 1200 Gallon Capacity with a Sample Box Included. '1n/dustrial Waste Permit Required. ❑ Grease Interceptor Required. ❑ Sand/Oil Interceptor Required. ❑ No Issues at this Time. ❑ Pre-treatment Required. SEWER CAPACITY INFORMATION: '+ �I Contact: !�11 �omSe e, Phone: 3811-Jbq--K Fax: .324- Sd-1S Note: Proof of Payment Must be Submitted to the Building&Safety Department Prior to Issuance of the Building Permit. ❑ No Sewer Capacity Fee Applicable at This Time. V'Cewer Capacity Fee Must Be Paid to the Water Department for 317q-; Gallons Per Day, Equivalent Dwelling Units: !3.5 .7ject to Recalculation of Fee Prior to the Issuance of Building Permit. Breakdown of Estunated Gallons Per Day: I �Si �QO s �• K. u�� �" •dZ3 = 795 �X�-� - STD REQI113.FRM 1:/`77) i CITY OF SAN BERNARDINO FIRIF DEPARTMENT STANDARD REQUIREMENTS Cage: 97- �3 Date: - --- Reviewed By. ,GENERAL REQUIREMENTS: Provide one additional sat of construction plans to Building and Safety for Firs Department use at time of plan check. Contact the City of San Bernardino Fire Department at 19091 384-5388 tar specific i[stailed requirements. The developer shall provide for adequate fire flow es computed by the Fire Prevention ursau. Minimum firs flow requirements mall be based on square footage•construction features,and exposure information supplied by the developer and MM be available ULM to placing opmbustible materials on site. WATER PURVEYOR FOR FIRE PROTECTION: The fire protection water service for the area of this project is provided by: .,� San Bernardino Municipal Water Department. Engir"rina(909) 384.5391 p East valley Water District-Engineering(908) 888-8966 Phone: ❑ Other Water Purveyor: PUBLIC FIRE PROTECTION FACILITIES: public fire hydrants are required Wong streets at intervals not to exceed 300 I.V far commercial and mdti-rasldsntial areas and at intervals not to exceed 500 feet for residential Wrest. m at a 20 psi minimum residual pressure,are required for wmwtercial and multi-residential areas. Foe hydrant mirwrtum flow rates of t.500 gP at a 20 psi minimum residual pressurr ji are required for residential areas• Minimum fire hydrant flow rates of 1,000 gpm ❑ Fire flow requirements may be met from the combined flow of two adjacent fire hydrar s. Fire flow requirements may be adjusted,ac deemed appropriate by the fire Department, based an individual site specific conditions and ivailable mitigations. Fire hydrant type and specific location shall be jointly determined by the City of San&Knardino Fire Department in conjunction with the water purveyor. Fare hydrant materials and installation shop conform to the standards and iIpeerflcations of the water purveyor. Public fire hydrants, fire services, and public water facilities necessary to meet Fire IDepartment requirements are the developer's ffnanciWl responsibility and shall be installed by the water purveyor or by the developer at the mater purveyor'*discretion. Contact the water purveyor indicated above for additional information. ACCESS: ❑ Provide two separate.dedicated routes of ingress/egress to the property entrance. `he routes shall be paved, all weather. • provide an access road to each budding for fire apparatus. Access roadway shall hav s an ell-weather driving surface of not lees than 20 feet of unobstructed width. • Extend roadway to within 150 feet of all potions of the exterior wall of all single stcry buildings. Extend roadway to within 50 feet of the exterior wall of all multiple-story buildings. Pravikla'NO PA"G' signs whenever parking of vehicles would possibly reduce the clearance of access roadways to sass than the required width. Signs we to read 'FM LANE-NO PARKING -M.C.sac 15.16'. Dead-end streets shag not exceed 500 feet in length and shag have a minimum 40 fopot radius turnaround. ❑ The names of any new streets(public or private)shall be submitted to the Fire Depatmert for approval. SITE: ❑ All access roads and streets are to be constructed and usable prior to combustible ct ntruction. ❑ Private fee hydrants shag be installed to protect each building located more than 150 ft et from the curb fine. No fie hydrents should loci within 40 feet of any exterior waif. The hydrants shag be Wet Bernd type.with one 2112 jAch.WA 4 inch outlet,and approved by the Fin Department. Fire hydrants shall be designated as a 'NO PARKING-zone by painting an 8 inch wit e,red*tripe for 15 feet in each direction in front of the hydrant in such a manner that it will not be blocked by parked vehicles. BUILDINGS: ❑ A d ess numerals shag be installed on the building at the front or other approved locliaon in such a mariner as w be visible from the frontage street. Commercial and multi tamify address numerals shall be 6 inches tall,single f umily address numerals shall be 4 irtdtee tall. The color of tfle numerals shag contrast with the color of the background. • Identify each gas and eleccrie meter with the number of the unit it serves. • Fire Extinguishers must be itstafled Our to the building being occupied. The mklinlurl rating for any fee extinguisher is 2A 1081C.Minimum distribution of fire extinguishers must be such that no interior part of the building is cvw 75 feat travel distance from a fire extinguisher. • Apartment houses with 16 or more units.hotels(motels)with 20 or more units,or apae Imams or hotels(motels)three stories or more in height shag be equipped with automatic fie sprinklers designed to NFPA standards. with an automatic Tire sprinkler system designed to NFPA All buildings, other than residential, over 5.000 square feat, shag be equipped standards. This itdudils existing buildings vacant over 365 days. Submit planar for the fire protection*ystam to the Fire Department prior to beginning construction of the system. ,;p Tenant improvements in all sprinldered buildings are to be approved by the Fire Depa 2mem prior to start of construction. Provide fire alarm(required throughout). Plan must be approved by the Fie Dapartm 1nt prior to start of installation. Fire Department connection to tsprinkiw system/standpipe system)shall be required �t Fire Department approved location. Note: The applicant must request,in writing. any changes to Fire Department requiremiw Its. ADDITIONAL INFORMATION: d wef'Sr� p, - Lae n2wlo!�iq 1 ���tti[ Grp►n on o�Gh Level d u J ,` T� l T(' Iclo en c f►� 1 - Ic de o-(- -f4,e t JgoP6 FM 170111-14) Ta -W�tia 1d3Q 3ATA A110 SS IBZSb8E606 13S EI L66T/Zi/60 CITY OF SAN BERNARDINO PARRS, RECREATION is COMMUNITY SERVICES DEPARTMENT STANDARD REQIIIREMEN'r8 case:T�p T-- q-7-I;3 Date: Q I 101 A Reviewed By: ) GENERAL REQUIREMENTS: (x] Comercial Industrial and Multi-Unit ( ] Assessment District [ ] Residential [ ] purpose, Guidelines and submittal procedure [ ] Irrigation and Landscaping plans. [ ] Contact the City (9 San Bernardino o or Parks,Recreation ion and spso�ci f a y det iled requirements. SPECIFIC REQUI EMENTS: [")(] -Maintenance of landscape areas [k) Planter Areas ] Interior Planter Areas ( ] Irrigation Systems j ( ] Setback Areas [ ] Slope Areas ( ] Ground Cover and Bedding Material [ (] Zrosion Control C _ [X] Need Control PLANT MATERIALS ["J\] Plant list and climatic conditions (X] Street Trees [�] Plant Material Size Requirements and Ratios INSPECTION AIM OTSBR REQUIREMENTS I\x] Irrigation System [ ] Landscaping [ ] Hardccape Items [ ] Street tree specifications (�] Arborist Report [X1 Removal or destruction of trees [,)(] Screening Requirement (City, Dev.Code) Note: The applicant must request, in writing. any changes to the Parks, Recreation and Community Services requirements. Additional information COr� I o 0-4 Co ' I C 6 ) 5 bkn�l5. o P.eS c Q MS:ij CITY OF SAN BERNARDINO DEPARTMENT OF PARKS, RECREATION AND COMMUNITY SERVICES POLICY AND PROCEDURE FOR LANDSCAPING AND IRRIGATION REQUIREMENTS COMMERCIAL, INDUSTRIAL AND MULTI-UNIT DEVELOPMENT j 3 3 FEBRUARY, 1997 Table of Contents I. Code Authority and Purpose i H. Submittals A. Number of Plans and Submittal Procedures B. Landscape Plans C. IrrigatiotrPlans M. Landscape Areas A. Maintenance of Landscaped Areas B. Planter Areas C. Interior Planter Areas D. Irrigation E. Setback Areas F. Ground Cover and Bedding Material �.., G. Slope H. Erosion Control I. Weed Control IV. Plant Materials A. Climatic Conditions and Plant List B. Plant Material and Size Ratio Requirements C. Street Trees V. Inspection A. Irrigation System B. Landscaping VI. Other Requirements CITY OF SAN BERNARDINO REQUIREMENTS FOR SUBMITTAL AND APPROVAL OF LANDSCAPE AND IRRIGATION PLANS As stated in the City Development Code under Chapter 19.28.010, Purpose of Landscape Standards, it states, "The purpose of this Chapter is to establish landscaping regulations that are intended but not limited to." I. CODE AUTHORITY AND PURPOSES 1. Enhance the aesthetic appearance of development in all areas of the City by providing standards relating to quality and functional aspects of landscaping and landscape screening. 2. Increase compatibility between residential and abutting commercial and industrial land uses. The intent and purpose of these policies and procedures is to provide: 1. Guidance in the required submittal of landscape and irrigation plans 2. Guidance in meeting street tree requirements 3. Guidance in selection of plant materials 4. Guidance in what the landscape and irrigation plans shall show It is the responsibility of the Parks, Recreation and Community Services Department to conduct required inspections prior to the issuance of a Certificate of Occupancy (C of O). Refer to Page 7 for more details. H. SUBMITTALS A. NUMBER OF PLANS AND SUBMITTAL PROCEDURE Five (5) copies of landscape and irrigation plans shall be submitted to the Public Works/Engineering Department along with payment of the appropriate Landscape Plan Review Fee. B. LANDSCAPE PLANS 1. Shall be drawn by one of the following: A. A registered landscape architect B. A licensed landscape contractor who installs the actual landscape C. A nursery D. The owner - 1 - i NOTE: The name, address, telephone number, along with signature of the person(s) who do the design shall be on the plans. Registered landscape architects and licensed landscape contractors shall include registration numbers and/or license numbers. 2. Plans shall be legibly drawn to scale on paper no smaller than 18" X 24" and no larger than 24" X 36". 3. Plans shall show location of the property by vicinity map and nearest cross streets and give the property address or assessor's parcel number. 4. Plans shall show location of existing and proposed utilities - above ground and underground. 5. Plans shall show type of zoning, the scale and northerly directional arrow. 6. Plans shall contain plant legends for all existing and proposed plant material. Plant legend shall provide the following: A. Plant symbol B. Plant name, botanical and common C. Plant size D. Plant quantities E. Spacing (feet on center, 100% coverage, etc.) 7. Plans shall show existing and proposed plant material drawn to scale at their mature size. 8. Plans shall contain landscape specifications and details. 9. Plans shall show the name, address and telephone number of property owner or developer. C. IRRIGATION PLANS 1. All required landscaping shall be provided with an automatic irrigation system. 2. Irrigation plans shall be submitted with, attached to, and the same size as landscape plans. 3. As addressed in Chapter G19.28.130 Landscape Design Guidelines of the City Development Code, plans shall address conservation of water and energy to include: A. Components -low gallonage and low precipitation heads, drip systems and other sub-surface techniques, mini jet heads, moisture sensing devices, cocontrollers with ability of variable programming. - 2 - B. Efficiency - velocity shall be as close as possible to 5 feet per second. Plant material with different water requirements shall be on separate valves. Slopes shall be on separate valves. System design shall eliminate costly, wasteful overthrow and runoff. 4. Plans shall show: A. Static P.S.I. B. Service Main - type, size and length C. Water Meter - location and size D. Approved Backflow Prevention Device - location and size E. All locations of pipe, valves and heads, (includes emitters, etc.) 5. Slopes required to be planted with efficient and water conserving irrigation systems (over watering should be avoided.) 6. All sprinklers shall be installed with approved swing joints. 7. All sprinklers along pathways, driveways and any other area where foot traffic occurs shall be the pop-up type, installed flushed with the soil. Irrigation heads on risers are permitted where no foot traffic will occur. 8. Lateral irrigation pipe shall be Class 200 or better. Mainline shall be Class 315 or better. Irrigation sleeves to be Schedule 40 and 2 1/2 times the diameter of lateral or mainline. 9. Separate water meter for landscape irrigation shall be optional at owner's request and expense. Owner must notify the water department. 10. Plans shall contain irrigation installation specifications and details. 11. All irrigation lines shall be buried. Mainline at least 18" and laterals 12" deep. Brownline is not permitted. 12. Plans shall contain irrigation legends as follows: EQUIPMENT Symbol Manufacturer Model # Description Nozzle Radius GPM PSI PIPE Size Type Class or Schedule - 3 - NOTE: Piping sizing, (size) shall also be shown at each section of pipe, (mains and laterals). VALVE CHART Valve Valve Size GPM # 1 2 1/2" 43 # 2 1/2" 27 ETC. ETC. ETC. Total of Valves: Total GPM: NOTE: All valves shall be numbered. FRICTION (PSI LOSS) " Water Meter PSI Backflow Device PSI Elevation Changes PSI Pipe PSI Valves, Fittings, Miscellaneous PSI Total PSI Loss PSI Original PSI (Static) PSI Less Total_ PSI Loss PSI Equals Minimum to Farthest HD III. LANDSCAPE AREAS A. MAINTENANCE OF LANDSCAPE AREAS The maintenance of landscape areas shall be the responsibility of the developer until all required inspections have been completed by the City of San Bernardino Parks, Recreation and Community Services Department and the "yellow" inspection record signed. B. PLANTER AREAS - All required turf areas shall be protected from other landscape areas i.e. groundcover beds, shrub planters by a 6" concrete mow curb. Mow curb shall be 1" above finished grade. - 4 - C. IRRIGATION All required landscaping shall be provided with automatic sprinkler facilities which shall be maintained in an operative condition. Utilize only reduced pressure (rp) devices or double check valve assembly. No atmospheric vacuum breakers are permitted. D. SETBACK AREAS All required setbacks around the perimeter of the property shall be landscaped (except for walks and driveways which bisect or encroach upon the required landscape area). The required setbacks shall be landscaped with trees, shrubs and groundcover. Landscaped earth berms shall be erected and maintained within the setback. Bermed areas shall have a maximum of 3:1 slope and be planted with a tall fescue type turf grass or other approved landscaping. A minimum width of 5 feet of landscaping shall abe placed on the exterior of perimeter building walls. E. GROUND COVER AND BEDDING MATERIAL Gravel and decorative rock are permitted materials only if they are cemented or grouted in place. Loose rock is not permitted. F. SLOPE LANDSCAPE REQUIREMENTS 1. To protect against damage by erosion and negative visual impact, surfaces of all cut slopes more than five (5) feet in height and fill slopes more than three (3) feet in height shall be protected by landscaping. Slopes exceeding fifteen (15) feet in vertical height shall also abe landscaped with shrubs spaced at not to exceed 10 feet on center and trees spaced at not to exceed 20 feet on center. Plant material selected and planting method used shall be suitable for the soil and climatic conditions on the site. 2. Plant sizes on scopes shall be as follows: A. Trees 10% - 15 gallon 49% - 5 gallon 50% - 1 gallon B. Shrubs 20% - 5 gallon 80% - 1 gallon C. Groundcover 100% - coverage within one (1) year. 3. The maintenance of graded slopes and landscaped areas shall be the responsibility of the developer untif the transfer to individual ownership. G. EROSION CONTROL All grading and drainage facilities, including erosion control planting of graded slopes, shall be done in accordance with a grading plan approved by the City Engineer. A grading permit shall be obtained prior to any grading being done. - 5 - H. WEED CONTROL Pre-emergence control, post-emergence control and cultural control of weeds shall be addressed on the landscape plans submitted by the landscape architect. W. PLANT MATERIALS A. CLIMATIC CONDITIONS AND PLANT LIST Due to the hot, dry climate of San Bernardino, drought and heat tolerant plant material may be used upon prior approval. Plant list may be obtained from the Park Projects Coordinator at (909) 384-5217. B. PLANT MATERIAL AND SIZE RATIO REQUIREMENTS Landscaped areas shall have plant material selected and planting methods used which are suitable for the soil and climatic conditions of the site. Sizes of the plant materials shall y conform to the following mix as required in the City Development Code. 1 Trees 20%, 24" box; 50%, 15 gallon; 15%, 36" box; 15%, 48" box Shrubs 80%, 5 gallon; 20%, 1 gallon Groundcover 100% coverage within one (1) year I Fifteen (15) gallon trees shall have a 1" to 1/2" diameter caliper - 5 inches above the top of the rootball. They shall be 8' to 10' in height, with a 2' to 3' spread. Twenty-four inch (24") box trees shall have a 1 3/4" to 2" diameter caliper - 5 inches above the t. rootball. They shall be 9' to 10' feet in height, with a 4' to 5' spread. C. STREET TREES Street trees shall be required. Tree varieties and exact location will be determined by the Director of Parks, Recreation and Community Services Department. The Park Projects Coordinator shall mark locations and inspect plant material on site, prior to planting. Sidewalks, curbs and gutters must be clean of debris prior to marking. A 24- hour notice is required for inspection. The size of the street trees shall be 24" box specimens. The 24" box trees shall be planted as street trees within the public parkway or City property. For a list of street trees, please contact the Park Projects Coordinator at the above referenced telephone number. V. INSPECTIONS A. IRRIGATION SYSTEM 1. Inspections shall be performed by a Park and Recreation Department representative at the following: A. Depth of irrigation trenching, sleeving, mainline, lateral lines (prior to burial), valve installation and irrigation head assembly. B. Pressure test of irrigation mainline (150 PSI for 2 hours). - 6 - C. Coverage test and final acceptance. I 2. Do not allow or cause the above items to be buried prior to inspection and approval of the Park Department representative. A 24-hour notice shall be given prior to anticipated inspections. Contact the Landscape Section at (909) 384-5217 or 384-5314. B. LAINDSCAPING 1. Inspection shall be performed by a Park and Recreation Department representative at the following: A. Upon completion of finished grade, soil preparation and final rake out. B. When trees and shrubs are spotted for planting, with one example of planting hole for trees and shrubs. Provide samples of plant fertilizer. C. Final inspection when planting and all other specified work has been _completed. 2. A 24-hour notice shall be given prior to anticipated inspections. Contact the Landscape Section at (909) 384-5217 or 384-5314. VI. OTHER REQUIREMENTS A. Notify the Parks, Recreation and Community Services Department of commencement of landscaping. Give anticipated time line (start-to-finish). B. All landscaping, irrigation and street trees shall be installed and maintained in accordance with the City of San Bernardino Municipal Codes, ordinances and standard requirements. C. Material requirements for all planting material shall be number one (1) grade of the California Nursery Industry Certificate as issued by the Agricultural Commissioner of the County of origin. D. Upon completion, City inspection and sign-off by City Landscape Inspector, the Contractor shall be responsible for ninety (90) day plant establishment and maintenance period. If landscape is not acceptable, the maintenance period will be extended by the Park Projects Coordinator to insure the proper horticulture establishment. E. All landscape material, irrigation equipment, irrigation components and workmanship shall be guaranteed for a period of not less than one (1) year from date of final approval by the City of San Bernardino Parks, Recreation and Community Services Department's Director or his/her designee., The conditions of the guarantee will be to insure, but not limited to all plant material being in healthy condition and free from abnormal conditions which may have occurred during or after planting, such as defoliation or structure dieback. F. ASSESSMENT DISTRICTS Contact by the City of San Bernardino Parks, Recreation and Community Services Department for Assessment District's Landscape Requirements. All other items on Assessment Districts are covered by Public Works/Engineering. 1/28/97 - 7 - CITY OF SAN BERNARDINO DEpARTIViENT OF PARKS, RECREATION AND COMMUNITY SERVICES POLICY AND PROCEDURE FOR CALIFORNIA CERTIFIED ARBORIST REPORTS FEBRUARY 1997 The City Development Code under Chapter 19.28.090 Removal or destruction of trees states. "Removal of healthy, shade providing, aesthetically valuable trees shall be discouraged. In the event that more than 5 trees are to be cut down, uprooted, destroyed or removed within a 36 month period, a permit shall first be issued by the Public Works Department. Prior to any permit issued for tree removal, all existing trees on-site shall be surveyed by the Parks, Recreation and Community Services Department at the developer's expense." This involves the preparation of an Arborist's Report, covering, but not limited to: 1. Identification of each tree, botanical and common names and tree locations. Tree locations are to correlate with the tree locations on tentative tract maps and grading plans. 2. Height and crown width. 3. Trunk circumference at DBH. 4. Health and vitality, including status of disease and insect problems, physiological problems and death of any tree. 5. Liability problems, current and future. 6. Measures to preserve trees on site in their existing locations. These measures are to include but are not limited to: A. Trimming needs using I.S.A. Standards (International Society of Arboriculture). B. Protecting trees during construction. C. Irrigation of trees pre and post construction. D. Insect and/or disease control. E. Proper supervision by the arborist to ensure measures have been taken. 7. Provide short and long term maintenance recommendations for the trees. These maintenance recommendations are to include but not limited to: A. Irrigation. B. Fertilization. C. Trimming. - 1 - D. Insect and disease control needs. E. Growth characteristics and expectations. 8. Relocation of trees due to conflicts of proposed improvements must be included in the Arborist Report and cover feasibility of relocation of all items found in # 1 - # 7. 9. Unless there is a pre-approved tree replacement plan, each tree that is removed shall be replaced with a 36" box specimen tree (minimum size). 10. The Arborist Report must be on file with the Parks, Recreation and Community Services Department, City Planning Department and City Engineering Department prior to tentative tract approval and final grading plans approval. 11. Changes in project design may be required to preserve trees. These changes will be reviewed through the C.E.Q.A. and D.R.C. process. Attached is a list of local Certified Arborists. Call the Parks, Recreation and Community Services Department at (909) 384-5217 if you have any questions. Attachment 1/16/97 amt wbom prowd - 2 - LOCAL CERTIFIED A"ORISTS WC-ISA # 135 WC-ISA # 161 Paul Chaney, Owner Fred Roth, Owner P.E. Chaney, Horticulturist Fred Roth Tree Care 1532 Belle Street 6276 Mayberry Avenue San Bernardino, CA 92404 Alta Loma, CA 91701 (909) 884-9919 (909) 987-7165 WC-ISA # 166 WC-ISA # 231 Samuel Knapp, Owner John Conway Knapp Associates Tree Maintenance Lead Worker Post Office Box 8796 City of Fontana Riverside, CA 92515-8796 1648 Orange Way (909) 688-6043 Fontana, CA 92335 (909) 350-6770 WC-ISA # 285 WC-ISA # 286 David Roger, Susan Sims, Consultant Street Tree Superintendent Sims Pest & Disease City of Riverside 5535 Dodd Street 3900 Main Street Mira Loma, CA 91752 Riverside, CA 92521 (909) 685-6662 (909) 351-6126 WC-ISA # 311 WC-ISA # 453 James Asher, Owner Mark Cobb, President Consulting Forester - Elite Landscape Post Office Box 2326 Post Office Box 5764 Lake Arrowhead, CA 92352 San Bernardino, CA 92412 (909) 337-2672 (909) 8879-1556 WC-ISA #463 WC-ISA 465 David Matias Mark Porter, Owner Assistant General Manager Mark's Tree Service Foothill Properties 5055 Sierra Vista 510 West Chase Drive Riverside, CA 92505 Corona, CA 91720 (909) 354-TREE (909) 737-6321 CERTIFIED ARBORI.STS HAVE PASSED WRITTEN AND FIELD EXAMS CONDUCTED BY THE W.C. I.S.A. TO OBTAIN INFORMATION ON CERTIFICATION, CONTACT THE INTERNATIONAL SOCIETY OF ARBORICULTURE, POST OFFICE BOX 808, URBANA, ILLINOIS 61801, PHONE (217) 328-2032, FAX (217) 328-7483. 1/16/97 an arbwna CITY OF SAN BERNARDINO PUBLIC SERVICES DEPARTMENT INTER-OFFICE MEMORANDUM TO: Gustavo Romo, Assistant Planner FROM: Lynn Merrill, Solid Waste Manager I DATE: September 11, 1997 SUBJECT: Revised Plans for DP Type II No. 97-13, Phase I 500 Inland Center Mall (APN: 136-531-04) CC: Valerie Ross, Principal Planner; Adrienne Loa, Account Clerk; Michelle Dyck, Environmental Projects Assistant i The following conditions are applicable to the above referenced project. 1. Applicant shall install four compactors within the phase one site in each of the two service areas. For the mall commons, one compactor within each service area shall be assigned for commingled recyclables and one compactor shall be assigned for solid waste. Siting and physical configurations shall be approved by the Public Service Department prior to selection of equipment by applicant. 2. Applicant shall ensure that two compactors will be installed within the dedicated service area for the Robinsons-May building. One compactor shall be assigned to commingled recyclables and one compactor shall be assigned to solid waste for exclusive use by Robinsons-May. 3. Applicant shall incorporate into lease for Robinson-May the requirement to divert, to the maximum extent possible, all recyclables, including but not limited to paper, cardboard, plastics and metals. Robinsons-May and its successors in interest shall coordinate with the Public Services Department on actual materials and program design prior to occupancy and as part of the mitigation monitoring. 4. Applicant shall coordinate with the Public Services Department for the development and expansion of source reduction and recycling programs through out the mall, including public outreach and education programs. Mitigation monitor shall arrange an annual tour to be scheduled 60-days prior to the anniversary of issuance of certificate of occupancy. 5. Applicant shall assume responsibility for billing tenants within mall for Refuse Services and shall coordinate with the Public Services Department to establish an appropriate monthly billing rate for service levels at the mall. Srtty DDu . ruulLc ,-la" CITY Or SAN BERNARDINO STANDARD BUILDING REQUIRIIdENTS POLICE DEPARTMENT 1994 DEVELOPMENTAL/ENVIRONMENTAL REVIEW COMMITTEE CASE $ DATE COMMERCIAL OR INDUSTRIAL BUILDINGS The following special provisions shall apply to all new commercial or industrial buildings or those with 50%- improvement or alteration: Qaraae-type doors A. Garage type doors which are either rolling overhead, solid overhead, swinging, sliding, or accordion style doors shall conform to the following standards: 1 . wood doors shall have panels a minimum of Five- sixteenths (5/16) inch in thickness with the locking hardware being attached to the support framing. 2 . Aluminum doors shall be a minimum thickness of .0215 inches and riveted together a minimum of `, eighteen (18) inches on center along the outside seams. There shall be a full width horizontal beam attached to the main door structure which shall meet the pilot or pedestrian access door framing within three (3) inches or the strike area of the pilox or pedestrian access door. 3 . Fiberglass doors shall have panels a minimum of six (6) ounces per square foot from the bottom of the door to a height of seven (7) feet. Panels above seven (7) feet and panels in residential structures have a density of not less than five (5) ounces per square foot. B. where sliding or accordion doors are used, they shall be equipped with guide tracks which shall be designed so that the door cannot be removed from the track when in the closed and locked position. C. Doors that exceed sixteen (16) feet in width shall have two (2) lock receiving points, one located on each side of the door. Doors not exceeding sixteen (16) feet shall have one lock receiving point placed on either side of the door. A single bolt may be used in the center of the j 6HN tIUU. h'ULiLL lL • �U7J0040J0 JLi i� Standard. Requirements - Police Commercial/industrial Page 2 door with the locking point located either in the floor or door frame header. D. All overhead or swinging doors shall be equipped with slidebolts which shall be capable of using padlocks with a minimum nine-thirty-seconds 99/32) inch shackle. 1 . The entire slidebolt assembly shall be constructed of case-hardened steel and shall have a frame a minimum of .120 inches in thickness, and a bolt diameter a minimum of one-half (1/2) inch, and shall protrude at least one and one-half (1 1/2) inches into the receiving guide. 2. -Slide bolt assemblies shall be attached to the door with bolts which are nonremovable from the exterior. Rivets shall not be used to attach such assemblies. E. Padlocks used with exterior mounted slide bolts shall have a hardened steel shackle a minimum of nine-thirty- seconds (9/32) inch in diameter with heel and toe locking and a minimum five (5) pin tumbler operation. The key shall be nonremovable when in an unlocked position. F. Doors using a cylinder lock shall have a minimum five (5) pin tumbler operation with the bolt or locking bar extending into the receiving guide a minimum of one (1) inch. G. Pedestrian access doors contained in garage type doors shall comply to the standards set forth in the below section. Windows/Locke/Doors (Including Sliding Glass) : The following requirements must be met for windows, locks, doors (including sliding glass) : A. All movable windows and sliding glass doors shall be constructed and/or equipped so as to prevent them from being lifted out of their tracks when in the closed position. B. Louvered windows Ahall not be used when any portion of Jt11r DVU . r UL 11..L 1 L 7V 7J0040J0 JLf JL 7 •t` ru .vv� i .J- StandardIRequirements-.Police Commercial/Industrial Page 3 the window is less than twelve (12) feet vertically or six (6) feet horizontally from an accessible surface or any adjoining roof, balcony, landing, stair tread, platform, or similar structure. C. Swinging exterior glass doors, wood or metal doors with glass panels, solid wood or metal doors, shall be constructed or protected as follows: 1 . Wood doors shall be of solid core construction with a minimum thickness of one and three-fourths (1 3/4) inches. Hollow metal doors shall be constructed of a minimum equivalent to sixteen (16) -U-.S. gauge steel and have sufficient reinforcement to maintain the designed thickness of the door when any locking device is installed; such reinforcement being able to restrict collapsing of the door around the locking device. 2. Except when double cylinder deadbolts are used or safety glazing is required by Chapter 54 of the Uniform Building Code, any glazing installed within forty (40) inches of any door locking mechanisms shall be constructed or protected as follows: a. Fully tempered glass or rated burglary resistant glazing, or b. Iron or steel grills of at least one-eighth (1/8) inch mesh secured with nonremovable bolts on the inside of the glazing may be used; and framing for iron or steel grills shall be by one (1) inch by one-fourth (1/4) inch flat metal secured by nonremovable bolts, or C. The glazing shall be covered with iron or steel bare of at least one-half (1/2) inch round or one inch by on-fourth (1 x 1/4) inch flat metal, spaced not more than five (5) inches apart and secured with nonremovable bolts. d. Items b and c above shall not interfere with the operation of opening windows if such windows are required to be openable by the Uniform Building Code. 0 i /r11\ ✓✓u . 1 1JL� .L a✓ JVJJVVYVJV JLi 1L 71 �� "' • ""` `� Standard'Requirements-Police Commercial/Industrial Page 4 D. All swinging exterior doors with the exception of aluminum frame swinging doors shall be equipped as follows : 1 . A single or double door shall be equipped with a double or single cylinder deadbolt. The bolt shall have a minimum projection of one inch and be constructed so as to repeal cutting tool attack. The deadbolt shall have an embedment of at least three-fourths (3/4) inch into the door jamb/strike. The cylinder shall have a cylinder guard, a minimum of five (5) pin tumblers, and shall be connected to the inner portion of the lock b y connecting screws -of at least one-fourth (1/4) inch in diameter. All - deadbolts will be equipped with a locked indicator. Exposed installation screws on double cylinder deadbolts shall be nonremovable. The provisions of this subsection do not apply where (1) panic hardware is required, or (2) an equivalent device is approved by the enforcing authority. Locking devices shall be mounted at a height of not less than thirty (30) nor more than fort-four (44) inches above the finished floor. 2 . Hinges for outswinging doors shall be equipped with nonremovable hinge pins or a mechanical interlock to preclude removal of the door from the exterior by removing the hinge pins. 3 . Whenever a mail slot is located within forty (40) inches of the primary locking device on any exterior door it shall be covered by an interior hood which will discourage manipulation of the primary locking device. 4 . strikeplates shall be constructed of minimum sixteen (16) U.S. gauge steel, bronze or brass, a minimum of three and one-half (3 1/2) inches in length and secured to the jamb with screws a minimum of two and one-half (2 1/2) inches in length. E. All exterior double doors shall be equipped as follows: 1. The inactive leaf of double doors shall be equipped with automatic releasing metal flushbolts having a minimum embedment of five-eighths (5/8) inch into the header and threshold of the door frame or by panic hardware which contains a minimum of two (2) locking points, one located at the header, the Jn�r Luu. f uu1r.0 �+� 7V�JOONOJO OLr 14 7 7 •4U hu .VVL f .UO St.andard•Requirements-Police Commercial/Industrial Page 5 other at the threshold of each door. z . Double doors shall have a full-lengr_h astragal, constructed of steel a mi-nimum of . 125 inch thick which will cover the opening between the doors. the astragal shall be a minimum of two (2) inches wide, and extend a minimum of one inch beyond the edge of the door to which it is attached. The astragal shall. be attached to the outside of the active door by means of welding or with nonremovable bolts spaced apart on not more than ten (10) inch centers. F. Aluminum frame swinging doors shall conform to the f of low-ing: 1 . The jamb on all aluminum frame swinging doors shall be so constructed or protected to withstand one thousand six hundred (1,600) pounds of pressure in both a vertical distance of three (3) inches and a horizontal distance of one (1) inch each side of the strike so as to prevent violation of the strike. 2. Aluminum frame swinging doors shall be equipped with a two-point locking mechanism consisting of deadbolt having a minimum bolt projection of one and one-half (1 1/2) inches, or a hook shaped or similar bolt that engages the strike sufficiently to prevent spreading and a metal automatic releasing threshold bolt having a minimum embedment of five-eighths (5/8) inch into the floor. The deadbolt lock shall have a minimum of five (5) pin tumblers and a cylinder guard and shall be equipped with a locked indicator. G. Panic hardware, whenever required by the uniform Building Code or Title 24 of the California Administrative Code, shall be equipped and installed as follows: 1 . Panic hardware shall contain a minimum of two (2) locking points on each door, one located at the head, the other at the threshold of the door, or 2 . On single doors, panic hardware may have one locking point which is not to be located at either the top or bottom rails of the door frame. The door shall have an astragal constructed of steel .125 inches thick which shall be attached with nonremovable bolts or welded to the outside of the JnIN LIUU . f uL_1 7JUU•tiUJO JLf 1L Standara kequirements-Police Commercial./Industrial Page 6 door. The astragal shall extend a minimum of six (6) inches vertically above and below the latch of the panic hardware. The astragal shall be a minimum of two (2) inches wide and extend a minimum of one (1) inch beyond the edge of the door. 3 . Double doors containing panic hardware shall have a full length steel astragal attached to the doors at their meeting point which will close the opening - between them but not interfere with the operation of either door. H. Installation and construction of frames and jambe for exterior swinging doors shall be as follows: 1. Door jambs shall be installed with solid backing in such a manner that no voids exist between the strike side of the jamb and the frame opening for a vertical distance of six (6) inches each side of the strike. Finger joints are prohibited. 2 . In wood framing, horizontal blocking shall be placed between studs at door lock height for three (3) stud spaces each side of the door openings. Trimmers shall be full length from the heads to the floor with solid backing against sole plates. I. In multiple occupancy office buildings all entrance doors to individual office suites shall meet the construction and locking requirements for exterior doors. J. In multiple occupancy buildings, interior walls dividing the individual suites shall not end at the false ceiling but shall continue to the real roof. K. Exterior transoms or windows shall be deemed accessible if less than twelve (12) feet above ground or adjacent to any pedestrian walkway. Accessible windows and transoms having a pane or opening exceeding ninety-six (96) square inches, with the smallest dimension exceeding six (6) inches, and not visible from a public or private thoroughfare shall be protected in the following manner: 1 . Fully tempered glass or burglary resistant glazing, or 2 . The following window barriers may be used but shall be secured with bolts which are nonremovable from the exterior: i V111\ ✓✓1,J • I V V.�\.` -u �v�v V V'.V V V dL.1 lL J 1 � �" � v� Standard,Requiroments-Police Commercial/Industrial Page 7 a. Interior or exterior steel or iron bars of at least one-half (1/2) inch round or one by one- quarter (1 x 1/4) inch flat metal spaced not more than five (5) inches apart and security fastened, or b. Interior or exterior iron or steel grills of at least one-eighth (1/8) inch metal with not more than a two (2) inch mesh and securely fastened. 3 . The protective bars or grills shall not interfere with the operation of opening windows if such _windows are required to be openable by the Uniform Building Code. L. Roof openings shall be equipped as follows: 1 . All skylights on the roof of any building or premises used for business purposes shall be provided with: t 3 a. Rated burglary resistant glazing, or b. Iron or steel bars of at least one-half (1/2) inch round or one by one-fourth (1 x 1/4) inch flat metal spaced not more than five (5) inches on center to cross the narrowest dimension of the opening being covered. if the narrowest dimension of that opening exceeds eighteen (18) inches, cross members shall be welded into place, not more than eighteen (18) inches apart beginning with a cross member at the center of the opening. Cross members shall be welded to each and every bar it crosses. The entire bar assembly shall be mounted inside the skylight and shall be attached to the building structure by means of machine bolts spaced not more than sixteen (16) inches apart or attached by means of an equivalent method approved by the enforcing authority, or C. A steel or iron grill of at least one-eighth (110 inch metal with a maximum two (2) inch mesh mounted inside the skylight and secured by bolts which are nonremovable from the exterior. d. These requirements do not apply on any Jn . ✓uu . u� i�.0 +✓ ' DJ 7JOUtiOJO JGr 1L 7t 7 •LU i%u .Uv4 f Standard'Requirements PCI jc2. Commercial/Industrial Page 8 structure with a height of thirty-five (35) feet or more where there is no readily available roof access as determined by the enforcing authority. 2 . All hatchway openings on the roof of any building or premises used for business purposes shall be secured as follows : a. If the hatchway is of wooden material, it shall be covered on the inside with at least sixteen (16) U.S. gauge sheet steel or its equivalent, attached with screws. -b: The hatchway shall be secured from the inside with a slide bar or slide bolts which are attached by nonremovable bolts. C. outside hinges on all hatchway opening shall be provided with nonremovable pine when using pin type hinges. 3 . All air duct or air vent openings exceeding ninety- six (96) square inches on the roof or exterior walls of any commercial building shall be secured Cr by covering same with either of the following: a. Iron or steel bars of at least one-half (1/2) inch round or one by one-fourth (1 x 1/4) inch flat metal spaced no more than five. (5) inches apart and securely fastened, or b. Iron or steel grills of at least one-eighth (1/8) inch metal with a maximum two (2) inch mesh and securely fastened, or C. If the barrier is on the outside, it shall be secured with bolts which are nonremovable from the exterior. d. The above must not interfere with venting requirements, creating potentially hazardous conditions to health and safety, or conflict with the provisions of the Uniform Building Code or Title 19, California Administrative Code. M. Permanently affixed ladders leading to roofs shall be fully enclosed with sheet metal to a height of ten (10) feet . This covering shall be locked against the ladder i V111\ YV . 1 V�� +� ar Jv J../V V°i1V V V VVI �� J 1 J r � •"��' - Standard. Requirements-Police „ -'Cornme'rcial/Industrial Page 9 with a case hardened hasp, secured with nonremovable .o. screws or bolts and a padlock with a minimum three-eighth (3/8) inch hardened steel shackle, locking at both heel and toe, and a minimum five (5) pin tumbler operation with nonremovable key when in an unlocked position. Hinges on the ccvar will be prcvided wi;.h nonremovable pins when using pin-type hinges. N. A building located within eight (8) feet of utility poles, trees, or similar structures which allow access to the building's roof, windows, or other openings shall have such access area barricaded or fenced with materials to deter human climbing. O. The .following standards for lighting and address markings shall apply to commercial buildings : 1 . The address number of every commercial building shall be located and displayed so that it shall be easily visible from the street . The numerals in these numbers shall be no less than six (6) inches in height and be of a color contrasting to the background. In addition, any business which affords vehicular access to the rear through any driveway, alleyway, or parking lot shall also display the same numbers on the rear of the building. 2 . Roof top address numbers shall be provided. They shall be a minimum of three (3) feet in length and two (2) feet in width and of contrasting color to the background. Numbers shall be placed parallel to the street address as assigned. Each building within a commercial complex shall have its own address/assigned number affixed to the roof. 3 . All exterior doors shall be equipped with a lighting device which shall provide a minimum maintained one (1) footcandle of light at ground level during hours of darkness . Lighting devices shall be protected by vandal resistant covers. 4 . All parking lots and access thereto shall be provided _with a minimum maintained one (1) footcandle. of light on the parking surface from dusk until dawn. 5. Exterior lighting shall not shine away from subject property. Jnn Luu. f UL 1�.L i. 5�7J0048J0 JLf 1 L �:o f 7 •L( \U .UUL f.11 Standard Requirements-Police commerc.�al/Industrial Page 10 6 . All exterior lighting devices are to be "shake" proof and inaccessible to common reach or climbing and shall be placed at a height which will fully illuminate an average adult . I 7 . All parking spaces must be visible from at least one point from the interior of the building. P. interior night lighting shall be maintained in those areas that are visible from the street (ground floors only) . Q. All exterior block wall fencing shall have intervals providing visibility corridors which will allow visibility of the interior from outside the wall, and these visibility corridors shall be placed at regular -intervals . This applies only to block walls visible from the street. R. Passenger elevators, the interiors of which are not completely visible when the car door(s) is open, shall have .mirrors so placed as to make visible the whole of the elevator interior to prospective passengers outside the elevator. S. When access to or within a commercial complex is unduly difficult because of secured openings or where immediate access is necessary for life saving or fire fighting purposes, a key override is to be installed in an accessible location. The key override shall be mastered to both the fire department and police department keys. T. Any structure four (4) stories in height or greater will have a repeater installed in its roof. SEE PAGE 10 .rnn c,uu. U u&-i%..L 1L•yuy,')dd4d-.)d SEP 12'97 9 :28 No .002 P -12 Standard Requirements C'ommercia?/Tndusrriai Page 10 Additional_-C—onditions: OATS FOfi1J 90001539 GTE. Telp9pong OP eons TRANSMITTAL SLIP �- � ' r 7-y F`1 tA 5 S,gry.3�tuFkRp I+u v C � 3 oco ,r ,-tA - - 1jz'141 g TO: SEND ATTACIED MAIL VIA OUTSIDE U.S. OVERNIGHT COMPANY CARRIER 0-41 IL DISPATCH YOUR ❑ FOR PER OUR � PLEASE INFORMATION ACTION a CONVERSATION RETURN YOUR YOUR FILE %=Y2UR ST NEED RETURNED APPROVAL FOLLOW-UP R AUTHORIZE PLEASE YOUR FOR FILE OR LETS CALL SIGNATURE FOLLOW-UP SPECIAL INSTRUCTIONS T`EL NO. FUNCTION Fi40Y MC OR Air ' 'P T OF SAN 9 PLANNING & B Y SERvww-DEPAR F �a 300 N©RTN 'D'STREET 0 my BERNARDINO, .92418 (9009)384-5057 CI Y PRO,ECT LPROJECr: Development mR ROU' I No. 97-13 TO: MIKE HAYS-ERCIDRC Oair VALERIE ROSS-Planning Departmunt MIKE GRUBBS-Public Works Department MATTHEW SWALBERG-Parks &Recreation GUY BURDICK-Fire Department LT. STEVE JARVIS-Police Department DON JACKSON-Development Services JEFF ZINNER-Economic Developnwnt Agency BILL BRYDEN-Water Department LYNN MERRILL-Public Svcs. Department_ COUNCILMEMBER ARIAS-Ward 13 JIM WATSON-Water Reclamation Plant OTHER: R FROW Gustavo J. R61320 7- z DATE. July 28, 1997 ,tj�A EIDRC MEETING DATE: August 14, 1997 F,y� S'p�H LOCATION (APN # ): 500 Inland Center Drive (Inland Center Mall); APN: 136-531-04. DESCRIPTION: A request to construct a two-level d artment store (Robinsons Mag) and a Purl evel parking-stricture as Phase One of the Inland Center Mail expansivn:in the CR 1, Commercial Re (Malls);::Iand use district. Trr 4,lAc fWZ �lE.rc.Pi�77d.V) CEQA STATUS: Previously-adopted Environmental Impact Report. APPLICANT: Gresham, Savage, Nolden & Tilden OWNER: Mano Management, Inc. COMMENTS: ti �J (SIGNATURE) (DATE) CITY OF SAN BERNARDINO PLANING & BUILDING SERVICES DEPIL11 ' 300 NORTH 'D'STREET, SAN RERNA MX0, CA 92418 f909l 384-JQ57 AGENCY COMMENT SHEET JULY 28, 1997 PROJECT: Development Permit Type H, No. 97-13 DESCRIPTION: A request to construct a two-level department store (Robinsons-May) and i four- level parking structure as Phase One of the Inland Center Mali expansion in the CR-I, Commercial Regional (Malls), land use district. LOCATION: 500 Inland Center Drive (Wand Center Mall); APN: 136-531-04. FROM: Gustavo J. Romo THIS APPLICATION HAS BEEN FILED WITH THE CTTy PLANNING AND . BUILDING SERVICES DEPARTMENT. PLEASE REVIEW THE ENCLOSED INFORMATION AND RETURN THIS SHEEN'WITH YOUR Ua14fl�TS <. ANDIOR RECOND4ENDATIONS WITHIN 21 DAYS OF RED OF,THIS FORM. IF WE RECEIVE NO COMMENT: WE WILL ASSUME N4 CONCERNS. DEEP THE ATTACHMENT FOR YOUR FILES.IF YO U* SO. DESIRE. This project will be reviewed by the DRC on AUGVST 14, 1997. THE FOLLOWING RECOMMENDATIONS APPLY TO THE ABOVE REFERENCED ITEM(S): >ti1 '^ _ . (SIGNATURE) (AGENCY) (DATE) AUG 0 4 1997 D CITY OF SAN BERNARDINO DEPARTMENT OF PLANNING & • BUILDING SERVICES ATTACHMENT "F" F i 3+ 1 3 9 ySy 3 MITIGATION MONITORING/REPORTING PROGRAM EXHIBIT "G" MITIGATION MONITORINGIREPORTINGIPRN PROJECT FOR THE INLAND CENTER MALL EXPANSION Introducti on This Mitigation Monitoring and Reporting Program has been prepared for use by the City of San Bernardino as it implements mitigation measures for the Inland Center Mall Expansion Project These mitigation measures were identified as part of City's environmental review process and Environmental Impact Report(SCH#94032045)prepared for Development Agreement 9l-01 that authorizes future expansion of the Mall. The is impact Report Impact independently incorporates determined by the City to be adequau mitigation measures which were identified in the Initial Study which was used by the City to determine that the potential impacts of implementing the Development Agreement could cause a significant adverse effect on the environment This Mitigation Monitoring and Reporting Program (MMRP) has been prepared in compliance with the California Environmental Quality Act(CEQA) and the State and City CEQA Guidelines. CEQA Section 21081.6 requires adoption of a reporting and/or monitoring program for those measures or conditions imposed on a project to mitigate or avoid adverse effects on the environment The law states that the monitoring or reporting program shall be designed to ensure compliance during project implementation. This MMRP is formatted in a table that contains the following elements: Applicant's General Responsibilities I) The applicant (General Growth Development) is required to comply with all mitigation measures and complete all monitoring and reporting requirements assigned to it 2) The applicant as applicable,is responsible for the preparation and submittal of all reports. studies, submittal requirements, as noted, and all associated fees; 3) The applicant is responsible for obtaining the signature of the designated review agency or department for each applicable measure when it applies to future development at Inland Center Mall; and 4) The applicant is responsible for submitting completed compliance records to the City, where it is the applicant's responsibility for implementation. City of San Bernardino General Responsibilities 1) The City is responsible for reviewing and approving reports, studies, plans, etc., as identified in this MMRP; and 2) The Planning Division is responsible for maintaining the project file and monitoring requirements as identified in the MMRP. i '�roanization of the Mitigation Monitoring and Rep nrtiny proQraT 1) The general impact category is identified in the first column of the table. Z) The mitigation measures are recorded in the second column of the table. 3 The specific process for implementing the measure is identified in the third column of the table. 4 The mitigation milestone for each measure is provided in the fourth column of the table. 5) The responsible monitoring party(IeS) is identified in the fifth column of the table. 6) Prerequisite actions for initiating the monitoring activity is listed in the sixth column. 7) The seventh column in the table provides space for the City to verify that the applicant has complied with the measure. The indiv;dual measures and the accompanying monitoring/reporting actions follow. They are listed in the same sequence as presented in the Project Initial Study and Final Environmental Impact Report I I ..r 0 � a U U � oWG W 0 9 �0 a u. c i 3 '-. 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SAN BERNAMINO.CA 92+01 M TEI.EPHONE(909)484-0106 a FAX(909)W;-6893 Entered into Record at Council ICmyDevCms Mtg: , November 6, 1997 by re Agenda Item The Honorable Tom Minor _Q_ - -eL Members of the Common Council City ClerkICDC Secy c/o City Clerk City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 RE: Appeal - November 6, 1997, Council Agenda Item No. 6; Inland Center Robinson's-May Public Hearing Dear Mayor and Council: I respectfully request the courtesy of a short continuance of Central City Company's Appeal of Item No. 6 on today's Agenda to the next regularly scheduled Council meeting of Monday, November 17, 1997. This is just six working days from today. The Council allowed a two- week delay to Inland Center when the ICM appealed the downtown theater project. We ask only for equal treatment and that the Council grant Central City due process and a fair opportunity to present our Appeal. The full-page, self-serving ads running in the paper were paid for by Inland Center. Those ads were worded to evoke emotional responses, and to inflame without giving facts or presenting both sides of the issues. In short, the ads were designed to pressure the Council. Please do not be rushed-to vote by "out of sight" conversations, paid "advertisements", or editorials which take sides and criticize without first obtaining all the facts. Now that Robinson's May has made the decision to go to Inland Center, the Redlands argument is no longer valid. Had The Sun first investigated the facts before printing the editorial, they would have learned that the Superior Court invalidated the Citrus Plaza approval because of a lawsuit brought by the City of Redlands. The Central City Company needs to be represented by its attorney, Marlene A. Fox, at the Appeal hearing. Ms. Fox cannot appear today, as she explained in a number of letters to the City, because of medical reasons. Because of her background and work on our behalf since 1992, only Ms. Fox can make an effective presentation on our behalf. The Council needs to hear both sides of this matter fairly. Please do not be misled by inflammatory statements such Member of .X International Council of Shopping Centers '7 as "November 10 is the last day to order steel for a project to start in January or February 1998". We are talking about a 6 business day delay - 5 days if you consider the City offices are closed every other Friday. Planning and Building told our representatives as recently as late last Thursday (5 business days ago) that plans for the Robinson's-May store had not yet been submitted to plan-check. Also, that the site specific liquefaction and geology studies required by City Ordinance and as EIR Mitigation Measures had not yet been submitted for checking. How can a builder order steel without an approved set of construction plans? There is a "public safety" issue that you need to be aware of that could cause great liability exposure to the City and taxpayers in the future when a catastrophic earthquake hits. Mark Ostoich will tell you that the "earthquake/liquefaction" matters have been resolved to the satisfaction of the Courts, but what he won't tell you is that the decision was based on a technicality that the Alquist-Priolo Earthquake Zone Map only shows that the Glen Helen and Loma Linda Fault lines in the very near proximity to Inland Center "require additional evaluation". It does show that this site is wedged between those fault lines and the San Jacinto fault system, one of the most active faults in California, (see Figure 47 enclosed) from Inland Center's Environmental Impact Report note the symbols XXX??XX line "requiring additional evaluation". You need to know that this building site is where the former Urbita Springs Lake was and is known to have high groundwater and is subject to liquefaction (See The Sun story enclosed). Read the enclosed City memo quoting the City's Geologist, Dr. Floyd Williams, who says studies done to date are not adequate, and it's not reasonable to draw conclusions about the true liquefaction hazards of this site. As we have been told by Planning that the construction plans have not yet gone through plan- check, nor has the required liquefaction testing required by City Resolution No. 89-356 or by Ordinance MC 676 been complied with, the true facts are still unknown. These reports may require that plans be altered, and staff has not yet seen these reports. In fact, it appears from a recent inspection of the site that the required trenching to locate faults and/or liquefaction problems has yet to start. Inland Center is landlocked by a flood control channel to its south and east, by a freeway to its west, and gets its public access by way of four bridges; one bridge at the freeway and Inland Center Drive, two small bridges over the Warm Springs Flood Control Channel to "E" Street, and one bridge at the intersection of"E" Street and Inland Center Drive over the same flood control channel. When the predicted earthquake hits, that site may become a trap because of those bridges that could collapse, limiting emergency vehicular access. 2 Recently the Northridge and Glendale Malls both had substantial damage to their stores and parking structures. That quake happened while the centers were closed at night. God forbid if this project and its four-level parking structure are damaged by an earthquake and the liquefaction problem during the day, or during a heavy shopping season. A six working.day delay will not prevent "ordering steel". The public's safety and people's lives that may be at stake and due process rights and a fair opportunity to be heard more than justify a continuance of the Appeal hearing until November 17, 1997, 6 business days from today. Our attorney's written request for this delay to November 17, 1997 will be presented to you by a local attorney appearing on her behalf. We would hope he would not be rudely told he cannot speak as happened on November 3. Please review the attached enclosures and you will better understand that this is a public safety matter, and that is the purpose of our appeal. I again ask for your consideration for a 6 working day delay to Monday, November 17, 1997 so that the full Council can be present to hear our presentation form our attorney and so you can make a more informed decision, having heard both sides of the matter. Sincerely, R ZDCurci Asset Manager RDC:rls Enclosures 3 Q _g _ I o ¢'o cc _ CL a o c a —° co o cn z o o to g w 0 z Q Ea� CJ a Z E o o 0 ` .2 o U Q .2 6 o U O 1 0 •T) co > O n• { J v1 � 0 p 1 f } } O J N c0 C c io I o ¢ m C9 lL E N O ... I 'y ,o0�c +1 V } LL CD w 2 6 6 E cao i � I rr1 } i 0 N E O C X r J f_I WIN 1 is rweQely (7 Q O O V y C I }CL CD CL a1 „- _ ml i x J I� �I x r I :i X _I oey U11111S I r , f_}•__I L _ ,,, •�yliouno�l i JJ y n+ p, 1 �r � T �. r' rj1 -E �O o ° co R �.1 Ay upu,.h-IM i Wno 6U11 1 I i j I n• � _--L..J— � l p P I Q� Z �I r I IS wtlC9d LL Q � o / �J - -- __ t.he tADine i nial gage The Sun,founued Sept. 1, 1894,celebrates its centennial this year.A sampler of news and notes from the past will appear each Monday in the L..;- THEN AND NOW ■ It's been a long time since Urbita Springs was a F lake, but the area still is drawing crowds, thanks to Inland Center Mall. By JULIE FARREN For The Sun U rbita Hot Springs - �;:,::-::� j. :• i;�j was the place In San Bern ardino for a hro ic' a walk _ ugh the zoo or a boat r" t T e site was first known as Midway Springs, probably be- "�" ' cause its location was midway A O-t O'Of the 1 Os shows boaters enjoying anafternoon between San Bernardino and Urbita Springs. Colton on South E Street and Colton avenues. Urbita Springs, enlarged in 1903, boasted a dance pavil- ion, an indoor swimming pool for women and children, and ,Tz r an amusement park_ A year later, visitors could - • enjoy a water carnival, fire- works d over the lake• boat pa- _ _ a es and movies screened in ' the dance pavilion. In June 1924, Urbita Hot _ Springs was sold to Ernest C. •• Pickering, who named the area Pickering Park_ It contin- ued to thrive for a while, but then declined in the '30s and '40s,a victim first of the De- pression and then of de- creasing water table. Today a different form of _ recreation—sho a s lace on t e p te. fand HONG TANG/The Sun n r a ch o Simltar view today hows October to Y Portion of freeway ramp and, be- cta s is come to spe- yona, the Inland Center Mail. s an mayor roe ment stores such as Sears and The Broadway. Do you have old lamlly snapshots of things or Send photos end deacrlption•, along with places In the Inland Empire?We'd Ilke to publlah them. Now. photo Section. The Sun- l ng your name,phone number and return address. to Then and SL. San 8ernardtno, .dill. 92401. Photos will be returned V City of San Bernardino Department of Punning and Building Services E4TEROFFICE MEMORANDUM TO: S andra Paulsen Senior Planner FROM: Mike Finn, Associate Planner MR4::;:� SUBJF,CT: RESULTS OF MEETING WITH CITY GEOLOGIST, DR. WMLIAMS, TOM DODSON, MIKE GRUBBS AND STAFF REGARDING CITY GEOLOGIST COMMENT LETTER OF JANUARY 14, 1996 DATE: February 2, 1996 COPIES: Mike Grubbs, Senior Engineer; Conal McNamara, Assistant Planner; Tom Dodson, Tom Dodson &Associates; Dr. Floyd Williams, City Geologist; Lauren Jue, EDAW This Memorandum is for the purpose of memorializing the attendees, issues discussed, and results of the meeting held with Tom Dodson and Dr. Floyd Williams, City Geologist at 10:00 a.m. on January 25, 1996. Attendees are requested to forward any recommended corrections or additions no later than February 8, 1996. 1. The following persons were in attendance: Dr. Floyd Williams, City Geologist Tom Dodson, Tom Dodson & Associates (representing applicant) Sandra Paulsen, Senior Planner Mike Finn, Associate Planner Conal McNamara, Assistant Planner Mike Grubbs, Senior City Engineer 2. Issues discussed at the meeting were: ia. Mike Finn summarized the project, provided Dr. Williams with a copy of the Development Agreement to ensure that he had an understanding of the project. The question was posed to Dr. Williams as to whether he felt that the liquefaction studies and mitigation for liquefaction could be done when final building locations were determined. b. Dr. Williams stated that he believed that the liquefaction studies needed to be done now, as part of the present environmental review. He believes the Law & Crandall studies are not adequate and contain data derived from inadequate borings and it is not reasonable to draw conclusions about the true liquefaction hazard of the site. 6'7'7 8 1 Memorandum Results ICM Meeting RE: Liquefaction and Geology February 2, 1996 Page 2 C. Mike Grubbs indicated that it was Public Works opinion that the City's Liquefaction Ordinances made liquefaction mitigation a ministerial action since the ordinances acknowledge that any liquefaction hazard can be mitigated. Cost of the mitigation is the only limiting factor in reducing liquefaction hazards. They believe that liquefaction is not an environmental issue as a result of the ordinances. d. Tom Dodson stated that the liquefaction is an environmental hrrird because of the choice made by Patrick Mitchell of Gresham, Varner & Savage in the early stages of the EIR process to include liquefaction in the EIR analysis. He indicated that had that choice not been made, compliance with the ordinances would have been defensible as adequately addressing the hazards for exactly the reasons cited by Mike Grubbs. However, by including the liquefaction in the EIR it made the liquefaction an environmental issue and using the ordinances at this point would not be defensible in his opinion. Fansd utlined what he felt was the best way to proceed. That was to ha3Law ndall or Gary Rasmussen or some other Certified Geologist take the site borings, revise the ground acceleration and depth of grounptions to be consistent with those recommended by Dr. Williams p with a worst-case mitigation performance standard based on the fi en have Dr. Williams revie w the revised study. e. Dr. Williams indicated that he e t at the data from the borings were so poor that it would not be possible to determine the liquefaction potential of the site. f. Tom indicated that it was his intent to go forward with that because of the cos involved with a new analysis would be too costly and result in substantial delays. g. Dr. Williams again indicated that he had concern that the available data would not be sufficient to determine the liquefaction hazards and that they would ultimately have to do additional borings and studies to accurately determine the hazard. _ h. Mike Finn raised the issue of timing. He noted that it was important to point out to the applicant that they were at an important timing juncture. Specifically, that making the choice to go forward as Tom recommended could result in further delays of the project if the revised analysis proved inadequate necessitating new borings and studies anyway. The applicant may wish to try'and avoid the delay by doing a new liquefaction analysis now to avoid any potential delays. 6779 . f i Memorandum Results ICM Meeting RE: Liquefaction and Geology February 2, 1996 _. Page 3 1. Tom indicated that if that were the case the applicant would probably withdraw the application anyway. j. , Sandi Paulsen asked that if the a reanalysis of existing data were conducted by another Certified Geologist, and Dr. Williams disagreed with the reanalysis, wouldn't there just be a disagreement of experts as described in CEQA. k. Tom indicated"that that would in fact be the case. The concern would be if the eulogist conducting the reanalysis agreed with Dr. Williams and Woodward Clyde with regard to the adequacy of the existing data. At that point, a new study would be necessary and the project would possibly be withdrawn. 1. The meeting adjourned. r 6780 � .a ♦ a xq d a p y • a • f /flF a �e M A r l k , ilk IN r, - �u/fig� f ,c na k ;6 i� A'. a t, t♦�i �!' 1 s� it {' III C .0 N i 0 O _ � V C N � N A J a) L c a ci s CD C 0 �' C R C Z am� O co Q. CL y= N as O a a N = c� c� X Z N i y1 .J � � L1. w p 3 01 0 N 11110 O 0 '�► W O �i C a aC .� a O >' O O. m) A ft. Am M, O ca N i N 0 C AO cc LE am am bo ble .0 O todo Q1 C — ._ 0 w } m E N s O L J L N O it N > M 0 w cn __ as SENSE s s O a �� N E 0 0 M C 4• C *+ am C 0 0 aQf C C O O .L O C i O D TOOKO N N C ONVEN am mm m i�am 0 cn cn ch U) U) O GRESHAM, SAVAGE, NOLAN & TILDEN, LLP A REGISTERED LIMITED LIABILITY PARTNERSHIP LAWYERS•FOUNDED 1910 POQ THE N"d: 600 N.ARROWHEAD AVENUE,SUITE 300 wtu.Uw GUTHRIE(138&1W Mark A.Odoick SAN BERNARDINO.CALIFORNIA 92401-1148 DONALD W.JORDAN(1901-19" (909)8842171• FACSIMILE 909)888-2120 1OHN&LOH°«' � (R (�1T* Entered into Record at r'01incilicnivoevcins Mtg: November 4, 1997 by _ .�..__.. VIA FACSUvME - (714) 975-8447 re Agenda Ite1ri Marlene A. Fox, Esq. 2031 Orchard Drive, Suite 200 City Clerkl(;OC Secy Newport Beach, California 92660 City of Sail bernarainu Re: Appeal of Planning Commission Action Regarding Development Permit No. 97-13 Dear Ms. Fox: This letter is being written in response to the letter sent by your secretary, Linda G. Lambert, to Valerie C. Ross, Senior Planner at the City of San Bernardino, a copy of which was forwarded to our law offices by the City since it relates to a matter we, on behalf of our client, Mano Management, Inc., have pending before the City Council. In Ms. Lambert's letter, she states that ". . . Ms. Fox is out of the office on medical leave this week and I do not expect her back until November 10 or 11." This information is at significant variance with earlier correspondence which indicated that you would be available for attendance at a hearing at any time after November 5, 1997. In that regard, I call your attention to your letters of October 21, 1997 and October 30, 1997, both of which indicated that any date after November 5, 1997 would be acceptable to you. Indeed, although you did not get (nor could anyone have gotten) absolute assurance that the noticed hearing of November 3, 1997 would be continued until after November 5, 1997, you elected not to be present at the November 3, 1997 hearing. As counsel for the applicant, and recognizing that the next Council hearing was November 6, 1997, and thus was after November 5, 1997, we interposed no objection to the granting of the continuance so long as it was limited to the next Council hearing of November 6, 1997. Now, for the very first time we learn that you do not intend to return to work until sometime on or after November 10, 1997. The next Council hearing after November 6, 1997 is November 17, 1997, and if this matter were to continue until that latter date, it could, very likely, result in Robinsons-May not being able to know with certainty whether its Project was approved, thus delaying that certainty to a date after November 10, 1997, the last possible date it can order steel to provide a facility for the 1998 Christmas season. NAM511\002\Ltr\Foxl.wp5 `/A,A" y7 GRESHAM, SAVAGE, NOLAN & TILDEN, LLP Mark A.Otakh Marlene A. Fox, Esq. November 4, 1997 Page 2 As attorneys, we all have to make arrangements from time to time to have another attorney present a matter for us because of calendar conflicts. Our individual convenience is not something that absolutely controls the scheduling of hearings, and it must give way if significant inconvenience or prejudice would be visited on others. Our review of your earlier letters indicate that whatever activities you were pursuing were elective, at least as to the precise time, and were not postponed earlier when the matter of whether the original requested continuance was still uncertain as to whether it would be granted. It is, therefore, abundantly clear that the concern that apparently faces you about the scheduling of the hearing is not something that is the making of the City, of our law firm, or of our client, it is yours. Please be advised that we intend to strongly oppose any request for a continuance beyond the November 6, 1997 meeting. We urge you to have someone act in your place (perhaps John Mirau who has worked with you for at least the past two years in regard to this Project). The transcript of your remarks at the Planning Commission is available and can be presented at the Council meeting. A number of options other than continuance exist, and we hope that you and your client will act to utilize them. Very truly yours, �—A- �4�1{r te Mark A. Ostoich of GRESHAM, SAVAGE, NOLAN & TILDEN, LLP MAO/pmj cc: Henry Empeno, Jr., Esq. Valerie Ross NAM 511\002\1arTox 1.wp5 Y MCC - 11/06/97 RESPONSE TO 11/03/97 COMMENTS FROM APPELLANT RE: APPEAL OF PLANNING COMMISSION'S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson's-May); 500 Inland Center Drive (APN: 136-531-04). On October 22, 1997, on the 15th day of the 15-day appeal period, staff received notice from the City Clerk's office that the Ms. Marlene A. Fox, on behalf of Carousel Mall, had appealed the Planning Commission's approval of Development Permit Type II No. 97-13. Based on the fact that staff had previously reviewed the appellant's grounds for appeal when the Development Permit was appealed to the Planning Commission and had prepared an extensive report, staff (Gus Romo) was able to summarize the points made and meet the deadline of October 23, 1997 to schedule the appeal for the Mayor and Common Council on November 3, 1997. The appellant's October 22, 1997 appeal letter stated that she would like 15 days notice of the MCC meeting and requested that the meeting take place on a date certain after November 5, 1997. 4Z s Pursuant to San Bernardino Development Code §19.52.020, the City is required to provide notification of not less than 10 days prior to a hearing. The appellant was provided 10 days notification on October 23, 1997, reminded of the 10-day notice requirement, and told that the staff report to the Mayor and Common Council would be available on Thursday, October 30, 1997. On Wednesday, October 29, 1997, staff received a telephone call from the appellant stating that she had just found out about the November 3, 1997 MCC meeting on that very day. Staff asked the appellant if she received the notice of the meeting which was faxed to her on October 23rd. Ms. Fox (appellant) stated that in fact she had received the notice but was unable to review it until the following Wednesday because she had been in court for the past few days. Ms. Fox then went on to explain to staff that the reason she requested the meeting be held on a date certain after November 5, 1997 was because she would be undergoing a medical procedure which would put her off her feet until after November 5, 1997. !%/�k Staff brought this to my attention. At that point, I........... Ms. Fox continued calling staff that same day and wanted to know whether the appeal was going to be continued until after November 5th. Staff courteously returned her telephone calls and kept her posted on my inquiries into the matter. After 4:00 p.m., I asked staff to call Ms. Fox and let her know that the decision to continue the item was at the discretion of the Mayor and Common Council and would be decided at the November 3rd meeting. Staff called the appellant and told her exactly that. In regards to the status of the geotechnical report and plan check, staff stated that the Planning Division was unaware of the status of such reports and had not seen any plan checks as of yet routed to the Planning Division. Ms. Fox then attempted to get more definitive answers at which point staff advised that he was unaware of any other division's status on the project and could not address her other questions. ti t CC COPY S R PLANNING COMMISSION Entered into Record at CouncillCmyOev ms Mtg: MEETING by OF THE re Agenda Item ' CITY OF SAN BERNARDINO Cilv ClerklCH Secy Citj of San Bernardino TRANSCRIPT OF PROCEEDINGS DATE AND TIME : TUESDAY, OCTOBER 7, 1997 7 : 00 P.M. TO 8 : 39 P .M. LOCATION: SAN BERNARDINO CITY HALL COUNCIL CHAMBERS 300 NORTH D STREET SAN BERNARDINO, CA 92418 JOB NUMBER: 7931DD REPORTED BY : DAWN M. DAVILA, C . S . R. , R. P. R. (C . S . R. NO. 8383) { Younger Deporting cServiee,5 6772 MAGNOLIA AVENUE RIVERSIDE, CA 92506 (909) 276-1333 FAX (909) 276-1788 -21- � l ' 1 A P P E A R A N C E S 2 3 SAN BERNARDINO PLANNING COMMISSION: 4 (MEMBERS PRESENT : ) 5 CAROL A. THRASHER, CHAIRMAN 6 JOE SUAREZ 7 EVELYN J. LOCKETT 8 LARRY R. QUIEL 9 RICHARD A. GONZALEZ 10 THOMAS D. HAMILTON 11 12 (MEMBERS ABSENT : ) 13 ALFREDO ENCISO 14 VINCE GAFFNEY 15 JACK REILLY 16 WALT SCHUILING 17 18 STAFF MEMBERS : 19 20 MICHAEL HAYS 21 HENRY EMPENO 22 LINDA SUTHERLAND 23 VALERIE ROSS 24 GUSTAVO ROMO 25 2 YOUNGER REPORTING SERVICES 1 A P P E A R A N C E S 2 (CONTINUED) 3 4 REPRESENTATIVES FOR THE APPLICANT : 5 6 MARK OSTOICH - Gresham, Savage, Nolan 7 & Tilden 8 9 JOHN C . NOLAN Gresham, Savage, Nolan 10 & Tilden 11 12 13 REPRESENTATIVES FOR THE OPPOSITION: 14 15 MARLENE A. FOX - Law Offices of 16 Marlene A. Fox 17 18 19 20 21 22 23 24 25 � ( 3 YOUNGER REPORTING SERVICES 1 S P E A K E R S 2 NAME PAGE 3 4 MR. HAYS 5 5 MS . ROSS 6, 20, 39, 45 6 MR. EMPENO 71f 14 , 37, 42 7 MR. ROMO 9, 40 8 MR. OSTOICH 16, 46 9 MS . FOX 21 10 11 12 13 14 t 15 16 17 18 19 20 21 22 23 24 25 4 YOUNGER REPORTING SERVICES t r 1 TUESDAY, OCTOBER 7, 1997 SAN BERNARDINO, CA 2 3 MS . THRASHER: Will the meeting please come to 4 order . 5 Commissioner Lockett, would you lead us in the 6 flag salute . 7 (Flag salute . ) 8 MS . THRASHER: Would Staff please administer the oath 9 to anyone wishing to give testimony this evening. 10 MS . ROSS : Any members of the public wishing to 11 address the Planning Commission tonight, and the project 12 proponents, please stand and raise your right hand. 13 (Public sworn . ) 14 MS . THRASHER: Next item is the planning director ' s 15 report . 16 MR. NAYS : Madam Chairman, Commissioners, good 17 evening . Actually, I have nothing to report to you as far 18 as any recent Council action on any planning activities . 19 There will be several items going to Council next month, 20 but we haven ' t had any items either appealed or going from 21 your Commission, recently, to Council . 22 I would, however, like to introduce one of our 23 most recent staff members for the planning department . 24 Joe Bellandi, Associate Planner. 25 Joe, would you stand, please . ( 5 YOUNGER REPORTING SERVICES i (: 1 I 'm sorry. Harriet Laing, also, both new i 2 Associate Planners . I 'm sorry, Harriet . I didn ' t see you 3 back there . So both Harriet and Joe are our most recent 4 additions to the planning department . We ' re fully staffed 5 now, and I 'm looking forward to having them before your 6 Commission here fairly, you know, soon . So it ' s good to 7 have them on board, and I 'd like to have you recognize 8 them and welcome them. 9 MS . THRASHER: Welcome . 10 MR. HAYS : And that ' s all I have on the director ' s 11 report this evening. Thank you. 12 MS . THRASHER: Thank you. 13 Now is the time if anyone in the public has 14 something on a nonagenda item they wish to speak on. 15 Seeing none, is there any Commissioner that 16 has any nonagenda item they would like to speak on? 17 Seeing none, we ' ll close public comments . 18 The consent agenda, Staff, what are you 19 recommending on the consent agenda this evening? 20 MS . ROSS : Staff is recommending Items 2 and 3 on the 21 consent agenda and none of the minutes . I don ' t believe 22 we have a quorum for any of those . 23 Item Number 2 is Tentative Tract Number 14193, 24 and this is a request for an extension of time . And this 25 is the final extension from October 9, 1997, to 6 YOUNGER REPORTING SERVICES { I October 9, 1998 . And this is to establish a 76-lot 2 single-family residential subdivision in the RS, 3 Residential Suburban, land use district with a minimum lot 4 size of 7200 square feet . The property is located at the 5 southeast corner of Ohio Avenue and Olive Avenue . 6 Staff make the recommends that the 7 Planning Commission approve the request for the final 8 extension of time for Tentative Tract 14193 based on the 9 previously approved findings of fact, subject to the 10 conditions of approval and standard requirements . 11 Item Number 3 is Conditional Use Permit Number 12 97-17 and Variance Number 97-10 . The Applicant has 13 requested a continuance until October 21st . Staff concurs 14 with that continuance and recommends that this item be 15 continued for two weeks . That concludes the consent 16 agenda . 17 MS . THRASHER: Is there any Commissioner wishing to 18 pull either Items 2 or 3? Anybody -- yes . 19 MR. EMPENO: Madam Chairman, I believe we have a 20 quorum to take action on the minutes for 21 September 2, 1997, but not a quorum present who were 22 previously present at the other two 23 Planning Commission meetings with minutes . 24 MS . THRASHER: All right . So did anyone in the 25 audience wish to pull items -- either Item 2 or 3 for �( 7 YOUNGER REPORTING SERVICES 1 discussion? 2 MEMBER OF THE PUBLIC : Could I get an agenda so I 3 know what items we ' re discussing? 4 MS . THRASHER: What item -- 5 MEMBER OF THE PUBLIC : Item 3 . I would like to 6 discuss Item 3 . 7 MS . THRASHER: Item 3 is a continuance . You wanted 8 to discuss that? 9 MEMBER OF THE PUBLIC : I would like to voice my 10 opinion on it . Should I go to the podium? 11 MS . THRASHER: On whether we continue that item or 12 not? 13 MEMBER OF THE PUBLIC : Yes . C 14 MS . THRASHER: If you would like to go to the 15 microphone and identify yourself. But before you do that, 16 let me -- go ahead and go to the microphone, but Items 1, 17 2, 3, and 4 are final unless appealed to the Mayor and 18 Council . Decisions of the Planning Commission are final 19 concerning conditional use permits, development permits, 20 tentative tract maps and variances, unless appealed to the 21 Mayor and Council . Appeals to the Mayor and Council must 22 be made in writing, stating the grounds for the appeal, 23 and must be submitted to the Planning and Building 24 Services Department along with the appropriate fee within 25 15 days of the decision. { 8 YOUNGER REPORTING SERVICES 1 General plan amendments and amendments to the f 2 municipal code will automatically be forwarded to the 3 Mayor and Council for final action . 4 If you challenge the resultant action of the 5 Planning Commission in court, you may be limited to 6 raising only those issues you or someone else raised at 7 the public hearing described in this agenda, or in written 8 correspondence delivered to the City Planning Division at, 9 or prior to, the public hearing. 10 Individual testimony will be limited to five 11 minutes per person . 12 Yes, sir . Please, Item Number 3 . 13 (Item Number 3 discussed. ) t 14 MS . THRASHER: Next item, Item Number 4 . 15 MR. QUIEL: Madam Chairman, I will have to abstain 16 from Item Number 4 because of a working relationship 17 ongoing that I ' ve had with the Inland Center. 18 MS . THRASHER: Let the record show that Larry Quiel 19 is abstaining due to a working relationship with the 20 Inland Center. 21 MR. QUIEL: Thank you, Madam Chairman . 22 (Commissioner Quiel left the Commission 23 Panel . ) 24 MR. ROMO: Good evening, Commissioners . This is the 25 appeal of the Development Review Committee ' s approval of t 9 YOUNGER REPORTING SERVICES 1 Development Permit Type II Number 97-13, which was 2 approved on September 11th, 1997 . The Appellant in this 3 case, Carousel Mall or Central City Company, is appealing 4 this approval, which is the initiation of the first phase 5 of the Inland Center Mall expansion project to construct a 6 two-level department store and a four-level parking 7 structure . Subject property is located at 8 500 Inland Center Drive . 9 Again, the Appellant is asking that the 10 Planning Commission overturn the DRC ` s approval . It 11 should be noted for the record that neither the Appellant 12 nor the representative was present at the DRC meeting of 13 September 11th, 197 . 14 Development Agreement Number 91-01 was 15 approved by the Mayor and Common Council on 16 April 1st, 196, which authorized, in concept, the addition 17 of up to a total of three new anchor stores at 18 Inland Center Mall . In connection with the development 19 agreement, an EIR, Environmental Impact Report, was 20 prepared pursuant to the California Environmental 21 Quality Act, and also certified on April 1st, 1996, by 22 City Resolution Number 96-84 . 23 Development Permit Type II Number 97-13 was 24 submitted to Staff on July 24th of this year and scheduled 25 for review by the DRC on August 14th, 1997 . The DRC 10 YOUNGER REPORTING SERVICES 1 commented on the project, requested revisions to the 2 plans, and continued the item. The item came back to the 3 Development Review Committee on September 11th, ' 97 , at 4 which time the DRC found that the project met all the 5 provisions of the development code and approved it with 6 conditions and standard requirements . 7 Now, the Appellant ' s grounds for appeal are 8 four points, which I ' ll go ahead and state . Henry will 9 end up looking at two of the points and going over those 10 with you. 11 Point Number 1, the Appellant states that they 12 were denied due process rights and precluded from 13 effective representation and participation in the DRC 14 meeting of September 11th, ' 97, by not receiving the 15 proposed findings of fact, conditions of approval, and 16 other documents pertaining to the review of this 17 development permit . 18 Point Number 4 , the Development Review 19 Committee had inadequate facts and information on which to 20 base its approval of the development permit . I ' ll go over 21 those two points, and I ' ll allow Henry, like I stated, to 22 go over Points Number 2 and 3 . 23 Based on Point Number 1, the Appellant did 24 receive all the information that was available in the case 25 file each time a request was made . The findings of fact t 11 YOUNGER REPORTING SERVICES 1 were distributed at the September 11th, 197, DRC meeting C 2 and read into the record prior to the Committee ' s action . 3 The conditions of approval from the planning division were 4 also available that morning in draft form, although the 5 conditions of approval and standard requirements were 6 received during the meeting and not available in final 7 form until the following day, September 12th. 8 This is standard operating procedure for items 9 going before the DRC, to present the conditions and 10 standard requirements to the Applicant during the meeting 11 verbally and in draft format . The final conditions, 12 standard requirements, and letter of approval are collated 13 and given to the Applicant following the Development 14 Review Committee meeting. 15 Point Number 4 , that the Development Review 16 Committee had inadequate facts of this, again, is 17 incorrect . Development Permit Type II 97-13 was routed to 18 the DRC on July 28, ' 97, for review. At the DRC meeting 19 of August 14th, 1997, the Committee asked for a site plan, 20 floor plan, and elevation revisions . Revised plans were 21 received by Staff and routed to the DRC on 22 September 4th, 1997 . 23 Now, after reviewing the proposal once again, 24 with the revisions requested, the DRC approved 25 Development Permit Type II 97-13 . All facts and 12 YOUNGER REPORTING SERVICES 1 information were presented to the DRC since the project ' s i 2 first submittal on July 24th of this year . Again, revised 3 plans were requested to clarify questions brought up by 4 the DRC on August 14th pertaining to building design, 5 handicapped access, fire sprinklers, landscaping, and a 6 more detailed building floor plan, which the DRC ended up 7 receiving . 8 In conclusion, the proposed initiation of 9 Phase I of the Inland Center Mall expansion, consisting o 10 a department store and a parking structure, was found to 11 be in conformance with the general plan and development 12 code . Furthermore, the project was found to be within the 13 scope of the project analyzed in the Certified EIR, and 14 therefore, did not require further environmental review 15 pursuant to CEQA Public Resources Code Section 21166, and 16 CEQA Guidelines 14, CCR Section 15162, as outlined in 17 Attachment C, which is our environmental compliance review 18 for this project . 19 Staff recommends that the hearing be closed, 20 that the Planning Commission deny the appeal and approve 21 Development Permit Type II Number 97-13 based on the 22 attached findings of fact and subject to the conditions of 23 approval and standard requirements . That concludes my 24 report . 25 MS . THRASHER: Yes, Mr. Empeno . { 13 `t. YOUNGER REPORTING SERVICES I MR. EMPENO: Madam Chairman, if I may, I would like 1 : i 2 to address the second and third grounds of the appeal 3 that ' s pending before you of this development permit . 4 In your documents attached to the Staff report as 5 Attachment D, I furnished the Planning Commission with a 6 copy of a memorandum to the Planning Commission with an 7 attachment to it providing a response to those two grounds 8 of the appeal, the second and third grounds of the appeal . 9 As you can probably see from the appeal 10 letter, both the second and third grounds of the appeal 11 refer to pending court cases in the City -- in the 12 San Bernardino County Superior Court . As I stated in my 13 response memorandum, the facts and characterization of the i 14 court cases in the appeal letter are misstated. 15 The Court has not issued an order or a 16 judgment which invalidates the development agreement 17 91-01, nor has the Court invalidated the Resolution 96-84 , 18 which approved the development agreement and certified the 19 Final Environmental Impact Report . 20 Judge Edwards at the court has only directed 21 that the City vacate and set aside its certification of 22 that portion of the final EIR that pertains to the 23 multi-screen theater complex . I ' ve attached to my 24 memorandum a copy of the Mayor ' s Executive Order 97-1 25 which complies with that court order. With the issuance 14 YOUNGER REPORTING SERVICES 1 of the Mayor ' s executive order, the City can process and 2 approve this Development Permit 97-13, and that action 3 would be consistent with the Court ' s decision. 4 If the Planning Commission has any questions, 5 I 'm happy to answer them. As I stated in the memorandum, 6 I have reviewed the judgment, the writ of mandate, and the 7 statement of decision that ' s been served upon the City. 8 And we believe that the action that ' s pending before the 9 Planning Commission for its approval of this development 10 permit, denial of the appeal is consistent with the 11 Court ' s decision . 12 MS . THRASHER: Thank you. Do you have a question 13 Commissioner Gonzalez? 14 MR. GONZALEZ : Yes, is that case over? I mean, is 15 that still pending? 16 MR. EMPENO: There are two court cases pending. The 17 CEQA action, California Environmental Quality Act 18 challenge is the court case where the judge has issued a 19 judgment and a writ of mandate and statement of decision. 20 The second court case is still pending and is set for 21 hearing. But in that case, there has been no temporary 22 restraining order, preliminary injunction issued by the 23 Court, which would prohibit this Planning Commission from 24 denying the appeal and approving the development permit . 25 MR. GONZALEZ : And what is that pending case? 15 YOUNGER REPORTING SERVICES I i ' I 1 What ' s that about, in essence? {� 2 MR. EMPENO: The pending case basically challenges 3 the actions of the City Council in approving the 4 development permit, based on arguments that their actions 5 are inconsistent with the City ' s municipal code ordinances 6 as well as with state law in various respects . Excuse me, 7 I think I misspoke and said "development permit . " I meant 8 development agreement, Development Agreement Number 9 91-01 . 10 MS . THRASHER: If there are no further questions, is 11 that all of Staff ' s presentation for now? 12 MR. ROMO: Yes . 13 MS . THRASHER: Does the Applicant wish to speak? 14 MS . FOX: Do you want the Applicant or the Appellant? 15 MR. OSTOICH : We ' re the Applicant, but not the 16 Appellant . 17 MS . THRASHER: All right . Let ' s hear from the 18 Applicant, please . 19 MR. OSTOICH: I ' ll be brief . 20 Thank you. My name is Mark Ostoich, 21 O-s-t-o-i-c-h, 600 North Arrowhead Avenue, San Bernardino, 22 92401 . I 'm appearing on behalf of the Applicant in this 23 matter. And I want to first say that we concur completely 24 in the Staff ' s position on this and Staff ' s analysis and 25 the analysis of the City Attorney ' s office related to the 16 YOUNGER REPORTING SERVICES 1 status of the litigation . So I really don ' t want to add 2 anything in addition to that . I think it ' s been covered 3 very adequately. 4 There are a couple of brief points that I do 5 want to make . I saw a copy of the letter that you 6 received from Central City Company that discussed a number 7 of environmental issues related to the Inland Center 8 project . These issues were all related to alleged seismic 9 hazards at the site, and the alleged danger to occupants 10 of the site if this development is allowed to go forward. 11 As I read the letter and looked at the 12 enclosures, which consisted of a number of old newspaper 13 articles, minutes of meetings before your body back in 14 1996 and the City Council, I had two thoughts . The first 15 thought was either Mr. Curci is mistaken about what he ' s 16 saying in the letter, or everyone in this valley is 17 really in -- should be in great concern about their 18 safety. 19 The second thought that is probably more 20 germane to tonight ' s proceeding, however, is that all of 21 these issues that were discussed in his letter were 22 raised, to a great extent, in 1996 when we appeared before 23 you, and later when we appeared before the City Council . 24 Central City' s attorney and consultants put massive 25 documents into the administrative record, as did the City, 17 YOUNGER REPORTING SERVICES 1 and as did we . {{ 2 The administrative record of that proceeding 3 is nearly 15, 000 pages long, most of which consists of 4 technical studies that were prepared by various 5 consultants for their side, various consultants for our 6 side, and consultants for the City. That administrative 7 record later became the subject of litigation in the 8 San Bernardino County Superior Court, as Mr . Empeno points 9 out . 10 And the result of that litigation was a 11 judgment which was handed down in September, in fact, 12 signed by Judge Edwards in September, that found that the 13 Environmental Impact Report, insofar as it relates to the 14 subject matter that we ' re dealing with tonight, is 15 adequate, legally adequate . And the mitigation measures 16 that were recommended, and that would include, but not be 17 limited to, mitigation measures related to seismic issues 18 on the site were reasonable and adequate . 19 And consequently, the matters that Mr. Curci 20 devoted so much attention to in his letter are really not 21 up for consideration this evening. Those matters have 22 been resolved to the satisfaction of the Superior Court . 23 What is really before you this evening is the development 24 permit, as Staff has correctly pointed out . It ' s an 25 application which seeks to have review of the C 18 YOUNGER REPORTING SERVICES 1 compatibility of a project with zoning requirements and 2 development standards within the City ' s development code . 3 It ' s very easy, in reading Mr . Curci ' s letter, 4 to get confused and to almost be overwhelmed with the 5 enormity of the issues he ' s raised. But I want to ask you 6 this evening to focus on the issues that are truly before 7 you . I don ' t know if in their presentation they are going 8 to raise these other issues again, but in anticipation of 9 that, I just wanted to say a few words and ask you to not 10 be misled by the focus of this evening. This evening ' s 11 focus is really design- -- and as Staff has pointed out, 12 matters not related to the basic environmental issues that 13 Mr . Curci discussed in his letter. 14 And that ' s really all I have to say. Thank 15 you very much for your time . And I would be happy to 16 return to the podium later in the evening and answer any 17 questions you have about the project . Thank you. 18 MS . THRASHER: Thank you. 19 Before the Appellant comes before us, I would 20 like to ask either our attorney or Staff, I received this 21 packet from the Central City Company, just like I think 22 everybody did. And I want to make sure that already 23 mitigation measures are in place for these liquefaction 24 issues and seismic issues . 25 It ' s my understanding before a permit for _t 19 YOUNGER REPORTING SERVICES 1 grading would be issued, that there would have to be 2 clearance by scientists, technical people, engineers, that 3 would have to pass that project or pass those issues, 4 their approval, before this project could go forward. Is 5 that correct or -- 6 MS . ROSS : That is correct . Incorporated into the 7 City ' s approval, the Development Review Committee ' s 8 approval, are various conditions and standard 9 requirements, and the entire mitigation monitoring 10 program, which includes the seismic and liquefaction 11 conditions and mitigation measures . In particular, that 12 certain studies be prepared, completed, and submitted, 13 reviewed by the City prior to issuance of either grading 14 permits or building permits . 15 MS . THRASHER: So whatever measures would be required 16 would have to -- no matter what the cost or what it is, it 17 would either have to be done, or the project would not be 18 approved for going forward? 19 MS . ROSS : That is correct . And the final design of 20 the building is contingent upon anything that may or may 21 not, as the case may be, be determined through these 22 studies . 23 MS . THRASHER: Thank you . I believe Marlene Fox is 24 the attorney for the Appellant . Please give us your name 25 and address for the record. 20 YOUNGER REPORTING SERVICES 1 MS . FOX: Good evening, Madam Chairman, members of 2 the Commission . My name is Marlene Fox; I 'm an attorney. 3 My office address is 2031 Orchard Drive in Newport Beach, 4 and I represent the Central City Company. 5 And Madam Chairman, the last time I had the 6 pleasure of appearing before this Commission, and I 7 remember the discussion that you had on the record, was 8 March 19, 1996 . And frankly, this case has gone on so 9 long, it really seems like it was just a couple months 10 ago . 11 There is a lot about the appeal that we 12 filed. I would have to concur, in some respects, with the 13 City Attorney' s office . There is a lot about the appeal 14 that is very legalistic in nature . And having been 15 involved with permitting and land use and environmental 16 law for longer than I should admit, but 25 years, I 17 understand that certain of those legal issues cannot be 18 decided by this forum. But I know that you understand 19 that we ' re obligated to raise them, nevertheless, because 20 that ' s what the law says . We ' re obligated to raise them 21 at this time . 22 And Madam Chairman, before I say anything 23 further, when you began, when you opened your proceeding 24 tonight, you were very specific about allowing speakers 25 five minutes, and I would request a longer period of ( 21 YOUNGER REPORTING SERVICES 1 time . I would not be able to make our presentation in �i 2 five minutes . I could possibly make it in 15 or 20 3 minutes . But every time I make a time estimate, the 4 opposition starts to laugh, because they say I never live 5 up to my estimates, I always exceed them. But I ' ll try 6 very hard not to . 7 You ' re in an interesting position tonight, 8 because you have to follow the advice -- or generally, you 9 do follow the advice of your City Attorney ' s office, and 10 you ' ve listened to the Applicant ' s agent who is also an 11 attorney, Mr . Ostoich, and then they have their trial 12 counsel here, Mr . Nolan . So you are, unfortunately for 13 you, bombarded with attorneys tonight . And I think that 14 you know the old adage, if you put that many attorneys in 15 a room, you ' re going to get that many opinions . 16 But you are, nevertheless, in an interesting 17 position, because what you ' re being asked to do is to look 18 at this Type II -- Development Permit Type II 97-13, to be 19 specific, for the Robinson ' s-May department store and the 20 parking structure, and you ' re being asked to harken back 21 to 1996, to April 1 when the City Council took the vote to 22 certify the EIR and to approve the development agreement, 23 and to rely on what happened then, and then on a judgment, 24 which we have a very different interpretation of the 25 judgment that was issued. ( 22 YOUNGER REPORTING SERVICES 1 1 And let me just -- well, before I digress and 2 get into that, you ' re nevertheless being asked to rely on 3 these things by other people when there are a whole set of 4 facts and common sense that will tell you, as Planning 5 Commissioners, that there is something very wrong with 6 this development -- with the approval of this development 7 permit, notwithstanding what the Council did, 8 notwithstanding what any judge did. And it will be very 9 interesting to see what the Fourth District Court of 10 Appeals does with it, because that ' s where it ' s going 11 next, obviously. 12 At any rate -- and I say that for this reason. 13 You ' re dealing with a site that you know, it ' s in your r � 14 general plan, it ' s in your city code, that is subject to 15 high liquefaction . As Planning Commissioners for the City 16 of San Bernardino, you are bombarded with information not 17 just from the Central City Company, but from all different 18 governmental agencies around the state with regard to 19 seismicity and earthquake problems, and you know the P 20 problems for this area . You know how sensitive it is; you 21 know how many earthquakes there have been along the 22 San Jacinto fault line . You know the area you ' re in. You 23 know the water table . You know all these things . 24 And this is common sense . It doesn ' t matter 25 what the resolution says ; it doesn ' t matter what the ( 23 YOUNGER REPORTING SERVICES 1 development agreement says ; it doesn ' t matter what 2 Judge Edwards said based on the legal documents he read. 3 You know this . This is information that you had long 4 before we came to you to discuss this, and long before the 5 Inland Center Mall ever came to you to expand that 6 shopping center. You know the hazards . 7 You know about the junior college just 8 hundreds of feet away that have had to shut down some of 9 their buildings because it was discovered that they have 10 fault lines running under the buildings, and they ' re 11 wondering where they' re going to get the money to 12 relocate . I mean, this is in your papers day after day, 13 week after week, month after month, and I 've only been 14 involved out here since 1992 . So you know this 15 information. You live here; you work here; you ' re 16 concerned with good planning for the City of 17 San Bernardino. 18 So you have that information, then you have a 19 resolution that was approved by your City Council on 20 April 1, 1996 . And this resolution right in the title of 21 it, 96-84, says it certifies the Environmental Impact 22 Report, adopts facts, findings, and statements of 23 overriding consideration, and a mitigation monitoring 24 reporting program, and it adopts and authorizes 25 Development Agreement 91-01 to govern the expansion of the t 24 YOUNGER REPORTING SERVICES 1 Inland Center Mall . 2 You have one resolution that does all those 3 things . There is nothing in this resolution, there is not 4 one sentence in this eight-page resolution that suggests 5 that any part of this resolution is severable . So if 6 there is anything wrong with any part of the resolution, I 7 don ' t believe, by a stroke of the Mayor ' s pen, he can act 8 on behalf of the Council and simply say, "Abracadabra, I 9 excise out anything having to do with movie theaters, " 10 because the judgment that the judge signed September 17th 11 is he issued a writ of mandate to the City of 12 San Bernardino . And that writ of mandate says, "You will 13 set aside your decision, at least that portion of it, that 14 deals with movie theaters . " 15 How do you issue the Mayor ' s one-page 16 declaration, I guess you would call it, executive order, 17 whatever you want, give it any name you want to give it, 18 and then just simply say, "Anything that has to do with 19 movie theaters for the Inland Center Mall is no longer 20 part of this"? Come on, your common sense tells you that 21 doesn ' t work legally. You don' t need me to stand here 22 before you to tell you that . Your City Attorney knows 23 that ' s not going to stand up. They ' re going to tell you 24 tonight that it does, so will the opposition, so you ' ll 25 get three different viewpoints . But you know that ' s a ( 25 YOUNGER REPORTING SERVICES 1 joke as much as I do . I mean, it ' s really comical the way 2 this is being done . 3 So you have a development agreement under your 4 development code that says that this development 5 agreement -- or our -- your development code starts out by 6 saying it ' s intended to follow the state law, because 7 development agreements are a creature of statute . Now, I 8 know you ' re a charter city and you ' re going to hear all 9 about that, so you don ' t have to follow state law. Well, 10 sometimes you don ' t . It ' s right in the government code; 11 it says you don ' t in some instances . 12 However, where you specifically adopt that 13 state law, you do . And that ' s what you did in this case 14 when you wrote your municipal code section dealing with 15 development agreements . 16 Now, the interesting thing about a development 17 agreement is it only pertains to the parties who are part 18 of the agreement . In this instance, if you look at the 19 development agreement, it ' s between the City of 20 San Bernardino and Mano Management, period. Period, end 21 of description in terms of parties . 22 Now, we know that the Inland Center Mall 23 consists of four legal parcels . In fact, there may be 24 five . I may be incorrect saying there are four. I don ' t 25 know whether the two parcels owned by Mano Management, 26 YOUNGER REPORTING SERVICES 1 Parcel 3, have been legally merged, or whether they are 2 actually two separate parcels . But if you look at the 3 ownership interest, there are, as far as I know, four 4 separate legal parcels . Mano Management owns legal 5 Parcel 3 . 6 It would seem that the project that ' s before 7 you is basically on Parcel 3, except that it also 8 encroaches over on Parcel 4 . Parcel 4 is not part of this 9 development agreement . I don ' t care what the attorneys 10 tell you. And again, you know, you ' re going to hear 11 varying -- every attorney is going to tell you something 12 different . It can ' t be part of this development 13 agreement, because the people that own Parcel 4 are not t 14 signatories to this agreement . Only Mano Management is a 15 signatory to this agreement . 16 So you have part of this project -- 17 incidentally, it ' s also an interesting question, common 18 sense tells you if somebody comes to your city and wants a 19 permit for approval of anything, whether it ' s a 20 subdivision map, conditional use permit, a development 21 permit, under your code, they have to satisfy you that 22 they are the legal owner. 23 So in the first development agreement DRC 24 meeting -- by the way, Mr . Romo made a point of saying 25 that I was not -- that the Appellant was not represented 27 YOUNGER REPORTING SERVICES 1 September 11th. He failed to tell you, however, that we 2 did attend the first development agreement, the DRC 3 meeting . And that was -- I believe it was August 14th . 4 In fact, I have for you, and I would like -- if I have 5 permission, Madam Chairman, I would like to submit into 6 the record, I have copies of court reporter verbatim 7 transcripts of the DRC meetings of the 14th of August and 8 September 11th on the item that ' s before the Commission 9 right now. And I -- well, let me get back to what ' s 10 interesting about this . 11 So you have a resolution that ' s not severable, 12 but you have a document by the Mayor that says, "I excise 13 out movie theaters . " You have a development agreement 14 that ' s signed by two parties that purports to include 15 other people that have never been before you. But even 16 more interesting than that, you have a development 17 agreement that ' s not even signed by a representative, by 18 an employee or an officer, an authorized officer, of 19 Mano Management . 20 On April 1, 1996, before the Council, a man 21 named Steven W. Partridge was introduced by Mr. Ostoich. 22 He was introduced as a vice president of 23 Equitable Real Estate, a consulting firm. And he was 24 introduced as a consultant for the owner, Mano Management, 2S Inc . Mr. Partridge got up and made a presentation to the E 28 YOUNGER REPORTING SERVICES i 1 Council, and confirmed that he was indeed vice president 2 of Equitable Real Estate, and that they had been advisors 3 and consultants to Mano Management for some time . 4 Now, if you look at the development agreement 5 that ' s been recorded, you will see on the signature page 6 that there are signatures for just two parties . And 7 that ' s on page 20 of the development agreement, and it is 8 signed on behalf of the City of San Bernardino by 9 Mayor Tom Minor, and by the developer Mano Management 10 Company, Inc . , it ' s signed by their consultant, not by an 11 officer of Mano Management or an employee of 12 Mano Management . And since I raise this issue, and it ' s 13 now -- it has yet to come before the Court, the court date 14 is the 25th of this month, they are now taking the 15 position -- the Applicant now takes the position, "Well, 16 it doesn ' t matter, because Mano Management, by virtue of 17 being silent, has ratified that . " 18 There is nothing in your code, there is 19 nothing in the State code that says a consultant can come 20 in and do this . This is against everything that you do 21 with regard to permit applications in this city, as well 22 as in this county, as well as in every other city around 23 the state . Wherever you go, I started to say earlier, for 24 a CUP, a subdivision map, a variance, a development 25 permit, the first thing you have to provide to the f 29 YOUNGER REPORTING SERVICES 1 planning department is proof of ownership . And if you are 2 an agent or a representative, you have to come in with a 3 letter from the owner. 4 So they can say they ratify this, but what 5 protection does the City have, and how can you give 6 another development permit when you ' re basing it on a 7 development agreement that ' s not even signed by one of the 8 two parties? What happens if something goes wrong and 9 there is liability? Can the City go after 10 Mano Management? Can they object at that point if there 11 is a lot of money involved, because they can say, "Well, 12 this was a mistake . We never authorized Steven Partridge 13 to sign this"? But that ' s a legal question, and your 14 attorneys and the opposition are going to tell you, "Oh, 15 no . They ratified it . That can never happen. " Think 16 about that . So you ' re in an interesting position . 17 Then we get to the development review, and we 18 start with the first hearing in August . Now, 19 Madam Chairman, you may remember that in March of 1996, 20 one of my biggest beefs at that time was the fact that we 21 had written to the City, to different offices of the City, 22 to the City Attorney' s office, to the planning department, 23 to the City Clerk, repeatedly asking to be kept informed, 24 to be allowed the opportunity to participate in the 25 approval process for the Inland Center Mall expansion. We 30 YOUNGER REPORTING SERVICES I constantly had to fight for documents . 2 And at that hearing, as late as when that 3 hearing started, the Staff was handing out new and 4 additional documents not only to us, but to the 5 Planning Commission . That was an issue before this 6 Commission last March, and I think was one of the reasons 7 the Commission, in March, voted to deny certification of 8 the EIR, and voted to deny approval of the development 9 agreement, because that was the Commission ' s vote on March 10 19th. 11 MR. EMPENO: Excuse me, Madam Chairman . If I may 12 interrupt, I just would like to note for the record that 13 the Planning Commission Secretary has informed me that 14 Ms . Fox has been speaking for more than 15 minutes . And I 15 would ask the Chair to provide some time limit to her 16 presentation, since she ' s already exceeded the time that 17 she was initially requesting . 18 MS . THRASHER: Well, I was waiting to hear the bell 19 go off to -- for five minutes, and then we would discuss 20 it . 21 Miss Fox, I know that some of the things 22 you' re bringing out are for the reason of legal action, 23 and the thing that I -- the statement that I read into the 24 record, that these things have to be brought up to be 25 challenged in court, I believe . But I 'm going to ask you 31 YOUNGER REPORTING SERVICES 1 to please try to be brief. And how much longer do you 4. 2 think you ' re going to require? 3 MS . FOX: I think I could wrap up in 10 or 12 4 minutes . 5 MS . THRASHER: All right . 6 MS . FOX: Thank you, Madam Chairman . I appreciate 7 the courtesy. 8 The first ground -- let me go specifically to 9 the grounds of the appeal . The first one has to do with 10 the fact that we feel we were denied a fair hearing. 11 Your Staff has told you that that ' s standard operating 12 procedure for them to come in with conditions of approval 13 and documents at their DRC meeting. Well, that really 14 makes it very, very hard for anybody to participate in 15 good faith in that meeting. 16 And the reason I tell you, if you will look at 17 the September 11th transcript, the court reporter 18 transcript that I made available, you will see that 19 attached to that transcript, there are about 15 pages of 20 documents that are findings, that are environmental 21 review, that are standard conditions, none of which were 22 available as late as 4 o ' clock the day before . But yet 23 they' re available for the 9 o ' clock DRC meeting . 24 And if you look at them, Staff states that 25 these were in draft form. The documents attached to the 32 YOUNGER REPORTING SERVICES 1 court reporter transcript are the ones that were available 2 at 9 o ' clock in the morning on the 11th . So I can only 3 assume that your Staff stayed until 11 or 12 o ' clock at 4 night to get these ready -- since they weren ' t ready at 5 4 o ' clock in the afternoon, to get these ready for 6 9 o ' clock the next day. In any event, it makes it 7 virtually impossible for anyone else to come in there and 8 participate in a meaningful fashion . I 'm sure you can 9 appreciate that . 10 Let me point to certain specifics about those 11 documents that we were not aware of prior to the time we 12 received these . If you would look, there are standard 13 requirements from the San Bernardino Municipal Water ' 14 Department . Now, these are substantive issues . These are 15 not rehashed issues; these are new issues . This is dated 16 August 12th, 1997 . This is the document I was told on 17 September 10th at 4 o ' clock wasn ' t available, and yet it ' s 18 dated August 12th, 1997 . And if you look down under 19 there, it says, "Water Department Engineering, " and it has 20 a contact name "Bill Bryden. " And one of his comments, 21 midway in the page, reads, "Relocation of existing 10-inch 22 water main and attendant easements . " 23 Now, my question is if this was known on 24 August 12th, this didn ' t come up on the 14th, the document 25 wasn ' t available on the 14th for the first DRC meeting. I 33 YOUNGER REPORTING SERVICES (� 1 was told that it wasn ' t available at 4 o ' clock in the t 2 afternoon of September 10th, but yet it was available at 3 9 o ' clock in the morning on September 11th . 4 I maintain that the relocation of that 10-inch 5 water main and the attendant easements require a CEQA 6 review. There is nothing in the Certified Environmental 7 Impact Report that addresses relocation of that 10-inch 8 water main or the associated easements ; there is nothing 9 in the Certified EIR that addresses excavation; there is 10 nothing in the EIR that tells where that will be relocated 11 or how much excavation will be . First, we ' re digging up 12 the old one, and then we ' re relocating it to a second 13 point . r� 14 So you don ' t have CEQA review for that . You 15 can ' t rely on the Certified EIR, because it ' s a fact that 16 was never known before . And I would have to question why 17 couldn ' t we have been told about this prior to after, you 18 know, the close of the hearing on the 11th? That ' s just 19 one . Excuse me, Madam Chairman, I want to get to the next 20 substantive item. 21 In addition, if you look at the standard 22 requirements, there is documentation from GTE . The 23 documentation from GTE refers to relocation of conduits 24 and cables . Well, what are we talking about here? How 25 much excavation is involved? And if these have to be 34 YOUNGER REPORTING SERVICES 1 relocated, I understand from the GTE memo that wasn ' t made 2 available until after the September 11th hearing, and it 3 wasn ' t available September 10th, I understand that this 4 structure, these conduits and cables are under the s structure -- or where the structure -- part of the 6 structure is to be . They have to be relocated. So where 7 are they going to be relocated? And how much excavation 8 will there be? And how many trucks will there be that are 9 going to transport what ' s being excavated? 10 So those are CEQA issues that have never been 11 addressed. They' re not in any Certified EIR; they ' re not 12 addressed in any mitigation monitoring plan that was 13 approved in April 1996 . 14 The fourth ground that I pointed out was is inadequate information . If you look at the August 14th 16 transcript, what you ' re going to see is that one of the 17 staff -- and I don ' t know whether it was Mr. Grubbs or 18 another staff member -- raised the issue of the proposed 19 structure for the department store Robinson ' s-May and the 20 parking structure, shows an encroachment on another legal 21 parcel . 22 In other words, what they' re proposing is not 23 situated on a single parcel, but on multiple parcels . And 24 Staff at the DRC, on the 14th of August, asked how that 25 was going to be resolved. And then if you look, there is 35 YOUNGER REPORTING SERVICES 1 a little bit of double-talk by Mr. Ostoich who sort of 2 shuffles his feet and says, "Well, we usually do that 3 by, um, um, easement, um, reciprocal easement . " 4 Does that reciprocal easement exist today? 5 Did it exist September 11th? If it didn ' t, how did Staff 6 approve this development permit when it ' s on more than one 7 parcel, and you have a single Applicant? How do you do 8 these things when they don ' t comply with your code? 9 So those basically, in addition to the ones 10 that I brought up about the development agreement, I 11 believe you have an invalid development agreement . I 12 believe your City Council needs to take formal action 13 other than what the Mayor did. I believe you need to deal 14 with and address having a project on multiple parcels . I 15 also -- oh, also in the documents from the 11th and in the 16 findings, it talks about the liquefaction report . I asked 17 that question August 14th, the same question you did, 18 Madam Chairman, and it ' s in the mitigation monitoring 19 program that they will -- the Applicant will prepare a 20 liquefaction report . I was told August 14th, it would be 21 reviewed by the city engineer. 22 If you look at the findings that were adopted 23 on September 11th, it says that it has to be reviewed by 24 the city geologist . And in order to mitigate it, it ' s not 25 just a matter of cost . It also says that if it turns out 1 36 YOUNGER REPORTING SERVICES I that there is a fault beneath the site, that they will 2 have to change the setback. So you ' re in the position of 3 approving a development permit where you ' re not even sure 4 where that structure is going to be located. But right 5 now, it looks like it ' s going to be located partially on 6 two different parcels . 7 There are a lot of problems here and a lot of 8 questions . I know you ' re going to do what you ' re going to 9 do and what you have to do . I know that, you know, you ' re 10 going to be told that nothing I said is accurate or 11 correct . Use your common sense . There are a lot of 12 things here . I 've seen you work before; I know you think 13 these things through. And on behalf of my client, I would 14 like to thank you for the opportunity to appear before 15 you, and for your courtesy. And I would be happy to 16 respond to any questions . 17 Did I do that in 12? 18 MS . THRASHER: They didn ' t stop you, so I think so . 19 Thank you very much. 20 Does Staff have any response, or do any 21 Commissioners have any questions at this point? 22 MR. EMPENO: Madam Chairman, if I may just briefly 23 respond to the legal issues design describing what Ms . Fox 24 raised in reference, again, to the pending court cases . 25 Again, as I mentioned previously, and I don ' t want to 37 YOUNGER REPORTING SERVICES 1 spend much more time repeating myself, but there is a 2 judgment entered, a writ of mandate and a statement of 3 decision in one of the court cases, and it ' s clear what 4 that decision is . 5 What Ms . Fox is asking the Planning Commission 6 to do is to disregard the Court ' s decision in this matter, 7 to ignore the Court ' s decision as to these environmental 8 issues, the seismic and the liquefaction issues that she ' s 9 raising tonight . And I ask the Planning Commission to 10 again be consistent with the Court ' s ruling and to 11 consider that Court ' s decision. 12 The project that ' s before you tonight is the 13 development permit involving the Robinson ' s-May Company 14 addition as well as the parking structure . It does not 15 involve the movie theater. The movie theater expansion 16 project is not before this Planning Commission. And that 17 decision of the Court regarding that movie theater 18 expansion has been acted upon by the City, and the City 19 has complied with that Court decision in that regard. 20 That ' s all I 'd like to say, unless the 21 Planning Commission has questions regarding that . 22 MR. HAMILTON: I have a question . 23 MS . THRASHER: Commissioner Hamilton. 24 MR. HAMILTON: It ' s my understanding that we ' re here 25 to approve this first phase and to deny Ms . Fox ' s appeal . l 38 YOUNGER REPORTING SERVICES 1 We ' re not attorneys, and the way I look at it, when a 2 construction comes, it ' s the construction engineers, and 3 the people that are financing this situation, whether they 4 want to put out that kind of money to build a complex that 5 will be suitable for liquefaction, I don ' t know of all the 6 earthquake faults in San Bernardino, but I imagine we ' re 7 sitting on top of one right here . 8 In fact, the courthouse was designated bad. 9 In fact, I designate the whole area bad, but that ' s not 10 the point . And I 'm going to leave that up to the judges 11 and to the attorneys to fight this out in a court of law. 12 And I 'm going to go ahead and make a motion to deny her 13 appeal and accept the findings of fact for the first t 14 phase . t 15 MR. SUAREZ : I ' ll second it . 16 MS . THRASHER: Well, before that, let ' s see if there 17 is anyone else in the audience wishing to speak on this 18 item. 19 Staff, yes . 20 MS . ROSS : We would like to respond to some of the 21 other issues before you make a motion, if we may. 22 MS . THRASHER: All right . Then I won ' t close public 23 comment in case someone has any questions from the 24 audience on them. 25 Go ahead. 39 YOUNGER REPORTING SERVICES i I MR. ROMO: Just for the record, Commissioners, in 2 regards to Ms . Fox ' s comment as to the water department ' s 3 standard requirements . The standard requirements that are 4 in your conditions of approval were in the file after the 5 August 14th meeting . These were giver_ to Staff as draft 6 conditions . The file was handed over to Ms . Fox after the 7 meeting of August 14th. The same goes with the GTE 8 conditions, which we received on July 31st . 9 Every time we do receive conditions from other 10 agencies, they immediately go into the file . Those were 11 not changed from July 31st . 12 In regards to, I would say, the other parcel 13 encroaching, both parcels are owned by the same party. r� 14 When we do have two parcels together like that, one 15 encroaching over the other, we do ask, as a condition of 16 approval, that a reciprocal access or parking agreement be 17 recorded after the fact . 18 MS . ROSS : I would like to extend a little on Gus ' s 19 comments and Gus ' s responses also . 20 The comment about requiring CEQA review for 21 the relocation of water mains and easements, I don ' t 22 believe that ' s subject to CEQA. That ' s a standard part of 23 every project that comes in whether it ' s new, whether it ' s 24 a remodel, whatever . It ' s anticipated that there will be 25 some easements that may have to be removed and relocated. 40 YOUNGER REPORTING SERVICES 1 Water and sewer, other utilities generally have to be 2 relocated and new easements drawn up. That ' s a standard 3 part of any project . And I don ' t believe that ' s beyond 4 the scope of what was addressed for the whole 5 Robinson ' s-May proposed department store in the EIR I 6 itself. 7 I believe Gus mentioned the reciprocal access 8 easements . That ' s essentially a standard requirement, and 9 that comes on various different types of applications . 10 And the Applicant is required to file that and record it . 11 Both the city engineer and the city geologist 12 will be reviewing the liquefaction reports in this case as 13 outlined in the standard requirements from Building and 1 14 Public Works and the mitigation monitoring program. 15 And the findings of fact and standard 16 requirements not being available at 4 p .m. but being 17 available the next day, as per the development code, we 18 are required, at the Development Review Committee meeting, 19 to address the findings and note them for the record, and 20 to follow up with a written letter to the Applicant 21 outlining the findings of fact, the conditions of 22 approval, and any applicable standard requirements . This 23 project was a little bit more involved, and Gus went ahead 24 and wrote the findings of fact out so he had something to 25 read from at the DRC meeting. The conditions of approval, 41 YOUNGER REPORTING SERVICES 1 he had them in draft form, also, to make sure that we had 2 all of the items addressed. 3 The standard requirements we receive from the 4 other departments generally at the time we propose to take 5 action on the project . Not only is it standard operating 6 procedure, it ' s consistent with the requirements in the 7 development code . And I believe that addresses the 8 issues . 9 MS . THRASHER: Thank you. 10 Are there any comments from anyone in the 11 audience, any questions? 12 Then we ' re going to close public comment . 13 Commissioner Gonzalez . 14 MR. GONZALEZ : Yeah, I have a question. When you say 15 a reciprocal agreement on the multiple parcels, is this 16 recorded with the County Recorder or something? 17 MS . ROSS : Yes, it is a recorded agreement . 18 MR. GONZALEZ : So that ' s attached to that property so 19 that anybody who would contemplate purchasing a property 20 would know this exists? 21 MS . ROSS : That is correct . 22 MR. GONZALEZ : It ' s not -- may I ask, Mr. Empeno, 23 it ' s not required to have a lot merger in this case under 24 state law? 25 MR. EMPENO: I 'm not aware of any legal requirement 42 YOUNGER REPORTING SERVICES i 1 for a lot merger. What we ' re discussing is whether the 2 reciprocal easements provide the necessary basis for the 3 development agreement, and we believe it does in this 4 particular instance . 5 MR. GONZALEZ : I believe the Uniform Building Code 6 does not permit the construction of a building on a 7 property line . 8 MR. EMPENO: I am aware of the provision regarding 9 building upon a property line . In this particular 10 instance, I 'm not sure of the timing of when the property 11 lines were recorded. Many times a parcelization of a 12 commercial lot occurs for financing purposes after 13 construction of a structure has been completed, and that ;.t'. 14 might have occurred in this particular instance when those 15 parcel lines then were drawn after the buildings were 16 already constructed. That does not cause any illegality 17 in terms of the construction of that structure or the 18 parcelization of that lot, or even the processing, like in 19 this instance, if that ' s the facts here, of a development 20 agreement, and this development permit application 21 pursuant to that development agreement . 22 MR. GONZALEZ : So is it your opinion that this is not 23 required? 24 MR. EMPENO: I don ' t believe the presumptions that 25 you ' re making are either necessarily accurate ones or have 43 YOUNGER REPORTING SERVICES i 1 any bearing on the pending development permit application 2 that ' s before you. 3 MR. GONZA.LEZ : You ' re not answering the question, 4 though . Is it legal to build on a property line? Can you 5 answer that question, whether it applies here or not? 6 MR. EMPENO: Well, obviously if you ' re stating the 7 Uniform Building Code provision about building a structure 8 upon a parcel or lot line, there is a prohibition against 9 that, I believe, in the Uniform Building Code, in a 10 general sense . 11 MR. GONZALEZ : Wouldn ' t it behoove the City to say, 12 "Just go ahead and merge the lots"? What ' s the problem? 13 Why not just do it? 14 MR. EMPENO: Like I was trying to explain to you, the 15 parcelization of a lot occurs for a variety of reasons, 16 and it sometimes occurs after a structure is completed. 17 What you ' re suggesting" may not be even possible in a giver. 18 situation . So what I 'm addressing is that the presumption 19 that you ' re raising, is that based on a Uniform Building 20 Code regulation, that perhaps there is some illegal 21 condition existing. Is that what I 'm understanding from 22 the nature of your question? 23 MR. GONZALEZ : Yes, that ' s what I understand. And 24 I 'm asking for your opinion. 25 MR. EMPENO: My opinion is that there is no illegal 44 YOUNGER REPORTING SERVICES 1 1 condition existing. 2 MS . THRASHER: Are there any other questions? 3 MR. GONZALEZ : May I request that the record show 4 that -- or our minutes, that the City Attorney says that a 5 building can be built on a property line . 6 MR. EMPENO: I didn ' t say that, sir . 7 MS . THRASHER: Yes, Staff. 8 MS . ROSS : If I may, I know this was raised as an 9 issue, and I know that the Applicant met with our plan 10 check engineer to address this issue to his satisfaction 11 so that we are able to proceed with the project as 12 proposed. And I don ' t know the building code, and I won ' t 13 pretend that I know the requirements in there . I do 14 believe there are provisions, as long as you meet certain 15 fire conditions or requirements . 16 MS . THRASHER: I believe we have things come before 17 us to be built on a property line from time to time . 18 Are there any other questions? 19 MR. GONZALEZ : Can I ask one more? 20 MS . THRASHER: Yes . 21 MR. GONZALEZ : Is the building designed already? Is 22 this project in plan check, by any chance? 23 MS . ROSS : No, it is not . 24 MR. GONZALEZ : So it ' s still on some architect ' s desk 25 somewhere? 45 YOUNGER REPORTING SERVICES 1 MS . THRASHER: I think they' re waiting, if I 2 understood right, for some of the results on these tests 3 to see what they can design, perhaps . Is that correct? i 4 MS . ROSS : Essentially, what you see on the wall 5 there is what the Development Review Committee approved. 6 That ' s the design and the development of the building . 7 They could presumably submit to plan check at any point 8 now upon completion of their geotech and liquefaction 9 studies . 10 MS . THRASHER: Thank you. 11 Are there any other questions? 12 Did the applicant have any more statements 13 or -- � j 14 MR. OSTOICH: No, thank you . 15 MS . THRASHER: Okay. Then we ' ll close public 16 comments . Any discussion, or can we have a motion? 17 MR. HAMILTON: I ' ll make the motion we go ahead and 18 accept the Permit Number 97-13 based on the findings of 19 fact in Attachment B and E and deny Mrs . Fox ' s request . 20 MR. SUAREZ : I ' ll second it . 21 MS . THRASHER: The motion was to deny the appeal? 22 MR. HAMILTON: Yes . 23 MS . THRASHER: We have a motion and a second.All in 24 favor? 25 (Ayes . ) 46 YOUNGER REPORTING SERVICES 1 MS . THRASHER: Opposed? 2 MR. GONZALEZ : No . 3 MS . THRASHER: One opposed. 4 Motion is passed -- the appeal is denied. 5 (The Motion carried by the following vote : 6 Ayes : Chairman Thrasher. Commissioner 7 Suarez . Commissioner Lockett . Commissioner 8 Hamilton. 9 Nays : Commissioner Gonzalez . 10 Abstained: Commissioner Quiel . ) 11 MS . THRASHER: Can we have a motion to adjourn if 12 there is no further business? 13 MR. HAMILTON: I ' ll make a motion to adjourn . 14 MR. SUAREZ : Second. 15 MS . THRASHER: Moved and seconded. All in favor? 16 (Ayes . ) 17 MS . THRASHER: Opposed? 18 (None . ) 19 MS . THRASHER: Meeting is adjourned. 20 (The Motion carried by the following vote : 21 Ayes : Chairman Thrasher. Commissioner 22 Suarez . Commissioner Lockett . Commissioner 23 Gonzalez . Commissioner Hamilton. 24 Nays : None . 25 Abstained: Commissioner Quiel . ) j 47 YOUNGER REPORTING SERVICES 4 " 1 (End of proceedings on Item Number 4 , Appeal 2 of Development Review Committee Approval of Development 3 Permit Type II Number 97-13, 8 : 39 p .m. ) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 YOUNGER REPORTING SERVICES � 1 2 3 4 5 REPORTER' S CERTIFICATE 6 7 8 THE UNDERSIGNED SHORTHAND REPORTER DOES HEREBY 9 DECLARE : 10 11 THAT THE FOREGOING WAS TAKEN BEFORE ME AT THE TIME 12 AND PLACE THEREIN SET FORTH AND RECORDED STENOGRAPHICALLY 13 BY ME AND WAS THEREAFTER TRANSCRIBED, SAID TRANSCRIPT 14 BEING A TRUE COPY OF MY SHORTHAND NOTES THEREOF. 15 IN WITNESS WHEREOF, I HAVE SUBSCRIBED MY NAME THIS 16 10TH DAY OF OCTOBER, 1997 . 17 18 / 19 �� 20 DAWN M. DAVILA, CSR NO. 8383 21 22 23 24 25 49 YOUNGER REPORTING SERVICES j DECLARATION OF MICHAEL, J. LEWIN RE APPEARANCE AT CITY of SAN BBRNARDINO 2 COMMON COUNCIL BEARING OF MONDAY NOVEMBER 3,- 1997 3 4 I, MICHAEL J. LEWIN, declare: 5 1. That I am an attorney at law, licensed to practice before 6 all the Courts of the State of California and am associated with the 7 law firm of Mirau, Edwards, Cannon & Harter. 2 . Pursuant to a request by attorney Marlene A. Fox, 8 communicated to our Office on October 30, 1997, I attended the San 9 Bernardino Common Council hearing regularly scheduled for that date. 10 I arrived prior to the time that Agenda Item No. 33 was called for 11 consideration by the Council. 12 3 . Prior to calling Agenda Item No. 33, I was approached by 13 Deputy City Attorney, Henry Empeno, Jr. Mr. Empeno inquired whether 14 I intended to appear on behalf of the Central City Company and whether 15 Marlene Fox would be attending. I responded that I was present for 16 the purpose of making a special„ limited appearance for Ms. Fox on the 17 issue of the continuance only and provided Mr. Empeno with a copy of j$ a letter to the Council from Ms. Fox, dated October 30, 1997, in 19 support of the continuance, which I intended to read and submit into 20 the Council hearing record. 21 4 . Prior to the time Agenda item No. 33 was called for 22 consideration, I filled out a "speaker slip", noting the Agenda Item 23 and identifying myself and submitted the speaker slip to a Clerk 24 present at the hearing. 5. When Agenda Item No. 33 was called, I approached the podium 25 26 but was waved back by Mayor Tom Minor. The Mayor continued to address Agenda Item 33 and then called for a vote to continue that item to 27 Thursday, November 6, 1997. 23 1 N- 6--97 s 1 6 . Prior to a final vote on Agenda Item 33, I stepped up to 2 the podium and Mayor Tom Minor stated that he would not recognize 3 me. The Mayor then proceeded with the vote on the continuance of 4 Agenda Item 33 . I interrupted the Common Council and stated that 5 I had submitted a request to speak on the matter. Mayor Tom Minor 6 once again stated that he would not recognize me and that I had no 7 right to speak at a continuance. 8 7 . On or before the close of business on Monday, November 3, 9 1997, I prepared and had an office assistant deliver to the San 10 1 Bernardino City Clerk, a copy of the letter attached hereto as 11 Exhibit "A" , together with a copy of the October 30, 1997 letter 12 from Marlene A. Fox to the Common Council, which I had intended to 13 read at the Council hearing during the deliberation of Item No. 33 14 and to then submit into the record as a part of the proceedings. 15 Attached hereto as Exhibit "B" is a Certified Court Reporter 16 Transcript of the City of San Bernardino Council hearing on 17 November 3, 1997 regarding Agenda Item No. 33, Request for 18 Continuance of Appeal Hearing. 19 8 . I declare under penalty of perjury that the foregoing is 20 within my personal knowledge, is true and correct, and if called as 21 a witness, I could and would competently testify thereto. 22 Executed this 6th day of November, 1997 at San Bernardino 23 California. 24 25 HA J. LEWIN - Declarant 26 AOL 27 28 r JOHN K.MIRAU` EXHIBIT a 599 No.'E'St.,Suite 205 MARK C.EDWARD$ '" San Bernardino,CA 92401 L A $ t= telephone:(909)888-0200 ROBERT W CANNONf g U A� A�yJ� ��y�(��® Facsimile:(909)384-0203 STANLEY A.HARTER* Uf 1Vf ARTER;�(,rLL4W-d1:!1 MICHAEL J.LEWIN A PROFESS CORPORATION 'Certified Specialist,Taxation Low,The State Bar of California Board of Legal Specialization 222 E.Olive Ave.,Suite 1 TC.rtifi.d Specialist,Estate Redlands,CA 92373 Planning,Trust and Probate Law,Th.State Bar of California telephone:(909)793-0200 Board of Legal Specioli=anon facsimile:(909)793-0790 November 3, 1997 C1013-101 Ms. Rachel Clark, City Clerk City of San Bernardino 300 N. "D" St. San Bernardino, CA 92401 Re: Appeal to Common Council of Planning Commission Action; Development Permit Type II No. 97-13, Phase 1 — Inland Center Mall Expansion (Robinson- Mays) Appellate: Central City Company/Carousel Mall Dear Ms. Clark: The undersigned appeared at the Common Council meeting on this Yd day of November, 1997, for the purpose of making a special appearance on behalf of Marlene Fox, who was unavailable to make the appearance. When the above-referenced agenda item was considered by the Common Council, I attempted to speak and make a special appearance on behalf of Marlene Fox. Prior to that time, I turned in a speaker's slip indicating my presence and desire to speak. At the council meeting I was denied the opportunity to make the special appearance. I stood up and attempted to speak, but Mayor Tom Minor refused to recognize me or permit me to speak. It was my intent at the meeting to read into the record the statement attached hereto, as well as the letter from Marlene Fox to the City of San Bernardino dated October 30, 1997. Request is made that the enclosed documents be included in the official records of the City. Also, request is made that a copy of the enclosed materials be delivered to each of the members of the Common Council. Very truly yours, MIRAU, EDWARDS, CANNON, HARTER& LEWIN A Professional Corporation EXHIBIT A By hae win C 1013-101\Corres\City of S.Q.OOI.doc Lew o1wzcss.oil MAIM$x$ A- Fox A PRO.FESSIONA(. CORPORATION 2031 ORCHARD CRIvE. SUITE 400 MARI.CN6 A. f0A - NEWPORT BEACH, CA 9ae6C. (7141 878-8444 FAX(7141 078-8447 October 30, 1997 Mayor Minor and Members of gg ST FOR CONTINQANCE the Common Council ' City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Re.- AppM OF pLANNING COIWSSION,,6 ACTION TO IIpHOLD TIM DEVELOPMNT REVIEW COXKr TEE'5 APPROVAL OF DEVELOPk= PERMIT TYPE II NO. 97-131 Phase I of Inland Center Mall Expansion (Robinson's-May) ; 500 Inland Center Drive (APN: 136-531-04) ; Our File No. 09450 Dear Mayor and Council Members: Eight days ago, on October 22, on behalf of our client, the Central City Company, we submitted the Appeal identified above and the requisite Appeal fee. In our letter to the City Clerk, requesting that the matter be set for hearing before the Council for a date certain, we requested that it be set for a date certain after November 5, 1997 because of my unavailability due to scheduled surgery and the fact that the surgery would keep me of f my f eet and away f rocs my Of f ice and scheduled appearances for at least 10 to 12 days. In addition, we checked with the City Clerk's Office and were advieed that by submitting the Appeal on the 22nd, there would be insufficient time within which to have the matter placed on the Council agenda for the first meeting in November and that the second meeting would take place on November 17th. At the time of submitting the Appeal I had every reason to believe that I would be unable to appear before the Council during the first week of November but sufficiently recovered to enable me to appear by the date of the second Council meeting, on November 17. Naturally, I thought it was unnecessary and inappropriate to include that level of detail in the original request that the Appeal be set for hearing before the Council for a date certain after November 5. Subsequently I was advised by letter that the appeal was scheduled to be heard by the City Council on November 3. With that information I conferred with my doctors at the earliest possible time to find out if it would be possible and/or advisable to Mayor Minor and Members of the Common Council October 30, 1997 Page 2 postpone the already scheduled procedures. As soon as I had a final response to my inquiries, I contacted Mr. Romo on October 29 and advised him of the situation, again pointing out that the original request for Appeal hearing requested that the Appeal be set for a date certain after November S. The conversation with Mr. Romo was memorialized and formalized in my letter of October 29 requesting the continuance so that I could appear and my client could be afforded effective legal counsel at the Appeal hearing. originally I was advised by Mr. Romo that I would have a response to my October 29th letter immediately after an early morning meeting at the City today, October 30 between the Director of Planning, the Principal Planner and City Attorney. After several telephone inquiries to the City today, I finally received a response just prior to 4:00 p.m. from Mr. Romo, advising that the chatter would be submitted to the Council on November 3 . That information placed me in the position that to go forward with the surgery meant that I would be doing so, absent knowledge of the Council's decision on the continuance and whether our client would be denied its due process rights of effective representation at the Appeal hearing. Attached to this letter are copies of my letter of October 29 to Gus Romo and my Letter of Confirmation of this date, October 30, 1997 to Gus Romo, confirming his final telephone message me at 4:00 p.m. today. As the matter now stands, it is my understanding that it will be submitted to the Council for its determination on Monday, November 3 . In that regard I would point out to the Council that the request for the continuance to November 17 simply means that the matter will not be heard for an additional 10 busineee daya and that the 10 business day delay in hearing the Appeal could have no possible detrimental or prejudicial effect on the Applicant pursuing the ICM Expansion. No prejudice can occur because the Applicant has not yet submitted the site specific geotechnical report required by City Ordinance to determine Kitigation Measures necessary to respond to liquefaction problems on the site. The site specific study is also a mitigation required by the Mitigation Monitoring Plan that was approved April 1, 1996. In addition to the fact that the geotechnical report has yet to be submitted for review and approval by the City Geologist and City Engineer, construction plans have not been submitted to the planning Department and Plancheck for the proposed demolition, construction of the department store and/or parking structure. Even if the finished working, engineering plans were submitted to the City sometime during the week of November 3, there is little likelihood that Plancheck and a thorough review of the geotechnical information Mayor Minor and Members of the Common Council October 30, 1997 Page 3 could be completed within the 9 business days (remembering that the City is closed every other Friday) between Monday, November 3, and Monday, November 17, 1997. Under the facts and circumstances, there can be no prejudice to the Applicant by continuing the Appeal hearing from the 3rd to the 17th. On the other hand, our client, also an operating business and taxpayer in the City of San Bernardino, would be denied its due process rights if it is precluded the opportunity to have effective representation by having Counsel of its choice at the Appeal hearing. Finally, we make this request, asking for the same courtesy and consideration that has previously been afforded to the attorneys for the Inland Center, when Inland Center appealed the approval of the Downtown Theater Project in July 1997. At that time the ICM, as Appellant, requested and was granted a continuance of the Appeal hearing from July 7, 1997 to the next regularly scheduled Council hearing on July 21, 1997. On behalf of our client, we respectfully request the same consideration be given in this instance. For all of the reasons set forth above, it is respectfully requested that the Council continue this Appeal hearing from Monday, November 3, to Monday, November 17, 1997. On behalf of our client and this Office, we thank the Council for its consideration of this request. Respectfully submitted, ?7? el. d�a� MARLENE A. FOX Attorney for Central City Company MAF/Lgl cc: Mr. Robert D. Curci y DICTATED BUT NOT READ _..----------- -------- - ...... - COPYLew OFInCSS OF M.dE1xNE A. Fox A PROF'ESSIONA(. CORPORATION a031 ORCHARD DRIVE. SUITE a00 MA, ICNC ►. f07[ NEWPORT ®E/(CH. CA 02000 (714) O7S-6444 PAX(714) 976•8447 XMSMITTED BY FAX October 29, 1997 Mr. Gustavo LT. Romo URGENT - RESPON$S REOUE9TED Assistant Planner Department of Planning & Building Services City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Re: APPEAL OF PLANNING CONMISSION'S ACTION TO UPHOLD THE DEVELOPMENT REVIEW COMUTTBE,S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson's-May) ; 500 Inland Center Drive (APN: 136-531-04) ; Our File No. 09450 Dear Mr. Romo: Our request for Appeal to the Common Council of the Planning Commission's October 7, 1997 action, approving Development Permit Type II, No. 97-13, was delivered to the City Clerk by courier on Wednesday, October 22, 1997, In our Transmittal Letter, we requested that the Clerk schedule the Appeal for hearing before the Council "for a date certain defter November 5, _ 1997 - " We then requested that we be advised of the date and the time when the Staff Report would be available for pick up. If you compare the October 21, 1997 letter to the Clerk to previous letters when we requested Appeal hearings, you will see that the October 21 letter was the first time I had ever requested that a hearing be set for a "date certain, beyond a specified date, i.e. after November 5. " The purpose of requesting that the hearing be scheduled for a date certain after November 5, was to enable me to be present for the purpose of representing my client, the Central City Company. Specifically, I requested that the matter be set for after November 5 since I knew that I would' be undergoing a medical procedure that has been scheduled for more than four months, on Friday, October 31, and that the scheduled medical procedure, is not voluntary, but necessary and will keep me off my feet at least through Wednesday or Thursday, November 5 or 6 . In fact, the letter to the Clerk for the Appeal to the Council, was prepared only after consultation with the surgeon involved. Mr. Gustavo J. Romo Assistant Planner October 29, 1997 Page 2 - Notwithstanding my specific request that the matter be scheduled for a date certain after November 5, I learned late in the day on Friday, October 24, that the Appeal had been scheduled for Monday, November 3, 1997 at 3 :00 p.m. The scheduling of the Appeal hearing for Monday, November 3, means either that the matter has been scheduled intentionally to deprive my client effective representation by Counsel of its choice, given my unavailability, or alternatively, I would have to cancel the scheduled medical procedure, against doctor's advice thereby placing me in further jeopardy. This matter is further compounded given the information we have obtained from the Office of the City Clerk, regarding the "normal procedure" for scheduling an appeal of a Planning Commission decision to the Common Council. We have been advised by the Clerk's Office, that it normally takes 3 to 4 weeks for an appeal to be scheduled on the Council Agenda. Further, that ordinarily, an Appeal filed on the 21st or 22nd of any month, would "normally* be placed on the Council Agenda for the second Council meeting the following month, or in this case, on November 17, 1997. Even more disturbing than the fact that Planning and Building Services determined to fast track this matter is the information that we obtained from the Clerk's Office that the Appeal filing deadline for Monday, November 3 Council meeting agenda was on or before October 17, 1997 and that any Appeals received after October 17, would normally have been scheduled for a Council meeting on November 17 or later. In my telephone conversation with you earlier this afternoon, I specifically asked why the date of November 3 was selected and secondly, why, given my request to the City Clerk when filing the Appeal that the matter be scheduled for a date certain after November 5, why this Office did not receive a call or inquiry as to our reason for making that request or my availability to appear at a Council hearing prior to the 5th. Since I was in Court through late Thursday, October 23, 1997, in San Bernardino, I did not become aware of your letter until the afternoon of Friday, October 24. For your information, since that time I have been endeavoring to reschedule the medical procedure, to no avail. Thus I telephoned you today to advise you of the position in which both my client and the undersigned have been placed due to the expedited, fast track fashion that this matter has been scheduled for hearing before the Council. In addition to the foregoing, this letter will confirm that you suggested during our telephone conversation this afternoon that the matter may have been expedited at the request of the Applicant, so Mr. Gustavo J. Romo Assistant Planner October 29, 1997 Page 3 that the Applicant would not encounter delay. This letter will further confirm that I then asked if in fact the Applicant had completed "plan check", had submitted all of the required geotechnical/Liquefaction reports, that the reports had been reviewed and signed off by the various technical and engineering personnel on behalf of the City, thus putting the Applicant in the position to pull a Building Permit immediately after November 3 . Your response to my inquiry was that the reports have not yet been submitted and in fact, the "plan check" procedure has not yet begun. At that point I asked how then could scheduling the Appeal for the next Council hearing, i.e. November 17, create delay for the Applicant. You responded that in fact, it could and would not_ In light of the fact that continuing the hearing date from November 3 to November 17 will neither delay nor prejudice the applicant, but will cause severe repercussions for the Appellant and Appellant's Counsel, we are again requesting that the hearing date be set for a time certain, to a date after November 5, 1997. This would allow the Appellant to be represented by Counsel of its choice and Counsel who has at all times continuously represented Appellant in this matter and has the background necessary to afford Appellant adequate representation at the Appeal hearing. In addition, it would allow the undersigned to go forward with the necessary surgery, without additional, unnecessary stress regarding the conflict in the scheduling. May I please have the courtesy of a response to this request at the earliest possible time. Thank you for your anticipated courtesy and cooperation_ very truly yours, ' ENE A. FOX MAF/Lgl CC: Mayor and City Council City Clerk Michael E. Hays, Director, Department of Planning and Building Services Henry Empeno, Deputy City Attorney Robert D. Curci OR191-NAL BY MAIL L,&w oFincss of MARLENE A. Fox A PROFESSIONAL COSIPORATION 2031 ORCHARD ORIvE. SUITE Roo MARI.tMt A. FOX NEWPORT BEACH. CA oaeeo (714) 970-04�4 FAX(7141 976-04,97 TRANSMITTED BY FAX October 30, 1997 Mr. Gustavo J. Romo LETTER OF f.'.ONFIRMATION Assistant Planner Department of Planning & Building Services City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Re: APPEAL OF PLANNING C0X=SSION1S ACTION TO UPHOLD THE DEVELOPMENT REVIEW COMaTTBE'8 APPROVAL OF DEVELOPMENT pERMIT TYPE II NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson's-May) ; 500 Inland Center Drive (APN: 136-531-04) ; Our File No. 09450 Dear Mr. Romo: This letter will acknowledge the two telephone conversations we had yesterday on October 29, 1997 and the messages I left for you on this date, October 30, 1997, as well as the messages I received from you on this date. In our final telephone conversation yesterday afternoon, Wednesday, October 29, at approximately 5:25 p.m_ , you advised me that the Director of Planning and Building Services, Michael E. Hays, and the City Attorney would have no response to my inquiry regarding continuing the November 3rd Council hearing for presentation of the Central City Company Appeal, notwithstanding my original letter to the City Clerk, until they had first reviewed the additional letter you requested during our first telephone conversation yesterday, the 29th. Thereafter, we transmitted to you my letter of October 29, emphasizing that we had originally requested that the Appeal hearing be set for a date certain sometime after November 5, 1997 and the basis for making that specific request. Our three-page letter was transmitted to you by FAX at 5:35 p.m. yesterday, within five minutes after we spoke by telephone. You advised that the Planning Director and the City Attorney or his representative and the Principal Planner (unnamed) would meet first thing this morning to discuss this matter and that you would notify me of their decision Mr. Gustavo J. Romo Assistant Planner October 30, 1997 Page 2 sometime prior to Noon today. As I told you yesterday, it was necessary for me to go to Los Angeles, for certain preparatory work at UCLA today. I continuously checked with my Office for messages and when I learned that we had heard nothing from you this morning, I telephoned you at approximately 11:30 a.m. and left a message on your voice mail requesting information regarding the decision by the Director, the City Attorney and the Principal Planner on the requested continuance. Later this afternoon, I learned that our answer machine logged a call from you to our Office at 1:07 p.m. , advising that as of that time, you still had no response to my inquiry of Wednesday, the 29th and the letter that was FAXED requesting the continuance. At approximately 3:20 p.m. today, I called again to inquire if there was a response to my inquiry and my letter, requesting that the matter be continued. You advised that you still had no information to provide but that you hoped to be able to get back to me by 4 :00 p.m. I again emphasized that I would need a response today and that I was approaching the "point of no return" with regard to the scheduled medical procedure. Finally, you called this Office and left a message at 3 :47 p.m. stating that you had been advised to inform me that the Director, the Administrator and the City Attorney have decided to refer the Central City Company request for a continuance to the City Council at the Monday, November 3, 1997 Council meeting. This means that the issue of continuance will need to be decided by the Council when it is presented to them on Monday, November 3 . Given the timing, the way this matter has been handled and the City's failure to either honor our original request or to respond to our request submitted both telephonically and in writing yesterday, October 29, I have been left with no choice but to advise my client that it is necessary that I go forward with the necessary medical procedure that has been scheduled. If all goes well and nothing unforeseen develops, I anticipate returning to my Office on either Thursday or Friday, November 5 or 6. Unfortunately, because the Staff Report was not available until after 3 :00 p.m. today, there was insufficient time for anyone to pick up the Report, deliver it to this Office in time for review prior to my departure. It is my understanding, that my client will pick up the Staff Report and Federal Express the Report to our Office for delivery tomorrow, Friday, October 31. Of course, I will have no opportunity to review the Report until my return, when it may then be a moot point, depending on the Council' s action on Monday. 1 Mr. Gustavo J_ Romo Assistant Planner October 30, 1997 Page 3 Under the circumstances, the City' s position is difficult to understand. We have at all times dealt in good faith and made every effort to cooperate as we pursue our client' s rights as an operating business and taxpayer in San Bernardino. The expedited, fast track procedure being employed in this instance appears to be for the sole purpose of denying the Central City Company the right to appear and participate in the public hearing process through counsel of its choice. In the 25 years I have been working with governmental agencies, as special counsel, Assistant City Attorney and representing landowners, I have never before experienced an agency denying a requested continuance in such an arbitrary fashion - for the obvious purpose of doing everything and anything conceivable to prevent an effective appeal presentation. Thank you for your efforts to be courteous. very truly yours, A a. arx MARLWE A- FOX MAF/Lgl Qy DICTATED BUT NOT READ ORIGINAL BY MAIL cc: Mayor and Members of the Common Council City Clerk Michael E. Hays, Director of Planning & Building Services Robert D. Curci 11/05/97_ .53 4 4 WAXNE A YOX 002 EXHIBIT B CITY OF SAN BERNARDINO LU CITY COUNCIL MEETING '--, RE: PLANNING COMIriISSION ACTION ) TO UPHOLD THE DEVELOPMENT REVIEW COMMITTEE'S APPROVAL a OF DEVELOPMENT PERMIT TYPE ) a II NO. 97-13, LOCATED AT 500 ) . — INLAND CENTER DRIVE. ) � z V � . 0 ORIC INAL. E � a " TRANSCRIPT OF PROCEEDINGS W San Bernardino, California Monday, November 3, 1997 w . Sarnoff Deposition Service, Inc Los Angeles Tel 213.928.2461 Fax 213.931.3016 800.6401461 Orange County . Tel 714.834.1571 Reported by: Fax 714.834.9235 JULIE KEARNS 800.888.6949 CSR No. 5826 EXHIBIT B San Diego JOB No. 487605 Tel 619.544.9955 Fax 619.544.9901 11/05/87 1U:b4 114 b"15 6447 XA*.r,ivz a rue UUU4 1 CITY OF SAN BERNARDINO 2 CITY COUNCIL MEETING 3 4 RE: PLANNING COMMISSION ACTION ) TO UPHOLD THE DEVELOPMENT ) 5 REVIEW COMMITTEE'S APPROVAL ) OF DEVELOPMENT PERMIT TYPE ) 6 II NO. 97-13, LOCATED AT 500 ) INLAND CENTER DRIVE. ) 7 ) 8 9 10 11 12 Transcript of Proceedings, taken 13 on behalf of Appellant, at City Council 14 Chambers, 300 North "D" Street, San 15 Bernardino, California, beginning at 16 3 :40 p.m. and ending at 3 :48 P.M. on 17 Monday, November 3, 1997, before JULIE 18 KEARNS, Certified Shorthand Reporter 19 No. 5826 . 20 21 22 23 24 25 2 11/05/97 10:54 U714 a75 �a4i x vr. a rue W uuy 1 APPEARANCES : 2 3 SAN BERNARDINO CITY COUNCIL: 4 TOM MINOR, Mayor EDWARD F. NEGRETH, Council Member (Not present) 5 FREDERICK CURLIN, M.D. , Council Member RITA C. ARIAS, Council Member 6 DAVID OBERHELMAN, Council Member JERRY DEVLIN, Council Member 7 BETTY DEAN ANDERSON, Council Member NORENE MILLER, Council Member 8 9 10 On Behalf of Appellant: 11 DANIEL LEWIN, Attorney at Law 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 11/05/Ur lu:a4 p119 air 0941 MLAOWA`D n rVA Kyuvo 1 San Bernardino, California, Monday, November 3 , 1997 2 3 :40 p.m. - 3 :48 p.m. 3 4 THE MAYOR: We've got one left on the green 5 one. That' s item 33 . This is an appeal hearing, and 6 it' s a Planning Commission action to uphold the 7 Development Review Commission' s approval of 8 Development Permit Type II No. 97-13 located at 500 9 Inland Center Drive. 10 I need to explain why we're going to 11 attempt to take the action that I 'd like to take. I 12 had them set the hearing for 3 o' clock today at our 13 regular council meeting. I did not know -- I had not 14 been informed by the member of the planning department 15 that received the letter from Marlene Fox that she had 16 requested a date certain after the 5th of November. 17 When I became aware of that, I contacted the Inland 18 Center Mall representative to see what we could do to 19 work something about because they expected to go 20 today. I believe that they have agreed to accept the 21 continuance until the 6th of November, and X believe 22 that meets the requirements of Marlene Fox in setting 23 a date after the 5th. So what I would like to do is 24 accept the motion to continue this to the 6th of 25 November at 1:00 p.m. 4 11/05/97 10:55 X714 975 8447 XAJWNh A r'ua UU5 1 I've got a motion and a second. Take the 2 second off for a minute so Dave can speak- 3 COUNCIL MEMBER OBERHELMAN: As I explained 4 earlier this morning, I have a commitment . 5 THE MAYOR: And I knew you had. 6 COUNCIL MEMBER OBERHELMAN: And I would like to 7 be able- to participate in this. I recall that when an 8 appeal on the other side came up and the other side' s 9 attorney had -- somebody sent a communication that 10 they had had a death in the family, that we continued 11 it to the next regularly scheduled meeting, and I feel 12 that' s appropriate in this particular case, and I will 13 be able to participate in the next regularly scheduled 14 meeting. And so I would ask that the same courtesies 15 be extended, that we continue this to the next 16 regularly scheduled meeting. 17 THE MAYOR: I understand your concern and the 18 courtesy requested, but I think it' s important to go 19 ahead with the time and date I requested. Did you put 20 your second back on? 21 COUNCIL MEMBER MILLER: Yes . 22 THE MAYOR: Okay, we have a motion and a 23 second. Continued to 1 :00 p.m. Sorry. It' s a motion 24 and a second on continuance. No discussion on 25 continuances . That' s why I removed the second so 5 11/05/97 10:55 $714 975 8447 GENE A FOX W007 1 Mr. Oberhelman could express his concern. 1:00 p.m. 2 on the 6th of November. 3 Call for the question. 4 I'm not going to recognize you on a 5 continuance. This is either up or down. 6 Okay, it passed. I think that completes 7 our agenda. This will be continued to 1:00 p.m. on 8 the 6th of November here in the council chambers. 9 COUNCIL MEMBER ARIAS : Mayor, I just had one 10 question. Are we going to have enough members here to 11 have a meeting? 12 COUNCIL MEMBER CURLIN: That ' s right . I can' t 13 be here on the 6th. That ' s why I voted no. 14 THE MAYOR: All right. I'm sorry. Had you 1s been there this morning, you would have realized what 16 we found out because I announced then what I was going 17 to do this afternoon. 18 MR. LEWIN: Excuse me. I just want to -- 19 THE MAYOR: I'm not going to recognize you, 20 sir. It' s been continued. That' s the end of the 21 item. 22 (Unintelligible conversation. ) 23 THE MAYOR: Do you change the rules because 24 something has been continued? Do you continue to 25 recognize people after the continuance? I asked this 6 11/05/97 10:55 V714 975 8447 MA#.ENE A FOX i0 uu8 1 counsel to give me some direction. 2 COUNCIL MEMBER CURLIN: You didn' t ask who 3 would be here, who could make it on Thursday. We have 4 commitments . It would have been a courtesy to ask if 5 everyone could be here. 6 COUNCIL MEMBER OBERHELMAN: This is a public 7 hearing. 8 THE MAYOR: I did hold the public hearing. I 9 asked I told you what the thing is going to be and 10 what needed to be done and I asked for a motion and a 11 second and I've got it, and the vote was taken and it 12 was continued to that date. 13 COUNCIL MEMBER CURLIN: Are you sure you'll 14 have a quorum on Thursday? 15 THE MAYOR: Well, I hope I will, Doc . 16 COUNCIL MEMBER CURLIN: I didn't hear that 17 everybody could make it . 18 THE MAYOR: I hope I 'll have a quorum. 19 With that, Rachel? 20 CITY CLERK: The only answer I have is if we 21 don' t have a quorum there are some items and ballot 22 issues that need to placed on the February ballot, and 23 the deadline for those -- 24 THE MAYOR: That' s right . We've got those 25 ballots on there at the same time . I forgot about 7 11/05/97 10:56 $714 975 8447 NOILENE A F01 Q009 1 that . So we stand adjourned now until 1:00 p.m. on 2 Thursday, November the 6th. 3 COUNCIL MEM$R CURLIN: May I ask the city 4 clerk -- 5 THE MAYOR: Stand adjourned. 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 11/05/97 10:56 $714 975 8447 LUMNE A FOX I1010 1 STATE OF CALIFORNIA ss 2 COUNTY OF LOS ANGELES 3 4 1, the undersigned, a Certified Shorthand 5 Reporter of the State of California, do hereby 6 certify: 7 That the foregoing proceedings were taken 8 before me at the time and place herein set forth; that 9 any witnesses in the foregoing proceedings, prior to 10 testifying, were placed under oath; that a verbatim 11 record of the proceedings was made by me using machine 12 shorthand which was thereafter transcribed under my 13 direction; further, that the foregoing is an accurate 14 transcription thereof . 15 I further certify that I am neither financially 16 interested in the action nor a relative or employee of 17 any attorney of any of the parties_ 18 IN WITNESS WHEREOF, I have this date subscribed 19 my name. . 20 21 Dated: NOV 0 4 '697 22 23 JUL KEARNS 24 CSR No. 5826 25 OF�tNARp��fp SP � O C I T Y O F � 2 �o an bernardino ED Ir►'0 RECE!V .-. .,r.i ^� Eh DEPARTMENT OF PLANNING AND BUILDING SERVICEP7 NOV -5 P1 '10 M I C H A E L E H A Y S D I R E C T O R November 4, 1997 Law Offices of Marlene A. Fox 2031 Orchard Drive, Suite 200 Newport Beach, CA 92660 RE: APPEAL OF PLANNING COMMISSION'S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson's-May); 500 Inland Center Drive (APN: 136-531-04). Dear Ms. Fox: At their meeting of November 3, 1997 the Mayor and Common Council continued the appeal of the above-referenced project to November 6, 1997, "a date certain after November 5, 1997" as requested in your October 21, 1997 appeal letter to the Mayor and Common Council. The meeting will be held at 1:00 p.m. in the Council Chambers, First Floor City Hall, 300 North "D" Street, San Bernardino. If you have any questions, please feel free to contact me at (909)384-5057. Res 1 , Michael Hays Director cc: DPII-97-13 Case File Rachel Clark, City Clerk Henry Empeno, Deputy City Attorney Gresham, Savage, Nolan & Tilden c/o Mark A. Ostoich 600 North Arrowhead Avenue, Suite 300, San Bernardino, CA 92401 3 0 0 N O R T H D S T R E E T , S A N B E R N A R D 1 N O CALIFORNIA 92418 • 0001 (808 ) 3 84.5071 /5057 • FAX (808 ) 384 -5080 IOHN K.N11RAU* 599 No. "E" St., Suite 205 :NARK C.EDWARDS L Aw OFF 1 C E S o F San Bernardino,CA 92401 ROBERT W.CANNONt telephone: (909) 888-0200 STANLEY A.HARTER* MIRAU, EDWARDS, CANNON, HARTER&LEWIN facsimile: (909) 384-0203 MICHAEL J.LEWIN A PROFESSIONAL CO PQR TIOtV •Certified Specialist,Taxation Law,The State Bar of California Board of Legal Specialization 222 E. Olive Ave.,Suite I tCertified Specialist, Estate •(�7 %M -3 D :08 Redlands,CA 92373 Planning,Trust and Probate 71 Law, The Stare Bar of California telephone: (909) 793-0200 Board of Legal Specialization facsimile: (909) 793-0790 November 3, 1997 C1013-101 Ms. Rachel Clark, City Clerk City of San Bernardino 300 N. "D" St. San Bernardino, CA 92401 Re: Appeal to Common Council of Planning Commission Action; Development Permit Type II No. 97-13, Phase 1 — Inland Center Mall Expansion (Robinson- Mays) Appellate: Central City Company/Carousel Mall Dear Ms. Clark: The undersigned appeared at the Common Council meeting on this 3rd day of November, 1997, for the purpose of making a special appearance on behalf of Marlene Fox, who was unavailable to make the appearance. When the above-referenced agenda item was considered by the Common Council, I attempted to speak and make a special appearance on behalf of Marlene Fox. Prior to that time, I turned in a speaker's slip indicating my presence and desire to speak. At the council meeting I was denied the opportunity to make the special appearance. I stood up and attempted to speak, but Mayor Tom Minor refused to recognize me or permit me to speak. It was my intent at the meeting to read into the record the statement attached hereto, as well as the letter from Marlene Fox to the City of San Bernardino dated October 30, 1997. Request is made that the enclosed documents be included in the official records of the City. Also, request is made that a copy of the enclosed materials be delivered to each of the members of the Common Council. Very truly yours, MIRAU, EDWARDS, CANNON, HARTER& LEWIN A Professional Corporation By �/ 1 chae . ewin l P C1013-101\Corres\City of S.B.00I.doc 11607 T,Aw oFrzcrs of Mix$ A. Fox A PRO-FESSIONAL CORPORATION 2031 ORCHARD ORtvE. SUITE too MARLENG A. /OX NEWPORT BEACH, CA 92000, (714) 978-6444 '(17 �,,.�)±'1 �� G ^ rAX (7t4) 075-8447 77 2 October 30, 1997 Mayor Minor and Members of REQUEST FOR CONTINUANCE the Common Council City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Re: APPEAL OF PLANNING COMMISSION'S ACTION TO UPHOLD THE DEVELOPMENT REVIEW COMMITTEE'S APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson's-May) ; 500 Inland Center Drive (APN: 136-531-04) ; Our File No. 09450 Dear Mayor and Council Members: Eight days ago, on October 22, on behalf of our client, the Central City Company, we submitted the Appeal identified above and the requisite Appeal fee. In our letter to the City Clerk, requesting that the matter be set for hearing before the Council for a date certain, we requested that it be set for a date certain after November 5, 1997 because of my unavailability due to scheduled surgery and the fact that the surgery would keep me off my feet and away from my Office and scheduled appearances for at least 10 to 12 days. In addition, we checked with the City Clerk' s Office and were advised that by submitting the Appeal on the 22nd, there would be insufficient time within which to have the matter placed on the Council agenda for the first meeting in November and that the second meeting would take place on November 17th. At the time of submitting the Appeal I had every reason to believe that I would be unable to appear before the Council during the first week of November but that I would be sufficiently recovered to enable me to appear by the date of the second Council meeting, on November 17. Naturally, I thought it was unnecessary and inappropriate to include that level of detail in the original request that the Appeal be set for hearing before the Council for a date certain after November 5 . Subsequently I was advised by letter that the appeal was scheduled to be heard by the City Council on November 3 . With that information I conferred with my doctors at the earliest possible time to find out if it would be possible and/or advisable to Mayor Minor and Members of the Common Council October 30, 1997 Page 2 postpone the already scheduled procedures . As soon as I had a final response to my inquiries, I contacted Mr. Romo on October 29 and advised him of the situation, again pointing out that the original request for Appeal hearing requested that the Appeal be set for a date certain after November S . The conversation with Mr. Romo was memorialized and formalized in my letter of October 29 requesting the continuance so that I could appear and my client could be afforded effective legal counsel at the Appeal hearing. Originally I was advised by Mr. Romo that I would have a response to my October 29th letter immediately after an early morning meeting at the City today, October 30 between the Director of Planning, the Principal Planner and City Attorney. After several telephone inquiries to the City today, I finally received a response just prior to 4 :00 p.m. from Mr. Romo, advising that the matter would be submitted to the Council on November 3 . That information placed me in the position that to go forward with the surgery meant that I would be doing so, absent knowledge of the Council' s decision on the continuance and whether our client would be denied its due process rights of effective representation at the Appeal hearing. Attached to this letter are copies of my letter of October 29 to Gus Romo and my Letter of Confirmation of this date, October 30, 1997 to Gus Romo, confirming his final telephone message me at 4 :00 p.m. today. As the matter now stands, it is my understanding that it will be submitted to the Council for its determination on Monday, November 3 . In that regard I would point out to the Council that the request for the continuance to November 17 simply means that the matter will not be heard for an additional to business dLkys and that the 10 business day delay in hearing the Appeal could have no possible detrimental or prejudicial effect on the Applicant pursuing the ICM Expansion. No prejudice can occur because the Applicant has not yet submitted the site specific geotechnical report required by City Ordinance to determine Mitigation Measures necessary to respond to liquefaction problems on the site. The site specific study is also a mitigation required by the Mitigation Monitoring Plan that was approved April 1, 1996 . In addition to the fact that the geotechnical report has yet to be submitted for review and approval by the City Geologist and City Engineer, construction plans have not been submitted to the Planning Department and P1ancheck for the proposed demolition, construction of the department store and/or parking structure. Even if the finished working, engineering plans were submitted to the City sometime during the week of November 3, there is little likelihood that Plancheck and a thorough review of the geotechni.cal information Mayor Minor and Members of the Common Council October 30, 1997 Page 3 could be completed within the 9 business days (remembering that the City is closed every other Friday) between Monday, November 3, and Monday, November 17, 1997. Under the facts and circumstances, there can be no prejudice to the Applicant by continuing the Appeal hearing from the 3rd to the 17th. On the other hand, our client, also an operating business and taxpayer in the City of San Bernardino, Would be denied its due process rights if it is precluded the opportunity to have effective representation by having Counsel of its choice at the Appeal hearing. Finally, we make this request, asking for the same courtesy and consideration that has previously been afforded to the attorneys for the Inland Center, when Inland Center appealed the approval of the Downtown Theater Project in July 1997. At that time the ICM, as Appellant, requested and was granted a continuance of the Appeal hearing from July 7, 1997 to the next regularly scheduled Council hearing on July 21, 1997. On behalf of our client, we respectfully request the same consideration be given in this instance. For all of the reasons set forth above, it is respectfully requested that the Council continue this Appeal hearing from Monday, November 3, to Monday, November 17, 1997. On behalf of our client and this Office, we thank the Council for its consideration of this request. Respectfully submitted, tea., r 4!f-t. �ax- MARLSNS A. FOX Attorney for Central City Company MAF/Lgl CC. Mr. Robert D. Curci DICTATED BUT NOT READ n �J LAW oYFzcss of M A. Fox A PROFESSIONAL. CORPORATION 2031 ORCHARD DRIVE. SUITE 200 MARLENE A. IOX NEWPORT 6EACH. CA 92660 (714) 9»-6444 FAX (714) 075-SA47 TRANSMITTED BY FAX October 29, 1997 Mr. Gustavo J. Romo URGENT - RESPONSE_ REQUESTED Assistant Planner Department of Planning Building Services City of San Bernardino 300 North I'D" Street San Bernardino, CA 92418 Re: APPEAL OF PLANNING COMMISSION'S ACTION TO UPHOLD THE DEVELOPMENT REVIEW COHMTTEEIS APPROVAL OF DEVELOPMENT PERMIT TYPE II NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson' s-May) ; 500 Inland Center Drive (APN: 136-531-04) ; Our File No. 09450 Dear Mr. Romo: Our request for Appeal to the Common Council of the Planning Commission' s October 7, 1997 action, approving Development Permit Type II, No. 97-13, was delivered to the City Clerk by courier on Wednesday, October 22, 1997. In our Transmittal Letter, we requested that the Clerk schedule the Appeal for hearing before the Council "for a date certain after November 5, 1997 . " We then requested that we be advised of the date and the time when the Staff Report would be available for pick up. If you compare the October 21, 1997 letter to the Clerk to previous letters when we requested Appeal hearings, you will see that the October 21 letter was the first time I had ever requested that a hearing be set for a "date certain, beyond a specified date, i .e. after November 5. " The purpose of requesting that the hearing be scheduled for a date certain after November 5, was to enable me to be present for the purpose of representing my client, the Central City Company. Specifically, I requested that the matter be set for after November 5 since I knew that I would' be undergoing a medical procedure that has been scheduled for more than four months, on Friday, October 31, and that the scheduled medical procedure, is not voluntary, but necessary and will keep me off my feet at least through Wednesday or Thursday, November 5 or 6 . In fact, the letter to the Clerk for the Appeal to the Council, was prepared only after consultation with the surgeon involved. Mr. Gustavo J. Romo Assistant Planner October 29, 1997 Page 2 Notwithstanding my specific request that the matter be scheduled for a date certain after November 5, I learned late in the day on Friday, October 24, that the Appeal had been scheduled for Monday, November 3 , 1997 at 3 :00 p.m_ The scheduling of the Appeal hearing for Monday, November 3 , means either that the matter has been scheduled intentionally to deprive my client effective representation by Counsel of its choice, given my unavailability, or alternatively, I would have to cancel the scheduled medical procedure, against doctor' s advice thereby placing me in further jeopardy. This matter is further compounded given the information we have obtained from the Office of the City Clerk, regarding the "normal procedure" for scheduling an appeal of a Planning Commission decision to the Common Council . We have been advised by the Clerk's Office, that it normally takes 3 to 4 weeks for an appeal to be scheduled on the Council Agenda. Further, that ordinarily, an Appeal filed on the 21st or 22nd of any month, would "normally" be placed on the Council Agenda for the second Council meeting the following month, or in this case, on November 17, 1997 . Even more disturbing than the fact that Planning and Building Services determined to fast track this matter is the information that we obtained from the Clerk' s Office that the Appeal filing deadline for Monday, November 3 Council meeting agenda was on or before October 17, 1997 and that any Appeals received after October 17, would normally have been scheduled for a Council meeting on November 17 or latex. In my telephone conversation with you earlier this afternoon, I specifically asked why the date of November 3 was selected and secondly, why, given my request to the City Clerk when filing the Appeal that the matter be scheduled for a date certain after November 5, why this Office did not receive a call or inquiry as to our reason for making that request or my availability to appear at a Council hearing prior to the 5th. Since I was in Court through late Thursday, October 23, 1997, in San Bernardino, I did not become aware of your letter until the afternoon of Friday, October 24 . For your information, since that time I have been endeavoring to reschedule the medical procedure, to no avail.. Thus I telephoned you today to advise you of the position in which both my client and the undersigned have been placed due to the expedited, fast track fashion that this matter has been scheduled for hearing before the Council _ In addition to the foregoing, this letter will confirm that you suggested during our telephone conversation this afternoon that the matter may have been expedited at the request of the Applicant, so Mr. Gustavo J. Romo Assistant Planner October 29, 1997 Page 3 that the Applicant would not encounter delay. This letter will further confirm that I then asked if in fact the Applicant had completed "plan check" , had submitted all of the required geotechnical/liquefaction reports, that the reports had been reviewed and signed off by the various technical and engineering personnel on behalf of the City, thus putting the Applicant in the . position to pull a Building Permit immediately after November 3 . Your response to my inquiry was that the reports have not yet been submitted and in fact, the "plan check" procedure has not yet begun. At that point I asked how then could scheduling the Appeal for the next Council hearing, i.e. November 17, create delay for the Applicant. You responded that in fact, it could and would not_ In light of the fact that continuing the hearing date from November 3 to November 17 will neither delay nor prejudice the applicant, but will cause severe repercussions for the Appellant and Appellant's Counsel, we are again requesting that the hearing date be set for a time certain, to a date after November 5, 1997 . This would allow the Appellant to be represented by Counsel of its choice and Counsel who has at all times continuously represented Appellant in this matter and has the background necessary to afford Appellant adequate representation at the Appeal hearing. In addition, it would allow the undersigned to go forward with the necessary surgery, without additional, unnecessary stress regarding the conflict in the scheduling. May I please have the courtesy of a response to this request at the earliest possible time. Thank you for your anticipated courtesy and cooperation. Very truly yours, ENB A. FO4X- MAF/Lgl CC: Mayor and City Council City Clerk Michael E. Hays, Director, Department of Planning and Building Services Henry Empeno, Deputy City Attorney Robert D. Curci ORIGINAL BY MAIL LAw oFvicEs of MAxi,ENE A. Fox A PROFESSIONAL. COPPOPATION MAALCNC A. /OX 2031 ORCHARD DRIVE, SUITE ZOO NEWPORT BEACH, CA 02060 (7141 976-644" FAX (714) 076-6447 TRANSMITTED BY FAX October 30, 1997 Mr. Gustavo J. Romo LETTER OF CONFIRMATION Assistant Planner Department of Planning & Building Services City of San Bernardino 300 North "D11 Street San Bernardino, CA 92418 Re: APPEAL OF PLANNING COMMISSION'S ACTION TO UPHOLD THE DEVELOPMENT REVIEW COMMITTEE'S APPROVAL OF DEVELOPMENT PERJIT TYPE II NO. 97-13; Phase I of Inland Center Mall Expansion (Robinson' s-May) ; 500 Inland Center Drive (APN: 136-531-04) ; Our File No. 09450 Dear Mr. Romo: This letter will acknowledge the two telephone conversations we had yesterday on October 29, 1997 and the messages I left for you on this date, October 30, 1997, as well as the messages I received from you on this date_ In our final telephone conversation yesterday afternoon, Wednesday, October 29, at approximately 5:25 p.m. , you advised me that the Director of Planning and Building Services, Michael E. Hays, and the City Attorney would have no response to my inquiry regarding continuing the November 3rd Council hearing for presentation of the Central City Company Appeal, notwithstanding my original letter to the City Clerk, until they had first reviewed the additional letter you requested during our first telephone conversation yesterday, the 29th. Thereafter, we transmitted to you my letter of October 29, emphasizing that we had originally requested that the Appeal hearing be set for a date certain sometime after November 5, 1997 and the basis for making that specific request. Our three-page letter was transmitted to you by FAX at 5 :35 p.m. yesterday, within five minutes after we spoke by telephone. You advised that the Planning Director and the City Attorney or his representative and the Principal Planner (unnamed) would meet first thing this morning to discuss this matter and that you would notify me of their decision Mr. Gustavo J. Romo Assistant Planner October 30, 1997 Page 2 sometime prior to Noon today. As I told you yesterday, it was necessary for me to go to Los Angeles, for certain preparatory work at UCLA today. I continuously checked with my Office for messages and when I learned that we had heard nothing from you this morning, I telephoned you at approximately 11:30 a.m. and left a message on your voice mail requesting information regarding the decision by the Director, the City Attorney and the Principal Planner on the requested continuance . Later this afternoon, I learned that our answer machine logged a call from you to our Office at 1:07 p.m. , advising that as of that time, you still had no response to my inquiry of Wednesday, the 29th and the letter that was FAXED requesting the continuance. At approximately 3 :20 p.m. today, I called again to inquire if there was a response to my inquiry and my letter, requesting that the matter be continued. You advised that you still had no information to provide but that you hoped to be able to get back to me by 4 : 00 p.m. I again emphasized that I would need a response today and that I was approaching the "point of no return" with regard to the scheduled medical procedure. Finally, you called this Office and left a message at 3 :47 p.m, stating that you had been advised to inform me that the Director, the Administrator and the City Attorney have decided to refer the Central City Company request for a continuance to the City Council at the Monday, November 3, 1997 Council meeting. This means that the issue of continuance will need to be decided by the Council when it is presented to them on Monday, November 3 . Given the timing, the way this matter has been handled and the City' s failure to either honor our original request or to respond to our request submitted both telephonically and in writing yesterday, October 29, 1 have been left with no choice but to advise my client that it is necessary that I go forward with the necessary medical procedure that has been scheduled. If all goes well and nothing unforeseen develops, I anticipate returning to my Office on either Thursday or Friday, November 5 or 6. Unfortunately, because the Staff Report was not available until after 3 :00 p.m. today, there was insufficient time for anyone to pick up the Report, deliver it to this Office in time for review prior to my departure_ It is my understanding, that my client will pick up the Staff Report and Federal Express the Report to our Office for delivery tomorrow, Friday, October 31 . Of course, I will have no opportunity to review the Report until my return, when it may then be a moot point, depending on the Council' s action on Monday. Mr. Gustavo J_ Romo Assistant Planner October 30, 1997 Page 3 Under the circumstances, the City' s position is difficult to understand. We have at all times dealt in good faith and made every effort to cooperate as we pursue our client' s rights as an operating business and taxpayer in San Bernardino. The expedited, fast track procedure being employed in this instance appears to be for the sole purpose of denying the Central City Company the right to appear and participate in the public hearing process through counsel of its choice. In the 25 years I have been working with governmental agencies, as special counsel, Assistant City Attorney and representing landowners, I have never before experienced an agency denying a requested continuance in such an arbitrary fashion - for the obvious purpose of doing everything and anything conceivable to prevent an effective appeal presentation. Thank you for your efforts to be courteous. Very truly yours, Go. onx MARLENE A_ FOX MAF/Lgl Qy DICTATED BUT BUT NOT READ ORIGINAL BY MAIL cc: Mayor and Members of the Common Council City Clerk Michael E_ Hays, Director of Planning Building Services Robert D. Curci i, 4 I" ... . _ , .._ .. OCT 30 F 4r3AP1 CURCI—TURNER CO. P.1/4... :16199201I11:i\ Oki FAX TRANSMITTAL FORM OUR RHONE #: (7141673-1060 OUR FAX ##: (714) 673-2080 f .' ti ��. �'. .. .' .� •yid. .:. Y COt+1cPANY; — ,e.r Q.PEHAT4F� FAX NQ •,.a !J '�• a• a t,r. w d 1� ♦e 4A, ALl: UF+QC�t•�';E ElPT, .. .. .� ... • ... � �.�+ 1. ;.r ,,. .�/' 4 yi :d' 1E._ '� *" RE. .:.•.• •.:. .. . •: ' .'� .... .. _ter..EMMM �'�. �� J '�!�'1� � �"~ � .rr FV�.r�•�i� �rs�--.G.Sr�I..•?A..•�r.f��E•� t�� L) r' ;.IS J cr ti^t :;: 4QQ- SELF,ANA MAY CONTAIN' T.H.�►t�1G5SAGE G iNTENlt7GO ONLY FOF r� OFj� �,Fi�tV. I�AI�JR EN't'Y TIS�tlHICH i — �� (�C�^ r� t c !�fi'JER 'liCi`-ELE UtYti. IF TF-E !!,,FGRitd.-7jO% THAT IS u-FsMLEDGEO, COtICIOENTI!4L ANN XEt'..FT FRONT tit 31R FOP,'JELt�'EFiti�trj -m A!OGP OF T-HtS ry.>_^cAa^;�NOT THE VN Elvi]E'�'R CI�sE`T,QR THE EMPLOYcr-OR AGENT RESPON&BLE '� .h�Eg$,4_70 T�t. t►JTE?sQEQ REC'PI NT, V'OU Rr;E t�ER,iGY NCT]FiED THAT ANY DISSEXPENAT10N, D?STRGUT(ON CP �" c , 7qT GV IS STRtc: '� 'c EJ• ',F YOU HAVE REC9-ivEO THis C.::h1MUNiC,ATI-oN''IN 5HROR, C T �'. ', , T'Y FF Y,.Si i YtM1i'ra. �^.i.3�.Qh.`r1J}`..... r L�'c�.C,Af•::•`�US.aTTHE,4CCRcS.S,Bn�cV;.4 ,. - .r ,r O +T Q-% SLEPr'C%•E A-" ' L--URN,-uE On::'silv?� - i'_ AS=NOTIFY',,S .<<;C Ir E PC;37ALSERVsCE. T.4ANKYOU =CR:'iOtRC'00FEFJ,Tt4N. ;,T , r .r , r /{, • � w 0(7 E='h '?, 0S 0_ :41RN RCI-TJRMZR CO. ao3 10/9,197 18:00 10714 9733 8447 KARL.ENT E A FOI aLAw or7xcrs op MA_R_LZNZ L Fox A PROFESSIONAL CORPORATION M�acew� �. rox 2031 ORCHARO DRIVE, SWITE 26e NEWPORT SUCH, CA 92060 (7141 075-8444 QAX (7.4) IDY5-844'7 TItANSMI'L"1'ED_ BY PAX October 24, 1997 Mr. Gustavo J, Romo TJRGRN'T --RESFONSE RHOLMSTED Aasistant Plaz=er - Department of Pla=ing & Building Services City of San Bernardino 300 North "D° Sure©t San Bernardino, CA 9-413 Re ., .AEPEA L OF PT.4LNNING COMbUSSION'S ACTION TO WHOLD THE DE71SLOPMF-V ' REVIE'o CO2+1AZ7TSE'S "PROVAL OF DEVELOPXam PMMIT TYPE 11 NO. 97-13; Phase I of In?and Center Mall Expansicn (Robinson' s-may) ; 50Q In-and Center Thrive WN: '636-531-04) ; Q,�.;r file No. 09450 Dear Mr . R=, .c:: Our regl,:ezt for .App.�al to the Cecrmon Council of t2.p PI.-a ring CCm[C115?lOfl' 8 CCCober 7, 1997 actita: approving Devs opmant Permit I -pe Ti , No. 97-13, was deiiv4x?d tc thy: City Clerk by courier on Wedriesda`.•, C-_tober 2, 7_997 In Lois Transmittal Letter, we requested that 4he Clerk schedule the Appeal for nearing b--fore the Council "for a date certain after-Novo-mbar 5. 1997 W« _ then requested that we be advised of the date and the brae when the Staff Report would be ava .lable far pick up. If you compare the October 21, 1997 letter to the Clerk to Orel.rious letters when we requested Appeal hearings, you will nee that the October 21 letter was the first time I had ever requested that a hearing be set for a "date certain, beyond a specified date, i .e. of ter November 5 - " The purpose of requesting that the hearing be scheduled for a date certain after November 5, was to enable ­A to be present for the purpose of representing my client, the Ce? -.Z City Company. Spec .fica7.ly, I requested that the matter be set Z after November 5 since I knew that I would be =de--going a medico- procedure that has been scheduled for snore than four months, on Friday, October 31, and that the scheduled medical procedure, is not voluntary, but necessary and will keep me off my feet at least through Wedr-esday or Thursday, November 5 or 5 _ in fact, the letter to the Clerk for the Appeal to the Council, was prepared only after consultation with the 'surgeon involved. Q ao 4 10119i97 1,8:00 'C" 14 973 8447 L RUNE A FOX Mr. Gue Cavo J. ROMO Assistant Flamer October 29, 1997 Page 2 Notwithstanding my specific request that the matter be scheduled for a data certain after November 5, r 'Learned late in the day on Friday, October 24, that the Appeal had been scheduled for Monday, November 3, 2997 at 3 :0; p.m. The scheduling of the Appeal hearing for Monday, November 3, means either that the matter has been scheduled :..ntentionally to deprive ray client stfective representation by Counsel of its choice;, given my unavailability, or alternatively, i would have to cancel the scheduled medical procedure, against doctar'a advice thereby placing me in further jeopardy. This matter is further compounded given the information we have obtained zrom the Office of the City Clerk, regarding the "normal procedure" fQr scheduling an appeal of a Plann.ir_u commission decision to the Common Council. we have been advised by the Clerk's Office, that it normally takes 3 to 4 weeks for an appeal to be scheduled on the Council Agenda_ Further, that ordinarily, an Appeal iZled on the 21st or 22nd of any month, would "normally" be r,laced on t!7? Cc it -Icil Agenda for the second: council meeting the kollowing me-,nth, or in this case, on November 17, p397 . ven more disturb4ng th�.r_ t!ie fact "sat Planning and sui.ldi^; aervices determined to fAC track 4-4i8 mater ie the irfcrn*atiocs that we Obtained from the Clerk' s Of44,-A that tna Appeal filing deadline for Moaday, November 3 Council meeting agenda was on Or before Oc teber 17, 1997 and that any Appeals recaived after October 17 , would normally have been acheduled for a Council meeting on November 17 or later. in my telephone conversation wi-th you earlier this afternoon, I specifically asked why the date of November 3 was selected and secondly, why, given my request to the Citry C7.exk when filing the Appeal that the matter be scheduled for a date certain after November Ss, wily this office did not rec°i ve a call ar inc7-liry a$ .c our reason for making that reTlest or my availability to appear ar_ a Council hearing prior to the 5th. Since I was in Court through late Thursday, October 23, 1997, in San BernardinO, I did not become aware of your letter until the afternoon of Friday, O;:tob r 24 . For your jiiformation, si ce that time I have been endeavoring. -o react-,.4,rule the medical procedure, to no avail. Thus I to- =Phoned you t clay to advise you of the pos^tion in' which both my client and the underaigned have been pxaced due to the expedited, fast track C that this matter has been so-heduled for hearing before the Coun�-: ' - x`. addition to the fozeroincy , this letter will cQuf irm that yo` suggested during our telephone conve.satioa this afternoon that the matter may have been expec 'ed at the request or the Applicant, so 10;29i 8 18:Oi $714 87:5 5447 LI3RLEIrE 3 FOX X005 Mr. Gustavo J_ Roma Assiat.ant plarls:er October 29, 1997 Page 3 that the Applicant WQ1,1ld now encounter delay. This letter will further confirm that I then asked if in fact the Applicant had ccmple-ed llp"Lar. c:a eck.", had subm teed all of the required geotechnical/lxquefa_ction reports, that the reports had been reviewed and signed off by the various tec1i^1cal acrid engineering personnel on behalf of the City, thus putting the Applicant in the i position to pull a guding Permit immediately a_tar November 3 , Your respor_se to my inquiry was that the reports have not yet beem submitted and its fact, the "plan check" procedure has not yet begun. At that point I asked how ther, could scheduling the Appeal for the next Council hearing, i.e. November 17, create delay £or the .Applicant. You responded that in fact, it could and would not. In light of the fact that continuing the hearing date from Nove be. 3 to November 17 will neither delay nor prejudice the applicant, but will cause aevere repercussions for the Appellant and Appellant's Gdvnsey, wg are aga:7.r_ requesting that the hearing date be see for a Gimp Ceatai:a, to a dare after Novem}aek 5, 1997. ibis wolil.d all--w the A-,pellaint to be represented by Counsel of its choice and Counsel who has at all tiules continuously represer-ted hppeliant in this matter and cias the baak4tound neceasary to a;ford Appellant adequate at the Appeal hearing. In addition, it would ally-w `he undersigned to ^o forward with the necessary surgery, wjt;rour adciitlonal, unnecessary Suess regarding the conflict in the sched.Li", o'':� May I t,1,_ase %,ave the ccus',sgy cF a respcnse to this requeet at -, he earliest mos ib e ti.roe. 'ThanA you for your a:.tiriPatAC� eoL:rteey arka ccoperation. truly YQUrs, MA.F/Lgl cC. ma o_ and City Council City Clerk Michael E. .Says, D:irecto,_- department of Plarnina and 5ai3ding 5ervi,.,es 'Hanry Empeno, Deputy City ?_ctor Robert D, Curci 2RTG,1IQA__?1 BY Y_AaL CITY OF SAN BERNARDINO MISCELLANEOUS CASH RECEIPT No. 697672 Date ACCOUNT NO. AMOUNT Received From The Sum of �_ Dollars Cents For 1 /9 18:48:18 AM t 6392 to Trans. ode: SF AN unt: 125.88 Stub Department B TOTAL Y DISTRIBUTION: White—Customer;Canary—Cashier;Pink—Department;G denro —Dept.Numeric Control LAW OFFICES OF MARLENE A. FOX A PROFESSIONAL CORPORATION 2031 ORCHARD DRIVE, SUITE 200 MARLENE A. FOX NEWPORT BEACH, CA 92660 (714) 975-8444 FAX (714) 975-8447 '97 GPT 22 TRANSMITTED BY FAX October 21, 1997 Ms . Rachel Clark, City Clerk LETTER OF TRANSMITTAL City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Re: APPEAL TO COMMON COUNCIL OF PLANNING COMMISSION ACTION; Development Permit Type II No. 97-13, Phase I - Inland Center Mall Expansion (Robinsons-May) APPELLANT: CENTRAL CITY COMPANY/CAROUSEL MALL Our File No. 09450 Dear Ms . Clark: Attached to this Transmittal Letter is a Letter of Appeal addressed to the Council appealing the decision by the Planning Commission on October 7, 1997, wherein the Commission upheld the DRC approval of Development Permit Type II No. 97-13 for a proposal to initiate Phase I of the Inland Center Mall Expansion Project by constructing a 165, 000 square foot, two-level, anchor department store to be occupied by Robinson' s-May and a four-level parking structure in the CR-1, Commercial Regional (Mall) , land use district . Enclosed please find our Corporate Check No. 5842 made payable to the City of San Bernardino, in the amount of $75 . 00, as payment of the required appeal fee. Please distribute the attached Letter of Appeal to the Council and place this matter on the Council agenda for hearing before the Council for a date certain after November 5, 1997 . Please advise this Office at the earliest possible time of the date fixed for the Appeal hearing. Also, please advise at the earliest possible time when the Staff Report for the Council on this appeal will be available for pick up. we will make the appropriate arrangements to have a representative pick up the Staff Report for delivery to our Office. Please acknowledge receipt of this letter by signing the enclosed copy and stamping "RECEIVED" and return the conformed copy in the self-addressed, stamped envelope enclosed for your convenience. In the event you have any questions regarding anything Ms . Rachel Clark, City Clerk City of San Bernardino October 21, 1997 Page 2 set forth above, please contact me. Thank you for your anticipated courtesy and cooperation. Very truly yours, .� VLENE A. FOX MAF/Lgl Enc. cc : Mr. Robert D. Curci Mr. John M. Coombe ORIGINAL HAND DELIVERED 10/22/97 i LAW OFFICES OF MARLENE A. FOX A PROFESSIONAL CORPORATION 2031 ORCHARD DRIVE. SUITE 200 M A R L E N E A. FOX NEWPORT BEACH, CA 92660 (714) 975-8444 FAX (714) 975-8447 DELIVERED BY COURIER '97 OCT 22 NO :38 October 21, 1997 Mayor Tom Minor and Members LETTER OF APPEAL of the Common Council City of San Bernardino 300 North "D" Street San Bernardino, CA 92418-0001 Re : APPEAL OF PLANNING COMMISSION ACTION OF OCTOBER 7, 1997 Upholding DRC Approval of Development Permit Type II, No. 97-13 , Phase I - Inland Center Mall Expansion (Robinsons-May) , (500 Inland Center Mall) ; APPELLANT: CENTRAL CITY COMPANY/CAROUSEL MALL Our File No. 09450 Dear Mayor Minor and Members of the Common Council : This Office represents the Central City Company and the Carousel Mall and on its behalf, submits this Appeal to the Common Council pursuant to City of San Bernardino Municipal (Development) Code §19 . 52 . 100, appealing the action by the Planning Commission on October 7, 1997, upholding the DRC approval of Development Permit No. 97-13 , described more fully above. The required Appeal fee in the amount of $75 . 00 was transmitted with a cover letter to the City Clerk in connection with this written Appeal . It is our understanding that there is no specific Appeal Form and that the written Appeal may be submitted and is acceptable in letter form, stating the grounds of the Appeal and accompanied by the requisite Appeal fee. Please note this Appeal Letter will be transmitted by FAX to the City on this date and the original, together with the Appeal fee, will be delivered by courier to the City on Wednesday, October 22, 1997, the 15th day of the Appeal period. GROUNDS FOR THE APPEAL This Appeal is brought on each and all of the following grounds : 1. Since October 1992 Appellant and Appellant' s counsel has repeatedly requested a full and fair opportunity to participate in Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 2 the processing on matters involving the ICM Expansion. We have repeatedly requested that we be provided in advance, copies of any and all pertinent documents to allow Appellant a full and fair opportunity to participate in public hearings . We specifically requested that we be provided in advance with copies of staff reports and other pertinent public records in the file, including submittals by the Applicant and inter-office memos . Our repeated requests for public records and advance notice of hearings was re- asserted numerous times during the processing of the ICM Expansion by the Planning Commission and Common Council in March and April 1996 . The Planning Department and DRC was reminded of that continuing request by the undersigned at the August 27, 1997 DRC meeting. In addition, formal written requests were again made to the Planning Department on September 9 and September 10, 1997 for copies of any and all documents that would be considered by the DRC at its meeting on this Project, on September 11, 1997 . As has happened in the past, the documents requested were not made available to Appellant until after the conclusion of the September 11, 1997 DRC meeting, at which the DRC approved Development Permit Type II, No. 97-13 . Withholding the proposed Findings of Fact, the Conditions and other pertinent documents pertaining to the review of Development Permit No. 97-13 denied Appellant its due process rights and precluded a effective representation of and participation by Appellant in the DRC meeting on September 11, 1997 prior to the approval of the Development Permit . Appellant contends it has the right to participate in the public hearing process, including the processing of approval of Development Permit No. 97-13 by the DRC and asserts it has been denied its rights under City Code, under the State of California Public Records Act, the California Environmental Quality Act, the State Planning and Zoning Code and the Constitutions of the State of California and of the United States by virtue of the fact that the Planning Commission upheld the DRC approval . 2 . The second ground of this Appeal is based on the fact that any permits granted for the Inland Center Mall Expansion would be in connection with the approval on April 1, 1996 by the Common Council, approving and adopting Development Agreement 91-01 ("DA 91- 01") . The second ground of this Appeal is based on the fact that DA 91-01 is invalid as a matter of law as it was not executed on behalf of the only other named party to the Agreement, other than the City of San Bernardino, to-wit : Mano Management Company, Inc. , the owners of the ICM. Since DA 91-01 was not executed by an authorized Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 3 officer of the named party, Mano Management, Inc . , the Development Agreement is invalid as a matter of law. This matter is currently being presented to the San Bernardino County Superior Court for judicial determination. 3 . This Appeal is brought on the basis that Resolution 96- 84, enacted by the Common Council of the City of San Bernardino on April 1, 1996 and approved April 3, 1996, is not severable. Resolution No. 96-84 certified the Final EIR for the ICM Expansion Project and adopted and authorized execution of DA 91-01 to "govern the expansion of the ICM. " Resolution 96-84 must be set aside by the Common Council pursuant to the Judgment executed by James A. Edwards, Judge of the San Bernardino Superior Court on September 17, 1997 wherein he Ordered that the City vacate and set aside its certification of a portion of the Final EIR. The Order issued by Judge Edwards cannot be complied with unless the Council meets in public hearing and sets aside Resolution No. 96-84 . The Council must thereafter adopt a new Resolution. Resolution No. 96-84 is no longer valid by Order of the Court and therefore approval of Development Permit 97-13 by the DRC, under the authority of Resolution 96-84 and DA 91-01, is invalid as a matter of law. A public hearing must be conducted and the defective Resolution and defective EIR must be set aside. Without a valid EIR, there can be no valid Development Agreement. The mechanics of responding to the Court' s Order must be complied with before any further action can be taken with regard to the approval of a Permit for the ICM Expansion. Appellant notes that the Planning Commission Staff Report for the October 7, 1997 Commission hearing on Appellant' s Appeal contained a copy of Executive Order 97-1, executed by Mayor Tom Minor on September 26, 1997 which purports to vacate and set aside the April 1, 1996 Certification of a portion of the Final EIR for the Inland Center Mall Expansion; purports to direct the City Clerk to annotate Resolution 96-84 to indicate it is affected by the Executive Order and purports to direct all City Departments to refrain from approving any construction activities related to the cinema complex expansion pending full compliance with CEQA environmental review requirements for that portion of the project . Appellant contends that the Executive Order 97-1, executed by the Mayor on September 26, 1997, violates the Writ of Mandate issued by the Court in Case Co. SCV 29232 . Appellant further maintains that the Executive Order must be rescinded so that the Council action of April 1, 1996 can be remanded as required, to the full Council, as required by law. Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 4 4. The fourth ground of this Appeal is based on the fact that the minor modification approved by the DRC violates City Development Code §19 .40 . 040 which sets forth the mandatory contents of a Development Agreement . Development Code §19 .40 . 040 (1) (D) provides that the maximum height and size of proposed structures contemplated by development agreement must be included as mandatory contents of the DA. Accordingly, as the City Code assigns such importance to the size and height of structures which are approved in connection with an approved development agreement, changes of the height and size (square footage) of a building, particularly a building as significant as a major department store or so-called "anchor store, " cannot be considered a minor modification and must be considered at a Noticed public hearing as required by Government Code §65868 . Government Code §65868 requires that an amendment to a development agreement must be discussed at a Noticed public hearing and must be approved by Ordinance, subject to a referendum. Appellant submits that amending a recorded Development Agreement, as to one of its mandatory provisions, cannot qualify as a "minor modification. " 5 . This Appeal is brought on the further grounds that the DRC and Planning Commission had inadequate facts and information on which to base the DRC approval and P.C. affirmation of that approval for Development Permit 97-13 and therefore, the approval must be set aside. 6 . This Appeal is based on the further ground that staff, the DRC and the Planning Commission relied on the Office of the City Attorney, James F. Penman and Deputies from the City Attorney' s Office under his supervision and control, for legal advice and counseling with regard to the processing of Development Permit Type II, No. 97-13 . Appellant has recently learned that the City Attorney has a conflict of interest in that the City Attorney accepted a significant donation from the Agents responsible for the processing of these Applications. Appellant submits that the donation was of a sufficiently large amount to suggest that the City Attorney has a conflict and cannot be unbiased in his dealings with the processing of the Inland Center Mall Expansion plans . For that reason, the entire proceeding by the DRC and Planning Commission have been tainted and must be set aside. REQUEST FOR APPEAL HEARING Appellant respectfully requests that the Common Council set this matter for public hearing before the Council on a date certain after November 5, 1997 and that Appellant be given a minimum of 15 days prior Notice of the date of the public hearing at which the Appeal will be heard by the Council . Appellant makes this request Mayor Tom Minor and Members of the City Council City of San Bernardino October 21, 1997 Page 5 so that Appellant will be provided sufficient time within which to prepare its evidence for submittal to the Council prior to the Appeal hearing. Any questions or responses to this Appeal should be transmitted to this Office, at the address listed above on our letterhead. Should you have any questions whatsoever, or require further amplification of the grounds for the Appeal, please do not hesitate to contact us at this Office. On behalf of our client, the Central City Company, we thank the Council for its consideration of this Appeal . Please note that we will provide the Council with evidence, both documentary and oral, to support the grounds of this Appeal . Respectfully submitted, LAW OFFICES OF MARLENE A. FOX By: �a4 Y' MARLENE A. FOX MAF/Lgl CC: Mr. Robert D. Curci Mr. John M. Coombe COPY BY FAX ORIGINAL HAND DELIVERED ON 10/22/97 gOi[;INSONSwmA4 AY STOP4 qCpARTMENT Ptepared for the San Bernardino City Council 1 f.'4 _J� �� � �► �ors _coif oils f AN IL, I-oil, ® Inv Sol 11 Jilin �.�' '� �`� �''` ���� 1111 � �� �a. ► ,, ;i_i ' Oki, a AJAR I�f� s , _q! . _ - Age ��- .y✓sw a' gig. i' • �� c�lr �. I� �Nr..'. ram/ �1 `.-.-_...mow' -sII' GENERAL GROWTH MANAGEMENT OF CALIFORNIA, INC. Dear Honorable Mayor and Members of the City Council: 1992 General Growth Management of California, Inc. and Mano Management, As far back as g Inc., the manager and owner, respectively, of the Inland Center Mall, promised to assist in bringing economic vitality to the City of San Bernardino. In recent years, this promise was brought to fruition through the development of Gottchalks' first Southern California store. As you are aware, securing Gottchalks was very important to the City of San Bernardino since The May Company had moved its business out of San Bernardino and left us with a large empty retail space. Our promise of economic vitality was again demonstrated when we secured Macy's to take the place of Broadway which was intending to close its San Bernardino store. For some time we have worked hard to bring Robinsons-May back to the City in an attempt to further our commitment to San Bernardino. We are happy to advise that a letter of intent has been entered into with Robinsons-May whereby they have agreed to open a new store in Inland Center Mall for the 1998 holiday season. In order to meet the goal of opening by the 1998 holiday season, Robinsons-May needs to have a buildable pad no later than February 1, 1998, and thus, must order structural steel and begin construction immediately. The project cannot begin without your approval. We urge you to deny the appeal of Carousel Mall and approve the Robinsons-May project on November 6, 1997. Inland Center Mall is proud of our history in San Bernardino and proud of being a key force in protecting our City from neighboring retail competitors. Very truly yours, )4�4, pao� Entered into Record at �iA. /9 7 CouncillCmyDevCms Mtg: Arun Parmar, b Y Manager, Inland Center Mall -- Gity 1slerklCOC Secy City ut San Bernardino Inland Center 500 Inland Center San Bernardino,CA 92408 909/884-7268 FAX 909/381-0448 i K7 Realty.ISO. November 5, 1997 The Honorable Thomas Minor (via facsimile: 909/384-5067) Members of the City Council for the City of San Bernardino (via facsimdle: 909/384-5145) Ladies and Gentlemen: On Thursday. November 6, 1997 you will be asked to hear an appeal which has been brought forward by Central City Company in order to deny the DRC (Development Rievlew C n mittee) site plan approval for our antidpated Robinson-May store at Inland Center Mall. The May Department Stores Company has executed a letter of intent with the mall owncraMp and is colruWtttd to opening a Robinsoas-May store at Inland Center Mall with an anticipated opening date of November. 1998. This opening date provides Inland Center Mail with the edge over our other options to serve the Inland Empire. Any further delay of the Pitt plan approval will put our anticipated November, 1998 store opening at risk if this opening date is not achieved,it is h%My unlikely that we will be opening a store at Inland Center Mall or within the City of San Bernardino. In order to amomplish our anticipated opening date,we would need to order structural steel no later than November 10, 1997 to ensure delivery by February, 1998. This ciltical tinting is why I am writing to express the urgency of your approval for the addition of our department nt store. The May Department Stores Company is very excited about the opportunity of opening a Robinson-May store at Inland Center Mall. Inland Center Mall and the City of San Bernardino have enjoyed a mutually beneficial relationship for over 31 years and we look forward to being a part of that continued tradition. Thank you in advance for your consideration. Sincerely, Zoo eph R LeDut Senior Vice President The Ma,a.pavowma Ruwm c...r.-J 611 Q&s aer su st.Louis,Missouri 63101.1799 1UUPlew(314)343.6800 i THE PROJECT • The Robinsons-May project will involve a new two story first class building of approximately 165,000 square feet and a new first class multi-level parking structure. • Robinson-May will generate millions of dollars in San Bernardino retail sales. • Robinson-May will produce hundreds of thousands of dollars per year in additional annual sales tax revenue, thousands of dollars per year in additional property tax revenue and thousands of dollars per year in city utility tax revenue. • The development of Robinsons-May will result in millions of dollars in new construction spending. This construction will create hundreds of construction jobs and, when open, approximately 250 permanent jobs. I 7, I U 6 I �r� r t ' deli •� �v y ,mil- \\\ \� Benefits to the City WHAT APPROVAL OF THE ROBINSONS-MAY PROJECT MEANS TO THE CITY OF SAN BERNARDINO • A major step in San Bernardino's commitment to economically rebuild the community. • Increased economic vitality to San Bernardino at no expense to San Bernardino. No City or RDA money is needed or requested for the development of Robinsons-May. • Increased jobs for San Bernardino residents who will no longer have to travel outside San Bernardino for employment. • Enhanced market share of the regional retail market for San Bernardino. If we don't take advantage of this opportunity, Redlands will. • Re-imaging of San Bernardino and the perception of growth and progress on the heels of significant loss. The Appeal GROUNDS FOR APPEAL AND RESPONSES • Ground - Lack of due process. Response- Carousel Mall has aggressively participated in all proceedings involving Inland Center Mall. Evidence of this includes: (a) 413 written comments to the EIR advanced by Carousel Mall, (b) 15,000 pages of Administrative Record on the related Environmental Impact Report ("EIR") litigation, and (c) countless documents, correspondence and testimony by Carousel Mall representatives. Carousel Mall's opposition to Development Permit Type II No. 97-13 has been just as aggressive. • Ground - Illegality of Development Agreement. Response - All issues related to the Development Agreement are now pending before the San Bernardino County Superior Court, which has exclusive jurisdiction to determine the legality of the Development Agreement. The only issue before the City Council is the approval of a Development Permit Type II, which approval must be given if the design of the Robinsons-May project meets the development standards contained in the City Development Code. The D/ERC and the Planning Commission have already made this determination in favor of the Robinsons-May project. • Ground - Illegality of Executive Order 97-1. Response - Judge Edwards' Judgment ordered that the City (as opposed to the City Council) vacate and set aside its certification of that portion of the final EIR related to the cinema. Executive Order 97-1, executed by Mayor Tom Minor on September 26, 1997, does just that. The Superior Court has retained jurisdiction over this process pursuant to the Judgment and Public Resources Code Section 21168.9(b). Any issue of compliance should be brought to the Superior Court and not the City Council. • Ground - Illegality of minor modifications. Response - Development Code Section 19.60 authorizes the Director of Planning and Building Services to approve a minor modification to an approved permit. The modifications which were approved on September 10, 1997, are also authorized by paragraph 2.(d) of the Development Agreement. A minor modification may only be challenged by an appeal to the Planning Commission within 15 days. (Development Code Section 19.52.100). Carousel Mall cannot now appeal this issue because it was not raised as a ground in the September 25, 1997 appeal to the Planning Commission. • Ground - Inadequate facts for D/ERC approval and Planning Commission affirmation. Response - We don't understand what additional facts Carousel Mall alleges are necessary for the D/ERC and Planning Commission to have approved Development Permit Type II No. 97-13. Section 19.52.100 of the Development Code requires all appeals, "... shall specifically state the basis of the appeal (emphasis added)". Carousel Mall's appeal on this ground does not comply with the requirements of the Development Code and should be disregarded. • Ground - Penman conflict. Response - The Superior Court has already ruled that Jim Penman's campaign statement is irrelevant to any issues concerning the Development Agreement. The General Plan THE GENERAL PLAN CONTEMPLATES AND ENCOURAGES OUR PROJECT • Development of the Robinsons-May Department Store is consistent with San Bernardino's General Plan which was updated in 1989. • The General Plan contains numerous references emphasizing that it is the San Bernardino's policy to encourage intensification and upgrading of both existing regional malls (Inland Center Mall and Carousel Mall). • The General Plan includes general policies encouraging expansion of land to induce development of new employee generating industries and business (page 13), establishment of strategies to attract new employee generating jobs to San Bernardino (page 14), and establishment of strategies to sustain the economic health of San Bernardino's business and revenue to the community (page 14). • The General Plan calls out opportunities for expansion of both regional malls (pages 1 through 18 and 1 through 23). • Under land use policy, the General Plan states that "it shall be the objective of the City of San Bernardino to ... maintain an enhanced Central City (now Carousel) and Inland Center Malls and adjacent properties as the principal region serving retail centers of the City of San Bernardino, focusing a majority of the additional demand of 2.2 million square feet in these areas". (Pages 1 through 67). • In short, the General Plan treats the Inland Center Mall and Carousel Mall as serving one regional market area in competing together to bring a larger share of regional shopping center sales to San Bernardino, to reverse the trend towards increased leakage of sales activity and tax revenue income to other communities and regions (Redlands, County of San Bernardino, Ontario, etc.). Carousel Mall CAROUSEL MALL SHOULD HELP, NOT HINDER THE EFFORT • Since 1991, Carousel Mall and its owners have aggressively objected to the expansion of Inland Center Mall, based on a variety of technical legal theories. • The General Plan emphasizes the need to underscore San Bernardino's overall competitiveness by expanding and upgrading existing regional mall sites. The General Plan does not place extra weight on investment in Carousel Mall and the downtown versus Inland Center Mall. • Although Inland Center Mall has recently been successful in attracting Gottschalks and retaining Macy's (at the old Broadway location), if the needs of major department stores at both Inland Center Mall and Carousel Mall are not met, the majors will leave San Bernardino altogether for more attractive sites within the regional market area, such as Citrus Plaza near Redlands. Reinvestment in both malls is paramount to San Bernardino's continued economic viability. • We believe San Bernardino taxpayers would not want to see San Bernardino lose Robinsons-May to another city. • Carousel Mall should recognize San Bernardino's common stake in both regional malls. • The owners of Carousel Mall should invest more money in redeveloping Carousel Mall and less money in attempting to be an obstacle to the progress of Inland Center Mall and San Bernardino. i 1 THE REAL ENEMY • Although shrinking, San Bernardino still enjoys a retail sales tax base which is better than many other neighboring cities (i.e., its per capita sales tax percentage is higher). • Although San Bernardino's retail sales tax base strengthens its general fund, San Bernardino has many, substantial financial commitments. As the largest and oldest city in San Bernardino County, San Bernardino is home to a disproportionate share of the region's at-risk families. As a result, San Bernardino's financial resources are greatly challenged. For this and other reasons, San Bernardino's continued ability to meet the needs of its residents depends heavily on maintaining and even increasing its retail sales tax base. • A significant source of San Bernardino's retail sales tax base is Inland Center Mall and Carousel Mall, which account for approximately 50% of the total retail sales in San Bernardino. San Bernardino should make every effort to increase this retail sales tax base. • The primary threat to the continued health of San Bernardino's retail sales tax base is the proposed Citrus Plaza near Redlands. • Citrus Plaza plans to add 1,350,000 square feet of retail space by the year 2005. However, by the year 2000, the East Valley market area will support only an additional 450,000 square feet of retail space. • If Robinsons-May is not allowed to begin development in February 1998, it will not be open for the 1998 holiday season and San Bernardino may lose the project to Redlands or another neighboring community. THE DECISION IS YOURS • San Bernardino suffers from a shrinking retail base. • The Robinsons-May project will add a new source of economic synergy to San Bernardino, increasing retail sales, sales tax revenues, and property tax revenues. • The development of Robinsons-May will cost San Bernardino NOTHING - no redevelopment money and no City funds. • Robinson-May will be a new employer in San Bernardino, not simply relocated from elsewhere in San Bernardino. We can't let this new, large employer take its business to another community and drain additional sales tax dollars from San Bernardino. • The addition of Robinsons-May will bring a tremendous number of construction and permanent jobs. • The decision is yours - you may either vote in favor of bringing Robinsons-May to San Bernardino or give another city the gift of revenue, jobs, and the perception of growth and vitality, so important to San Bernardino. Staff Report TABLE OF CONTENTS DOCUMENT TAB # Development Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Statement of Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Executive Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Excerpt of Transcript from 10/23/97 Oral Proceedings before San Bernardino Superior Court regarding Penman conflict of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Transcript from 9/11/97 DRC Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Transcript from 10/7/97 Planning Commission Meeting . . . . . . . . . . . . . . . . . 7 Declaration of Establishment of Restrictions and Covenants Affecting Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 First Agreement Amending Declaration of Establishment of Restrictions and Covenants Affecting Land . . . . . . . . . . . . . . . . . . . 9 Assignment and Assumption Agreement (Homart Development to Metropolitan Life) . . . . . . . . . . . . . . . . . . . 10 Assignment and Assumption Agreement (Metropolitan Life to Mano Management) . . . . . . . . . . . . . . . . . . . . 11 Assignment and Assumption Agreement (The May Department Stores to Mano Management . . . . . . . . . . . . . . 12 The Sun Editorial dated November 6, 1997 . . . . . . . . . . . . . . . . . . . . . . . . 13 Entered into Record at Council I Cmy0evCms Mtg: by re Agenda Item ity ClerkICDC Secy City of San Bernardino N AM511\002\Doc\AdmnRec.wp5 Recorded in Official Records, County of San Bernardino, Errol J. Mackzum, Recorder 306.00 Doc No . 19960123350 RECORDING REQUESTED BY AND 4 : 0 4 pm 04/09/96 WHEN RECORDED MAIL TO: Mark A. OStoich, Esq. 205 20010089 02 11 GRESHAM, VARNER, SAVAGE, 2 3 4 s NOLAN & TILDEN PG FEE APF G1MS PH CPI I CRT CPr ADD NM PEN PR PCON 600 N. Arrowhead Avenue Suite 300 5_ 6 San Bernardino, CA 92401 NON ST LN Siff CIT-CO TRANS TAX DA CHRG EXAM DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND MANO MANAGEMENT COMPANY, INC. EFFECTIVE: MAY 1, 1996 n ��oC t' O i� TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 OPERATIVE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Development and Continued Use . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. Additional Permits and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . 7 4. Public Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5. Third Party Permits and Approvals and Utilities . . . . . . . . . . . . . . . . 9 6. Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7. Developer Failure to Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 8. City Failure to Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 9. Permitted Delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 10. Developer Compliance and Release . . . . . . . . . . . . . . . . . . . . . . . . 14 11. Superseding State or Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . 14 12. Successors,Assigns and Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . 14 13. Equitable Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 14. Negation of Agency, Joint Venture or Partnership . . . . . . . . . . . . . . . 15 15. Notices and Other Communications . . . . . . . . . . . . . . . . . . . . . . . . 15 16. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 17. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 18. Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 19. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 20. Paragraph Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 21. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 22. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 23. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 24. Calendar Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 25. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 i 26. Further Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 27. Covenant of Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 28. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 29. Incorporation of Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 30. Incorporation of Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 31. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 32. Municipal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 33. Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 34. Clause or Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 35. Downtown Cinema . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 36. New Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 11 TABLE OF EXHIBITS Exhibit "A" Depiction of Parcels Exhibit "B" Description of Parcels Exhibit "C" Site Plan Exhibit "D" Phasing Plan Exhibit "E" Permitted Uses Exhibit "F" Filing Requirements Exhibit "G" Mitigation Monitoring/Reporting Program Exhibit "H" Existing and Proposed Signage and Landscaping Exhibit "I" Public Improvements ' Exhibit "J" Developer's Concept of Impact of I-215 Freeway Design Alternative Exhibit "K" Certificate of Completion iii E I i DEVELOPMENT AGREEMENT This Development Agreement ("Agreement") is entered into effective May 1, 1996, ("Effective Date"), between the City of San Bernardino, a municipal corporation, ("City") and Mano Management Company, Inc., a Delaware corporation ("Developer"). RECITALS A. The City is authorized by its Municipal Code ("Municipal Code") to enter into binding development agreements for the Development of improved real property in its municipal limits, with persons who have legal or equitable interests in that real property. B. The Developer owns a parcel of real property in the municipal limits of the City and in the redevelopment project area of the Inland Valley Development Agency ("IVDA"), which is depicted in Exhibit "A" ("Mall Parcel No. 3") and described in Exhibit "B". Mall Parcel No. 3 is improved with a retail shopping mall facility and with parking and other facilities which are incidental to the retail shopping mall facility. C. Three other parcels of real property (individually, "Existing Anchor Parcel" and collectively, "Existing Anchor Parcels") are contiguous to Mall Parcel No. 3 and, together with Mall Parcel No. 3, function as an integrated regional shopping mall ("Inland Center Mall"). The Existing Anchor Parcels are also located in the municipal limits of the City and in the redevelopment project area of the IVDA and are also depicted in Exhibit "A" and described in Exhibit "B". The Existing Anchor Parcels are improved with major department store facilities and parking and other facilities which are incidental to those major department store facilities. The Developer and the owners of the Existing Anchor Parcels have rights, obligations and equitable interests in the parcels which are owned by the others, by virtue of a reciprocal easement agreement ("Reciprocal Easement Agreement") which provides reciprocal access rights and obligations, parking rights and obligations, utility service rights and obligations and maintenance rights and obligations, which was recorded in the Official Records of San Bernardino County, California, on April 23, 1966, in Book 6685 at Page 414, and which has been amended from time to time. Although the owners of the Existing Anchor Parcels are not signatories to this Agreement, the parties intend that the Existing Anchor Parcels and their successors and assigns be express third party beneficiaries of this Agreement. D. The Developer intends to upgrade, expand and remodel (as used in this Agreement, "Develop", "Developed" and "Development" will be deemed to refer to the planned upgrading, expansion and remodeling) Mall Parcel No. 3 and to use reasonable efforts to induce the owners of the Existing Anchor Parcels to upgrade, expand and remodel the Existing Anchor Parcels. The Developer also intends to use reasonable efforts to create new legal parcels in Mall Parcel No. 3, if financially feasible, and to induce the owners of the Existing Anchor Parcels to create new legal parcels in the Existing Anchor Parcels, at the approximate locations depicted as "New Anchor 1", "New Anchor 2" and "New Anchor 3" in the proposed site plan ("Site Plan") which is attached as Exhibit "C" (individually, "New Anchor Parcel" and collectively, "New Anchor Parcels"), for the purpose of facilitating the location of up to three additional major department stores at the Inland Center Mall (individually, "New Major Department Store" and collectively, "New Major Department Stores"). The Developer also intends to use O:\G 193\002\Document\DevAg.016 I reasonable efforts to expand the first level in the existing retail shopping mall facility, to Develop a second level in the existing retail shopping mall facility, to Develop new non-retail space at the Inland Center Mall and to Develop up to four multi-level parking structures at the Inland Center Mall. The Developer also intends that the proposed Development of the Inland Center Mall will occur in two phases, according to the phasing plan ("Phasing Plan") which is attached as Exhibit "D". E. The Developer has applied to the City for approval and enactment of this Agreement as the primary governing instrument for the proposed Development and continued use of the Inland Center Mall and the City's Planning Commission ("Planning Commission") and the City's City Council ("City Council") have conducted public hearings with respect to this Agreement and have found that the provisions of this Agreement are consistent with the City's General Plan ("General Plan") including, without limitation, the provisions of the General Plan which address permitted uses, design and development guidelines, streetscapes, public improvements, transportation, circulation and the expansion, intensification and upgrading of the Inland Center Mall. The Planning Commission and the City Council have also found that the provisions of this Agreement implement the goals, objectives, policies and standards of the Land Use Element of the General Plan. On April 1, 1996, the City Council adopted Resolution No. 96-84 ("Enacting Resolution") which enacted this Agreement and the Enacting Resolution became effective on the date of its adoption. F. By adopting the Enacting Resolution, the City Council has elected to exercise certain governmental powers at the present time rather than deferring those actions until an undetermined future date and has done so intending to bind the City and future City Councils and intending to limit the City's future exercise of certain governmental powers. This Agreement has undergone extensive review by the City, the Planning Commission and the City Council and has been found to be fair,just and reasonable and in the best interests of the citizens of the City and the public health, safety and welfare. G. By adopting the Enacting Resolution, the City Council approves the Development Agreement for the proposed Development and continued use of the Inland Center Mall, on a basis which recognizes the uniqueness of the Inland Center Mall and which provides maximum flexibility to the Developer with respect to Development of the Inland Center Mall. The City Council intends this Agreement to be the primary governing instrument for the proposed Development and continued use of the Inland Center Mall, in lieu of any other permit or approval, except for those permits and approvals which are specifically identified in this Agreement. IN CONSIDERATION of the mutual covenants and conditions in this Agreement, the parties agree as follows: OPERATIVE PROVISIONS 1. Term. Unless earlier terminated as provided in this Agreement, this Agreement will commence on the Effective Date and will continue until the earlier of(a) 20 years from the Effective Date or (b) until the improvements which exist at the Inland Center Mall as of the O:\G 193\002\DocumenADevAg.016 2 Effective Date, or which are subsequently Developed as provided in this Agreement, no longer exist. After completion of the Development of the Inland Center Mall, the effect of this Agreement will be to govern the continued use of the Inland Center Mall, to the extent of ensuring, for land use purposes, (A) that the Inland Center Mall continues as a group of legal, conforming structures, (B) the Developer's ability to upgrade, expand and remodel the Inland Center Mall, in accordance with this Agreement, and (C) the Developer's ability to repair or rebuild the Inland Center Mall as one or more legal conforming structures, in accordance with this Agreement, if the Inland Center Mall is damaged or destroyed. Notwithstanding any other provision in this Agreement, no total or partial termination of this Agreement will act to cancel, limit or alter, in any way, any of the development entitlements which the Developer has previously obtained (as of the date of termination of this Agreement) or may thereafter obtain with respect to the Inland Center Mall. 2. Development and Continued Use. (a) The proposed Development and continued use of the Inland Center Mall will be governed by this Agreement. Although this Agreement refers to certain provisions of the Municipal Code for details which are not provided in this Agreement, this Agreement will govern the proposed Development and continued use of the Inland Center Mall to the extent it is not in conflict with the development standards in the Municipal Code. If any provision in this Agreement appears to be in conflict with the development standards in the Municipal Code, then t ] the conflicting provisions will be construed to be consistent to the greatest extent possible; provided, however that if the conflicting provisions cannot be so construed, then the conflicting provision in the development standards of the Municipal Code will supersede and control. If any provision in this Agreement is more restrictive or requires a higher level of performance than the provision in the development standards in the Municipal Code, then the less restrictive provision in the Municipal Code will govern the proposed Development and continued use of the Inland Center Mall. (b) Subject to the provisions in subparagraph 2(a), the Developer will have the vested right to Develop and use Mall Parcel No. 3 and the owners of the Existing Anchor Parcels and the New Anchor Parcels will have the vested right to Develop and use their respective Existing Anchor Parcels and New Anchor Parcels, in accordance with this Agreement. (c) The proposed Development of the Inland Center Mall will substantially conform to the Site Plan and will include (i) up to three New Major Department Stores which will add, in the aggregate, approximately 540,000 square feet of new retail area, based on gross building area, (ii) additional lower level retail space which will add approximately 3,700 square feet of new retail area based on gross building area, (iii) additional first level retail space which will add approximately 7,400 square feet of new retail area based on gross building area, (iv) a second level in the existing retail shopping mall which will add approximately 158,505 square feet of new retail area, based on gross building area, (v) new non-retail space which will add approximately 100,000 square feet of new non-retail area, based on gross building area, (vi) up to four multi-level parking structures, (vii) on completion of both phases of the proposed Development, landscaped areas which, in the aggregate, will constitute a minimum of 15% of the gross surface area of the parking facilities at the Inland Center Mall (in accordance with OAG 193\002\Documeatu)evAS.016 3 I Section 19.24.060.6 of the Municipal Code) and (viii) design elements which are architecturally consistent with the applicable standards in Section 19.06.060 of the Municipal Code. (d) Subject only to compliance with the procedures in Chapter 19.60 of the Municipal Code and the provisions of paragraph 32., the Developer and the owners of the Existing Anchor Parcels and the New Anchor Parcels, as the case may be, may make modifications in the proposed Development of the Inland Center Mall which are determined by the City's Director Planning and Building Services ("Director") to be non-material including, without limitation, the following modifications: (i) increase or decrease the square footage of each New Major Department Store, provided that the 540,000 square foot aggregate in subparagraph 2.(c) is not exceeded, (ii) decrease the aggregate square footage of the New Major Department Stores, (iii) decrease the aggregate square footage of the additional first level retail shopping mall improvements, (iv) decrease the aggregate square footage of the additional second level retail shopping mall improvements, (v) decrease the aggregate square footage of the new non-retail improvements, (vi) increase the parking capacity of the additional four multi-level parking structures and (vii) modification of building locations, provided there is no aggregate increase in square footage beyond the square footages referred to in subparagraph 2(c). (e) The proposed Development of Mall Parcel No. 3, the Existing Anchor Parcels and the New Anchor Parcels including, without limitation, the density, intensity and type of use, the maximum height and size of buildings, building setback requirements, parking requirements, landscaping requirements, loading zone requirements and provisions for reservation or dedication of land for public purposes, will be governed by this Agreement and the following: (i) The Commercial Regional Retail (CR-1)land use designation of the General Plan, as it exists on the Effective Date or at the time of inquiry, whichever is less restrictive or requires a lesser level of performance. For the purposes of this Agreement, the "time of inquiry" means the date upon which the Developer files any application for any approval, consent or permit necessary to complete the Development. (i.i) The permitted uses in Exhibit "E". (iii) The applicable signage standards in Chapter 19.22 of the Municipal Code, as they exist on the Effective Date or at the time of inquiry, whichever is less restrictive or requires a lesser level of performance. (iv) The applicable on-site landscape standards in Section 19.24.060.6 and Chapter 19.28 of the Municipal Code, as they exist on the Effective Date or at the time of inquiry, whichever is less restrictive or requires a lesser level of performance. (v) Other standards in Title 19 of the Municipal Code, which are applicable to the proposed Development of the Inland Center Mall, as they exist on the Effective Date or at the time of inquiry, whichever is less restrictive or requires a lesser level of performance. OAG193\002\Document\DevAS.016 4 i (vi) Other standards in the Municipal Code which are applicable to the permits and approvals described in paragraph 3, as they exist on the Effective Date or at the time of inquiry, whichever is less restrictive or requires a lesser level of performance. (f) As provided in the Phasing Plan, the Developer intends that the Development of the Inland Center Mall will be phased as follows: Phase Improvements Expected Completion Date I Construct New Anchor 1 with approximately 140,000 square 8th Anniversary of feet of gross building area. Construct New Anchor 2 with the Effective Date. approximately 160,000 square feet of gross building area. Construct additional lower level retail shopping mall improvements with approximately 3,700 square feet of gross building area, additional first level retail shopping mall improvements with approximately 7,400 square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 142,505 square feet of gross building area. Construct new non-retail improvements with approximately 75,000 square feet of gross building area. Construct three adjacent parking structures accommodating approximately 2,220 autos. II Construct New Anchor 3, with approximately 240,000 12th Anniversary square feet of gross building area. Construct additional of the Effective second level retail shopping mall improvements with Date. approximately 16,000 square feet of gross building area. Construct new non-retail improvements with approximately 25,000 square feet of gross building area. Construct an adjacent parking structure accommodating approximately 800 autos. The Developer will use reasonable efforts to Develop Mall Parcel No. 3 and to induce the owners of the Existing Anchor Parcels and the New Anchor Parcels to Develop the Existing Anchor Parcels and the New Anchor Parcels, according to the foregoing schedule. Notwithstanding the provisions of the immediately preceding sentence and without increasing the level of the Developer's commitment with respect to the Development of Phase II, if by the 10th anniversary of the Effective Date, the Developer fails to obtain a certificate of occupancy from the City (or the equivalent approval by the City, if the City no longer issues certificates of occupancy at that time) with respect to the construction of the improvements in Phase I, or if by the 15th anniversary of the Effective Date, the Developer fails to obtain a building permit with respect to the improvements in Phase H, then at the election of the City, the City may require the Developer to agree to an amendment of this Agreement to provide that, during the remainder of the term of this Agreement, the Development of the Inland Center Mall will be governed by the land use provisions of the City's Development Code (Title 19 of the Municipal Code), as they exist at the time of actual Development. O:\G 193\002\Document\DevAg.016 5 JPWk (g) In view of the fact that the proposed Development and continued use of the Inland Center Mall are being approved by enactment of this Agreement, the parties acknowledge and agree that, except for any studies and reports which are required by the MMRP (as defined below), (i) all of the studies, reports and other bases for the enactment of this Agreement including, without limitation, the traffic impact analyses, geotechnical studies, liquefaction studies, title reports, preliminary environmental description forms, initial studies, socioeconomic studies, environmental impact report, statement of facts, findings and overriding considerations, owner authorizations and other matters which are described in Exhibit "F" ("Filing Requirements"), (ii) all of the findings and mitigation measures (individually "Mitigation Measure" and collectively "Mitigation Measures") which are imposed in connection with the enactment of this Agreement and (iii) any mitigation monitoring/reporting program which is described in Exhibit "G" ("MMRP"), are deemed to satisfy the requirements of the City with respect to any additional permits and approvals described in paragraph 3., provided that the scope of the proposed Development and continued use of the Inland Center Mall does not change in a manner which will materially exceed the scope of any of the (A) Filing Requirements, (B) Mitigations Measures or (C) MMRP, and provided further that state law does not prohibit the same. (h) The parties acknowledge that the landscaping and signage at the Inland Center Mall on the Effective Date, may not be consistent with the applicable standards in Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code, and that the landscaping and signage which is proposed in connection with the Development and continued use of the Inland Center Mall may also not be fully consistent with those standards. As soon as is reasonably possible after the Effective Date, the Developer will prepare all documentation required by the City to enact amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code, and submit the same to the City. On submission, the City will accept that documentation for filing and subject to the completion of such investigations, public hearings, findings and other procedures as are required by State law and the Municipal Code, the City will diligently process the proposed amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code. The proposed amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code will ensure that the existing landscaping and signage at the Inland Center Mall and the landscaping and signage which is Developed in accordance with this Agreement, will be legal and conforming, based solely on their conformance with this Agreement and the applicable plans and specifications which are approved by the City and that landscaping and signage will, for all purposes, continue to be governed by the standards in this Agreement including, without limitation, standards with respect to the subsequent alteration or modification of that landscaping or signage or any rebuilding of that landscaping or signage if it is totally or partially destroyed. The general elements, characteristics and requirements of the proposed amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code are described in Exhibit "H". If the City does not ultimately enact the proposed amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code, then the standards in Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code in effect at the time of inquiry will apply and the parties will cooperate with one another in good faith in taking such steps as may be necessary to carry out the intent of this Agreement. OAG193\0=2 ocumu,tmcvAS.016 6 i (i) Subject to the provisions in subparagraph 2(a), from and after the Effective Date, the Developer and the owners of the Existing Anchor Parcels and the New Anchor Parcels will have the right to further upgrade, expand and remodel the improvements on Mall Parcel No. 3 and the Existing Anchor Parcels and New Anchor Parcels, as the case may be, provided that the subsequent upgrading, expansion and remodeling are in accordance with the provisions of this Agreement; provided, however that if any provision in this Agreement is more restrictive or requires a higher level of performance than the applicable provision in the Municipal Code, then the less restrictive provision in the Municipal Code will govern the subsequent upgrading, expansion or remodeling. In addition, but also subject to the provisions in subparagraph 2(a), if any of the improvements at the Inland Center Mall are subsequently totally or partially destroyed, then the Developer or the owners of the Existing Anchor Parcels or the New Anchor Parcels, as the case may be, will have the right to rebuild those improvements in accordance with the provisions of this Agreement; provided, however that if any provision in this Agreement is more restrictive or requires a higher level of performance than the applicable provision in the Municipal Code, then the less restrictive provision in the Municipal Code will govern the rebuilding. 3. Additional Permits and Approvals. The only additional City permits and approvals which will be required for the Development and continued use of the Inland Center Mall, will be as follows: (a) When the architectural plans, floor plans, internal building and parking structure circulation and construction design details, landscaping and signage plans ('Final Design Details") for each improvement at the Inland Center Mall or each phase of the Development become known, then those Final Design Details will be subject to the issuance by the City of Development Permits, as provided in Chapter 19.44 of the Municipal Code, unless the activities contemplated by the Final Design Details involve the sale of alcoholic beverages, either onsite or offsite, or the operation of a movie theater, amusement/recreation facilities or an automobile show rooms. In those cases only, the Final Design Details will be subject to the issuance by the City of Conditional Use Permits, as provided in Chapter 19.36 of the Municipal Code. The scope of the City's review and approval of each Development Permit and Conditional Use Permit will be limited to the Final Design Details in the applicable phase of the proposed Development of the Inland Center Mall which are the subject of that Development Permit or Conditional Use Permit and the City will not consider or condition its approval of the applicable Final Design Details in such a manner as to impact the other phase of the proposed Development of the Inland Center Mall, or otherwise in any manner which is inconsistent with this Agreement. (b) The Final Design Details for each improvement at the Inland Center Mall will be subject to the issuance by the City of building permits. (c) Any subdivision or lot line adjustment and any parcel map which may be necessary to change the size or configuration of Mall Parcel No. 3 or any Existing Anchor Parcel or New Anchor Parcel, will be subject to approval by the City. (d) The occupancy of improvements at the Inland Center Mall will be subject to the issuance by the City of certificates of occupancy, or other equivalent permit(s). OAG193\002\DmumeotMDcYAg.o16 7 i (e) The operation of businesses at the Inland Center Mall will be subject to the issuance by the City of business registration certificates. (f) The matters in subparagraph 6.(a) and subparagraph 6.(c) will be subject to the issuance by the City of Development Permits, as provided in subparagraph 3.(a), and to the issuance by the City of building permits, as provided in subparagraph 3.(b). (g) On the request from time to time of the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel, the City will accept applications for and diligently process, in accordance with this Agreement, any Development Permit, Conditional Use Permit, building permit, subdivision or lot line adjustment, parcel map, certificate of occupancy or equivalent permit, or business registration certificate which is described in this Agreement, and will make all required inspections. Without limiting the effect of the foregoing, the parties aclolowledge and agree that the Developer and any owner of an Existing Anchor Parcel or a New Anchor Parcel will have the right to request and the City hereby agrees to hire or contract for additional dedicated personnel as may be necessary to expedite the processing and inspection which is provided in this subparagraph 3.(g); provided, however that financial arrangements are made with each such department which are mutually agreeable to that department and the Developer, to defray the cost of the additional dedicated personnel. Any additional dedicated personnel will be assigned exclusively to Inland Center Mall matters. Further, without limiting the effect of the foregoing, except with regard to conditions of approval which are imposed by the City's Development Review Committee or the City's Environmental Review Committee and unless waived in any given case by the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel, as the case may be, the City will notify the Developer and the owners of the Existing Anchor Parcels and the New Anchor Parcels, as the case may be, in writing, of any proposed conditions of the City's issuance or approval of any Development Permit, Conditional Use Permit, subdivision or lot line adjustment or parcel map, at least 10 days before the date on which the City otherwise intends to take action on the matter. The parties acknowledge that the City's Development Review Committee and the City's Environmental Review Committee frequently do not issue their proposed conditions of approval until the applicable Development Review Committee meeting or the applicable Environmental Review Committee meeting and, therefore, the City cannot commit to make those conditions of approval available before the applicable meeting. However, the City will use its best efforts to obtain any applicable Development Review Committee conditions of approval or Environmental Review Committee conditions of approval, as soon as is reasonably possible before the applicable Development Review Committee meeting or the Environmental Review Committee meeting. (h) The parties acknowledge that the approval of subdivisions, lot line adjustments and parcel maps and the issuance of Development Permits and Conditional Use Permits as contemplated by this Agreement may result in the imposition by the City of conditions of approval and standard requirements. If any of the above-mentioned conditions of approval conflict with or are inconsistent with any provision of this Agreement, then the applicable provision of this Agreement will supersede and control. Without limiting the effect of the foregoing, although the Inland Center Mall consists of several parcels of real property and 0:%G193\002\Docunx-m DcvAy.016 8 has multiple owners, the effect of this Agreement and the Reciprocal Easement Agreement which is referred to in Recital "C", is to interlock those parcels together as one property, and all of the legal parcels which make up the Inland Center Mall are deemed to be the same property for purposes of interpreting the Uniform Building Code. (i) To the extent not inconsistent with this Agreement, the review of subdivisions, lot line adjustments and parcel maps and the issuance of Development Permits and Conditional Use Permits will require the exercise of discretion by the City and that those aspects of the proposed Development and continued use of the Inland Center Mall will be subject to the City's reasonable review as provided in its ordinances, resolutions, rules and regulations; provided, however that the City exercises its discretion consistent with the provisions and objectives of this Agreement. 4. Public Improvements. Subject to the Development of Mall Parcel No. 3 and the Existing Anchor Parcels, as provided in this Agreement, the Developer will construct or cause the improvements which are described in Exhibit "I" to be constructed, in connection with the proposed Development of Mall Parcel No. 3 and the Existing Anchor Parcels (individually "Public Improvement" and collectively "Public Improvements"). All of the Public Improvements will be constructed to the standards of the public agency or public agencies which have jurisdiction and the determination of whether a specific Public Improvement meets those standards will be within the discretion of the applicable public agency or public agencies. The parties agree that construction of the Public Improvements is deemed to satisfy all of the requirements of the City for Public Improvements in connection with the Development or continued use of the Inland Center Mall, as provided in this Agreement, and that neither the Developer nor any owner of an Existing Anchor Parcel or a New Anchor Parcel will be required to construct any additional public improvements in connection with the Development or continued use of the Inland Center Mall as provided in this Agreement, unless otherwise required by State law. The parties also agree that the benefits of the construction of the Public Improvements will be deemed to satisfy the objectives and policies in Section 6.1.11 through Section 6.1.14 of the General Plan. 5. Third Party Permits and Approvals and Utilities. The parties acknowledge that this Agreement does not bind third party government and non-government agencies which are not under the City's control. The City will use its best efforts to assist the Developer and the owners of the Existing Anchor Parcels and the New Anchor Parcels in obtaining all permits and approvals of third party government and non-government agencies, which are necessary for the Development or continued use of the Inland Center Mall, including, without limitation, permits and approvals which are required for the installation of driveways and utility connections and services such as electrical, gas, water, sewer, storm drain, telephone and cable television and other permits and approvals which may be issued by third party government agencies such as the California Department of Transportation ("CalTrans") and the South Coast Air Quality Management District. In addition, at the request of the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel, the City will use its best efforts to assist that person in negotiating with third party government agencies and non-government agencies with respect to any processing fees or charges and any development impact fees or development linkage fees which are levied by those third party government agencies and non-government agencies. In addition, the parties acknowledge that the Developer or the owners of the Existing Anchor OAG 1931002\Document\DevAg.016 9 Parcels or the New Anchor Parcels may be obligated to make payments to third party utility providers to defray the cost of utility extensions to the Inland Center Mall and agree that, at the request of the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel, the City will process all proceedings with those third party utility providers that may be necessary to implement those utility extensions. 6. Other Matters. (a) The parties acknowledge that CalTrans presently plans to expand the Interstate 215 Freeway ("I-215 Freeway") in the vicinity of the Inland Center Mall and that, in so doing, may take a portion of Mall Parcel No. 3 and/or portions of the Existing Anchor Parcels and/or the New Anchor Parcels. In order to preserve the maximum number of parking spaces at the Inland Center Mall and to preserve the existing I-215 Freeway off-ramp at Inland Center Drive, the City will use its best efforts to induce CalTrans to design the expansion of the portion of the I-215 Freeway which is adjacent to the Inland Center Mall, in a manner which retains direct north and south access between the I-215 Freeway and Inland Center Drive and which will also provide for "right in" and "right out" access between the Inland Center Mall and any collector-distributor road which is developed as part of the I-215 Freeway expansion. If CalTrans takes a portion of Mall Parcel No. 3 or any of the Existing Anchor Parcels or the New Anchor Parcels and that taking results in a reduction in parking spaces at the Inland Center Mall, then the City will not require the replacement of those lost parking spaces provided that the total number of parking spaces lost does not result in a reduction in the total number of parking spaces provided at the Inland Center Mall below the minimum number of parking spaces which are required for the Inland Center Mall by the Municipal Code. In addition, if CalTrans takes a portion of Mall Parcel No. 3 or any of the Existing Anchor Parcels or the New Anchor Parcels, at the request of the Developer or any other owner of an affected Existing Anchor Parcel or New Anchor Parcel, the City will diligently process, in accordance with the Municipal Code (subject to the provisions of subparagraph 2.(d) with respect to minor modifications under Chapter 19.60 of the Municipal Code), such Development Permits and construction permits as may be necessary to replace the lost facilities. (b) The parties acknowledge that, in connection with the expansion of the I-215 Freeway, CalTrans may relinquish or otherwise dispose of certain land which is contiguous to the Inland Center Mall, which is depicted as "2.6 acres" in Exhibit "J" and which is presently part of the CalTrans right-of-way ("CalTrans Right-of-Way"). Irrespective of whether CalTrans takes any portion of Mall Parcel No. 3 or any of the Existing Anchor Parcels or the New Anchor Parcels, the City will use its best efforts to cause CalTrans to relinquish or otherwise dispose of the CalTrans Right-of-Way by a conveyance to the Developer, at no cost or otherwise at the lowest possible cost, and the Developer will pay or cause to be paid the cost of any such relinquishment or disposition, if there is a cost associated with the same. Under no circumstances will the City be required to bid at any sale of the CalTrans Right-of-Way or to advance the purchase price of any CalTrans Right-of-Way, it being agreed that the City's sole obligation will be to use its best efforts to cause CalTrans to relinquish or otherwise dispose of the CalTrans Right-of-Way by a conveyance to the Developer, at no cost or otherwise at the lowest possible cost. OAG193\002\DocumenADcvAS.016 10 (c) The parties acknowledge that Central Avenue may, in the future, be extended from its west terminus across property owned by others and adjacent to the Inland Center Mall, to an ultimate intersection with the I-215 Freeway. If any extension of Central Avenue results in a loss of facilities at the Inland Center Mall including, without limitation, parking facilities, then at the request of the Developer or any owner of an affected Existing Anchor Parcel or New Anchor Parcel, the City will diligently process, in accordance with the Municipal Code (subject to the provisions of subparagraph 2.(d) with respect to minor modifications under Chapter 19.60 of the Municipal Code), such Development Permits and construction permits as may be necessary to replace the lost facilities. Nothing in this subparagraph 6.(c) will be deemed to obligate the City to extend or modify Central Avenue in any respect. (d) The parties acknowledge that, except for the improvements described in Exhibit "I", streetscape requirements, which may be applicable to streets adjacent to or adjoining the Inland Center Mall, will be implemented as part of a capital improvement project, by the City or the IVDA. Participation in any such improvements, by the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel will not be a condition of this Agreement or of any future permit or approval for uses or rights with respect to the Inland Center Mall, but will instead be subject to the consent of the Developer or the applicable owner of an Existing Anchor Parcel or a New Anchor Parcel. (e) The City will use its best efforts to assist the Developer and the owners of any Existing Anchor Parcel or New Anchor Parcel in ensuring that they assume no responsibility including, without limitation, financial responsibility, for the construction of any offsite improvements, which are required by the expansion of the I-215 Freeway or by the extension of Central Avenue, except that the City shall not, as a result of this Agreement, become financially responsible for the cost of satisfying any condition imposed by CalTrans on the Developer in connection with the expansion of the I-215 Freeway. Nothing in this paragraph 6(e) shall be deemed to release the Developer from any obligation it may have to construct or cause the Public Improvements which are described in Exhibit "I", to be constructed, in accordance with the provisions of paragraph 4. (f) The parties acknowledge that, pursuant to an agreement with the San Bernardino County Flood Control District ("Flood Control District"), the Developer maintains landscape areas which are (i) visually integrated with the Inland Center Mall (such that they visually constitute part of the "site area" of the Inland Center Mall and its parking areas), (ii) contiguous to the Inland Center Mall, (iii) depicted in the Site Plan and (iv) owned by the Flood Control District ("Flood Control Landscape Areas"). The parties agree that the Developer and the owners of the Existing Anchor Parcels and the New Anchor Parcels will receive credit for the Flood Control Landscape Areas in meeting up to 1/3 of the 15% landscape coverage requirement which is referred to in subparagraph 2.(c). The parties further acknowledge that, as of the effective date of this Agreement, the landscape buffer between the Inland Center Mall and the I-215 Freeway is approximately 15 feet wide, rather than 25 feet wide, as is required by the development standards in the Municipal Code. In the event that CalTrans expands the I-215 Freeway, nothing in this Agreement will be deemed to alter the Developer's continuing obligation to maintain at O:\G 1931002\Documea1U)CV Ag.016 11 least an approximately 15 foot landscape buffer between the Inland Center Mall and the I-215 Freeway. (g) The parties acknowledge that, when the Development of the Inland Center Mall has been completed, Chapter 19.24 of the Municipal Code will require a total of 7,049 Parking spaces 0 parking space per 250 gross square feet of building). Based on the Developer's estimates, at the completion of the Development of the Inland Center Mall, a total of 7,420 parking spaces (4,400 existing parking spaces plus 3,020 new parking spaces) will be provided, resulting in 371 parking spaces beyond the requirements of Chapter 19.24 of the Municipal Code. The parties further acknowledge that the Inland Center Mall, as it now exists, includes approximately 985,829 gross square feet of buildings and 4,400 parking spaces. The parties further acknowledge that, based on Chapter 19.24 of the Municipal Code, only 3,944 parking spaces are required and, therefore, as of the Effective Date, 456 extra parking spaces are being provided. The parties further acknowledge that, based on the Developer's estimates, approximately 770,995 gross square feet of buildings and an additional 3,020 parking spaces will be provided in connection with the Development of the Inland Center Mall. The parties further acknowledge that, if the additional parking spaces are evaluated independently of the existing parking spaces, on completion of the Development of the Inland Center Mall, Chapter 19.24 of the Municipal Code would require 86 additional parking spaces. The parties further acknowledge, however, that the additional parking spaces which the Developer intends to add with each phase of the Development (as provided in subparagraph 2.(0 of the body of this Agreement), when evaluated in conjunction with the parking spaces which exist at the Inland Center Mall as of the Effective Date, exceed the requirements of Chapter 19.24 of the Municipal Code, with respect to each phase of the Development. The parties therefore acknowledge and agree that the number of parking spaces at the Inland Center Mall, both individually (by phase) and cumulatively, meet the requirements of Chapter 19.24 of the Municipal Code. The Developer will maintain the existing 4,400 parking spaces throughout each phase of the Development of the Inland Center Mall and will provide additional parking spaces, as provided in subparagraph 2.(f). Notwithstanding the foregoing, the parties agree that the 4,400 parking spaces which exist at the Inland Center Mall on the Effective Date, may be rearranged to accommodate the needs of any phase of the proposed Development of the Inland Center Mall. The Developer may reduce the total parking in Phase I by 10%, provided that such parking is provided in Phase H and provided further that at least 7,420 total parking spaces are provided at the completion of the Development of the Inland Center Mall. If any mitigation measure imposed by the City in connection with the approval and enactment of this Agreement, requires that the Developer provide parking spaces for a park and ride facility, then the parties agree that any such parking spaces will be in addition to the total parking space count for the applicable phase of Development. OAG 193\0021DocumcrAkDcvAS.016 12 7. Developer Failure to Perform. If the Developer fails to comply in good faith with the provisions of this Agreement, then the City will have the rights and remedies which are provided in Section 19.40.070 of the Municipal Code. In order to monitor the Developer's performance under this Agreement, beginning on the first anniversary of the Effective Date and continuing on each anniversary thereafter, the City will review the Developer's performance under this Agreement, as provided in Section 19.40.070 of the Municipal Code. To facilitate that review, on each anniversary of the effective date of this Agreement, the Developer will prepare and file with the City, a report setting forth its compliance with the terms of this Agreement; provided, however, that the Developer's failure to file any such report will not constitute a default under this Agreement unless the Developer fails to file the required report, within 30 days after written request by the City. The parties acknowledge that the Developer has agreed to use reasonable efforts to Develop the Inland Center Mall according to this Agreement; but that numerous factors including, without limitation, financial feasibility, could prevent the proposed Development from occurring. If after making reasonable efforts to cause the proposed Development of the Inland Center Mall according to this Agreement, the Developer and/or the owners of the Existing Anchor Parcels or the New Anchor Parcels fail to do so, then the City's ultimate remedy will be to terminate this Agreement, in which event the Developer and the owners of the Existing Anchor Parcels and the New Anchor Parcels will lose the benefits of this Agreement. In addition, if this Agreement is terminated, then the parties will take such steps and execute and acknowledge such documents as may be necessary to evidence the termination of this Agreement. 8. City Failure to Perform. If the City fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 10 days after notice of nonperformance is given by the Developer or by the owner of any Existing Anchor Parcel or New Anchor Parcel, then the City will be in default. In that event, the parties agree that any remedy at law that the Developer or any owner of an Existing Anchor Parcel or New Anchor Parcel, as the case may be, may have, would be inadequate and that the Developer or the owner of an Existing Anchor Parcel or a New Anchor Parcel, as the case may be, will pursue only the available equitable remedies including, without limitation, the remedies of temporary and permanent injunction and specific performance and excluding specifically any compensation in damages. In any such action, the Developer or the owner of an Existing Anchor Parcel or New Anchor Parcel, as the case may be, will not be required to prove the inadequacy of remedies at law, as a condition of pursuing its equitable remedies. 9. Permitted Delays. Without limiting the effect of paragraph 11., the City, the Developer and any owner of an Existing Anchor Parcel or New Anchor Parcel, will be excused from performing any obligation in this Agreement during any period of delay which is caused by matters which are not within the performing party's reasonable control including, without limitation, casualty; acts of God; civil commotion; war; insurrection; riots; strikes; walkouts; picketing or other labor disputes (except that neither the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel, nor their respective contractors or subcontractors, will be required to settle any labor dispute on terms other than those which are satisfactory to them in their sole discretion); market factors; unavoidable shortages of materials or supplies; damages to work in progress by reason of fire, flood, earthquake or other casualty; litigation which prohibits or delays any aspect of the proposed Development of the Inland Center Mall; initiatives or referenda; moratoria; acts or the failure to act of the City or any other government agency o:;c 1 93\002M>mumemu)evAS.016 13 (except that acts or the failure to act of the City will not excuse performance by the City); unanticipated restrictions which are imposed or mandated by government or non-government agencies or enactment of conflicting City, County, State or Federal laws, regulations or judicial decisions. 10. ' Developer Compliance and Release. At such time as the Developer advises the City that either phase of the proposed Development of the Inland Center Mall has been completed, the Director will issue a certificate of completion ("Certificate of Completion") with respect to that phase of the Inland Center Mall and the Developer may, at its cost, record that Certificate of Completion in the Official Records of San Bernardino County, California. The purpose and effect of the Certificate of Completion will be to evidence that the Developer and/or the owners of the Existing Anchor Parcels and the New Anchor Parcels have completed the applicable phase of the proposed Development of the Inland Center Mall. Each Certificate of Completion will be substantially in the form of Exhibit W. 11. Superseding State or Federal Law. If any state or federal law or regulation which is enacted or adopted after the Effective Date or any other action of any governmental entity which is not under the City's control, prevents or precludes compliance with any provision of this Agreement, then that provision of this Agreement will be modified or suspended only to the extent and for the time necessary to achieve compliance with that law, regulation or other governmental action and the remaining provisions of this Agreement will continue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which removes the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their full original effect and any amendment to this Agreement which the parties have entered into as a result of any such law, regulation or other governmental action, will terminate. 12. Successors.Assigns and Beneficiaries. All of the provisions of this Agreement will inure to the benefit of and be binding on the respective successors and assigns of the parties. Without limiting the effect of any other provision in this Agreement, the parties acknowledge that the provisions of this Agreement which are for the benefit of the owners of the Existing Anchor Parcels will inure to the benefit of the owners of the Existing Anchor Parcels and that the provisions of this Agreement which are for the benefit of the owners of the New Anchor Parcels will inure to the benefit of the owners of the New Anchor Parcels, and that the owners of the Existing Anchor Parcels and the Existing Anchor Parcels themselves and the owners of the New Anchor Parcels and the New Anchor Parcels themselves are third party beneficiaries of those provisions and will have the same rights with respect to their respective parcels as if they were signatories to this Agreement. 13. Equitable Servitudes. All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land to the extent allowed by applicable law; provided, however that, after transfer by the Developer of any New Anchor Parcel, each remaining legal parcel of Mall Parcel No. 3 will be burdened only by the 0AG193\002\DocunwM Dev,g.016 14 „ obligations in this Agreement which relate to that legal parcel and, under no circumstances, will the Developer be liable for the obligations in this Agreement which relate to the applicable New Anchor Parcel. 14. Negation of Agency. Joint Venture or Partnership. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners. 15. Notices and Other Communications. All notices or other communications which are required or permitted to be given to the parties as provided in Chapter 19.52 of the Municipal Code, shall be governed by the provisions of Chapter 19.52 of the Municipal Code. Otherwise, all notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service, addressed as follows: CITY City of San Bernardino 300 North "D” Street San Bernardino, CA 92418 Attn: Director of Planning and Building Services DEVELOPER Mano Management Company, Inc. c/o General Growth of California, Inc. 15821 Ventura Boulevard Suite 525 Encino, CA 91436 Attn: Orval F. Papon If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt or rejection. Addresses to which notices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 15. 16. Estoppel Certificates. At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, except as is expressly provided in that estoppel certificate and (c) no default in the performance of the requesting party's obligations as provided in this Agreement exists, except as is expressly provided in that estoppel certificate. 0:%G193\002UDocunxm\DevAg.016 15 17. Applicable Law. This Agreement will be construed and enforced as provided in California law. 18. Venue. Any legal action with respect to this Agreement will be brought, at the election of the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel, as the case may be, in either San Bernardino County Superior Court or in the United States District Court for the Central District of California. 19. Attorneys' Fees. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in that action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary disbursements in connection with that action. 20. Paragraph Headings. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 21. Construction. (a) In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. Without limiting the effect of the foregoing, the parties acknowledge and agree that the City is restricted in its authority to limit its police power by contract and that the limitations in this Agreement are intended to reserve to the City all of its police powers which cannot be so limited. This Agreement will be construed, contrary to its stated terms if necessary, to reserve to the City all police power which cannot be restricted by contract including, without limitation, the power to respond to compelling public necessity where a failure to do so would place residents of the City in a condition dangerous to their health or safety or both. To that end, notwithstanding any other provision in this Agreement, the City may enforce uniform codes such as the Uniform Building Code, the Uniform Electrical Code, the Uniform Mechanical Code, the Uniform Plumbing Code, the Uniform Fire Code and other uniform codes, and may condition or deny any permit, approval, extension, or entitlement sought pursuant to this Agreement by Developer or any of the owners of the Existing Anchor Parcels or the New Anchor Parcels, if the City determines either that (i) a failure to do so would place residents of the City in a condition dangerous to their health or safety, or both, or (ii) the enforcement, condition or denial is required in order to comply with state or federal law, and (iii) enforcement of a uniform code is applicable throughout the City. Further without limiting the effect of the foregoing, the parties acknowledge and agree that nothing in this Agreement will be deemed to prohibit the City from enacting development fees which do not exist as of the Effective Date or from increasing development fees which exist as of the Effective Date, even though such development fees may be applicable to the Development or continued use of the Inland Center Mall. (b) The parties acknowledge that Exhibits "A", "C", "D" and I" are reductions of scale drawings which are on file with the City Clerk of the City and the Department of Planning and Building Services of the City, and the parties agree that Exhibits "A", "C", "D" and "J", in their reduced form, are attached to this Agreement for convenience 0:1G 193\002\DMument\DevA&.016 16 i only, and that in construing this Agreement, the scale drawings which are on file with the City Clerk and the Department of Planning and Building Services will supersede and control. 22. Indemnification. (a) The Developer will defend, indemnify and hold the City and its elected officials, officers and employees free and harmless from any loss, cost or liability which result from any legal challenge to the City's actions in approving or implementing this Agreement. Hereafter, Developer's indemnity will be referred to as the "Indemnity". (b) Included in the scope of the Indemnity will be all damages and claims for damages which are suffered or alleged to have been suffered by reason of the matters which are the subject to the applicable indemnification and all of the associated legal fees and court costs (but not internal costs). Without limiting the effect of the foregoing, the Developer will have the right to defend against any claim with respect to which it is indemnifying the City, using legal counsel of its choice. The City will cooperate with the Developer and will give the Developer its full support in connection with any claim with respect to the Indemnity and the City will not settle any such claim without the Developer's consent. 23. Survival. Each and every covenant in this Agreement will survive the execution and delivery of this Agreement for the benefit of the parties and the third party beneficiaries of this Agreement. 24. Calendar Periods. All references in this Agreement to "years", "quarters" "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 25. Severabilit_y. Every provision of this Agreement is and will be construed to be a separate and independent covenant. Without limiting the effect of paragraph 11., if any provision of this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable for any reason whatsoever, then the remainder of this Agreement or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 26. Further Actions. Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or proper in order to achieve the intent of this Agreement. 27. Covenant of Good Faith. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 0AG 193\W2X13MUmenc\DcvAZ.o16 17 i 28. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 29. Incorporation of Recitals. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereat. 30. Incorporation of Exhibits. The Exhibits to this Agreement are incorporated by reference as though fully set forth hereat. 31. Amendment. (a) Except as otherwise provided in this Paragraph 31., no amendment or waiver of any term of this Agreement will be binding on the City unless and until it has been approved by the City Council and has become effective, or on the Developer unless and until it has been executed by the Developer. (b) The parties acknowledge that the passage of time may demonstrate that changes are necessary or appropriate with respect to the details of each party's performance as provided in this Agreement. Because the parties wish to retain flexibility with respect to the details of their performance, if and when the parties determine that changes are necessary or appropriate, they will unless otherwise required by law, effectuate those changes or adjustments through operating memoranda which are approved by (i) the Director, in the case of minor changes or adjustments which would qualify as a "minor exception" as provided in Chapter 19.58 of the Municipal Code or a "Minor Modification" as provided in Chapter 19.60 of the Municipal Code, and in any other case where the Director is authorized in this Agreement to act, (ii) the Planning Commission, in the case of changes or adjustments related to land use or development standards, which are not referred to in clause (i), and (iii) the City Council, in the case of any other changes or adjustments required in this Agreement. The Director will determine whether any given change or adjustment is subject to approval by the Director, the Planning Commission or the City Council, as the case may be. After execution, each such operating memorandum will be attached to this Agreement as an addendum and will become part of this Agreement. 32. Municipal Code. Except where otherwise expressly provided, all references in this Agreement to the Municipal Code or any section of the Municipal Code, will be deemed to be references to the Municipal Code as it exists on the Effective Date or at the time of inquiry, whichever is less restrictive or requires a lesser level of performance. 33. Recordation. No later than 10 days after the Effective Date of this Agreement, the Developer will, at its cost, record this Agreement in the Official Records of the San Bernardino County Recorder. 34. Clause or Condition. Notwithstanding any other provision in this Agreement, if any clause or condition of this Agreement is imposed by the City on or after April 1, 1996, without the written consent of the Developer, and in response to any legal action initiated by the Developer or any agent of the Developer, is later found invalid or unenforceable by a court of OAG 193\002\DocameMlDevAg.016 18 i law for any reason whatsoever, then this entire Agreement is invalid and unenforceable unless reapproved by the City Council. 35. Downtown Cinema. A two-year window be allowed for a downtown cinema complex to go forward. 36. New Business. The Mayor and Common Council encourages new business. [SIGNATURES FOLLOW] O:\G 193\002\Document\DevAg.016 19 I CITY City of San Bernardino, a municipal corporation B Its: ATTEST: IV By: J I C(.sh.— C Clerk APPROVED AS TO FORM AND LEGAL CONTENT: By: re'-h City Attorney DEVELOPER Mano Management Company, Inc., a Delaw corporatio aB • ��P' Its: rT -:, :n VICE PSESICEr4T 0AG 193\002\Document\DevAS.o16 20 i STATE OF /' ) COUNTY OF I D ) On t� , 199&before,, mom� the u ersigned, a Notary Public in and for said Coun and State, personally appeared _ X 11� 4 , __sonar known to me or proved to me on the basis of satisfactory evidence to be the person whose name(sl Were subscribed to the within instrument and acknowledged to me that he/ executed the same in his/hefAheir authorized capacity(ies), and that by his/l signature o) on the instrument the persono), or entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. _ wvrxMWEA oN Way FubIe—Calfwft � N iC sm e31:ARar�o cotm ocT 4.1996 STATE OF ) COUNTY OF ) On ,L �— 199 before m , the undersign , a Notary Public in and for said Coun and State, personally appeared J c, , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. -y Pu CHARLOTTE CHOVANETZ Notary Public NOTARY PUBLIC O� STATE OF TEXAS COMM. EXP. 10/17/98 0:1G193\002\Docu=w\DevA&.016 21 I M DEPICTION OF PARCELS EXHIBIT "A" i\ V tai i � • � �/ � ' AL- C Q --- 4K Ily E"• L V 7 V" •I •/ 's 1 s n r/ C6 / A. EXHIBIT 'A• ,; DESCRIPTION OF PARCELS EXHIBIT "B' PARCEL NO. 1 THAT PORTION OF BLOCKS 29 AND 54 OF RANCHO SAN BERNARDINO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 2, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE SOUTHEAST LINE OF COLTON AVENUE WITH THE WEST LINE OF "E" STREET AS IT NOW EXISTS, SAID POINT BEING MONUMENTED WITH A 6" X 6" CONCRETE MONUMENT; THENCE SOUTH 39° 16' 43" WEST, ALONG SAID SOUTHEAST LINE 1046.85 FEET; THENCE SOUTH 39° 22' 40" EAST, 15.30 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 39° 16' 43" WEST 779.77 FEET; THENCE SOUTH 39° 15' 55" WEST, 553.03 FEET; THENCE SOUTH 390 15' 30" WEST, 115.71 FEET; THENCE SOUTH 50° 44' 05" EAST, 561.31 FEET; THENCE NORTH 390 15' 55" EAST, 650.35 FEET; THENCE NORTH 89° 27' 35" EAST, 461.03 FEET TO A POINT ON A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 2305.05 FEET, SAID POINT HAVING A RADIAL BEARING OF SOUTH 81° 33' 50" WEST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 220 18' 52", A DISTANCE OF 897.73 FEET; THENCE NORTH 30° 45' 02" WEST 73.17 FEET; THENCE NORTH 39° 22' 40" WEST 84.70 FEET TO THE POINT OF BEGINNING. TOGETHER WITH THAT PORTION OF OSBORN STREET 50 FEET WIDE AS VACATED BY THE RESOLUTION OF THE BOARD OF SUPERVISORS OCTOBER 7, 1963, BY DOCUMENT RECORDED OCTOBER 10, 1963, IN BOOK 6005, PAGE 877, OFFICIAL RECORDS. PARCEL NO. 2 THAT PORTION OF BLOCKS 29 AND 54 OF RANCHO SAN BERNARDINO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 2, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE SOUTHEAST LINE OF COLTON AVENUE WITH THE WEST LINE OF "E" STREET AS IT NOW EXISTS, SAID POINT BEING MONUMENTED WITH A 6 X 6" CONCRETE MONUMENT; THENCE SOUTH 39° 16' 43" WEST ALONG SAID SOUTHEAST LINE, 1046.85 FEET; THENCE SOUTH 39° 22' 40" EAST, 100.00 FEET; THENCE SOUTH 300 45' 02" EAST, 73.17 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE WEST AND HAVING A RADIUS OF 2305.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 220 18' 52", 897.73 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 890 27' 35" WEST, 461.03 FEET; THENCE SOUTH 390 15' 55" WEST, 190.65 FEET; THENCE SOUTH 500 44' 05" EAST, 165.10 FEET; THENCE SOUTH 0° 32' 25" EAST, 735.91 FEET; THENCE NORTH 890 27' 35" EAST, 378.31 FEET; THENCE EXHIBIT "B" NORTH 150 43' 54" EAST, 26.61 FEET TO A TANGENT CURVE, CONCAVE TO THE WEST AND HAVING A RADIUS OF 2305.05 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH AN ANGLE OF 240 10' 04", 972.28 FEET TO THE TRUE POINT OF BEGINNING. PARCEL NO. 3 THAT PORTION OF LOTS 35, 36, 37 AND 38 IN BLOCK 54 TOGETHER WITH THAT PORTION OF LOTS 5 AND 6 IN BLOCK 29 OF RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 7, PAGE 2 OF MAPS, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE CENTERLINES OF "E" STREET, INLAND CENTER DRIVE AND MILL STREET AS SHOWN ON A MAP FILED IN BOOK 39, PAGES 29 TO 32, INCLUSIVE OF RECORD OF SURVEYS, RECORDS OF SAID COUNTY; THENCE ALONG SAID CENTERLINE OF INLAND CENTER DRIVE, SOUTH 390 16' 32" WEST 1171.82 FEET; THENCE SOUTH 500 43' 28" EAST 50.00 FEET TO A POINT IN THE SOUTHEAST LINE OF INLAND CENTER DRIVE, AS SHOWN ON A MAP FILED IN BOOK 21, PAGE 45 OF RECORD OF SURVEYS, RECORDS OF SAID COUNTY, SAID POINT BEING THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING AND LENGTH OF NORTH 390 22' 40" WEST 100.00 FEET IN THE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT RECORDED SEPTEMBER 13,1965, IN BOOK 6471, PAGE 333, OFFICIAL RECORDS, SAID POINT ALSO BEING THE SOUTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 390 16' 43" WEST 1046.85 FEET" IN THOSE DEEDS ALL RECORDED AUGUST 23, 1966, IN BOOK 6685, PAGE 491, OFFICIAL RECORDS, IN BOOK 6685, PAGE 493 OF OFFICIAL RECORDS, AND IN BOOK 6685, PAGE 495 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE ALONG SAID FIRST MENTIONED CERTAIN COURSE, SOUTH 39° 22' 40" EAST 100.00 FEET; THENCE SOUTH 30° 45' 02" EAST 73.17 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 2305.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 460 28' 56" AN ARC DISTANCE OF 1870.01 FEET; THENCE SOUTH 15° 43' 54" WEST 26.61 FEET; THENCE SOUTH 89° 27' 35" WEST 378.31 FEET; THENCE NORTH 0" 32' 25" WEST 735.91 FEET; THENCE NORTH 50° 44' 05" WEST 65.10 FEET; THENCE SOUTH 39° 15' 55" WEST 459.70 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 39° 15' 55" EAST 459.70 FEET; THENCE SOUTH 500 44' 05" EAST 165.10 FEET; THENCE SOUTH 00 32' 25" EAST 735.91 FEET; THENCE NORTH 890 27' 35" EAST 378.31 FEET; THENCE SOUTH 150 43' 54" WEST 210.92 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 1311.10 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 190 52' 49" AN ARC DISTANCE OF 454.92 FEET TO A POINT, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 540 23' 17" EAST; THENCE NORTH 400 20' 45" WEST 413.82 FEET; THENCE NORTH 490 39' 15" EAST 11.50 FEET; THENCE NORTH 400 20' 45" WEST 295.00 FEET; THENCE SOUTH 49" 39' 15" WEST 155.87 FEET; EXHIBIT "B" THENCE NORTH 400 20' 45" WEST 537.36 FEET TO THE EASTERLY LINE OF THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED MARCH 5, 1956, IN BOOK 3875, PAGE 50, OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE ALONG SAID EASTERLY LINE TO AND ALONG THE EASTERLY LINE OF THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED NOVEMBER 27, 1956, IN BOOK 4095, PAGE 197, OFFICIAL RECORDS, RECORDS OF SAID COUNTY, AS FOLLOWS: NORTHERLY ALONG A CURVE CONCAVE WESTERLY HAVING A RADIUS OF 350.00 FEET FROM WHICH A TANGENT LINE BEARS NORTH 130 03' 36" EAST THROUGH A CENTRAL ANGLE OF 21° 11' 45" AN ARC DISTANCE OF 129.48 FEET TO A POINT, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS NORTH 810 5 P 51" EAST; NORTH 340 34' 23" WEST 178.22 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 350.00 FEET; NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15° 5P 04" AN ARC DISTANCE OF 96.83 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 75.00 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 82° I P 12" AN ARC DISTANCE OF 107.58 FEET; AND NORTH 310 45' 45" EAST 185.95 FEET TO THE ORIGINAL SOUTHEAST LINE OF SAID INLAND CENTER DRIVE; THENCE ALONG SAID INLAND CENTER DRIVE NORTH 39° 16' 16" EAST 113.08 FEET AND NORTH 39° 16' 32" EAST 1336.43 FEET TO THE NORTHWESTERLY TERMINUS OF SAID CERTAIN COURSE HEREINBEFORE DESCRIBED AS HAVING A BEARING AND LENGTH OF "NORTH 390 22' 40 WEST 100.00 FEET"; THENCE ALONG SAID CERTAIN COURSE SOUTH 390 22' 40" EAST 15.30 FEET TO THE SOUTHEAST OF INLAND CENTER DRIVE AS DESCRIBED IN THE GRANT OF EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED APRIL 1, 1966 IN BOOK 6600, PAGE 620, OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE ALONG SAID INLAND CENTER DRIVE SOUTH 390 16' 32" WEST 1333.42 FEET AND SOUTH 390 16' 16" WEST 115.09 FEET TO A LINE WHICH BEARS SOUTH 500 44' 05" EAST AND WHICH PASSES THROUGH THE TRUE POINT OF BEGINNING; THENCE SOUTH 500 44' 05" EAST 561.39 FEET TO THE TRUE POINT OF BEGINNING. PARCEL NO. 4 THAT PORTION OF LOTS 29 AND 54 OF RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 2, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE SOUTHEAST LINE OF COLTON AVENUE WITH THE WEST LINE OF "E" STREET AS IT NOW EXISTS, SAID POINT BEING MONUMENTED WITH A 6" X 6" CONCRETE MONUMENT; THENCE SOUTH 390 16' 03" WEST ALONG SAID SOUTHEAST LINE, 1046.85 FEET; THENCE SOUTH 390 22' 40" EAST, 100.00 FEET; THENCE SOUTH 300 45' 02" EAST, 73.17 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE WEST AND HAVING A RADIUS OF 2305.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE, FROM A EXHIBIT "B" TANGENT BEARING SOUTH 30° 45' 02" EAST, THROUGH A CENTRAL ANGLE OF 46° 28' 56% A DISTANCE OF 1870.01 FEET; THENCE SOUTH 15° 43' 54" WEST 237.53 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 1311. 10 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE, FROM A TANGENT BEARING SOUTH 13° 43' 54" WEST, THROUGH A CENTRAL ANGLE OF 190 52' 49-, A DISTANCE OF 454.92 FEET TO A POINT ON SAID CURVE; SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 400 20' 45" WEST 413.82 FEET; THENCE NORTH 49° 39' 15" EAST 11.50 FEET; THENCE NORTH 40° 20' 45" WEST 295.00 FEET; THENCE SOUTH 490 39' 15" WEST 155.87 FEET; THENCE NORTH 400 20' 45" WEST 537.03 FEET TO A POINT ON A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 350.00 FEET, SAID POINT HAVING A RADIAL BEARING OF NORTH 760 47' 58" WEST; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14° 32' 08", A DISTANCE OF 88.79 FEET; THENCE SOUTH 270 44' 10" WEST 154.05 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST, HAVING A RADIUS OF 180.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE TO A CENTRAL ANGLE OF 50° 52' 52', A DISTANCE OF 159.85 FEET; THENCE SOUTH 230 08' 42" EAST, 251.62 FEET; THENCE SOUTH 29° 08' 47" EAST 770.00 FEET; THENCE NORTH 600 55' 21" EAST 60.00 FEET; THENCE SOUTH 610 56' 03" EAST 30.23 FEET; THENCE NORTH 600 55' 2 1" EAST 50.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 1311. 10 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE, FROM A TANGENT BEARING NORTH 600 tL , 55' 21" EAST, THROUGH A CENTRAL ANGLE OF 25° 18' 38", A DISTANCE OF 579.18 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM A PORTION OF THOSE PARTS OF BLOCKS 29 AND 54, RANCHO SAN BERNARDINO, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 2, RECORDS OF SAID COUNTY, SAID PARTS DESCRIBED IN DOCUMENT RECORDED IN BOOK 6685, PAGE 491, OFFICIAL RECORDS OF SAID COUNTY, SAID PORTION BEING ALL OF SAID PARTS LYING WITHIN THE FOLLOWING DESCRIBED PARCEL OF LAND: BEGINNING AT A 6" X 6" CONCRETE MONUMENT MARKING THE MOST NORTHERLY POINT OF THAT CERTAIN COURSE DESCRIBED AS SOUTH 280 35' 05" EAST, 156.31 FEET, IN DOCUMENT TO THE STATE OF CALIFORNIA RECORDED IN BOOK 3855, PAGE 385, OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG THE NORTHEASTERLY LINE OF SAID STATE OF CALIFORNIA PARCEL OF LAND, NORTH 390 55' 34" WEST (RECORDED NORTH 390 55' 34" WEST) 42.01 FEET; THENCE NORTH 600 50' 25" EAST, 74.70 FEET; THENCE AT RIGHT ANGLES, SOUTH 29° 09' 35" EAST, 100.00 FEET; THENCE SOUTH 690 50' 25" WEST, 67.45 FEET TO THE NORTHEASTERLY LINE OF SAID STATE OF CALIFORNIA PARCEL OF LAND; THENCE ALONG SAID NORTHEASTERLY LINE, NORTH 28° 35' 05" WEST, 58.73 FEET TO THE POINT OF BEGINNING, AS CONVEYED TO THE SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED JULY 17, 1972, IN BOOK 7978, PAGE 105, OFFICIAL RECORDS. EXHIBIT "B" E I I JON I SITE PLAN V�( 1 aw I n T 'C" xC Cyy Y t G {�{� A fir► �L C \ ��. � w :ice .' N D �_ � _ , � �� �� � i � 0 � � . -- �'� O� \ w , O: 1 � , � � _ � W /' O i � � � Il! � 1 V * y � '' �' � O 1 � a... N k -- w.� � � - ; /a 0 GO O i- I�� � ) • ' 1�� �V7 } \ X � :. � O � �° 0. �, ' E � � � � � �+ � � "' CD v � � �;, � C ;� 1 � w ,� ,� .. o �� •�• . � �� � ,� a �\ � s �' -� � ��� W ��,.`� � � � �/ w � � o � . .. �, r �. v w a • PHASING PLAN EXHIBIT "D" Ye E u wy C • t Q v d At bo e , LLB O in u s I \ N 0 CL w 44 O x LU u Y 1 7 � � ►/Z O M+y p IV r-4 O �. L 4 � s 6 x • \\ o. W y \ O A \ \ • • s O • w • 3 t C6 Y i i I i I ® PERMITTED USES EXHIBIT 'E" i PERMITTED USES In addition to any other uses which may be permitted by the Municipal Code, the following uses will be permitted at the Inland Center Mall through Development Permit review or Conditional Use Permit review, as provided below: General merchandise stores (Development Permit) Apparel and accessory stores (Development Permit) Home furnishings, furniture and equipment stores (Development Permit) Eating places (Development Permit) Sale of alcoholic beverages on-site (Development Permit, except that liquor stores and convenience stores will require Conditional Use Permits) Sale of alcoholic beverages off-site, where the off-site sale is ancillary to the main or primary use (Development Permit, except that liquor stores and convenience stores will require Conditional Use Permits) Miscellaneous retail (Development Permit) Banks and lenders (Development Permit) Brokers (Development Permit) Dry cleaners (Development Permit) Watch, jewelry and clock repair (Development Permit) Movie theaters (Conditional Use Permit) Video rental (Development Permit) Amusement/recreation (Conditional Use Permit) Day care facilities (Development Permit) Art galleries (Development Permit) Automobile dealer showrooms (Conditional Use Permit) Travel agencies (Development Permit) EXHIBIT "E" i FILING REQUIREMENTS EXHIBIT "F" FILING REQUIREMENTS 1. Owner Authorization, dated October 24, 1991, compiled and submitted by the Developer as owner of Mall Parcel No. 3. 2. Preliminary Environmental Description Form, dated October 22, 1991. The Preliminary Environmental Description Form was prepared to address the overall conceptual development plan for expansion of Inland Center Mall as provided in this Agreement. 3. Traffic Study, dated October 21, 1991, prepared by Don Frischer and Associates. 4. Traffic Study, dated July, 1995, prepared by Kaku Associates. 5. Revised Traffic Study, dated February, 1995. 6. Geotechnical Studies, dated September 6, 1991 (Liquefaction Report and Foundation Investigation), prepared by Law/Crandall. 7. Revised Geotechnical Study, dated February, 1995, prepared by Law/Crandall. 8. Geotechnical Study, dated December 2, 1994, prepared by Solus Geotechnical Corporation. 9. Air Study, dated February 5, 1992, prepared by Barton-Aschman Associates, Inc. 10. Air Study, dated July, 1995, prepared by EDAW, Inc. 11. Noise Study, dated July, 1995, prepared by EDAW, Inc. 12. Socioeconomic Study, dated July, 1995, prepared by Tischler and Associates, Inc. 13. Socioeconomic Study, dated 1992 (City General Plan), prepared by Natelson & Company. 14. Socioeconomic Study, dated 1989 (Consumer Market Research), prepared by MAS Marketing, Inc. 15. Socioeconomic Study, dated 1990 (Redevelopment Potentials for Inland Center Mall), prepared by HSG/Gould Associates. EXHIBIT "F" i 16. Preliminary Title Report, dated October 9, 1991, issued by First American Title Insurance Company under its Order No. 10720. 17. Initial Study, dated March 23, 1992, prepared by Tom Dodson & Associates. 18. Initial Study, dated February 3, 1994. 19. Final Environmental Impact Report, certified April 1, 1996. 20. Statement of Facts, Findings and Overriding Considerations, approved April 1, 1996. 21. Mitigation Monitoring/Reporting Program, approved April 1, 1996. 22. Reciprocal Easement Agreement, dated October 8, 1965, and recorded in the Official Records of San Bernardino County, California, on August 23, 1966, in Book 6685 at Page 414, as amended. The Reciprocal Easement Agreement addresses internal access and circulation, development, expansion and common area maintenance of Inland Center Mall. THE ABOVE DESCRIBED DOCUMENTS ARE IN THE INLAND CENTER MALL CASE FILE, AT THE DEPARTMENT OF PLANNING AND BUILDING SERVICES OF THE CITY. EXHIBIT "F" MITIGATION MONITORING/REPORTING PROGRAM EXHIBIT 'G" MITIGATION MONITORING/REPORTING PROGRAM FOR THE INLAND CENTER MALL EXPANSION PROJECT Introduction This Mitigation Monitoring and Reporting Program has been prepared for use by the City of San Bernardino as it implements mitigation measures for the inland Center Mall Expansion Project These mitigation measures were identified as part of City's environmental review process and Environmental Impact Report(SCH#94032045)prepared for Development Agreement 9 1-01 that authorizes future expansion of the Mall. The Environmental Impact Report was independently determined by the City to be adequate. This Environmental Impact Report incorporates mitigation measures which were identified in the Initial Study which was used by the City to determine that the potential impacts of implementing the Development Agreement could cause a significant adverse effect on the environment This Mitigation Monitoring and Reporting Program (MMRP) has been prepared in compliance with the California Environmental Quality Act(CEQA) and the State and City CEQA Guidelines. CEQA Section 21081.6 requires adoption of a reporting and/or monitoring program for those measures or conditions imposed on a project to mitigate or avoid adverse effects on the environment The law states that the monitoring or reporting program shall be designed to ensure compliance during project implementation. This MMRP is formatted in a table that contains the following elements: Applicant's General Responsibilities 1) The applicant (General Growth Development) is required to comply with all mitigation measures and complete all monitoring and reporting requirements assigned to it 2) The applicant, as applicable, is responsible for the preparation and submittal of all reports, studies, submittal requirements, as noted, and all associated fees; 3) The applicant is responsible for obtaining the signature of the designated review agency or department for each applicable measure when it applies to future development at Inland Center Mall; and 4) The applicant is responsible for submitting completed compliance records to the City, where it is the applicant's responsibility for implementation. City of San Bernardino General Responsibilities 1) The City is responsible for reviewing and approving reports, studies, plans, etc., as identified in this MMRP; and 2) The Planning Division is responsible for maintaining the project file and monitoring requirements as identified in the MMRP. Organization of the Mitigation Monitoring and Reporting program 1) The general impact category is identified in the first column of the table. 2) The mitigation measures are recorded in the second column of the table. 3) The specific process for implementing the measure is identified in the third column of the table. 4) The mitigation milestone for each measure is provided in the fourth column of the table. S) The responsible monitoring party(ies) is identified in the fifth column of the table. 6) Prerequisite actions for initiating the monitoring activity is listed in the sixth column. 7) The seventh column in the table provides space for the City to verify that the applicant has complied with the measure. The indiv;dual measures and the accompanying monitoring/reporting actions follow. 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L to 3 ve < � � - 0o u c o m a F� $ E E 8 3 v' '- 5 �.� 1 .o ° �$� n u ac $° > E e .a .g o II g+ m ° e a Q E c g a E __ $ _ �i ` g m' eoS n `o6 . o281G° $ n 69S 6ora . m�� En 't -B g E nv 8 5 - � a of ° f3efiS � a ;,z � I U U a 'il ru m C) C4 ° O D a o � 9 U W a o� O at � � a v o°— E-� r—r a uO � � 5• � oCL, C4 a o 3 a a 1 .E g s z f � W � a a II EXISTING AND PROPOSED SIGNAGE AND LANDSCAPING EXHIBIT "H" r ^ EXISTING AND PROPOSED SIGNAGE AND LANDSCAPING Signage and landscaping at the Inland Center Mall on the Effective Date, may not be consistent with the applicable standards in the Municipal Code and the landscaping and signage which is proposed in connection with the Development and continued use of the Inland Center Mall may also not be fully consistent with those standards. As provided in subparagraph 2.(h) of the body of this Agreement, the Developer intends to prepare and the City intends to enact amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code which will ensure that the landscaping and signage at the Inland Center Mall is legal and conforming and that any landscaping and signage which is Developed in accordance with this Agreement will be legal and conforming, based solely on their conformance with this Agreement and the applicable plans and specifications which are approved by the City. The proposed amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code will also ensure that landscaping and signage at the Inland Center Mall will, for all purposes, continue to be governed by the standards in this Agreement including, without limitation, standards with respect to the subsequent alteration or modification of that landscaping or signage or any rebuilding of that landscaping or signage if it is totally or partially destroyed. The following text discusses the general elements, characteristics and requirements of the proposed amendments to Chapter 19.14, Chapter 19.22 and Chapter 19.28 of the Municipal Code. SIGNAGE Sign criteria which identify sign type, size, height and general location, will be incorporated in the proposed amendment of Chapter 19.22 of the Municipal Code, as provided in subparagraph 2.(h) of the body of this Agreement. The sign criteria will include a new, cohesive signage program for the mall portions of the Inland Center Mall, for the major and minor entrances to the mall and for the New Major Department Stores in the Inland Center Mall; provided, however that the sign criteria may, at the Developer's election, retain existing Major Department Store signage and permit signage on building and/or parking structure facades which address the needs of mall tenants. Detailed sign face elevations and colors will be the subject of an application by the Developer or any owner of an Existing Anchor Parcel or a New Anchor Parcel. The Developer intends to retain the existing pylon sign at the Inland Center Mall, subject to replacement and upgrading of the sign face, and the Sign Criteria will specifically provide for the same. The Developer may provide a freeway oriented monument sign for project identification. Internal signage will not be addressed in the sign criteria and will not be subject to regulation by the City. LANDSCAPING In recognition of the uniqueness of the Inland Center Mall ('including, without limitation, its land mass and its proximity to the Flood Control Landscape Areas which are described in subparagraph 6-(0 of this Agreement), the landscape component of the Development of the Inland Center Mall will integrate existing elements of planting and landscape amenities with new elements for the purpose of providing identity for the Inland Center Mall and linkages for its various elements. EXHIBIT "H" i Existing specimen trees will be retained when possible and, where impacted by construction, will be relocated, if that specie of tree can be transplanted. new plantings will use materials compatible with the existing plants and, when appropriate, will reinforce and add to existing varieties. New planting will be used to bring identity to circulation patterns and to highlight points of entry. As contemplated by Section 19.24.060.6 of the Municipal Code, existing parking areas which are not impacted by the proposed Development of the Inland Center Mall will not have new trees planted at every 4th parking space and, instead, this condition will be offset by appropriate clustering of trees in the parking areas. Even though they may not be impacted by the proposed Development of the Inland Center Mall, the existing parking areas will have parking islands at the end of aisles, subject to the provisions of this paragraph. Parking islands will be installed in the existing parking areas in phases, in proportion to the square footage of buildings which are being constructed in the same phase (e.g., if 50 parking islands in total are required in the existing parking areas and, in a given phase, 20% of the total planned square footage of buildings is being constructed, then 20 parking islands will be installed). Consistent with the "clustering" concept in Section 19.24.060.6 of the Municipal Code and to enhance the visual impact of the Inland Center Mall, the Developer, with the consent of the City (which consent will not be unreasonably withheld), may disproportionately allocate parking islands in the existing parking areas (i.e., denser and/or larger and/or more frequent parking islands in certain existing parking areas and less dense and/or smaller and/or less frequent parking islands in other existing parking areas). The 25% permanent shading requirement in Section 19.24.060.14 will be met by the roofed parking spaces within parking structures and not by natural shading. Landscaping along the existing Lytle Creek flood control channel will be upgraded and maintained by the Developer. As provided in subparagraph 6.(g) of the body of this Agreement, the Developer and the owners of the Existing Anchor Parcels and the New Anchor Parcels will receive credit for that landscaping, in determining compliance with the 15% landscape coverage requirement which is referred to in subparagraph 2.(c) of the body of this Agreement. Pending widening of the I-215 Freeway, the landscape areas adjacent to the existing I-215 Freeway are deemed to satisfy Chapter 19.28 of the Municipal Code. At such time as the proposed widening of the 1-215 Freeway occurs, in order to provide coordinated landscaping and ensure a landscape buffer between the I-215 Freeway and the Inland Center Mall, landscaping will be replaced adjacent to the new freeway alignment between the proposed collector-distributor (frontage road) and the Inland Center Mall parking area as is agreed among the City, CalTrans and the Developer or its successor or assign. The Developer will be responsible for the maintenance of the landscape buffer, but may transfer this responsibility to others including, without limitation, CalTrans, by agreement with the transferee. The existing parking space layout at the Inland Center Mall will be revised concurrently, as is necessary to accommodate the new property boundary and still maintain internal circulation which is acceptable to the City and the Developer or its successor or assign. To the extent possible, the perimeter driveway will be retained as part of the redesign concept. If locating the 1 above-mentioned landscape buffer entirely on Mall Parcel No. 3 and/or any Existing Anchor Parcel would adversely impact the Developer's ability to maintain a perimeter driveway or EXHIBIT "H" would reduce the number of parking spaces below the minimum level which is provided in subparagraph 6.(a) of the body of this Agreement, then the City will not unreasonably withhold its approval to locate part of the landscape buffer on the public right-of-way of the I-215 Freeway. The landscape buffer will be installed no later than 1 year after the completion of the widening of the I-215 Freeway. a i EXHIBIT "H" PUBLIC IMPROVEMENTS EXHIBIT "I" i ANN PUBLIC IMPROVEMENTS 1. Prior to issuance of Certificate of Occupancy for Phase I of the project, the developer shall provide the following improvements at the intersection of Inland Center Drive at Mill/"E" Streets as follows: a) Re-stripe "E" Street north and south of Mill Street to provide an additional left-turn lane on the northbound approach. b) West of "E" Street, remove the median island on Mill Street and widen both the north side and south side by 3 feet, achieved by narrowing the sidewalks and re-striping Mill Street east and west of "E" Street to provide for eastbound approach lanes as follows: a left-turn lane, a through lane, a shared through-right turn lane to southbound "E" Street, and a right-turn lane which serves both southbound Inland Center Drive and "E" Street. c) Widen Inland Center Drive by 3 feet minimum on the north side and by 1 foot minimum on the south side, and re-stripe to provide a shared lane for westbound Mill Street & northbound "E" Street, a through lane for northbound "E" Street only, a lane for eastbound Mill Street only, and a shared lane for eastbound Mill Street and southbound "E" Street. d) Upgrade existing intersection signing for the new lane configuration. e) Existing traffic signal heads shall be placed in their proper alignment to the new traffic lane configuration. This may require the modification of existing mast arm signal head placement or by replacing signal poles and providing longer mast arms to achieve the proper alignment. Should the development of Phase I occur in sub-phases, this measure shall be implemented prior to issuance of Certificate of Occupancy for the first component that is completed. 2. Prior to issuance of Certificate of Occupancy for Phase I of the project, the developer shall provide the following improvements for the intersection of Orange Show Road and "E" Street as follows: a) Widen "E" Street north of Orange Show Road on the west side by 1 foot minimum and re-stripe "E" Street north and south of Orange Show Road to provide dual left-turn lands on both the northbound and southbound approaches. 0 EXHIBIT "I" Page 1 of 3 i b) Widen Orange Show Road east of "E" Street by 6 feet on the north side and 4 feet on the south side to provide for westbound approach lanes as follows: two left-turn lanes, two through lanes, and a right-turn lane. C) Widen Orange Show Road west of "E" Street by 2 feet on the south side and re-stripe to provide for westbound approach lanes as follows: two left-turn lanes (the inner, eastbound through lane east of the I-215 off-ramp would become a forced left-turn lane at "E" Street), a through lane and a shared through/right-turn lane. d) Modify the traffic signal for eight phase operation. e) Existing traffic signal heads shall be placed in their proper alignment to the new traffic lane configuration. This may require the modification of existing mast arm signal head placement or by replacing signal poles and providing longer mast arms to achieve the proper alignment. Should the development of Phase I occur in sub-phases, this measure shall be implemented prior to issuance of Certificate of Occupancy for the first component that is completed. 3. Prior to issuance of Certificate of Occupancy for Phase I of the project, the developer shall upgrade and modify and improve the following traffic signals: a) "E" Street/Central Avenue b) "E" Street/Benedict Street C) Inland Center Drive/Adell Street d) Inland Center Drive/"G" Street The following features shall be incorporated into the design of the above signals: (1) Interconnection/coordination along "E" Street from Orange Show Road to Mill Street, along Inland Center Drive from I-215 to Mill Street & "E" Street. (2) Replacement of non-standard signal poles and mast arms with standard poles, mast arms, and signals (incorporate Protective/Permissive signal phasing when possible). EXHIBIT 01" Page 2 of 3 (3) Removal of existing median poles/islands from all signalized intersections modified by the project. (4) Add detection loops on all phases of all signals. 4. Prior to issuance of Certificate of Occupancy for Phase I of the project, the developer shall develop a landscape median along Inland Center Drive. The median improvements shall prohibit left-turns outbound from the project at the Mall Driveway (North) and Inland Center Drive and the Mall Driveway (South) and Inland Center Drive. 5. Prior to issuance of Certificate of Occupancy for Phase I, the applicant shall make arrangements with the City of San Bernardino Department of Public Works, City Engineer to participate in the costs of freeway mitigation due to the project impacts, unless alternative funding sources are identified. The amount of the Freeway mitigation shall be determined after acceptance of the Traffic Impact Analysis by the City and SANBAG. 6. Prior to issuance of Certificate of Occupancy for Phase II of the project, the developer shall contribute an amount equal to 5% of the cost to mitigate/improve the intersection of Mount Vernon Avenue and Mill Street, as identified in the traffic study. This equates to a fair-share cash contribution of $4,000.00, each phase. 7. Prior to issuance of Certificate of Occupancy for Phase H of the project, the developer shall contribute an amount equal to 5% of the cost to mitigate/improve the intersection of Hunts Lane and Redlands Boulevard, as identified in the traffic study. This equates to a fair-share cash contribution of $9,000.00, each phase. EXHIBIT "I" Page 3of3 DEVELOPER'S CONCEPT OF IMPACT OF I-215 FREEWAY DESIGN ALTERNATIVE EXHIBIT "J" • C •• ! O Ar V •' • • •• u � 1 as a� � � •� �� L u � c ! _ I'p aj of OF 11 cl v � � • / \' i i M i 1 CERTIFICATE OF COMPLETION EXHIBIT "K" REC BY AND WHEN RECORDED MAIL TO' CERTIFICATE OF COMPI ETION The City of San Bernardino, a municipal corporation, hereby certifies as follows: Section 1. This Certificate of Completion will constitute a conclusive determination that the Developer and/or the present and future owners of the Existing Anchor Parcels and the New Anchor Parcels and their respective successors and assigns, as provided in that certain Development Agreement which was entered into between the City of San Bernardino and Mano Management Company, Inc., effective 19_, which Development Agreement was recorded on 19_, in the Official Records of San Bernardino County, California, as Instrument No. ("Development Agreement"), have completed the Development of one or more phases of the Inland Center Mall, in accordance with the Development Agreement. Section 2. The phase or phases of Development of the Inland Center Mall to which this Certificate of Completion relates are more particularly described as follows: (INSERT DESCRIPTION OF APPLICABLE PHASE OF DEVELOPMENT) Section . The real property to which this Certificate of Completion relates is that certain land located in the City of San Bernardino, County of San Bernardino, State of California, which is more particularly described as follows: (INSERT LEGAL DESCRIPTION OF PARCELS COVERED BY THIS CERTIFICATE OF COMPLETION) DATED AND ISSUED THIS day of City of San Bernardino, a municipal corporation By: Its: EXHIBIT "K" 1 County of San Bernardino Superior Court 2 351 N. Arrowhead Ave. San Bernardino, CA 92415 -0140 I--- 3 j E-- -- SEP 2 7 +997 RECD rp�,� San Bernardi.o BUG V �6 9 Pe�iorl(:9 --.— Central Divisi , I Court n 7 on 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNT OF SAN BERNARDINO 10 11 12 CENTRAL CITY COMPANY, ) CASE NO. SCV 29232 a California General Partnership, ) 13 ) Petitioner, ) 14 vs. ) JUDGMENT 15 CITY OF SAN BERNARDINO, ) ET AL., ) 16 ) Respondents. ) 17 ) 18 MANO MANAGEMENT COMPANY, ) 19 INC., ET AL., ) ) Real Parties in Interest. ) 20 ) 21 22 The above matter came.on for hearing on December 20, 1996, the Honorable James 23 A. Edwards, judge presiding. Petitioner appeared through counsel, Marlene A. Fox and John 24 K. Mirau; and respondents and real parties in interest appeared through the firm of 25 Gresham, Varner, Savage, Nolan & Tilden, by John C. Nolan and Penelope Alexander- r 26 I', Kelley. All pleadings and the Administrative Record were received and reviewed by the 2711 Court, and argument was presented by counsel for the parties. The matter was taken under 28 submission, and on February 11, 1997, the Court issued its intended decision. 1 r 1 On February 21, 1997, respondents and real parties in interest filed their 2 Memorandum of Points and Authorities Setting Forth the Specification of Controverted 3 Issues and Proposals to Eliminate Objections to the Proposed Statement of Decision 4 ("Objections"). After notice to both parties and briefing by each, the Objections came on 5 for hearing on May 13, 1997. Having reviewed the briefs, and having heard oral arguments 6 of counsel, and having taken the matter under submission, and then having issued its 7 Statement of Decision, the Court now renders its Judgment as follows: 8 IT IS ORDERED, ADJUDGED AND DECREED THAT: 9 1. A Peremptory Writ of Mandate shall issue directing respondent City of San 10 Bernardino to vacate and set aside its certification of that portion of the Final 11 Environmental Impact Report that pertains to the multi-screen theater complex. Once 12 respondent has complied with this directive, the remainder of the project may go forward. 13 Respondents and real parties in interest must refrain from any construction activities related 14 to the foreseen cinema complex expansion pending full compliance with CEQA 15 environmental review requirements for that portion of the project. 16 2. This Court reserves continuing jurisdiction to insure compliance with the 17 judgment issued herein. 18 M7 19 Dated: SE JAMES A. EO'iVARDS 20 JUDGE OF THE SUPERIOR COURT 21 j i 22 2 3 24 1 l '6 27 28 GRESHAM,SAVAGE NOLAN&TILDEN.LLP Swm 300 6W N.Arrowhead All Bernardino. CA 9'_40) �! N:?PAKAANO\JUDGMENT Z 1909)884-2171 1� - I County of San Bernardino Superior Court 2 351 N. Arrowhead Ave. F1, San Bernardino, CA 92415 -0140 , 3 SEP 171997 4 a r San Bernardino Su 5 Re iorIm..l;c-i-1 i Court Central Diviz;i0;; a�6v D-'6 f� fy IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNT OF SAN BERNARDINO 10 11 12 CENTRAL CITY COMPANY, ) CASE NO. SCV 29232 a California General Partnership, ) 13 ) Petitioner, ) 14 vs. ) STATEMENT OF DECISION 15 CITY OF SAN BERNARDINO, ) ET AL., ) 16 ) Respondents. ) 17 ) 18 MANO MANAGEMENT COMPANY, ) INC., ET AL., ) 19 ) Real Parties in Interest. ) 20 ) 21 22 i The above matter came on for hearing on December 20, 1996, the Honorable James 23 1 A. Edwards,judge presiding. Petitioner appeared through counsel, Marlene A. Fox and John 24 K. Mirau; and respondents and real parties in interest appeared through the firm of 25 Gresham, Varner, Savage, Nolan & Tilden, by John C. Nolan and Penelope Alexander- 26 Kelley. Argument having been heard and the matter taken under submission, on 27 February 11, 1997, the Court issued its intended decision. 28 1 1 Thereafter, on February 21, 1997, respondents and real parties in interest filed their 2 Memorandum of Points and Authorities Setting Forth the Specification of Controverted 3 Issues and Proposals to Eliminate Objections to the Proposed Statement of Decision 4 ("Objections"). After notice to both parties and briefing by each, the Objections came on 5 for hearing on May 13, 1997. Having then taken the matter under submission, the Court 6 now submits the following as its Statement of Decision: 7 BACKGROUND 8 The parties to this action are Central City Company, the owner and operator of the 9 Carousel Mall located in the downtown section of the City of San Bernardino; Mano 10 Management, owner of Inland Center Mall (ICM) located in the southwest section of the 11 city; General Growth Management of California, operator of ICM; the City of San 12 Bernardino (City); and the City Council for the City of San Bernardino. By this action, 13 petitioner seeks to have the court order the City to withdraw its approval of a project that 14 would significantly expand ICM. 15 Since 1991, the proponents of the expansion project have sought City approval of 16 a plan that would add three new anchor stores, a second level of retail stores, and up to 17 four multi-level parking structures to the existing ICM. Initially, the developers and the City 18 agreed to proceed by way of a mitigated negative declaration. However, at the urging of 19 petitioner, and after concerns were expressed by various state agencies, the developer 20 agreed to proceed by way of an environmental impact report (EIR) with the City acting as 21 the lead agency. The final environmental impact report (FEIR) for the project was approved 22 by the City on April 1, 1996. 23 CONTENTIONS 24 Petitioner's objections to the City's approval of the FEIR primarily center around its i 25 alleged failure to follow in several respects the mandates of the California Environmental 26 Quality Act (CEQA) set forth in Public Resources Code §21000 et seq. Such failure includes 27 lack of proper notice to petitioner of certain comments to the conclusions contained in the 28 2 1 Draft Environmental Impact Report (DEIR) relative to seismic/liquefaction impacts, and the 2 failure to recirculate the DEIR upon obtaining significant new information. 3 Petitioner further contends that the City abused its discretion by making findings not 4 supported by substantial evidence, and certifying a FEI R that was fatally inadequate 5 particularly as seismic/liquefaction impacts and proposed mitigation measures affect the 6 public health and safety. Petitioner's arguments can generally be grouped into seven 7 categories. 8 1. Inadequate project description in the Initial Study, Revised Initial Study, and 9 Notice of Preparation (NOP); 10 2. The EIR failed to consider traffic flow and parking impacts; 11 3. Significant new information received after close of public comment required 12 recirculation of the DEIR; 13 4. The EIR fails to include earthquake safety information from the City's 14 geologist, Dr. Floyd Williams; 15 5. The City's responses to certain comments to the DEIR lacked detailed, 16 analytical reasoning in their support; 17 6. Certain findings were not supported by substantial evidence; and, 18 7. The City failed to provide petitioner with critical information in a timely 19 . manner, thus denying petitioner a fair hearing. 20 Respondents contend there was compliance with CEQA and petitioner has failed to 21 meet its burden of proving an abuse of discretion. The specifics of the parties' contentions 22 will be covered more extensively in the discussion that follows. 23 DISCUSSION 24 Standard of review. 25 ' In an action to set aside an administrative agency's decision on the question of the 26 adequacy of an EIR, the court reviews the administrative record de novo to determine if 27 the agency committed a prejudicial abuse of discretion. (Laurel Heights Improvement Assn. i 28 v. Regents of University of California (Laurel Heights 1), 47 C3 376, 392-393. Petitioner 3 1 must prove that the agency abused its discretion by showing either that the agency has not 2 proceeded in a manner required by law or that the record does not contain substantial 3 evidence supporting the agency's decision. (Id). 4 "'Substantial evidence'. . .means enough relevant information and reasonable 5 inferences from this information that a fair argument can be made to support a conclusion, 6 even though other conclusions might also be reached. Whether a fair argument can be 7 made is to be determined by examining the entire record. Mere uncorroborated opinion or 8 rumor does not constitute substantial evidence." (Laurel Heights 1, supra, at 393; Public 9 Resources Code §21080(e)'; Guidelines, §15384(a)). 10 A fair argument supporting an agency's conclusions can be made from an EIR 11 "prepared with a sufficient degree of analysis to provide decision-makers with information 12 which enables them to make a decision which intelligently takes account of environmental 13 consequences." (Stanislaus Natural Heritage Project v. County of Stanislaus (1996), 48 CA4 14 182, 193. The EIR must disclose the analytic route the agency traveled from evidence to 15 action. (Laurel Heights 1, supra, at 404). The court, however, does not pass upon the 16 correctness of the EIR's environmental conclusions, but only upon its sufficiency as an 17 informational document. The court does not weigh the evidence in the administrative i 18 record and may not set aside an agency decision on the ground that an opposite conclusion 19 would have been equally or more reasonable. (Laurel Heights 1, supra, at 392-393). 20 Purpose of the environmental impact report. 21 "The Legislature has made clear that an EIR is 'an informational document' and that 22 'It]he purpose of an environmental impact report is to provide public agencies and the 2; public in general with detailed information about the effect which a proposed project is 24 likely to have on the environment; to list ways in which the significant effects of such a 2� project might be minimized; and to indicate alternatives to such a project.' [Citations]. . . 20 27 28 ' All references hereinafter are to the Public Resources Code. 4 1 "The EIR is therefore 'the heart of CEQA.' An EIR is an 'environmental "alarm bell" - ', 2 whose purpose is to alert the public and its responsible officials to environmental changes i 3 before they have reached ecological points of no return.' [Citations]. The EIR is also 4 intended 'to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed 5 and considered the ecological implications of its action.' [Citations]. Because the EIR must 6 be certified or rejected by public officials, it is a document of accountability. If CEQA is 7 scrupulously followed, the public will know the basis on which its responsible officials 8 either approve or reject environmentally significant action, and the public, being duly 9 informed, can respond accordingly to action with which it disagrees. [Citations] The EIR 10 process protects not only the environment but also informed self g overnment." (Laurel 11 Heights 1, supra, at 392). 12 The EIR must contain both factual information about all the significant environmental 13 effects of a proposed project and an analysis explaining how adverse environmental effects 14 can be mitigated so that the government agency charged with approving or disapproving 15 the project can make its decision based upon substantial evidence. (§21061 and 21100; u 16 I Citizens of Goleta Valley v. Board of Supervisors 52 C3 553, 568-569). 17 Sufficiency of project description. 18 Because it is necessary for an intelligent evaluation of the potential environmental 19 effects of a proposed activity, an "accurate, stable and finite project description" has been 20 described as the "sine qua non of an informative and legally sufficient EIR." San Joaquin 21 Raptor/Wildlife Rescue Center v. County of Stanislaus (1994), 27 CA4 713, 729-730). The 22 project description must locate precisely the boundaries of the proposed project, state both I 23 the project objectives and the intended uses of the EIR, and give "[a] general description 24 of the project's technical, economic, and environmental characteristics, considering the 25 principal engineering proposals, if any, and supporting public facilities." (Guidelines 26 §15124). 27 The project description "should not supply extensive detail beyond that needed for 28 ! evaluation and review of the environmental impact." (Guidelines §15124). But the use of 5 li I, 1 a truncated project description mandates the conclusion that the lead agency abused its 2 discretion by failing to proceed in a manner required by law even when an EIR meets all 3 other CEQA requirements. (San Joaquin Raptor/Wildlife, supra, at 730). 4 Here, the City circulated a notice of preparation of the DEIR. The NOP included a 5 brief project description, but also stated that "[t]he project description, location and the 6 potential environmental effects are contained in the attached materials.A copy of the Initial 7 Study is attached." (Administrative Record (AR), vol. XII, p. 4146). Petitioner contends the 8 project description is inadequate because it fails to give notice that the project will include: 9 (1) the demolition of existing structures; (2) the construction of a multi-screen cinema 10 complex; (3) the construction of a automobile dealership; and (4) changes to the 11 jurisdictional boundaries between local development agencies. 12 Demolition. Respondents point out that the project description in the Initial Study 13 circulated with the NOP discloses that the expansion will involve demolishing small parts 14 of the retail area totaling 33,600 square feet. In addition, the description identifies that a 15 5,010 square foot free-standing structure will be demolished as part of the project. (AR, vol. 16 XI, p. 3811, Table 4). This description seems adequate to signal the need to evaluate and 17 review the environmental impacts associated with the proposed demolition. 18 Automobile dealership. Respondents cite Laurel Heights I for the rule that an EIR 19 need only analyze the effects of a future expansion if: "(1) it is a reasonably foreseeable 20 '. consequence of the initial project; and (2) the future expansion or action will be significant 21 in that it will likely change the scope or nature of the initial project or its environmental 22 effects." (Laurel Heights 1, supra, at 396). They suggest that an automobile dealership or 23 showroom is not a reasonably foreseeable part of the ICM expansion project, and, indeed, 24 petitioner cites nothing in the record to support its claim to the contrary. The court agrees 25 with respondents' position on this issue. 261 Cinema complex. The project description lists "movie theaters" among the permitted 27 uses at the ICM. (AR, vol. XI, p. 3810, Table 3 Permitted Uses). The EIR recognizes an 28 existing "detached satellite multi-screen movie complex at the southern end of the project 6 i 1 site." (AR vol. XV, pp. 5286 and 5290). However, acknowledging an existing use does not 2 address the environmental impacts from a planned expansion. Again, respondents rely on 3 the holding in laurel Heights I in arguing that an expanded cinema complex is not a 4 reasonably foreseeable part of the project. 5 A review of the record appears to suggest otherwise, however. At the April 1, 1996, 6 hearing before the City Council, counsel for respondents vigorously argued that the theater 7 expansion was a critical part of the overall ICM expansion, and resisted attempts by 8 petitioner and the Council members to impose a two-year delay on the theater expansion 9 to give the downtown area time to enter into agreements for a multi-screen cinema 10 complex at that location. (AR vol. XXXIV, pp. 11542, 11591-11592, 11755-11759, and 11 11762-11763). 12 Two weeks earlier, at a hearing before the Planning Commission, petitioner's traffic 13 analyst brought up the fact that the EIR lacked any analysis of potential traffic and parking 14 problems associated with the proposed theater expansion. However, one commissioner 15 expressed the opinion that further analysis was unnecessary. (AR vol. XXXIII, p. 11360). 16 It is clear to this court that respondents intend to expand the cinema complex as part of 17 the total project and to do so as soon as possible after the expiration of the two-year 18 standstill provision that was imposed by the City Council and made part of the 19 Development Agreement. 20 "A basic tenet of CEQA is that an environmental analysis should be prepared as early 21 as feasible in the planning process to enable environmental considerations to influence 22 project program and design and yet late enough to provide meaningful information for 23 environmental assessment." (Laurel Heights 1, supra, at 395). Therefore, "the facts of each i 24 ,' case will determine whether and to what extent an EIR must analyze future expansion or 25 other action." (Id. at 396). The EIR should include at least a discussion in general terms 26 of "reasonably foreseeable uses, . . . the environmental effects of those uses, and the 27 currently anticipated measures for mitigating those effects." (Id. at 398). Here, neither the 28 1 Project Description nor the EIR addresses environmental impacts resulting from the movie 2 complex expansion. 3 But the test of Laurel Heights I also recognizes that "premature environmental 4 analysis may be meaningless and financially wasteful." (Id. at 396). Two factors relevant 5 to determining the extent of the analysis required are: (1) the possibility of obtaining 6 detailed, useful information on the subject in question, and (2) the import of the subject 7 project in deciding whether to proceed with the whole project. (National Parks & 8 Conservation Assn. v. County of Riverside (1996), 42 CA4 1505, 1518.) 9 Here, the record shows that respondents plan to expand the theater complex. But 10 the record contains no evidence defining the likely scope of that expansion. No evidence 11 shows how many screens, how many seats, or how many buildings the expanded complex 12 will include. Because the scope of the expansion seems somewhat speculative, and because 13 the mall expansion apparently can go forward without an expanded theater complex, it may 14 not yet be feasible for respondents to do extensive analysis of that portion of the project 15 in the EIR. Nevertheless, describing the movie complex expansion in general terms in the 16 Project Description would have provided meaningful information for environmental 17 assessment and may have influenced comments on traffic, parking, and air quality issues. 18 Failing to analyze the environmental effects of the theater expansion now could require a 19 subsequent or supplemental EIR in the future. (Laurel Heights 1, supra, at 396). 20 At the hearing before this court on December 20, counsel for respondents relied on 21 National Parks & Conservation Assn. v. County of Riverside, supra, for their position that 22 discussion of the theater expansion in the EIR is unnecessary. However, as counsel for 23 petitioner pointed out, the facts of that case are significantly different than those of this 24 case. In National Parks, an EIR was approved for the largest landfill facility in the country i 25 which was to be located in an abandoned open pit mine in a remote portion of the desert. 26 The landfill was to receive most of its waste from Los Angeles and other Southern California 27 counties which would be shipped in by rail and truck. All waste shipped in would first be 28 8 1 processed at material recovery facilities (MRFs) which would accept trash collected from 2 homes and businesses and compact the waste into containers for shipment. 3 The EIR failed to address the MRFs in detail which petitioner in that case claimed 4 to be an abuse of discretion. The court of appeal affirmed the findings of the trial court 5 that there was no abuse of discretion. The court held at pages 1518-1519: ". . . it is 6 difficult to see how much more detailed, useful information about these MRFs can be 7 supplied at the present when it is not known where they will be situated and who will be 8 operating them. As stated in the County's resolution adopting the EIR: 'Applicable land use 9 approvals are within the responsibility and jurisdiction of other public agencies (agencies 10 where recovery facilities ultimately will be located). Since their exact locations to serve 11 the project are unknown at this time, specific existing land use conditions and specific 12 impacts associated with the potential siting of transfer stations cannot be and are not 13 addressed. Therefore, any potential impacts cannot be evaluated at this time. . . 14 Undertaking any such analysis at present would involve speculation and conjecture. . ."' 15 Unlike that case, the location of the proposed theater expansion is known. ICM is 16 located on approximately 66 acres with no room to expand outside its present boundaries. 17 The theater expansion will have to be within the existing site. As discussed above, enough 18 information about the proposed expansion may not be known to allow a detailed discussion 19 in the EIR, but inclusion of the expansion in the Project Description would allow for 20 meaningful information for environmental assessment and comments on potential traffic, 21 parking and air quality issues. Therefore, the court is in agreement with petitioner's 22 position on this issue. 23 At the May 13, 1997 hearing, respondents continued to rely on National Parks & 24 1 Conservation Association v. County of Riverside (1996), 42 CA4 1505, for the proposition 25 that their Project Description need not mention a foreseen and fought-for cinema complex 26 expansion because the scope of the expansion is now speculative and because market 27 conditions may make it economically unfeasible. In National Parks, the court found that .ow 28 the project description for a landfill site need not include proposed satellite Material 9 1 Recovery Facilities because the facilities which would be located off-site in various 2 undetermined locations would not change the scope or nature of the project at the landfill 3 site. Here, the proposed cinema expansion would change both the scope and nature of the 4 Inland Center project site and not even general information is included in the project 5 description. 6 "The facts of each case will determine whether and to what extent an EIR must 7 analyze future expansion or other action." (Laurel Heights Improvement Association v. 8 Regents of University of California (1988), 47 C3 376, 396.) But an EIR should include a 9 discussion, at least in general terms of "reasonably foreseeable future uses, . . . the 10 environmental effects of those uses, and the currently anticipated measures for mitigating 11 those effects." (Id. at 398). By failing to even mention a foreseen movie complex 12 expansion which will cause traffic, parking, and other impacts at the project site, the 13 Project Description fails to comply with CEQA. 14 Respondents urge that even if the court finds noncompliance with CEQA in these 15 two areas, it should exercise its equitable powers and allow at least portions of the project 16 11 to proceed. Section 21168.9(b)permits the court to limit its orders to those specific project 17 activities found not to be in compliance if the court finds that "...(1) the portion or specific 18 project activity or activities are severable, (2) severance will not prejudice complete and 19 full compliance with this division, and (3) the court has not found the remainder of the 20 project to be in noncompliance with this division." 21 Inasmuch as the court has revised its findings as to the sufficiency of the evidence to support respondent's findings as to seismic safety, and the cinema complex expansion is speculative at this time, a limited order pursuant to 21168.9(b)would appear appropriate. 2 t Economic impact. In a final challenge to the adequacy of the Project Description, 2z, petitioner asserts that it should have included notice that the mall expansion may result in 20 a change in the amount of sales tax revenues available to two economic development 27 agencies operating within the City and may prompt the City to attempt to change the 28 jurisdictional boundaries of the agencies. The City of San Bernardino Economic 10 1 Development Agency (EDA) presently operates in the downtown area while the Inland 2 Valley Development Agency (IVDA) was created to promote development in an area 3 encompassing the ICM. 4 Petitioner refers to a January 21, 1994, letter from EDA administrator, Timothy 5 Steinhaus, expressing concern that the ICM expansion would have the potential to cause 6 some downtown retailers to relocate to ICM, and that if new and different retailers moved 7 into the downtown area, a decline in sales could occur, thereby causing EDA "to suffer a 8 decrease in tax increment revenues because of a shift in sales tax transactions." (AR, vol. 9 XI, p. 3787). Petitioner points to a second letter from Steinhaus, dated March 29, 1996, in 10 which he concludes that the DEIR adequately addresses this issue. He noted that he was 11 instructed by the Mayor of the City". . .to analyze the applicable procedures for the transfer 12 of redevelopment jurisdiction for the area in which the ICM is located [from IVDA to 13 EDA]." (AR, vol. XIX, p. 10241; and vol. XXXIII, p. 11397). 14 Petitioner argues in its Reply brief that "...Mayor Minor is apparently attempting to 15 affect the transfer of the ICM from the IVDA redevelopment project area to the City EDA 16 redevelopment project area. Such a transfer constitutes a discretionary project in and of 17 itself and when contemplated, as part of or to accommodate the ICM expansion project, 18 its environmental impacts must be addressed as part of an integrated project." (Reply to 19 Respondents' Opposition..., p. 19, lines 21-27). Petitioner points out that nowhere in the 20 Administrative Record is this proposed realignment discussed. 21 Petitioner cites the case of Citizens Assn. for Sensible Development of Bishop Area 22 i v. County of Inyo, (1985), 172 CA3 151, in support of its position that the lead agency must 23 consider the secondary or indirect consequences of economic and social changes brought 24 about by the proposed project. In that case too, concern was expressed over the potential 25 negative financial impact to downtown businesses caused by the construction of the 26 proposed regional shopping center in the outskirts of the City of Bishop. On remand the 27 court directed the lead agency to ". . .consider physical deterioration of the downtown area 28 to the extent that potential is demonstrated to be an indirect environmental effect of the 11 1 proposed shopping center." (Citizens Assn. for Sensible Development of Bishop Area, supra, 2 at 171). 3 While it is true the City may be required to prepare an EIR if it decides to attempt 4 to change the jurisdictional boundaries of the two development agencies, nothing in the 5 record before the court indicates that either a tax shift or possible realignment of agency 6 boundaries is crucial to the ICM project, that the potential tax revenue shifts are more than 7 speculation, or that they would result in a physical change in the downtown environment. 8 Moreover, the EIR does include a general Socioeconomic Market Impact Study 9 commissioned by the City. (See AR, vol. XXXVII, p. 12558 et seq (Tischler Report)). 10 CEQA does not require the lead agency to include prophecy in an EIR. (See Laurel 11 Heights 1, supra, 398-399). "An evaluation of the environmental effects of a proposed 12 project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light 13 of what is reasonably feasible." (Guidelines, §15151). The rule of reason applies. 14 Considering all of these circumstances,the EIR adequately apprises interested parties of the 15 true scope of the project's economic effects to allow intelligent weighing of its 16 environmental consequences. (National Parks & Conservation Assn., supra at 1520). 17 Traffic flow and parking analyses. 18 Relative to expansion of retail shopping area. Petitioner's criticisms begin with the 19 contention that the study in the EIR cannot constitute substantial evidence supporting 20 project approval because the analysis is based on impacts generated by a mall with 670,955 21 square feet of retail space added while the approved Development Agreement puts the net 22 added square footage at 809,605 square feet. 23 Respondents argue that petitioner has misconstrued the figures. While the gross 24 building square footage is the larger figure contained in the Development Agreement, the 25 1 gross leasable area is the smaller figure (709,605 proposed new gross leasable area, less the 26 existing area to be demolished). It was the latter figure that was used in the traffic study. 27 It should also be noted that petitioner's traffic expert apparently conceded that the 28 "numbers match up" at the April 1, 1996, Council hearing. (AR, vol. XXXIX, p. 11633). 12 1 Relative to the cinema expansion. Petitioner contends, and respondents concede, 2 that the traffic study fails to consider circulation problems and parking shortages caused 3 by people attending movies at the expanded cinema complex. As discussed above, because 4 of the lack of detailed information concerning this proposed expansion, it may not be 5 feasible to require a detailed analysis of the movie-complex related impacts at this time. If 6 it is not possible at this time to obtain information about the movie complex expansion 7 sufficiently specific to permit informed environmental assessment, the required detailed 8 analysis may be deferred until later. (Laurel Heights 1, supra, at 396; National Parks & 9 Conservation Assn, supra, at 1515-1520). 10 Relative to widening of Interstate 215. Petitioner also contends that the traffic study 11 did not consider the effect a planned widening of the 1-215 freeway between the 1-10 12 freeway and State Route 30 would have on traffic flow. Petitioner's traffic consultant 13 inferred that the EIR had not considered the widening project from the fact that the 14 "References" page of the study did not list the 1993 draft EIR prepared for the 1-215 15 Project. However, a review of the record shows substantial evidence that the effects of the 16 1-215 Project were considered to the extent feasible. 17 "CEQA requires an EIR to discuss the cumulative effect on the environment of the 18 subject project in conjunction with other closely related past, present, and reasonably 19 foreseeable probable future projects." (San Joaquin Raptor/Wildlife Rescue Center, supra, 20 at 739; §21083(b); and Guidelines §15130 and 15355). Here the EIR lists the 1-215 Project 21 among considered separate projects. (AR, vol. XXXVI, p. 12071). The report states that, as 22 now planned, the 1-215 Project "will require 30 to 35 feet of dedication, possibly resulting 23 in the loss of at grade parking. The anticipated date of construction of the project is 24 unknown at this time. It is assumed, for traffic and planning purposes, to be completed by 25 the year 2010." (Id. At pp. 12075-12076). 26 The effects of the project were taken into account in planning traffic mitigation 27 j measures. (Id. at pp. 12115-12117, and pp.12128-12139; see also Traffic Study, AR, vol. I 28 XXXVII, pp. 12667-12686). On site land use impacts were found to be insignificant. (AR, 13 1 vol. XXXVI, p. 12026). Petitioner's challenge on the ground that the 1-215 Project was not 2 considered fails. Petitioner has not challenged specifically the analysis supporting the 3 conclusions reported in the EIR. An EIR is presumed adequate and petitioner carries the 4 burden of proving otherwise. (Barthelemy v. Chino Basin Municipal Water District, (1995), 5 38 CA4 1609, 1617). 6 Relative to cinema traffic/parking, demolition work, automobile showroom, and 7 socioeconomic considerations. The court has already discussed the need to address the 8 planned cinema expansion, automobile showroom, and economic impacts on the two 9 development agencies in the Project Description. Petitioner's objection that the 10 traffic/parking analyses relative to the proposed demolition work is without merit. 11 The Air-Quality study circulated with the DEIR specifically considered vehicle 12 emissions and fugitive dust related to demolition work. (AR, vol XVI, p. 5741). The FEIR 13 includes measures to mitigate construction-related traffic and air-quality cumulative 14 impacts. These include soil treatment, truck and wheel washing, a requirement that trucks 15 hauling debris be covered or maintain minimum freeboard load levels, and construction 16 traffic controls, including flag persons, special speed limits, special parking, and measures 17 to minimize the obstruction of through-traffic lanes. (AR, vol. XXXVI, pp. 12154-12156) 18 Significant new information requiring recirculation of EIR. 19 The Code provides that when significant new information is added to an 20 environmental impact report after notice has been given and consultation has occurred, but i 21 prior to certification, the public agency shall give notice again pursuant to §21092, and 22 consult again pursuant to §21104 and 21153 before certifying the EIR. (§21092.1). New 23 !' information is not significant unless the EIR is changed in a way that deprives the public 24 of a meaningful opportunity to comment upon a substantial adverse environmental effect 25 of the project or a feasible way to mitigate or avoid such an effect (including a feasible 26 project alternative) that the project's proponents have declined to implement. (Laurel 27 Heights Improvement Assn. v. Regents of the University of California, (Laurel Heights /n 28 (1993), 6 C4 1112, 1129). 14 1 New information that merely clarifies or amplifies or makes insignificant 2 modifications in an adequate EIR does not require recirculation. (Id. At 1129-1130). On the i 3 other hand, recirculation is required when the new information shows (1) a new substantial 4 environmental impact, (2) an unmitigated substantial increase in the severity of an 5 environmental impact, (3) a feasible project alternative or mitigation measure that clearly 6 would lessen the environmental impacts of the project, but which the project's proponents 7 decline to adopt, or (4) that the draft EIR was so fundamentally and basically inadequate 8 and conclusory in nature that public comment on the draft is in effect meaningless. (Id. at 9 1130).2 10 Applying the above law to petitioner's contentions here, the court concludes that no 11 new information of significance was presented which required recirculation of the EIR. A 12 more specific discussion follows. 13 KAKU traffic study. 14 Petitioner contends that the FEIR traffic study prepared by KAKU Associates in 15 February, 1996, contains new information requiring the City to recirculate the EIR. 16 Respondents counter that a comparison of the 1995 study to the 1996 study reveals no new 17 information requiring recirculation. The court agrees with respondents that petitioner has 18 failed to point to any significant new information contained in the 1996 study, and 19 concludes that the 1996 study merely clarifies or amplifies the 1995 study in response to 20 comments on the DEIR. 21 Carbon monoxide "hot spots" analysis. 22 Petitioner also asserts, without comparison or explanation, that a February, 1996, 23 carbon monoxide(CO) analysis produced significant new information. The DEIR Air Quality i 24 study did not include a hot spots.analysis. (See AR vol. XXXIX, p. 13691 and compare with 25 the DEIR study beginning at AR vol. XVI, p. 5726). The later study also found that the DEIR 26 i 27 z It is noted by this court that Laurel Heights II relied in part on a previous version of 28 the Guidelines section 15162, which has since been amended to make it apply only in narrowly defined circumstances. 15 I i 1 study had used out-dated models and methodology giving inaccurate results. (AR vol. 2 XXXIX, p. 13691). The later study revised air quality emissions calculations for both the 3 construction and operational phases of the project and a CO "Hot Spots" assessment was 4 completed in response to issues addressed by commenters to the DEIR. While the later 5 study provided new information, recirculation is not required unless it is significant under 6 the Laurel Heights 11 standard. 7 Respondents claim this information was not significant because the later study 8 concluded that the project would not violate minimum air quality standards. (AR vol. 9 XXXIX, pp. 13692-13693). The court agrees. The new information does not show either a 10 new substantial environmental impact or an unmitigated substantial increase in the severity 11 of an environmental impact. The other Laurel Heights 11 criteria do not apply. 12 1996 Supplemental Liquefaction Potential Evaluation. 13 A third challenge put forth by petitioner concerns a supplemental liquefaction report 14 prepared by Law/Crandall, Inc. in 1996, in response to comments that the liquefaction i 15 potential analysis in the DEIR geotechnical study did not utilize the latest reference is 16 materials and was not sufficiently site specific. In 1994, Solus Geotechnical Consultants 17 ,1 prepared a seismic/liquefaction analysis for the City. The analysis relied on a 1991 18 Law/Crandall study in analyzing the liquefaction potential of the soils beneath the project 19 site (AR vol. XVI, p. 5801). 20 The Solus study used 1980s reference materials to determine peak accelerations from 21 ground shaking. (Id. At pp. 5794-5795 and 5817). The study concluded that in a major 22 quake near the project, soils beneath the site could settle one to two inches but that this 2, impact could be mitigated by supporting new foundations with piles set in solid ground 24 below the liquefiable soils. (Id. at p. 5801 and 5805). 2� Petitione'r's geotechnical consultant, Woodward-Clyde, was critical of the analysis 26 contained in the DEIR on several points, including the fact that the 1991 Law/Crandall 27 Report did not employ Cone Penetration Tests(CPT). This concern was also shared by City's 28 16 1 geologist, Dr. Floyd Williams. As a result of these concerns, the City directed Law/Crandall 2 to prepare a supplemental report. 3 The supplemental study used CPTs, which produced more detailed site specific 4 information on soil composition than was available to the Solus study. The conclusion of 5 the 1996 report was that "[t)he seismic settlement of the soils at the site were computed 6 as two to four inches on the eastern portion of the site, between the existing mall and the 7 flood control channel, and one to two inches at the remainder of the site. . ." (AR vol. 8 XXXIX, p. 13729). The study also identified a potential for lateral spreading of the ground 9 toward lower elevations during liquefaction. As in the Solus study, the supplemental study 10 recommended deep pile foundations in the soil most susceptible to liquefaction. (Id. at pp. 11 13730-13731). 12 The court finds that the new information provided in the 1996 Law/Crandall 13 supplemental report does not require recirculating the EIR under the Laurel Heights 11 14 criteria. The new study neither identified a new environmental impact (liquefaction) nor an 15 unmitigated and substantially more severe impact effect than that found in the earlier study. 16 The new study did not recommend a feasible mitigation measure which the developer and 17 the City have refused to implement. And, although the 1996 report was more detailed and 18 sophisticated than the 1994 Solus study, the DEIR study was not so fundamentally and 19 basically inadequate and conclusory in nature that public comment on the draft was in 20 effect meaningless. 21 Dr. Williams' report. 2211 Petitioner contends that after obtaining comments on the DEIR 23 ' liquefaction/seismicity study from City Geologist Floyd Williams, the City failed to publish 24 his comments thereby depriving the public of information material to intelligently evaluate 2� the environmental risks of the project. Respondents reply that Dr. Williams acted as a staff 26 advisor rather than a public commenter in critiquing the DEIR and the Woodward-Clyde 27 comments on liquefaction and seismicity issues. �✓ 28 17 I i 1 To the extent that the City Planning Commission asked Dr. Williams ". . .for review 2 and evaluation of the geological analysis contained in the DEIR, and review and evaluation 3 of the comments received from Marlene A. Fox and her geotechnical consultant Dr. 4 Yoshiharu Moriwaki of Woodward-Clyde. . ." (AR vol. XIX, p. 6708), the court would agree 5 with respondent's position. Furthermore, petitioner concedes that the City did not consult 6 with Dr. Williams until after the public comment period had expired. The lead agency must 7 respond to comments received during the public review period and may respond to 8 comments received later. (§21091(d)(2)(A)). 9 In any event, the court finds that the City did respond effectively to Dr. Williams' 10 comments by responding to the Woodward/Clyde comments. As petitioner claims, Dr. 11 Williams expressed many of the same concerns with the Solus study as did 12 Woodward/Clyde. The 1996 supplemental study discussed above was ordered in response 13 to these criticisms. The experts still apparently disagree about the potential effectiveness 14 of the proposed liquefaction mitigation measures, but "the court's task is not to weigh 15 conflicting evidence and determine who has the better argument when the dispute is 16 whether adverse effects have been mitigated or could be better mitigated." (Laurel Heights 17 1 /, supra, at 393). "Disagreement among experts does not make an EIR inadequate, but the I 18 EIR should summarize the main points of disagreement among the experts. The courts have 19 looked not for perfection but for adequacy, completeness, and a good faith effort at full 20 disclosure." (Guidelines, §15151; Stanislaus Natural Heritage Project, supra at 193). 21 Sufficiency of responses to expert comments on the DEIR. 22 Petitioner makes the unsupported claim that its credentialed experts in air 23 quality/noise, seismicity/liquefaction, traffic/parking, and economics submitted comments 24 on the DEIR which the City failed to give sufficiently detailed and analytical responses. 25 "[Tlhe major environmental issues raised when the Lead Agency's position is at variance i 26 with recommendations and objections raised in the comments must be addressed in detail 27 giving reasons why specific comments and suggestions were not accepted. There must be 28 good faith, reasoned analysis in response. Conclusory statements unsupported by factual 18 I� 1 information will not suffice." (Guidelines, §15088). The court has reviewed the comments 2 in volume XXXVIII and the responses in volume XXXIX, and they appear to meet the 3 requirements of the Guidelines. 4 Substantial evidence supporting City's findings. 5 Petitioner challenges five specific findings by the City. Petitioner attempts to show 6 inconsistencies and contradictions between the findings and the record facts cited to 7 support them. However, respondents' arguments defeat these claims. 8 The court will address two initial areas of concern. The first concerns the 9 adequacy of the City's proposed plans for mitigating exposures to hazardous and toxic 10 materials, especially during demolition activities on the project. Respondents contend that 11 this potential impact was found not to be significant in light of the fact that the City would 12 require the developers to follow all city, state, and federal regulations and procedures 13 governing the handling, use, storage, transportation, and disposal of any hazardous or toxic 14 materials at the project site. (AR vol. XL, pp. 13826-13827). 15 In the Initial Study, the City concluded that following the strict city, county, state, 16 and federal permit requirements and regulations applicable to hazardous material handling 17 would reduce the potential for human exposure to an insignificant level. (AR vol XI, pp 18 3838-3839). For example, "[a]sbestos removal is controlled by state and federal air 19 regulations, by the federal and state Occupational Safety and Health Administration 20 regulations for worker protection, notice requirements, and by other regulations." (Id at 21 3839). Petitioner has not pointed to anything in the record showing that requiring 22 compliance with the extensive network of government regulations and permit requirements 23 will not protect people from exposure to hazardous materials during project construction. 2.1 For these reasons, the court finds that the EIR adequately addresses this issue and the City's 25 findings are supported by substantial evidence. i 26 The second concern of the court involved the sufficiency of the evidence to support 27 the City's finding that the effects of liquefaction could be mitigated through the use of 28 underground pilings. However, respondents have cited to testimony from engineering 19 I 1 experts on both sides agreeing that the proposed buildings could be designed to resist soil 2 liquefaction. At the City Council hearing on April 1, 1996, City Engineer Mike Grubbs 3 testified that the buildings could be designed to resist liquefaction and cited the Superblock 4 building downtown and several buildings in the Hospitality Lane area as examples. (AR vol. 5 XXXIV, pp. 11533-11534). He stated, "it's not whether we can—we can design for 6 liquefaction; its a question of how much is it going to cost to design the foundation and the 7 building to resist liquefaction." (Id.) Petitioner's expert, Len Knapp of Knapp Architectural 8 Engineers, agreed that the buildings could be designed to resist liquefaction, but thought 9 that the cost of doing so at the project site would make it a "near impossible task." (Id. at 10 11626-11628). 11 At the April 1, 1996, hearing petitioner challenged the adequacy of evidence to 12 support the conclusion in the EIR that impacts from possible ground rupture caused by an 13 earthquake on the Glen Helen/Loma Linda fault can be mitigated by mapping the fault and 14 requiring an adequate setback for new structures. It argued that any mapping should be 15 done before project approval. Respondents, on the other hand, argue that the project is not 16 within a delineated earthquake fault zone requiring pre-approval fault mapping pursuant 17 to the state statute and the provisions in the EIR calling for fault mapping before grading 18 begins and that any construction must meet all City earthquake safety ordinances, are 19 sufficient. 20 The EIR includes two findings on this subject. First, the City found that: 21 "The analysis of active fault issues presented in the Initial Study concluded that no 22 potential for significant impacts from ground rupture will occur if the project site is 23 developed as proposed. . .After extensive review of this issue the City concluded that the 24 project site is not exposed to a significant impact because it is not located in the Alquist- 25 Priolo Special Studies Zone. . ." (AR, vol. XL, p. 13819).3 261' i 27 3 It is noted that the 1993 amendment to the Alquist-Priolo Special Studies Zone 28 Act changed the name of the "Alquist-Priolo Earthquake Fault Zones Act", although their here does not refer to that name change. 20 1 The facts to support this finding were: 2 "The Alquist-Priolo Special Studies Zone information in the environmental evaluation 3 section of the Initial Study (Page 2, item 1.c) indicates that [the] project site is not located 4 within a Special Studies zone. The project site is located near the Loma Linda Fault, but this 5 segment of the fault has shown no rupture of Holocene sediments, is not considered 6 potentially active and is not designated as part of an Alquist-Priolo Special Studies Zone as 7 defined in the City's General Plan. The potential for the project site to be exposed to a I 8 known active fault is considered nonsignificant based on the data available regarding status 9 of local faults, including the Loma Linda Fault. Based on these facts, the City concludes that 10 potential exposure to an Alquist-Priolo Special Studies Zone area from implementing the 11 proposed project will be nonsignificant without any mitigation or other changes to the 12 project." (Id). 13 Thus, the City found that according to the application of the Alquist-Priolo Special 14 Studies Zone Act, Public Resources Code §2621 et seq., there are no active faults 15 delineated within the project site. The City relied upon the delineation by the State 16 Geologist of "active" faults, as defined in the Act, and as set forth in the City's own General 17 Plan, to conclude that no active faults are within the project site, therefore there are no 18 potential impacts from such active faults. 19 The facts support the finding. Section 2621.5(b) clearly states that the Alquist-Priolo 20 Act is applicable to "any project...which is located within a delineated earthquake fault 21 zone." Petitioner concedes, as respondents and real parties in interest assert, that the 22 proposed ICM project site is not located within a delineated earthquake fault zone; 23 therefore it is clear that compliance with the mandates of the Act is excused. 24 The City also found that a segment of the Glen Helen/Loma Linda faults, although 25 not active under the Alquist-Priolo Act, may underlie a portion of the northeastern 26 boundary of the project site, and that, although unlikely, may present a potential for surface 27 rupture. Therefore, the City required potential precautionary fault mapping and requiring 28 21 1 precautionary setbacks from any discovered fault trace will mitigate any potential seismic 2 hazard below a level of significance. 3 As Mr. Grubbs, City's Engineer, testified at the April 1, 1996 City Council hearing, 4 the fault trace mapping is required prior to issuance of grading permits, and the building 5 setbacks will be imposed if a trace is discovered. In fact, if sufficient traces are found, the 6 result might be that no construction could occur 'in the affected area—although this is 7 believed by Mr. Grubbs to be very unlikely. (A.R.11533) 8 The conclusion that the Glen Helen/Loma Linda Fault is inactive comes from the 9 City's General Plan as well as from an interpretation of the 1991 Law/Crandall study for 10 the project site discussed earlier. In the study, it is stated that: 11 "Active faults, as defined by the State of California, are those that have caused 12 surface displacement during the Holocene Period, or approximately the last 11,000 years. 13 Potentially active faults are those which have not displayed movement within the last 14 11,000 years, but have displayed movement more recently than the beginning of the 15 Quaternary Period, approximately 2 million years ago. Inactive faults are those which 16 Ii display no evidence of movement during the last 2 million years. The closest active faults 17 are the San Jacinto and San Andreas faults located 0.6 miles southwest and 5.9 miles 18 northeast of the site, respectively." (AR vol. I, pp. 109-110). 19 The study goes on to state that: 20 "The San Jacinto Fault Zone is considered the most active fault in Southern 21 California. . .[I]t is composed of many anastomosing strands and splays, many of which show Holocene displacement. . .[T]his Fault Zone is very active at the magnitude 6 level and has produced six events of that magnitude or greater in the past 67 years, with an average 4 recurrence interval of about ten years." (Id. at 110). The 1994 study conducted by Solus Geotechnical Corporation, also referred to 2t, earlier, relied extensively on information contained in the 1991 Law/Crandall study. The 27 Solus study notes that: ,h 22 Ll 1 "The San Jacinto Fault system includes the Glen Helen, San Jacinto, and Loma Linda 2 Faults in the vicinity of the Project Site. . .The Glen Helen/Loma Linda Faults, which parallel 3 the San Jacinto Fault, are located at or near the northwest corner of the Project Site. These 4 faults display later Quaternary to Holocene activity with small earthquakes evident near 5 their fault traces. In terms of numbers of damaging earthquakes,the San Jacinto Fault Zone 6 has been the most prolific in historical time. At least 10 events have taken place from 1858 7 to 1980 over a fault length of 120 miles, with about half of these events causing damage 8 in the San Bernardino-Riverside area. Regional studies suggest that a magnitude 7.0 to 7.50 9 earthquake is possible on the San Jacinto Fault system that would affect the Project Site." 10 (AR vol. XV1, pp. 5787-5788). 11 The Solus study goes on to note the potential for surface rupture if the Glen - 12 Helen/Loma Linda Fault underlies the project site. (Id. at 5804). This conclusion does not, 13 however, mean that the fault, as it applies to this Project, is not inactive according to the 14 Alquist-Priolo Act. The City relied upon Solus, Law/Crandall, and its Civil Engineer to 15 develop a mitigation measure to respond to any potential impact from the Glen Helen/Loma 16 Linda fault traces. 17 Fair Hearing. 18 Petitioner's final contention is that it was deprived of a fair hearing before the 19 Planning Commission and ultimately the City Council. This argument is based on several 20 factors, but focuses primarily on a staff report from City Geologist, Dr. Floyd Williams, that 21 was prepared for a March 19, 1996, Planning Commission hearing, but was not given to 22 petitioner's attorney until the day prior to the hearing. 23 The parties agree that in November, 1994, petitioner had made a formal request for 24 copies of public records relevant to the case. Upon request for a reasonably described, 25 identifiable public record and payment of a duplication fee, a government agency must 26 ordinarily make an exact copy promptly available. (Gov. Code §6256 and 6257). This 27 required the City to produce the staff report in a reasonably timely manner once it became 28 i available. (See also, Rogers v. Superior Court (1993), 19 CA4 469, 483). Petitioner has not 23 I cited to anything in the record showing when Dr. Williams' report became available. The 2 report indicates that it was prepared for the March 19, 1996, hearing, but does not bear 3 a completion date. (AR vol. XXIII, p. 7436). However, it does appear the report was 4 distributed to the Commissioners on Friday, March 15, 1996, in a binder prepared by 5 counsel for respondents. If the report did not become available until March 15, and 6 petitioner received a copy on Monday, March 18, then the City appears to have acted in 7 a prompt and reasonably timely manner.' 8 Petitioner's argument that the "concealing" of negative comments on the DEIR 9 prevented petitioner from obtaining a fair hearing is also not persuasive. It is undisputed 10 that the City Council had Dr. Williams'comments before it when it voted to certify the EIR. 11 Petitioner also concedes that Dr. Williams' comments played a significant role in the City's 12 decision to order a supplemental liquefaction/seismicity study for the project site. For these 13 reasons the court finds that petitioner's claim of denial of a fair hearing must fail. 14 CONCLUSION 15 For the reasons stated, the writ of mandate shall issue and respondent City shall be 16 directed to vacate and set aside its certification of that portion of the Final Environmental 17 Impact Report that pertains to the multi-screen movie theater complex. Once respondent 18 has complied with this directive, the remainder of the project may go forward. 19 Respondents and real parties in interest must refrain from any construction activities related 20 21 2� 23 24 25 26 27 4 Whether the timing of the report warranted allowing petitioner a continuance of the 28 Planning Commission hearing is an issue not raised in petitioner's briefing or at oral argument, and is not addressed here. 24 I 1 to the foreseen cinema complex expansion pending full compliance with CEQA 2 environmental review requirements for that portion of the project. 3 4 5 Dated: SEP 17 1997 6 .:A AkS A. EDWARDS JAMES A. EDWARDS 7 Judge of the Superior Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N:\PAK\MANO\STAT.DEC 25 City of San Bernardino INTEROFFICE MEMORANDUM OFFICE OF THE MAYOR i TO: All Department Heads FROM: Mayor Tom Minor SUBJECT: EXECUTIVE ORDER 97-1 DATE: September 26, 1997 COPIES : File On April 1, 1996 by way of Resolution 96-84, the Common Council of the City of San Bernardino approved Development Agreement 91-01 for the expansion of the Inland Center Mall and by that same Resolution certified the Final Environmental Impact Report relating thereto. Subsequent to that action, suit was filed in the San Bernardino County Superior Court as Case No.SCV29232 against the City of San Bernardino and others claiming thatt ere had been certain non compliance with the California Environmental Quality Act ("CEQA") , which suite was entitled Central City Company v. City of San Bernardino, et al. Trial has now been completed in that suite and the Court has issued its Writ of mandate to the City providing, in part, that the City: "Vacate and set aside the April 1, 1996 Certification of that portion of the Environmental Impact Report that pertains to the multi-screen movie theater complex. " To comply with the Writ of Mandate, in my capacity as Mayor of this City, and by this Executive Order, I hereby: (1) Vacate and set aside the April 1, 1996 certification of that portion of the Final Environmental Impact Report referred to in Resolution 96-84 that pertains to the multi-screen movie theater complex; (2) Direct the City Clerk to annotate Resolution 96-84 to indicate that it is affected by this Executive Order, and inform related Departments thereof; and, (3) Direct all City Departments to refrain from approving any construction activities related to the cinema complex expansion pending full compliance with CEQA environmental review requirements for that portion of the project. k Dated: 2�— �7 T m Minor Mayor Approved as to form and legal content : es F. Penman, City Attorney 1 SUPERIOR AND MUNICIPAL COURTS OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF SAN BERNARDINO 3 --000-- 4 CENTRAL CITY COMPANY, A ) CALIFORNIA GENERAL PARTNERSHIP, ) 5 ) PETITIONER/PLAINTIFF, ) 6 ) -VS- ) NO. SCV-30704 7 ) CITY OF SAN BERNARDINO, ET AL, ) 8 ) RESPONDENTS/DEFENDANTS . ) 9 ) 10 REPORTER' S TRANSCRIPT OF ORAL PROCEEDINGS 11 BEFORE HON. JAMES A. EDWARDS, JUDGE 12 DEPARTMENT 2 13 SAN BERNARDINO, CALIFORNIA 14 OCTOBER 21, 22, 23 , 1997 15 16 APPEARANCES : FOR THE PLAINTIFF: MARLENE A. FOX 17 ATTORNEY AT LAW 2031 ORCHARD DRIVE 18 SUITE 200 NEWPORT BEACH, CA. 92660 19 20 FOR THE DEFENDANTS : GRESHAM, SAVAGE, NOLAN & TILDEN ATTORNEYS AT LAW 21 BY: JOHN C. NOLAN PENNY ALEXANDER-KELLY 22 ATTORNEYS AT LAW 23 REPORTED BY: KATHY 0. TESSELAAR 24 OFFICIAL REPORTER C. S .R. NO. 4406 25 26 Lb" KATHY 0. TESSELAAR, OFFICIAL REPORTER 178 1 PROMISE HERE? WHAT IS THE CONSIDERATION? WHERE IS THE BARGAIN? 2 WHERE' S THE MUTUALITY OF BENEFIT IN SECTIONS 35 AND 36? 3 NOW, ONE OTHER THING THAT HAPPENED YESTERDAY WAS 4 COUNSEL SAID, BUT, YOUR HONOR, ON PAGE 20 , LOOK WHAT IT SAYS. 5 "RACHEL CLARK, CITY CLERK. APPROVED AS TO FORM AND LEGAL 6 CONTENT. CITY ATTORNEY, JAMES F. PENMAN. " 7 WELL, MAYBE MR. PENMAN' S -- I DON' T KNOW, MAYBE IT 8 WAS BECAUSE THEY WERE IN SUCH A HURRY TO SIGN IT FOUR DAYS 9 LATER, OR MAYBE HE WASN' T PAYING THAT MUCH ATTENTION, BUT AT 10 LEAST WE HAVE -- WE KNOW ONE THING. I 'M GOING TO OFFER INTO 11 EVIDENCE HERE SOME CERTIFIED RECORDS FROM THE CITY OF SAN 12 BERNARDINO WITH AN ORIGINALLY EXECUTED ATTESTATION BY RACHEL 13 CLARK, THE CITY CLERK. WITNESSED BY SUZANNA CORDOVA, THE DEPUTY t 14 CITY CLERK, WITH THE SEAL FROM THE CITY CLERK' S OFFICE. AND IT 15 SAYS, "I , RACHEL CLARK, CITY CLERK, IN AND FOR THE CITY OF SAN 16 BERNARDINO, DO HEREBY CERTIFY THAT THE FOREGOING AND ATTACHED 17 COPY OF THE CITY OF SAN BERNARDINO CAMPAIGN STATEMENT FOR JIM 18 PENMAN, CITY ATTORNEY, FOR JANUARY 1, 1996 THROUGH JUNE 30, 19 1996 , IS A FULL, TRUE AND CORRECT COPY OF THAT NOW ON FILE IN 20 THIS OFFICE . IN WITNESS WHEREOF I HAVE HEREUNTa SET MY HAND AND 21 AFFIXED THE OFFICIAL SEAL OF THE CITY OF SAN BERNARDINO THIS 22 23RD DAY OF OCTOBER, 1997 . " 23 AND, YOUR HONOR, I'M GOING TO GIVE A COPY TO 24 COUNSEL, AND I WOULD LIKE TO OFFER THIS TO THE CLERK. 25 MR. NOLAN: DO YOU HAVE THE ORIGINAL? 26 MS . FOX: YES, THAT' S THE ORIGINAL. KATHY 0. TESSELAAR, OFFICIAL REPORTER i 179 1 NOW, WHEN YOU LOOK AT THIS CAMPAIGN STATEMENT, I 2 GUESS BEFORE I GET TO THAT, YOUR HONOR, I ' D LIKE TO LAY SOME 3 FOUNDATION. I ' D LIKE TO REFER TO THE CITY OF SAN BERNARDINO 4 CHARTER, SECTION 14 , DEALING WITH OFFICERS AND TERMS . AND IT 5 SAYS IN SECTION 14 THAT "THE CITY ATTORNEY FOR THE CITY OF SAN 6 BERNARDINO IS AN ELECTED OFFICIAL" . AND THEN IF YOU LOOK AT 7 GOVERNMENT CODE SECTION 8420 -- EXCUSE ME, 84200 , THAT DEALS 8 WITH THE TIME OF FILING BY ELECTED OFFICERS, CANDIDATES AND 9 COMMITTEES FOR CAMPAIGN STATEMENTS. AND TELLS WHEN THEY'RE 10 OBLIGATED TO FILE . 11 AND THEN IF YOU LOOK AT SECTION 84215 OF THE 12 GOVERNMENT CODE, IT SAYS THE PLACE OF FILING IS THEY SHALL 13 FILE -- SUBPARAGRAPH (E) STATES, "CITY ELECTED OFFICERS, 14 CANDIDATES FOR CITY OFFICE, AND THEIR CONTROLLED COMMITTEES, 15 COMMITTEES FORMED OR EXISTING, PRIMARILY TO SUPPORT OR OPPOSE 16 CANDIDATES OR LOCAL MEASURES TO BE VOTED UPON IN ANY ONE CITY OR 17 CITY GENERAL PURPOSE COMMITTEE SHALL FILE THE ORIGINAL AND ONE 18 COPY WITH THE CLERK OF THE CITY. THESE ELECTED OFFICERS, 19 CANDIDATES, COMMITTEES NEED NOT FILE WITH THE CLERK OF THE 20 COUNTY. " 21 SO, THAT IS WHY THESE DOCUMENTS -- THAT' S THE 22 AUTHORITY FOR THESE DOCUMENTS, REQUIRING THEM, WHY THEY ARE ON 23 FILE WITH THE CITY OF SAN BERNARDINO. 24 NOW, THE PURPOSE OF OFFERING THIS IS NOT TO ALLEGE 25 THAT THERE IS ANY WRONGDOING, BUT IT CERTAINLY DOES CAST A CLOUD 26 AND A SHADOW WHEN YOU LOOK ON PAGE -- AT CALIFORNIA FORM 490 FOR KATHY 0. TESSELAAR, OFFICIAL REPORTER 180 1 THE TIME PERIOD JANUARY 1, 1996 , THROUGH JUNE 30, 1996 . AND IT 2 DETAILS -- IT SETS FORTH THE DETAILS OF THE CAMPAIGN 3 CONTRIBUTIONS TO MR. PENMAN' S CAMPAIGN FOR CITY ATTORNEY. AND 4 YOU SEE AT THE TOP ON JANUARY 24TH, 1996 , THE FULL NAME AND 5 ADDRESS OF THE CONTRIBUTOR BEING GRESHAM, VARNER, SAVAGE, NOLAN 6 AND TILDEN, ATTORNEYS AT LAW, AND THE AMOUNT RECEIVED FOR THAT 7 PERIOD FROM JANUARY -- FOR THE CALENDAR YEAR JANUARY 1 THROUGH 8 DECEMBER 31 IS $5 , 000 . IF YOU LOOK AT THE REST OF THE 9 CONTRIBUTIONS ON THAT PAGE, AND THE SUCCEEDING PAGES, WHAT YOU 10 SEE ARE A NUMBER OF CONTRIBUTIONS, NONE OF WHICH ARE AS LARGE AS 11 $5 , 000 . THAT IS THE LARGEST ONE. 12 NOW, I DON' T KNOW HOW MUCH ATTENTION MR. PENMAN WAS 13 PAYING. I WOULD SAY THAT READING THIS AGREEMENT HE WASN'T 14 PAYING A LOT OF ATTENTION. I THINK HE WAS RELYING ON SOMEBODY 15 ELSE TO DRAFT THE AGREEMENT. I KNOW ONE THING, HAVING BEEN AT 16 THOSE HEARINGS, AND THE ADMINISTRATIVE RECORD REFLECTS, IF THE 17 COURT GOES BACK AND READS THE TRANSCRIPT FROM THE PLANNING 18 COMMISSION, THE CITY ATTORNEY FOR THE CITY OF SAN BERNARDINO 19 ORDINARILY -- IN MOST CIRCUMSTANCES IT IS QUITE EXTRAORDINARY 20 FOR HIM TO MAKE AN APPEARANCE AT A PLANNING COMMISSION MEETING. 21 THOSE ARE ALWAYS HANDLED BY OTHER REPRESENTATIVES OF THE CITY 22 ATTORNEY' S OFFICE . THE CITY ATTORNEY RESERVES HIS POSITION TO 23 BE WITH THE CITY COUNCIL AS ADVISOR AT PUBLIC HEARINGS . THIS IS 24 FAIRLY STANDARD IN MOST CITIES . 25 DEPUTY CITY ATTORNEY EMPANO SITS WITH THE PLANNING 26 COMMISSION. HOWEVER, ON MARCH 19, 1996 , WHEN THIS DEVELOPMENT KATHY 0. TESSELAAR, OFFICIAL REPORTER 181 1 AGREEMENT AND THIS PROJECT WITH THIS APPLICANT WAS BEFORE THE 2 CITY PLANNING COMMISSION, MR. PENMAN WAS SO ACTIVE, HE WAS IN 3 THE ROOM. HE WAS CONFERRING WITH MR. EMPANO. HE EVEN TOOK OVER 4 THE MICROPHONE . 5 MR. NOLAN: IS COUNSEL TESTIFYING? 6 MS . FOX: IT' S IN THE RECORD. YOU CAN READ IT IN 7 THE RECORD. IT' S IN THE TRANSCRIPT. AND YOU WILL SEE THAT 8 THERE WAS AN INTERRUPTION IN THE PROCEEDING, BECAUSE HE TRIED TO 9 GIVE THEM ADVISE AND THEY DIDN' T UNDERSTAND, AND HE INTERRUPTED 10 THE PROCEEDING AND TOOK THE COMMISSIONERS OUT OF THE ROOM AND 11 THEY HAD SOME SORT OF CLOSED SESSION. CAME BACK IN, AND HE 12 STILL TRIED -- YOU CAN READ THE ADVOCACY. IT' S RIGHT THERE IN 13 THE PRINTED PART OF THIS RECORD FROM MARCH 19, 1996 . AND THEN, r 14 AGAIN, THEN THE TRANSCRIPT WHERE HE DOES SIT WITH THE CITY 15 COUNCIL, AND THAT IS HIS JOB, OF APRIL 1, 1996 . 16 SO, I DON'T THINK THAT THAT STAMP, PARTICULARLY 17 WHEN YOU READ THIS AGREEMENT, I DON' T THINK THAT STAMP HAS THE 18 VALUE OF THIS PIECE OF PAPER. BUT THAT' S FOR THE COURT' S 19 CONSIDERATION OF MR. PENMAN' S REVIEW AS TO FORM AND LEGAL 20 CONTENT. 21 YOUR HONOR, I WOULD LIKE TO HAVE THAT ENTERED 22 INTO -- THAT DOCUMENT, THAT CERTIFIED DOCUMENT FROM THE CITY 23 CLERK, ENTERED INTO EVIDENCE AS PLAINTIFF' S NEXT IN ORDER, WHICH 24 I BELIEVE WOULD BE NUMBER 12 . 25 MR. NOLAN: YOUR HONOR, AS TO ITS AUTHENTICITY, WE 26 HAVE NO DISPUTE. AS TO ITS RELEVANCE, WE HAVE A VERY i KATHY 0. TESSELAAR, OFFICIAL REPORTER 182 1 SIGNIFICANT DISPUTE. WE WOULD OBJECT TO ITS ADMISSION INTO 2 EVIDENCE FOR A NUMBER OF REASONS, NOT THE LEAST OF WHICH IT IN 3 NO WAY IS PLED. 4 THE COURT: NO WAY WHAT? 5 MR. NOLAN: PLED. THIS ENTIRE ISSUE, IT' S 6 INTERESTING, COUNSEL LEADS OFF HER DISCUSSION BY SAYING THERE' S 7 NO ALLEGATION OF WRONGDOING, AND THEN SPENDS 30 MINUTES TRYING 8 TO INDICATE THAT MR. PENMAN WAS, IN SOME FASHION, ACTING 9 INAPPROPRIATELY. 10 AND, FIRST OF ALL, IT' S NOT PLED. THE 11 CIRCUMSTANCES ARE SUCH THAT YOU WILL NOTE THAT THIS CAMPAIGN 12 STATEMENT HAS BEEN OF RECORD SINCE JULY 31, 1996 . THIS IS NOT 13 SOMETHING THAT IS RECENTLY DISCOVERED, OR NEEDED TO HAVE BEEN 14 RECENTLY DISCOVERED. CERTAINLY IT WOULD FIND IT INTERESTING IF 15 THIS WERE OF IMPORT, WHICH I DON'T THINK IT IS, TO EXAMINE THE 16 EARLIER AND LATER CAMPAIGN STATEMENTS OF THE VARIOUS COUNCIL 17 MEMBERS AND MR. PENMAN RELATIVE TO MR. CURCI AND TO CENTRAL CITY 18 COMPANY. BUT, NONETHELESS, THE WHOLE ISSUE IS COUNSEL SAYS I AM 19 MAKING NO ALLEGATION OF WRONGDOING. BY MAKING THAT, BY MAKING 20 THAT INTRODUCTORY STATEMENT, THIS HAS NO RELEVANCE. SHE' S 21 TELLING YOU SHE' S MAKING NO ALLEGATION OF IT, AND SHE CERTAINLY 22 HAS NEVER MADE IT IN HER PLEADINGS? 23 MS . FOX: WOULD THE COURT LIKE AN OFFER OF PROOF? 24 THE COURT: PLEASE. 25 MS . FOX: OKAY. WHAT I BELIEVE THAT THIS DOCUMENT ( 26 SHOWS -- CAN WE GET IT MARKED FOR IDENTIFICATION AS PLAINTIFF' S KATHY O. TESSELAAR, OFFICIAL REPORTER i 183 �I 1 12? 2 THE COURT: IT WILL BE MARKED AS 12 FOR 3 IDENTIFICATION. 4 MS . FOX: THANK YOU. WHAT I BELIEVE PLAINTIFF' S 12 5 SHOWS, AND THE REASON I ASK FOR IT TO BE INTO EVIDENCE, AND THE 6 REASON I ASK FOR THE OFFER OF PROOF, IS THAT THIS IS AN OFFICIAL 7 DOCUMENT. IT SHOWS A PERIOD OF TIME WHEN THERE IS TREMENDOUS 8 ACTIVITY ON THIS CASE, WHICH THE COURT ALREADY KNOWS, BECAUSE 9 THE COURT SAW THE DATES AND THE 41 VOLUMES OF ADMINISTRATIVE 10 RECORD THAT' S IN BOTH THE CASES . 11 THE COURT KNOWS THAT THERE WERE DEVELOPMENT REVIEW 12 COMMITTEE MEETINGS IN FEBRUARY AND MARCH. THERE WAS A PLANNING 13 COMMISSION HEARING ON THIS PROJECT APPLICATION ON MARCH 19TH, 14 AND A CITY COUNCIL MEETING. THE COURT ALSO KNOWS THAT THE 15 APPLICANT INDEMNIFIED THE CITY OF SAN BERNARDINO AND SAID, DON' T 16 WORRY IF WE GET INTO LITIGATION, IN EFFECT, BECAUSE IT' S OUR 17 OBLIGATION. 18 SO, WE HAVE THE DEVELOPER' S ATTORNEY, THE SAME 19 ATTORNEYS THAT DRAFTED THE DEVELOPMENT AGREEMENT THAT MADE THE 20 PRESENTATION, THAT NOW FUNCTION AS AN AGENT ON BEHALF OF THE 21 DEVELOPER TO PROCESS SUBSEQUENT AND CURRENT PERMITS . WE HAVE 22 THOSE EXHIBITS IN EVIDENCE. AND WHAT I AM OFFERING THIS AS 23 REBUTTAL TO THE STATEMENTS MADE BY MR. NOLAN YESTERDAY THAT 24 THERE IS A CONCLUSION AND THE PRESUMPTION OF CORRECTNESS WITH 25 REGARD TO THIS DEVELOPMENT AGREEMENT BECAUSE OF JAMES PENMAN' S 26 SIGNATURE AND THE STAMP THAT SAYS HE REVIEWED IT. WELL, I MEAN, KATHY 0. TESSELAAR, OFFICIAL REPORTER 184 1 I'M PARAPHRASING. IT SAYS, "APPROVED AS TO FORM AND CONTENT. " 2 BUT THE POINT THAT COUNSEL WAS MAKING YESTERDAY TO 3 THE COURT WAS, BUT, YOUR HONOR, THE CITY ATTORNEY APPROVED IT. 4 SO HE WAS SATISFIED. IT' S IN THE LANGUAGE THAT IT SHOULD BE IN 5 FOR THE CITY. SO, I MAKE THIS AS AN OFFER OF PROOF TO SHOW THAT 6 HE WASN' T PAYING ATTENTION, AND THAT MAYBE HE SHOULDN' T HAVE 7 BEEN INVOLVED IN THIS MATTER. 8 THE COURT: I DON' T WANT TO SPEND ANYMORE TIME ON 9 THIS . I THINK THE -- I UNDERSTAND WHERE YOU' RE COMING FROM, 10 MISS FOX. I'M NOT SURE THIS GETS YOU THERE, OR AT LEAST TO THE 11 POINT WHERE YOU WANT THE COURT TO GO. I SUPPOSE YOU' RE SAYING 12 THAT BECAUSE -- 13 MR. NOLAN: I MIGHT POINT OUT, YOUR HONOR, THAT AT ° 14 THAT TIME THERE WERE 24 ATTORNEYS IN OUR LAW OFFICE . IF I DO MY 15 MATH RIGHT, THAT IS A CONTRIBUTION OF APPROXIMATELY $208 PER 16 ATTORNEY. 17 THE COURT: WHATEVER. I'M JUST SAYING, I THINK 18 IT' S A FAR STRETCH, IF THAT' S ALL THIS IS OFFERED FOR, FOR THE 19 COURT TO CONCLUDE FROM THE FACT THAT THE FIRM GAVE $5 , 000 TO MR. 20 PENMAN' S CAMPAIGN THAT SOMEHOW HE WAS BEHOLDING -TO THEM AND 21 RAMRODED THIS THROUGH WITHOUT, WITHOUT ANY SPECIAL ATTENTION OR 22 CONSIDERATION OF WHAT WAS BEING DONE. HE MAY HAVE BEEN 23 CARELESS . I MAY AGREE WITH YOU IN THAT REGARD, BUT I DON' T 24 THINK THIS ESTABLISHES -- IF YOU' RE TRYING TO SHOW SOME TYPE OF 25 IMPROPER, ULTERIOR MOTIVE ON HIS PART, I DON' T THINK THIS GOES 26 TO THAT. KATHY 0. TESSELAAR, OFFICIAL REPORTER 185 1 MS. FOX: OKAY. 2 MR. NOLAN: THANK YOU, YOUR HONOR. 3 THE COURT: I' LL SUSTAIN THE OBJECTION. 4 MS . FOX: THE LAST, THE LAST ISSUE TO ADDRESS IS 5 THE GENERAL PLAN. 6 MR. NOLAN: EXCUSE ME, YOUR HONOR, DOES THAT MEAN, 7 THEN, I SHOULD -- 8 MS. FOX: I'M SORRY. 9 MR. NOLAN: SHOULD I REBUTTAL THOSE ISSUES? 10 MS . FOX: EXCUSE ME, YOUR HONOR, I -- 11 THE COURT: THAT' S FINE. 12 MS . FOX: I KNEW WE WERE READY TO MOVE ON. EXCUSE 13 ME, COUNSEL. 14 MR. NOLAN: WELL, I THINK WE VERY CLEARLY GOT THE 15 PICTURE THAT IF COUNSEL WERE WRITING THE DEVELOPMENT AGREEMENT, 16 SHE WOULD CHOOSE TO WRITE IT DIFFERENTLY. I DON'T THINK THAT 17 COUNSEL' S TESTIMONY, OPINION, EXPRESSIONS OF THE ADEQUACY ARE 18 IN, IN ANY WAY, SUCH AS TO CONSTITUTE A BASIS FOR THIS COURT TO 19 REDO THE AGREEMENT. IT WAS KIND OF INTERESTING. 20 I HAD SOME DIFFICULTY FOLLOWING A PORTION OF THE 21 AGREEMENT. SHE WAS TALKING ABOUT, WELL, THAT CONSIDERATION IS 22 THE SAME KIND OF CONSIDERATION IF YOU WERE GOING TO DO SOMETHING 23 OF A DIFFERENT TYPE. IT' S KIND OF LIKE IF YOU'RE GOING TO GET A 24 DEVELOPMENT AGREEMENT, YOU HAVE TO HAVE SUPER CONSIDERATION. 25 YOU CAN' T HAVE JUST THE ROUTINE CONSIDERATION. THE FACT OF THE 26 MATTER IS, AND WE ALL KNOW FROM THE FIRST OR SECOND WEEK OF LAW I: KATHY 0. TESSELAAR, OFFICIAL REPORTER CER Copy CITY OF SAN BERNARDINO PLANNING AND BUILDING SERVICES DEPARTMENT DEVELOPMENT AND ENVIRONMENTAL REVIEW COMMITTEE MEETING TRANSCRIPT OF PROCEEDINGS DATE AND TIME : THURSDAY, SEPTEMBER 11, 1997 9 : 04 A.M. TO 9 : 41 A.M. LOCATION: SAN BERNARDINO CITY HALL FOURTH FLOOR, CONFERENCE ROOM A 300 NORTH D STREET SAN BERNARDINO, CA 92418 JOB NUMBER: 7842DD REPORTED BY: DAWN M. DAVILA, CSR, RPR (NO. 8383) Younger Deporting (SCMCC05 00 6772 MAGNOLIA AVENUE RIVERSIDE, CA 92506 (909) 276-1333 FAX (909) 276-1788 1 A P P E A R A N C E S 2 3 DEVELOPMENT REVIEW COMMITTEE: 4 5 VALERIE ROSS, PLANNING DEPARTMENT 6 LYNN MERRILL, PUBLIC SERVICES DEPARTMENT 7 MATTHEW SWALBERG, PARKS AND RECREATION 8 JEFF ZINNER, ECONOMIC DEVELOPMENT AGENCY 9 DON JACKSON, DEVELOPMENT SERVICES 10 MIKE GRUBBS, PUBLICS WORKS DEPARTMENT 11 LT . STEVE JARVIS, POLICE DEPARTMENT 12 HENRY GREENE, FIRE DEPARTMENT 13 BILL BRYDEN, WATER DEPARTMENT 14 15 STAFF MEMBERS : 16 17 GUS ROMO, PLANNING DIVISION 18 19 20 21 22 23 24 25 2 YOUNGER REPORTING SERVICES 1 A P P E A R A N C E S 2 (CONTINUED) 3 4 REPRESENTATIVES FOR THE APPLICANT: 5 6 MARK OSTOICH - Gresham, Savage, Nolan 7 & Tilden 8 9 RANDY LARSEN - Altoon & Porter Architects 10 11 12 13 14 i5 16 17 18 19 20 21 22 23 24 25 3 YOUNGER REPORTING SERVICES 1 A P P E A R A N C E S 2 (CONTINUED) I 3 4 REPRESENTATIVES FOR THE OPPOSITION: 5 6 MARLENE A. FOX - Law Offices of 7 (Not present) Marlene A. Fox 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 YOUNGER REPORTING SERVICES i I 1 THURSDAY, SEPTEMBER 11, 1997 SAN BERNARDINO, CA i 2 3 MS. ROSS : Good morning. I 'd like to call the 4 September 11th, 1997, Development and Environmental Review 5 Committee meeting to order. We' ll start with 6 self-introductions . I 'm Valerie Ross, Planning and 7 Building Services . 8 Lynn. 9 MR. MERRILL: Lynn Merrill, Public Services 10 Department. 11 MR. SWALBERG: Matthew Swalberg, Parks and 12 Recreation Department . 13 MR. ZINNER: Jeff Zinner, EDA. { 14 MR. JACKSON: Don Jackson, Development Services . 15 MR. GRUBBS : Mike Grubbs, Public Works and 16 Engineering. 17 MR. JARVIS : Steve Jarvis, Police. 18 MR. GREENE: Henry Greene, Fire Department . 19 MS . ROSS : Thank you. 20 On the consent agenda -- first off, are there 21 any comments from anybody for items not on the agenda 22 today? 23 Okay. I will move to the consent agenda. 24 We' re proposing Items 1 and 2 on the consent agenda. 25 Item Number 1 is conditional use permit number 97-07 . 5 YOUNGER REPORTING SERVICES 77 1 This is continued from last week. It is my understanding 2 that the police department concerns have been resolved, and 3 this is to be cleared to Planning Commission. 4 MR. JARVIS : That is correct . I talked to Ms . Park, 5 and she alleviated our concerns, and we recommend that it 6 be moved ahead. 7 MS . ROSS : Okay. Item Number 2 is Development 8 Permit Type II Number 97-03. We have not received the 9 information from the Applicant, and we would like to 10 continue that until September 25th. 11 With that, if I could have a motion, please, 12 to clear Item Number 1 to Planning Commission and continue 13 Item Number 2 until September 25th. { 14 (Motion moved. ) 15 (Seconds . ) 16 MS . ROSS: All in favor? 17 (Ayes . ) 18 MS . ROSS: Any opposition? 19 (None. ) 20 MS . ROSS: Thank you. Item Number 3 is conditional 21 use permit number 97-16 and variance number 97-07 . This is 22 Gus ' s project, and I will let him introduce his Applicant 23 and tell us about the project. 24 (Project discussed. ) 25 MS . ROSS: Okay. Let' s move on to Item Number 4 . 6 YOUNGER REPORTING SERVICES 1 This is Development Permit Type II Number 97-13. This is 2 Gus ' s project . I ' ll ask Gus to introduce his Applicant and 3 explain the request . 4 MR. ROMO: Good morning. This is Mr. Mark Ostoich. 5 MR. OSTOICH: Good morning. 6 MR. ROMO: And he' s the Applicant for 7 Mano Management, represents Mano Management, I should say. 8 This project is Phase I of the Inland Center Mall expansion 9 project which is outlined and approved for development 10 agreement number 91-01 which was approved by the 11 City Council, resolution number 97-84, on April 1st, 1996. 12 The project consists of the construction of 165, 000 square 13 foot two-level anchor department store to be occupied by 14 Robinson' s-May, and a construction of a four-level parking 15 structure to accommodate 1297 automobiles . The project is 16 located at 500 Inland Center Mall on the western portion of 17 the mall . 18 We previously went to DRC on August 14th, and 19 the project was continued to September 18th through the 20 Applicant ' s request . And because we did receive the 21 required site plans and revisions, we went ahead and 22 rescheduled it for today. 23 As I stated before, the development agreement 24 number 91-01 was approved by the Mayor and Common Council 25 on April 1st, 1996. And in connection with a development 7 YOUNGER REPORTING SERVICES t 1 agreement, an environmental impact report was prepared 2 pursuant to the California Environmental Quality Act . 3 And the EIR was certified on April 1st, 1996, by 4 City Resolution Number 96-84 . 5 The EIR itself describes the expansion project 6 for Inland Center Mall as including the construction of up 7 to three new major anchor stores and the construction of 8 four multi-level parking structures . The proposed 9 construction of the Robinson' s-May department store and the 10 one multi-level parking structure is within the scope of 11 this EIR, and therefore, no further or subsequent 12 environmental review is required at this point . 13 We have prepared an environmental compliance 14 review list or report for you to look at just for your 15 information, and it will become part of the file. 16 The proposed project ' s potential to cause a 17 significant effect on the environment has previously been 18 identified by the certified EIR, and therefore, based on 19 that previous review, we' re stating that no further 20 environmental review is necessary. 21 The development permit itself is consistent 22 with the findings of fact pursuant to section 19.44 . 060 of 23 the development code . I will go over each finding for the 24 record. 25 Finding Number 1 states that the proposed 8 YOUNGER REPORTING SERVICES 1 development is one permitted within the subject zoning 2 district and complies with all of the applicable provisions 3 of this Development Code, including prescribed 4 development/site standards and any or all applicable design 5 guidelines. Pursuant to Development Code Section 19. 06. 020 6 (I) (6) , department stores in conjunction with indoor retail 7 concession malls are permitted within the CR-1 land use 8 district subject, of course, to a development permit 9 approval . The proposed department store and parking 10 structure comply with all applicable provisions of the 11 Development Code . As such, the proposal will improve and 12 not impair the character of the CR-1 land use district . 13 Finding Number 2, the proposed development is 14 consistent with a General Plan. The General Plan Policy 15 1 . 3 . 11 states that it shall be the policy of the City to 16 "allow for the introduction of major regional-serving 17 commercial uses which may currently not be present and 18 could significantly benefit the City, provided that they do 19 not incur unacceptable adverse economic impacts in areas 20 between the downtown and the Tri-City Center. " 21 Shall I continue with the findings? 22 MS. ROSS : Yes, please . 23 MR. ROMO: Finding of Fact Number 3, the proposed 24 development would be harmonious and compatible with the 25 existing and future developments within the land use 9 YOUNGER REPORTING SERVICES • 1 district and general area, as well as with the land uses 2 presently on the subject property. Now, the proposal is 3 part of an existing retail concession mall . The expansion 4 of the mall has already been approved through a development 5 agreement and does not entail any other use than that 6 provided by such agreement. As such, the proposed 7 development would be harmonious and compatible with 8 existing and future development. 9 MS . ROSS: Excuse me, Gus . Before you go on, on 10 Finding of Fact Number 1 and Finding of Fact Number 3, I 11 believe you stated "indoor retail concession mall, " and it 12 should just be a retail mall . 13 MR. ROMO: Retail mall . We' ll go ahead and make 14 that change. 15 Finding of Fact Number 4, the approval of the 16 development permit for the proposed use is in compliance 17 with the requirements of the California Environmental 18 Quality Act and Section 19. 20. 036 or 030 (6) of the 19 Development Code. The project ' s potential to cause a 20 significant effect, as I stated before, has already been 21 reviewed through the certified EIR, which was certified by 22 Resolution Number 96-84 adopted by the Mayor and Common 23 Council on April 1st, 1996. 24 Finding of Fact Number 5, there will be no 25 potentially significant negative impacts upon environmental 10 YOUNGER REPORTING SERVICES i i 1 quality and natural resources that cannot be properly 2 mitigated and monitored. As identified in the certified 3 EIR, the project is subject to the mitigation measures 4 identified in the Mitigation Monitoring and Reporting 5 Program. Prior to the issuance of grading and building 6 permits and any certificate of occupancy, the mitigation 7 measures must be in place. 8 Finding of Fact Number 6, the project or the 9 subject site is physically suitable for the type and 10 density of use being proposed. The site is physically 11 suitable for the type and density/intensity of the project 12 being proposed as evidenced by the project compliance with 13 all applicable Development Code standards . 14 Finding of Fact Number 7, there are adequate 15 provisions for public access, water, sanitation, and public 16 utilities and services to ensure that the proposed use 17 would not be detrimental to public health and safety. All 18 agencies responsible for reviewing the access, in other 19 words, the Development Review Committee and other public 20 agencies, and providing water, sanitation, and other public 21 services have all had the opportunity to review the 22 proposal, and none have indicated an inability to serve the 23 project. Therefore, the proposal will be not be 24 detrimental to the public health and safety. 25 And the last finding, Finding Number 8, the 11 YOUNGER REPORTING SERVICES i E 1 location, size, design, and operating characteristics of 2 the proposed development would not be detrimental to the 3 public interest, health, safety, convenience, or welfare of 4 the City. The proposal is in compliance with all 5 applicable Development Code standards and is consistent 6 with the General Plan as previously noted in these Findings 7 of Fact . The proposal will not create any significant 8 noise, traffic, or other conditions or situations that have 9 not been identified in the Mitigation and Monitoring 10 Report . As such, the proposal will not be detrimental to 11 other permitted uses in the vicinity and will not create 12 any situation adverse to the public interest, health, 13 safety, convenience or welfare of the City. 14 The recommendation today is to approve the 15 Development Permit Type II Number 97-13 based on these 16 Findings of Fact, and also subject to the conditions of 17 approval and standard requirements of this reviewing body. 18 That concludes my report . 19 MS . ROSS: Thank you. 20 Lynn, I ' ll start with you again, please. 21 MR. MERRILL: We've had the opportunity to meet with 22 the Applicant, review the solid waste requirements . We've 23 indicated that we would like to see compactors located in 24 the two service bays as well as with Robinson' s-May. 25 One would be used for commingled recycling, and one would 12 YOUNGER REPORTING SERVICES i 1 be used for regular solid waste in each of those bay areas. 2 And we will continue to work with the Applicant in terms of 3 developing and implementing the recycling program at the 4 mall . 5 MS. ROSS : Thank you. 6 Matt . 7 MR. SWALBERG: At this time our department will be 8 issuing standard requirements . And in addition to those 9 requirements, we have two conditions of approval . One is 10 the preparation of an arboreous report that shall be 11 required to identify the trees on site, their health, 12 structural, and/or disease problems and relocation 13 procedures and maintenance. Should any trees be identified f 14 as viable, mature specimens, the developer is required to 15 relocate those trees or utilize them on site. Should those 16 trees not be relocatable on site, then the City will 17 condition them to relocate those trees on city property. 18 MS . ROSS : Thank you. 19 MR. SWALBERG: Those will be presented to Gus today. 20 MS . ROSS : Thank you. 21 Jeff. 22 MR. ZINNER: EDA has no further comments at this 23 time. 24 MS . ROSS : Thank you. 25 D. J. 13 YOUNGER REPORTING SERVICES 1 MR. JACKSON: At this time, one of the concerns is 2 on the parking structure, whether it should be sprinklered 3 or not . The way the code reads, it appears that because 4 it ' s stand-alone by itself because of the yards, it appears 5 that it has the yards, that it may not have to be 6 sprinklered at all, but we' re going to research that at 7 this time. I think the worst case scenario at this time, 8 it may have to be. But I think the fire department may 9 have a comment on that, and I think that probably what our 10 building department is going to do is probably get with the 11 fire department and discuss that portion of it. But at 12 this time, I have no further comment at this time. 13 MS . ROSS : Thank you. 14 Mike . 15 MR. GRUBBS : Okay. We've talked about -- let ' s see. 16 We met with the Applicant several days ago and did go over 17 the plans . And I 'm not sure if we did, did we ever get 18 floor plans of the building and each of the levels of the 19 parking structure? 20 MR. ROMO: We did. That was part of the revised 21 plans . 22 MR. GRUBBS : Okay. I guess I didn' t look at it that 23 close . But at any rate, there are a lot of mitigations, 24 street mitigations, which are, of course, included in 25 the -- was included in the EIR, and these are the initial 14 YOUNGER REPORTING SERVICES i j 1 study mitigations that show up on page 14 through the 2 middle of page 23 of the document which Gus passed out 3 which has a cover memo dated September 10th. So those 4 mitigations are quite extensive. They' re referred to as 5 the year 2000 mitigation measures, and I believe that will 6 apply to Phase I . So I just want the Applicant to be 7 aware, I think Mark is, that all of these mitigations 8 are -- we feel are attached to the Robinson' s-May 9 department store and the parking structure construction. 10 I believe we talked last time about 11 handicapped accessibility from Inland Center Drive, and we 12 need to provide a path to travel to the new store from 13 Inland Center Drive. And of course, that will meet all of 14 Title 24 . And of course, we recommend, although we don' t i 15 enforce, ADA. We recommend that it also be completely in 16 compliance with ADA. Other than that, no particular 17 problems . 18 MS . ROSS : Thank you. 19 Steve . 20 MR. JARVIS : Nothing other than the standard 21 commercial investment . 22 MS. ROSS : Thank you. 23 Henry. 24 MR. GREENE: I ' ll be issuing a set of standard 25 requirements for your project. In addition to those 15 YOUNGER REPORTING SERVICES 1 standard requirements, I had an opportunity to review the 2 MMRP for this project . And from a fire department 3 standpoint, the items that we were concerned with were 4 found on page 10, item numbers 28 and 29. And those items 5 had to do with fire flow requirements and also adequate 6 exit to the facility. What we would like for you to do is, 7 as you are preparing your detailed drawings, we want to be 8 able to determine what fire flow requirements are going to 9 be for this project so that we can review them in accord 10 with those requirements . 11 This project is going to require sprinkler 12 systems throughout all of the retail buildings . And in 13 addition, as far as the parking garage is concerned, what 14 we' re going to ask for in form of fire protection is that 15 the underside of all of the pedestrian bridges have the 16 sprinkler coverage provided so that that area is protected 17 as well . 18 And then within the parking structure, we want 19 wet standpipes in the parking structure so that no portion 20 of the parking garage on any level would exceed 200 feet 21 from that standpipe location. So you can -- as you' re 22 looking at your design, then you can incorporate those 23 features into your design criteria. Other than that, the 24 standard requirements that I will issue to you address our 25 other concerns. 16 YOUNGER REPORTING SERVICES 1 MS . ROSS : Thank you. 2 D.J. , I believe he addressed a question you 3 raised. 4 MR. JACKSON: Right . So you' re saying within 200 5 feet within the structure itself, then we' re possibly 6 looking at sprinklers . 7 MS . ROSS : He just said -- 8 MR. GREENE: Wet standpipes . 9 MR. JACKSON: Wet standpipes, okay. 10 MS . ROSS : Thank you. 11 Bill . 12 MR. BRYDEN: The water system in that area is 13 comprised of a 10-inch main that circles the entire project r 14 area. That particular water system is one of our larger; 15 it ' s a lower zoning system. Pressure is about 95 PSI . 16 And we have the capacity of providing in excess of 17 5, 000 GPM at literally any point in that looped system for 18 extended periods of time; "extended periods of time" being 19 significantly over four to six hours . 20 We do have one conflict with the structure 21 itself and the parking structure in that both of those will 22 encroach on an existing water main that serves the area. 23 So in terms of the development and the plans, we' ll have to 24 make provision to relocate that line prior to construction, 25 which will require dedication of new easements for the 17 YOUNGER REPORTING SERVICES 1 water facilities to go through and quitclaim of the 2 existing easements back to the developer. 3 It' s kind of a standard issue. It' s not a big 4 thing to worry about. It' s just one of those practical 5 things that we have to do in terms of development. It will 6 be the developer' s responsibility to pay for those and get 7 that work done. 8 Other than that, the environmental folks down 9 at the water treatment plant are requiring an industrial 10 waste discharge survey and permit application, which I ' ll 11 provide to the client . So in terms of water issues, our 12 primary concern is the time and relocation of that line and 13 re-dedication of easements for it. 14 MS . ROSS : Thank you. 15 Mark, do you have any questions of the 16 Committee or comments? 17 MR. OSTOICH: I think I understand what the comments 18 are, and I 'm going to look to my clients to see if there 19 are any questions from our side. 20 I think we' re fine . Thank you very much. We 21 understand the conditions of approval that are applicable 22 to this project and intend to implement them. 23 MS . ROSS: Okay. Let me ask a question and make a 24 statement to make sure I have this clear. The issues were 25 the sprinklers . Those will be shown on the plans that are 18 YOUNGER REPORTING SERVICES • 1 submitted to plan check. The same, Lynn, the compactors, 2 the trash, the refuse enclosures, those will be detailed on 3 the plan submitted to plan check. 4 Matthew, the arboreous report will be prepared 5 and completed, and that ' s prior to issuance of building 6 permits . 7 MR. SWALBERG: Correct . 8 MS . ROSS : Okay. Mike, you have the floor plans . 9 The path of travel will be shown on the plans submitted to 10 plan check, and that' s prior to issuance of a site 11 improvement plan; it can be shown on that plan also. 12 MR. GRUBBS : Yes . That' s right . 13 MS . ROSS : And the mitigation measures are straight 14 out of the MMRP. 15 MR. GRUBBS : Yes . That ' s correct . 16 MS . ROSS : Standard requirements . 17 Henry' s concerns are the same as D.J. ' s . 18 They will be shown on the plan at the time of submittal to 19 plan check. 20 MR. BRYDEN: Yeah, we would like to ask that the 21 existing water facilities be shown on the plans as well as 22 the proposed relocation for the conflict water utilities, 23 and that the location and size of water services for 24 domestic irrigation and fire services be shown on the 25 plans . 19 YOUNGER REPORTING SERVICES r- 1 MS . ROSS: Okay. Thank you. 2 Gus, do you have -- you have previously 3 recommended approval of this . I don' t believe you 4 discussed your conditions of approval . 0 5 MR. ROMO: I ' ll go ahead and do that now for 6 planning. In terms of the design of the building, we' re 7 satisfied with the proposal . We'd like a little more fi 8 clarification on the shading or the color of the parking t 9 structure as opposed to the Robinson' s-May. From what I 10 understand in looking at the new elevations, they will be 11 similar in color, if that ' s correct. 12 MR. LARSEN: I think it may be deceiving. We' re I 13 intending to use the color shown that' s shown in the lower 14 square. 15 MR. OSTOICH: Randy, would you identify yourself. 16 MR. LARSEN: I 'm sorry. Randy Larson of Altoon and 17 Porter Architects . 18 This was our original intention. This is the 19 Robinson' s-May building color here, and this is the parking 20 structure . It' s not accurately shown in the drawing. 21 MR. ROMO: All right. Okay. We do believe those 22 are similar in color, though, in comparison to the rest of 23 the mall . So I 'm trying to get some consistency with the 24 Gottschalk' s store and the other parts of the mall . 25 We were provided a new materials board which 20 YOUNGER REPORTING SERVICES 1 shows the Ameristone (phonetic) that will be going in the 2 front entry or the entry of the Robinson' s-May building, 3 and we find that acceptable. 4 Going over the conditions of approval for the 5 Planning Department, we' re stating that all mitigation 6 measures identified in the certified EIR and listed in the 7 mitigation monitoring and reporting program are 8 incorporated herein as project conditions of approval . 9 Demolition permits shall be obtained for the demolition and 10 removal of the portion of the mall associated with the 11 attachment of the Robinson' s-May. And also, the developer 12 shall indicate the location of the covered drop-off 13 facility for public transit riders adjacent to the mall, 14 and this shall be done prior to plan check submittal . 15 And it ' s already been discussed previously. 16 Apart from that, what I also discussed 17 previously and had given to the Applicant at the August 18 14th meeting was the GTE conditions of approval which we' ll 19 go ahead and note for the record. GTE noted that the owner 20 is to pay all relocation costs of GTE conduits and working 21 cables. That is all . 22 MS . ROSS: Thank you. Before I ask Gus for his 23 recommendation, are there any additional or further 24 comments or questions from any members of the Committee or 25 any members of the public? 21 YOUNGER REPORTING SERVICES 1 i I r 1 (No comments. ) 2 MS. ROSS: Gus, may I have your recommendation, 3 please. 4 MR. ROMO: Yes . The recommendation is to approve 5 Development Permit Type II Number 97-13 based on the 6 Findings of Fact and subject to the discussed conditions of 7 approval and standard requirements from this body. 8 MS. ROSS : Thank you. 9 May I have a motion to that effect. 10 (Motion moved. ) 11 (Motion seconded. ) 12 MS . ROSS : All in favor? 13 (Ayes . ) 14 MS . ROSS: Any opposition? 15 (None. ) 16 MS . ROSS : Thank you. 17 That concludes the items on the agenda. 18 I have the preliminary agenda for next week which I will 19 distribute and we can discuss in a minute. 20 (End of proceedings on Development Permit 21 Type II No. 97-13, 9: 41 a.m. ) 22 23 24 25 22 YOUNGER REPORTING SERVICES I II i 1 i 2 3 4 5 REPORTER'S CERTIFICATE 6 7 8 THE UNDERSIGNED SHORTHAND REPORTER DOES HEREBY 9 DECLARE: 10 11 THAT THE FOREGOING WAS TAKEN BEFORE ME AT THE TIME 12 AND PLACE THEREIN SET FORTH AND WAS RECORDED 13 STENOGRAPHICALLY BY ME AND WAS THEREAFTER TRANSCRIBED, SAID 14 TRANSCRIPT BEING A TRUE COPY OF MY SHORTHAND NOTES THEREOF. 15 IN WITNESS WHEREOF, I HAVE SUBSCRIBED MY NAME THIS 16 22ND DAY OF SEPTEMBER, 1997 . 17 18 -� 19 �� ���� 20 DAWN M. DAVILA, CSR NO. 8383, RPR 21 22 23 24 25 t 23 YOUNGER REPORTING SERVICES f Copy PLANNING COMMISSION MEETING OF THE CITY OF SAN BERNARDINO TRANSCRIPT OF PROCEEDINGS DATE AND TIME : TUESDAY, OCTOBER 7 , 1997 7 : 00 P .M. TO 8 : 39 P .M. f LOCATION: SAN BERNARDINO CITY HALL COUNCIL CHAMBERS 300 NORTH D STREET SAN BERNARDINO, CA 92418 JOB NUMBER: 7931DD REPORTED BY : DAWN M. DAVILA, C . S . R. , R. P. R. (C . S . R. NO. 8383) Younger Deporting cService's 6772 MAGNOLIA AVENUE RIVERSIDE, CA 92506 (909) 276-1 FAX (909) 276-1788 788 1 1 A P P E A R A N C E S 2 3 SAN BERNARDINO PLANNING COMMISSION: 4 (MEMBERS PRESENT : ) 5 CAROL A. THRASHER, CHAIRMAN 6 JOE SUAREZ 7 EVELYN J. LOCKETT 8 LARRY R. QUIEL 9 RICHARD A. GONZALEZ 10 THOMAS D. HAMILTON 11 12 (MEMBERS ABSENT : ) 13 ALFREDO ENCISO 14 VINCE GAFFNEY 15 JACK REILLY 16 WALT SCHUILING 17 18 STAFF MEMBERS : 19 20 MICHAEL HAYS 21 HENRY EMPENO 22 LINDA SUTHERLAND 23 VALERIE ROSS 24 GUSTAVO ROMO 25 L 2 YOUNGER REPORTING SERVICES 1 A P P E A R A N C E S 2 (CONTINUED) 3 4 REPRESENTATIVES FOR THE APPLICANT : 5 6 MARK OSTOICH - Gresham, Savage, Nolan 7 & Tilden 8 9 JOHN C . NOLAN Gresham, Savage, Nolan 10 & Tilden 11 12 13 REPRESENTATIVES FOR THE OPPOSITION: 14 15 MARLENE A. FOX - Law Offices of 16 Marlene A. Fox 17 18 19 20 21 22 23 24 25 ( 3 YOUNGER REPORTING SERVICES r 1 S P E A K E R S 2 NAME PAGE 3 4 MR. HAYS 5 5 MS . ROSS 6, 20, 39, 45 6 MR. EMPENO 7, 14 , 37, 42 7 MR. ROMO 9, 40 8 MR. OSTOICH 16, 46 9 MS . FOX 21 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 YOUNGER REPORTING SERVICES i �... 1 TUESDAY, OCTOBER 7, 1997 SAN BERNARDINO, CA 2 3 MS . THRASHER: Will the meeting please come to 4 order . 5 Commissioner Lockett, would you lead us in the 6 flag salute . 7 (Flag salute . ) 8 MS . THRASHER: Would Staff please administer the oath 9 to anyone wishing to give testimony this evening . 10 MS . ROSS : Any members of the public wishing to 11 address the Planning Commission tonight, and the project 12 proponents, please stand and raise your right hand. 13 (Public sworn . ) 14 MS . THRASHER: Next item is the planning director ' s 15 report . 16 MR. NAYS : Madam Chairman, Commissioners, good 17 evening . Actually, I have nothing to report to you as far 18 as any recent Council action on any planning activities . 19 There will be several items going to Council next month, 20 but we haven ' t had any items either appealed or going from 21 your Commission, recently, to Council . 22 I would, however, like to introduce one of our 23 most recent staff members for the planning department . 24 Joe Bellandi, Associate Planner. 25 Joe, would you stand, please . 5 YOUNGER REPORTING SERVICES i rr 1 I 'm sorry. Harriet Laing, also, both new 4 2 Associate Planners . I 'm sorry, Harriet . I didn ' t see you 3 back there . So both Harriet and Joe are our most recent 4 additions to the planning department . We ' re fully staffed 5 now, and I 'm looking forward to having them before your 6 Commission here fairly, you know, soon . So it ' s good to 7 have them on board, and I ' d like to have you recognize 8 them and welcome them. 9 MS . THRASHER: Welcome . 10 MR. HAYS : And that ' s all I have on the director ' s 11 report this evening . Thank you . 12 MS . THRASHER: Thank you . 13 Now is the time if anyone in the public has 14 something on a nonagenda item they wish to speak on. 15 Seeing none, is there any Commissioner that 16 has any nonagenda item they would like to speak on? 17 Seeing none, we ' ll close public comments . 18 The consent agenda, Staff, what are you 19 recommending on the consent agenda this evening? 20 MS . ROSS : Staff is recommending Items 2 and 3 on the 21 consent agenda and none of the minutes . I don ' t believe 22 we have a quorum for any of those . 23 Item Number 2 is Tentative Tract Number 14193, 24 and this is a request for an extension of time . And this 25 is the final extension from October 9, 1997, to 6 YOUNGER REPORTING SERVICES 1 October 9, 1998 . And this is to establish a 76-lot 2 single-family residential subdivision in the RS, 3 Residential Suburban, land use district with a minimum lot 4 size of 7200 square feet . The property is located at the 5 southeast corner of Ohio Avenue and Olive Avenue . 6 Staff make the recommends that the 7 Planning Commission approve the request for the final 8 extension of time for Tentative Tract 14193 based on the 9 previously approved findings of fact, subject to the 10 conditions of approval and standard requirements . 11 Item Number 3 is Conditional Use Permit Number 12 97-17 and Variance Number 97-10 . The Applicant has 13 requested a continuance until October 21st . Staff concurs { 14 with that continuance and recommends that this item be 15 continued for two weeks . That concludes the consent 16 agenda . 17 MS . THRASHER: Is there any Commissioner wishing to 18 pull either Items 2 or 3? Anybody -- yes . 19 MR. EMPENO: Madam Chairman, I believe we have a 20 quorum to take action on the minutes for 21 September 2, 1997, but not a quorum present who were 22 previously present at the other two 23 Planning Commission meetings with minutes . 24 MS . THRASHER: All right . So did anyone in the 25 audience wish to pull items -- either Item 2 or 3 for 7 YOUNGER REPORTING SERVICES 1 discussion? i 2 MEMBER OF THE PUBLIC : Could I get an agenda so I 3 know what items we ' re discussing? 4 MS . THRASHER: What item -- 5 MEMBER OF THE PUBLIC : Item 3 . I would like to 6 discuss Item 3 . 7 MS . THRASHER: Item 3 is a continuance . You wanted 8 to discuss that? 9 MEMBER OF THE PUBLIC : I would like to voice my 10 opinion on it . Should I go to the podium? 11 MS . THRASHER: On whether we continue that item or 12 not? 13 MEMBER OF THE PUBLIC : Yes . ( 14 MS . THRASHER: If you would like to go to the 15 microphone and identify yourself. But before you do that, 16 let me -- go ahead and go to the microphone, but Items 1, 17 2, 3, and 4 are final unless appealed to the Mayor and 18 Council . Decisions of the Planning Commission are final 19 concerning conditional use permits, development permits, 20 tentative tract maps and variances, unless appealed to the 21 Mayor and Council . Appeals to the Mayor and Council must 22 be made in writing, stating the grounds for the appeal, 23 and must be submitted to the Planning and Building 24 Services Department along with the appropriate fee within 25 15 days of the decision . t ( 8 YOUNGER REPORTING SERVICES l i i i 1 General plan amendments and amendments to the 2 municipal code will automatically be forwarded to the 3 Mayor and Council for final action . 4 If you challenge the resultant action of the 5 Planning Commission in court, you may be limited to 6 raising only those issues you or someone else raised at 7 the public hearing described in this agenda, or in written 8 correspondence delivered to the City Planning Division at, 9 or prior to, the public hearing. 10 Individual testimony will be limited to five 11 minutes per person . 12 Yes, sir . Please, Item Number 3 . 13 (Item Number 3 discussed. ) 14 MS . THRASHER: Next item, Item Number 4 . 15 MR. QUIEL : Madam Chairman, I will have to abstain 16 from Item Number 4 because of a working relationship 17 ongoing that I 've had with the Inland Center . 18 MS . THRASHER: Let the record show that Larry Quiel 19 is abstaining due to a working relationship with the 20 Inland Center . 21 MR. QUIEL : Thank you, Madam Chairman . 22 (Commissioner Quiel left the Commission 23 Panel . ) 24 MR. ROMO: Good evening, Commissioners . This is the 25 appeal of the Development Review Committee ' s approval of 9 YOUNGER REPORTING SERVICES 1 Development Permit Type II Number 97-13, which was 2 approved on September 11th, 1997 . The Appellant in this 3 case, Carousel Mall or Central City Company, is appealing 4 this approval , which is the initiation of the first phase 5 of the Inland Center Mall expansion project to construct a 6 two-level department store and a four-level parking 7 structure . Subject property is located at 8 500 Inland Center Drive . 9 Again, the Appellant is asking that the 10 Planning Commission overturn the DRC ' s approval . It 11 should be noted for the record that neither the Appellant 12 nor the representative was present at the DRC meeting of 13 September 11th, 197 . 14 Development Agreement Number 91-01 was 15 approved by the Mayor and Common Council on 16 April 1st, 196, which authorized, in concept, the addition 17 of up to a total of three new anchor stores at 18 Inland Center Mall . In connection with the development 19 agreement, an EIR, Environmental Impact Report, was 20 prepared pursuant to the California Environmental 21 Quality Act, and also certified on April 1st, 1996, by 22 City Resolution Number 96-84 . 23 Development Permit Type II Number 97-13 was 24 submitted to Staff on July 24th of this year and scheduled 25 for review by the DRC on August 14th, 1997 . The DRC 10 C YOUNGER REPORTING SERVICES i 3 1 commented on the project, requested revisions to the 2 plans , and continued the item. The item came back to the 3 Development Review Committee on September 11th, ' 97 , al- 4 which time the DRC found that the project met all the 5 provisions of the development code and approved it with 6 conditions and standard requirements . 7 Now, the Appellant ' s grounds for appeal are 8 four points, which I ' ll go ahead and state . Henry will 9 end up looking at two of the points and going over those 10 with you . 11 Point Number 1, the Appellant states that they 12 were denied due process rights and precluded from 13 effective representation and participation in the DRC 14 meeting of September 11th, 197, by not receiving the 15 proposed findings of fact, conditions of approval, and 16 other documents pertaining to the review of this 17 development permit . 18 Point Number 4 , the Development Review 19 Committee had inadequate facts and information on which to 20 base its approval of the development permit . I ' ll go over 21 those two points, and I ' ll allow Henry, like I stated, to 22 go over Points Number 2 and 3 . 23 Based on Point Number 1, the Appellant did 24 receive all the information that was available in the case 25 file each time a request was made . The findings of fact { 11 YOUNGER REPORTING SERVICES 'I i 1 were distributed at the September 11th, 197 , DRC meeting 2 and read into the record prior to the Committee ' s action . 3 The conditions of approval from the planning division were 4 also available that morning in draft form, although the 5 conditions of approval and standard requirements were 6 received during the meeting and not available in final 7 form until the following day, September 12th . 8 This is standard operating procedure for items 9 going before the DRC, to present the conditions and 10 standard requirements to the Applicant during the meeting 11 verbally and in draft format . The final conditions, 12 standard requirements, and letter of approval are collated 13 and given to the Applicant following the Development 14 Review Committee meeting. 15 Point Number 4 , that the Development Review 16 Committee had inadequate facts of this, again, is 17 incorrect . Development Permit Type II 97-13 was routed to 18 the DRC on July 28, ' 97, for review. At the DRC meeting 19 of August 14th, 1997, the Committee asked for a site plan, 20 floor plan, and elevation revisions . Revised plans were 21 received by Staff and routed to the DRC on 22 September 4th, 1997 . 23 Now, after reviewing the proposal once again, 24 with the revisions requested, the DRC approved 25 Development Permit Type II 97-13 . All facts and 12 YOUNGER REPORTING SERVICES i I 1 information were presented to the DRC since the project ' s 2 first submittal on July 24th of this year . Again, revised 3 plans were requested to clarify questions brought up by 4 the DRC on August 14th pertaining to building design, 5 handicapped access, fire sprinklers, landscaping, and a 6 more detailed building floor plan, which the DRC ended up 7 receiving. 8 In conclusion, the proposed initiation of 9 Phase I of the Inland Center Mall expansion, consisting of 10 a department store and a parking structure, was found to 11 be in conformance with the general plan and development 12 code . Furthermore, the project was found to be within the 13 scope of the project analyzed in the Certified EIR, and 14 therefore, did not require further environmental review 15 pursuant to CEQA Public Resources Code Section 21166, and 16 CEQA Guidelines 14 , CCR Section 15162, as outlined in 17 Attachment C, which is our environmental compliance review 18 for this project . 19 Staff recommends that the hearing be closed, 20 that the Planning Commission deny the appeal and approve 21 Development Permit Type II Number 97-13 based on the 22 attached findings of fact and subject to the conditions of 23 approval and standard requirements . That concludes my 24 report . 25 MS . THRASHER: Yes, Mr . Empeno . 13 YOUNGER REPORTING SERVICES i 1 MR. EMPENO: Madam Chairman, if I may, I would like 2 to address the second and third grounds of the appeal 3 that ' s pending before you of this development permit . 4 In your documents attached to the Staff report as 5 Attachment D, I furnished the Planning Commission with a 6 copy of a memorandum to the Planning Commission with an 7 attachment to it providing a response to those two grounds 8 of the appeal, the second and third grounds of the appeal . 9 As you can probably see from the appeal 10 letter, both the second and third grounds of the appeal 11 refer to pending court cases in the City -- in the 12 San Bernardino County Superior Court . As I stated in my 13 response memorandum, the facts and characterization of the 14 court cases in the appeal letter are misstated. 15 The Court has not issued an order or a 16 judgment which invalidates the development agreement 17 91-01, nor has the Court invalidated the Resolution 96-84 , 18 which approved the development agreement and certified the 19 Final Environmental Impact Report . 20 Judge Edwards at the court has only directed 21 that the City vacate and set aside its certification of 22 that portion of the final EIR that pertains to the 23 multi-screen theater complex . I ' ve attached to my 24 memorandum a copy of the Mayor ' s Executive Order 97-1 25 which complies with that court order. With the issuance 14 YOUNGER REPORTING SERVICES 1 of the Mayor ' s executive order, the City can process and 2 approve this Development Permit 97-13, and that action 3 would be consistent with the Court ' s decision . 4 If the Planning Commission has any questions , 5 I 'm happy to answer them. As I stated in the memorandum, 6 I have reviewed the judgment, the writ of mandate, and the 7 statement of decision that ' s been served upon the City . 8 And we believe that the action that ' s pending before the 9 Planning Commission for its approval of this development 10 permit, denial of the appeal is consistent with the 11 Court ' s decision . 12 MS . THRASHER: Thank you . Do you have a question 13 Commissioner Gonzalez? 14 MR. GONZALEZ : Yes, is that case over? I mean, is 15 that still pending? 16 MR. EMPENO: There are two court cases pending. The 17 CEQA action, California Environmental Quality Act 18 challenge is the court case where the judge has issued a 19 judgment and a writ of mandate and statement of decision. 20 The second court case is still pending and is set for 21 hearing. But in that case, there has been no temporary 22 restraining order, preliminary injunction issued by the 23 Court, which would prohibit this Planning Commission from 24 denying the appeal and approving the development permit . 25 MR. GONZALEZ : And what is that pending case? 15 YOUNGER REPORTING SERVICES 1 What ' s that about, in essence? f 2 MR. EMPENO: The pending case basically challenges 3 the actions of the City Council in approving the 4 development permit, based on arguments that their actions 5 are inconsistent with the City ' s municipal code ordinances 6 as well as with state law in various respects . Excuse me, 7 I think I misspoke and said "development permit . " I meant 8 development agreement, Development Agreement Number 9 91-01 . 10 MS . THRASHER: If there are no further questions, is 11 that all of Staff ' s presentation for now? 12 MR. ROMO: Yes . 13 MS . THRASHER: Does the Applicant wish to speak? s 14 MS . FOX: Do you want the Applicant or the Appellant? 15 MR. OSTOICH: We ' re the Applicant, but not the 16 Appellant . 17 MS . THRASHER: All right . Let ' s hear from the 18 Applicant, please . 19 MR. OSTOICH: I ' ll be brief . 20 Thank you . My name is Mark Ostoich, 21 0-s-t-o-i-c-h, 600 North Arrowhead Avenue, San Bernardino, 22 92401 . I 'm appearing on behalf of the Applicant in this 23 matter . And I want to first say that we concur completely 24 in the Staff ' s position on this and Staff ' s analysis and 25 the analysis of the City Attorney ' s office related to the 16 k YOUNGER REPORTING SERVICES I status of the litigation . So I really don ' t want to add 2 anything in addition to that . I think it ' s been covered 3 very adequately . 4 There are a couple of brief points that I do 5 want to make . I saw a copy of the letter that you 6 received from Central City Company that discussed a number 7 of environmental issues related to the Inland Center 8 project . These issues were all related to alleged seismic 9 hazards at the site, and the alleged danger to occupants 10 of the site if this development is allowed to go forward. 11 As I read the letter and looked at the 12 enclosures, which consisted of a number of old newspaper 13 articles, minutes of meetings before your body back in 14 1996 and the City Council, I had two thoughts . The first 15 thought was either Mr . Curci is mistaken about what he ' s 16 saying in the letter, or everyone in this valley is 17 really in -- should be in great concern about their 18 safety. 19 The second thought that is probably more 20 germane to tonight ' s proceeding, however, is that all of 21 these issues that were discussed in his letter were 22 raised, to a great extent, in 1996 when we appeared before 23 you, and later when we appeared before the City Council . 24 Central City ' s attorney and consultants put massive 25 documents into the administrative record, as did the City, t 17 YOUNGER REPORTING SERVICES 1 and as did we . 2 The administrative record of that proceeding 3 is nearly 15, 000 pages long, most of which consists of 4 technical studies that were prepared by various 5 consultants for their side, various consultants for our 6 side, and consultants for the City. That administrative 7 record later became the subject of litigation in the 8 San Bernardino County Superior Court, as Mr . Empeno points 9 out . 10 And the result of that litigation was a 11 judgment which was handed down in September, in fact, 12 signed by Judge Edwards in September, that found that the 13 Environmental Impact Report, insofar as it relates to the 14 subject matter that we ' re dealing with tonight, is 15 adequate, legally adequate . And the mitigation measures 16 that were recommended, and that would include, but not be 17 limited to, mitigation measures related to seismic issues 18 on the site were reasonable and adequate . 19 And consequently, the matters that Mr. Curci 20 devoted so much attention to in his letter are really not 21 up for consideration this evening. Those matters have 22 been resolved to the satisfaction of the Superior Court . 23 What is really before you this evening is the development 24 permit, as Staff has correctly pointed out . It ' s an 25 application which seeks to have review of the ( 18 YOUNGER REPORTING SERVICES i 1 compatibility of a project with zoning requirements and i 2 development standards within the City ' s development code . 3 It ' s very easy, in reading Mr . Curci ' s letter, 4 to get confused and to almost be overwhelmed with the S enormity of the issues he ' s raised. But I want to ask you 6 this evening to focus on the issues that are truly before 7 you . I don ' t know if in their presentation they are going 8 to raise these other issues again, but in anticipation of 9 that, I just wanted to say a few words and ask you to not 10 be misled by the focus of this evening . This evening ' s 11 focus is really design- -- and as Staff has pointed out, 12 matters not related to the basic environmental issues that 13 Mr. Curci discussed in his letter. 14 And that ' s really all I have to say. Thank 15 you very much for your time . And I would be happy to 16 return to the podium later in the evening and answer any 17 questions you have about the project . Thank you . 18 MS . THRASHER: Thank you. 19 Before the Appellant comes before us, I would 20 like to ask either our attorney or Staff, I received this 21 packet from the Central City Company, just like I think 22 everybody did. And I want to make sure that already 23 mitigation measures are in place for these liquefaction 24 issues and seismic issues . 25 It ' s my understanding before a permit for ( 19 YOUNGER REPORTING SERVICES 1 grading would be issued, that there would have to be 2 clearance by scientists, technical people, engineers, that 3 would have to pass that project or pass those issues, 4 their approval, before this project could go forward. Is S that correct or -- 6 MS . ROSS : That is correct . Incorporated into the 7 City ' s approval, the Development Review Committee ' s 8 approval, are various conditions and standard 9 requirements, and the entire mitigation monitoring 10 program, which includes the seismic and liquefaction 11 conditions and mitigation measures . In particular, that 12 certain studies be prepared, completed, and submitted, 13 reviewed by the City prior to issuance of either grading 14 permits or building permits . 15 MS . THRASHER: So whatever measures would be required 16 would have to -- no matter what the cost or what it is, it 17 would either have to be done, or the project would not be 18 approved for going forward? 19 MS . ROSS : That is correct . And the final design of 20 the building is contingent upon anything that may or may 21 not, as the case may be, be determined through these 22 studies . 23 MS . THRASHER: Thank you . I believe Marlene Fox is 24 the attorney for the Appellant . Please give us your name 25 and address for the record. 20 YOUNGER REPORTING SERVICES 1 MS . FOX: Good evening, Madam Chairman, members of 2 the Commission . My name is Marlene Fox; I 'm an attorney. 3 My office address is 2031 Orchard Drive in Newport Beach, 4 and I represent the Central City Company. 5 And Madam Chairman, the last time I had the 6 pleasure of appearing before this Commission, and I 7 remember the discussion that you had on the record, was 8 March 19, 1996 . And frankly, this case has gone on so 9 long, it really seems like it was just a couple months 10 ago . 11 There is a lot about the appeal that we 12 filed. I would have to concur, in some respects, with the 13 City Attorney ' s office . There is a lot about the appeal 14 that is very legalistic in nature . And having been 15 involved with permitting and land use and environmental 16 law for longer than I should admit, but 25 years, I 17 understand that certain of those legal issues cannot be 18 decided by this forum. But I know that you understand 19 that we ' re obligated to raise them, nevertheless, because 20 that ' s what the law says . We ' re obligated to raise them 21 at this time . 22 And Madam Chairman, before I say anything 23 further, when you began, when you opened your proceeding 24 tonight, you were very specific about allowing speakers 2S five minutes, and I would request a longer period of 21 YOUNGER REPORTING SERVICES 1 time . I would not be able to make our presentation in 2 five minutes . I could possibly make it in 15 or 20 3 minutes . But every time I make a time estimate, the 4 opposition starts to laugh, because they say I never live 5 up to my estimates, I always exceed them. But I ' ll try 6 very hard not to . 7 You ' re in an interesting position tonight, 8 because you have to follow the advice -- or generally, you 9 do follow the advice of your City Attorney ' s office, and 10 you 've listened to the Applicant ' s agent who is also an 11 attorney, Mr . Ostoich, and then they have their trial 12 counsel here, Mr . Nolan . So you are, unfortunately for 13 you, bombarded with attorneys tonight . And I think that •`' � 14 you know the old adage, if you put that many attorneys in 15 a room, you ' re going to get that many opinions . 16 But you are, nevertheless, in an interesting 17 position, because what you ' re being asked to do is to look 18 at this Type II -- Development Permit Type II 97-13, to be 19 specific, for the Robinson ' s-May department store and the 20 parking structure, and you ' re being asked to harken back 21 to 1996, to April 1 when the City Council took the vote to 22 certify the EIR and to approve the development agreement, 23 and to rely on what happened then, and then on a judgment, 24 which we have a very different interpretation of the 25 judgment that was issued. 22 YOUNGER REPORTING SERVICES 1 And let me just -- well, before I digress and 2 get into that, you ' re nevertheless being asked to rely on 3 these things by other people when there are a whole set of 4 facts and common sense that will tell you, as Planning 5 Commissioners, that there is something very wrong with 6 this development -- with the approval of this development 7 permit, notwithstanding what the Council did, 8 notwithstanding what any judge did. And it will be very 9 interesting to see what the Fourth District Court of 10 Appeals does with it, because that ' s where it ' s going 11 next, obviously. 12 At any rate -- and I say that for this reason. 13 You ' re dealing with a site that you know, it ' s in your 14 general plan, it ' s in your city code, that is subject to 15 high liquefaction . As Planning Commissioners for the City 16 of San Bernardino, you are bombarded with information not 17 just from the Central City Company, but from all different 18 governmental agencies around the state with regard to 19 seismicity and earthquake problems, and you know the 20 problems for this area . You know how sensitive it is ; you 21 know how many earthquakes there have been along the 22 San Jacinto fault line . You know the area you ' re in. You 23 know the water table . You know all these things . 24 And this is common sense . It doesn ' t matter 25 what the resolution says ; it doesn ' t matter what the 23 YOUNGER REPORTING SERVICES 1 development agreement says ; it doesn ' t matter what 2 Judge Edwards said based on the legal documents he read. 3 You know this . This is information that you had long 4 before we came to you to discuss this, and long before the 5 Inland Center Mall ever came to you to expand that 6 shopping center. You know the hazards . 7 You know about the junior college just 8 hundreds of feet away that have had to shut down some of 9 their buildings because it was discovered that they have 10 fault lines running under the buildings, and they ' re 11 wondering where they ' re going to get the money to 12 relocate . I mean, this is in your papers day after day, 13 week after week, month after month, and I 've only been 14 involved out here since 1992 . So you know this 15 information . You live here; you work here; you ' re 16 concerned with good planning for the City of 17 San Bernardino . 18 So you have that information, then you have a 19 resolution that was approved by your City Council on 20 April 1, 1996 . And this resolution right in the title of 21 it, 96-84, says it certifies the Environmental Impact 22 Report, adopts facts, findings, and statements of 23 overriding consideration, and a mitigation monitoring 24 reporting program, and it adopts and authorizes 25 Development Agreement 91-01 to govern the expansion of the , i 24 YOUNGER REPORTING SERVICES 1 Inland Center Mall . 2 You have one resolution that does all those 3 things . There is nothing in this resolution, there is not 4 one sentence in this eight-page resolution that suggests 5 that any part of this resolution is severable . So if 6 there is anything wrong with any part of the resolution, I 7 don ' t believe, by a stroke of the Mayor ' s pen, he can act 8 on behalf of the Council and simply say, "Abracadabra, I 9 excise out anything having to do with movie theaters, " 10 because the judgment that the judge signed September 17th 11 is he issued a writ of mandate to the City of 12 San Bernardino . And that writ of mandate says, "You will 13 set aside your decision, at least that portion of it, that 14 deals with movie theaters . " 15 How do you issue the Mayor ' s one-page 16 declaration, I guess you would call it, executive order, 17 whatever you want, give it any name you want to give it, 18 and then just simply say, "Anything that has to do with 19 movie theaters for the Inland Center Mall is no longer 20 part of this"? Come on, your common sense tells you that 21 doesn ' t work legally. You don ' t need me to stand here 22 before you to tell you that . Your City Attorney knows 23 that ' s not going to stand up. They ' re going to tell you 24 tonight that it does, so will the opposition, so you ' ll 25 get three different viewpoints . But you know that ' s a 25 YOUNGER REPORTING SERVICES k 1 joke as much as I do . I mean, it ' s really comical the way 2 this is being done . 3 So you have a development agreement under your 4 development code that says that this development 5 agreement -- or our -- your development code starts out by 6 saying it ' s intended to follow the state law, because 7 development agreements are a creature of statute . Now, I 8 know you ' re a charter city and you ' re going to hear all 9 about that, so you don ' t have to follow state law. Well, 10 sometimes you don ' t . It ' s right in the government code; 11 it says you don ' t in some instances . 12 However, where you specifically adopt that 13 state law, you do . And that ' s what you did in this case 14 when you wrote your municipal code section dealing with 15 development agreements . 16 Now, the interesting thing about a development 17 agreement is it only pertains to the parties who are part 18 of the agreement . In this instance, if you look at the 19 development agreement, it ' s between the City of 20 San Bernardino and Mano Management, period. Period, end 21 of description in terms of parties . 22 Now, we know that the Inland Center Mall 23 consists of four legal parcels . In fact, there may be 24 five . I may be incorrect saying there are four. I don ' t 25 know whether the two parcels owned by Mano Management, 26 YOUNGER REPORTING SERVICES 1 Parcel 3, have been legally merged, or whether they are 2 actually two separate parcels . But if you look at the 3 ownership interest, there are, as far as I know, four 4 separate legal parcels . Mano Management owns legal 5 Parcel 3 . 6 It would seem that the project that ' s before 7 you is basically on Parcel 3, except that it also 8 encroaches over on Parcel 4 . Parcel 4 is not part of this 9 development agreement . I don ' t care what the attorneys 10 tell you . And again, you know, you ' re going to hear 11 varying -- every attorney is going to tell you something 12 different . It can ' t be part of this development 13 agreement, because the people that own Parcel 4 are not 14 signatories to this agreement . Only Mano Management is a 15 signatory to this agreement . 16 So you have part of this project -- 17 incidentally, it ' s also an interesting question, common 18 sense tells you if somebody comes to your city and wants a 19 permit for approval of anything, whether it ' s a 20 subdivision map, conditional use permit, a development 21 permit, under your code, they have to satisfy you that 22 they are the legal owner . 23 So in the first development agreement DRC 24 meeting -- by the way, Mr . Romo made a point of saying 25 that I was not -- that the Appellant was not represented 27 YOUNGER REPORTING SERVICES { - , 1 September 11th . He failed to tell you, however, that we 2 did attend the first development agreement, the DRC 3 meeting. And that was -- I believe it was August 14th . 4 In fact, I have for you, and I would like -- if I have 5 permission, Madam Chairman, I would like to submit into 6 the record, I have copies of court reporter verbatim 7 transcripts of the DRC meetings of the 14th of August and 8 September 11th on the item that ' s before the Commission 9 right now. And I -- well, let me get back to what ' s 10 interesting about this . 11 So you have a resolution that ' s not severable, 12 but you have a document by the Mayor that says, "I excise 13 out movie theaters . " You have a development agreement 14 that ' s signed by two parties that purports to include 15 other people that have never been before you . But even 16 more interesting than that, you have a development 17 agreement that ' s not even signed by a representative, by 18 an employee or an officer, an authorized officer, of 19 Mano Management . 20 On April 1, 1996, before the Council, a man 21 named Steven W. Partridge was introduced by Mr. Ostoich . 22 He was introduced as a vice president of 23 Equitable Real Estate, a consulting firm. And he was 24 introduced as a consultant for the owner, Mano Management, 25 Inc . Mr. Partridge got up and made a presentation to the 28 YOUNGER REPORTING SERVICES Now 1 Council, and confirmed that he was indeed vice president 2 of Equitable Real Estate, and that they had been advisors 3 and consultants to Mano Management for some time . 4 Now, if you look at the development agreement 5 that ' s been recorded, you will see on the signature page 6 that there are signatures for just two parties . And 7 that ' s on page 20 of the development agreement, and it is 8 signed on behalf of the City of San Bernardino by 9 Mayor Tom Minor, and by the developer Mano Management 10 Company, Inc . , it ' s signed by their consultant, not by an 11 officer of Mano Management or an employee of 12 Mano Management . And since I raise this issue, and it ' s 13 now -- it has yet to come before the Court, the court date 14 is the 25th of this month, they are now taking the 15 position -- the Applicant now takes the position, "Well, 16 it doesn ' t matter, because Mano Management, by virtue of 17 being silent, has ratified that . " 18 There is nothing in your code, there is 19 nothing in the State code that says a consultant can come 20 in and do this . This is against everything that you do 21 with regard to permit applications in this city, as well 22 as in this county, as well as in every other city around 23 the state . Wherever you go, I started to say earlier, for 24 a CUP, a subdivision map, a variance, a development 25 permit, the first thing you have to provide to the { 29 YOUNGER REPORTING SERVICES 1 planning department is proof of ownership . And if you are 2 an agent or a representative, you have to come in with a 3 letter from the owner . 4 So they can say they ratify this, but what 5 protection does the City have, and how can you give 6 another development permit when you ' re basing it on a 7 development agreement that ' s not even signed by one of the 8 two parties? What happens if something goes wrong and 9 there is liability? Can the City go after 10 Mano Management? Can they object at that point if there 11 is a lot of money involved, because they can say, "Well, 12 this was a mistake . We never authorized Steven Partridge 13 to sign this"? But that ' s a legal question, and your 14 attorneys and the opposition are going to tell you, "Oh, 15 no . They ratified it . That can never happen . " Think 16 about that . So you ' re in an interesting position . 17 Then we get to the development review, and we 18 start with the first hearing in August . Now, 19 Madam Chairman, you may remember that in March of 1996, 20 one of my biggest beefs at that time was the fact that we 21 had written to the City, to different offices of the City, 22 to the City Attorney ' s office, to the planning department, 23 to the City Clerk, repeatedly asking to be kept informed, 24 to be allowed the opportunity to participate in the 25 approval process for the Inland Center Mall expansion. We 30 YOUNGER REPORTING SERVICES 1 constantly had to fight for documents . 2 And at that hearing, as late as when that 3 hearing started, the Staff was handing out new and 4 additional documents not only to us, but to the 5 Planning Commission . That was an issue before this 6 Commission last March, and I think was one of the reasons 7 the Commission, in March, voted to deny certification of 8 the EIR, and voted to deny approval of the development 9 agreement, because that was the Commission ' s vote on March 10 19th . 11 MR. EMPENO: Excuse me, Madam Chairman . If I may 12 interrupt, I just would like to note for the record that 13 the Planning Commission Secretary has informed me that 14 Ms . Fox has been speaking for more than 15 minutes . And I 15 would ask the Chair to provide some time limit to her 16 presentation, since she ' s already exceeded the time that 17 she was initially requesting . 18 MS . THRASHER: Well, I was waiting to hear the bell 19 go off to -- for five minutes, and then we would discuss 20 it . 21 Miss Fox, I know that some of the things 22 you ' re bringing out are for the reason of legal action, 23 and the thing that I -- the statement that I read into the 24 record, that these things have to be brought up to be 25 challenged in court, I believe . But I 'm going to ask you 31 YOUNGER REPORTING SERVICES I to please try to be brief. And how much longer do you 2 think you ' re going to require? 3 MS . FOX: I think I could wrap up in 10 or 12 4 minutes . 5 MS . THRASHER: All right . 6 MS . FOX: Thank you, Madam Chairman . I appreciate 7 the courtesy. ,I 8 The first ground -- let me go specifically to 9 the grounds of the appeal . The first one has to do with 10 the fact that we feel we were denied a fair hearing. 11 Your Staff has told you that that ' s standard operating 12 procedure for them to come in with conditions of approval 13 and documents at their DRC meeting. Well, that really 14 makes it very, very hard for anybody to participate in 15 good faith in that meeting . 16 And the reason I tell you, if you will look at 17 the September 11th transcript, the court reporter 18 transcript that I made available, you will see that 19 attached to that transcript, there are about 15 pages of 20 documents that are findings, that are environmental 21 review, that are standard conditions, none of which were 22 available as late as 4 o ' clock the day before . But yet 23 they' re available for the 9 o ' clock DRC meeting . 24 And if you look at them, Staff states that 25 these were in draft form. The documents attached to the 32 NEW YOUNGER REPORTING SERVICES e 1 court reporter transcript are the ones that were available 2 at 9 o ' clock in the morning on the 11th . So I can only 3 assume that your Staff stayed until 11 or 12 o ' clock at 4 night to get these ready -- since they weren ' t ready at 5 4 o ' clock in the afternoon, to get these ready for 6 9 o ' clock the next day. In any event, it makes it 7 virtually impossible for anyone else to come in there and 8 participate in a meaningful fashion . I 'm sure you can 9 appreciate that . 10 Let me point to certain specifics about those 11 documents that we were not aware of prior to the time we 12 received these . If you would look, there are standard 13 requirements from the San Bernardino Municipal Water 14 Department . Now, these are substantive issues . These are 15 not rehashed issues ; these are new issues . This is dated 16 August 12th, 1997 . This is the document I was told on 17 September 10th at 4 o ' clock wasn ' t available, and yet it ' s 18 dated August 12th, 1997 . And if you look down under 19 there, it says, "Water Department Engineering, " and it has 20 a contact name "Bill Bryden. " And one of his comments, 21 midway in the page, reads, "Relocation of existing 10-inch 22 water main and attendant easements . " 23 Now, my question is if this was known on 24 August 12th, this didn ' t come up on the 14th, the document 25 wasn ' t available on the 14th for the first DRC meeting. I 33 YOUNGER REPORTING SERVICES 1 was told that it wasn ' t available at 4 o ' clock in the 2 afternoon of September 10th, but yet it was available at 3 9 o ' clock in the morning on September 11th . 4 I maintain that the relocation of that 10-inch 5 water main and the attendant easements require a CEQA 6 review. There is nothing in the Certified Environmental 7 Impact Report that addresses relocation of that 10-inch 8 water main or the associated easements ; there is nothing 9 in the Certified EIR that addresses excavation; there is 10 nothing in the EIR that tells where that will be relocated 11 or how much excavation will be . First, we ' re digging up 12 the old one, and then we ' re relocating it to a second 13 point . t`IMFN 1 14 So you don ' t have CEQA review for that . You 15 can ' t rely on the Certified EIR, because it ' s a fact that 16 was never known before . And I would have to question why 17 couldn ' t we have been told about this prior to after, you 18 know, the close of the hearing on the 11th? That ' s just 19 one . Excuse me, Madam Chairman, I want to get to the next 20 substantive item. 21 In addition, if you look at the standard 22 requirements, there is documentation from GTE . The 23 documentation from GTE refers to relocation of conduits 24 and cables . Well, what are we talking about here? Now 25 much excavation is involved? And if these have to be 34 YOUNGER REPORTING SERVICES 1 relocated, I understand from the GTE memo that wasn ' t made 2 available until after the September 11th hearing, and it 3 wasn ' t available September 10th, I understand that this 4 structure, these conduits and cables are under the 5 structure -- or where the structure -- part of the 6 structure is to be . They have to be relocated. So where 7 are they going to be relocated? And how much excavation 8 will there be? And how many trucks will there be that are 9 going to transport what ' s being excavated? 10 So those are CEQA issues that have never been 11 addressed. They ' re not in any Certified EIR; they' re not 12 addressed in any mitigation monitoring plan that was 13 approved in April 1996 . 14 The fourth ground that I pointed out was 15 inadequate information . If you look at the August 14th 16 transcript, what you ' re going to see is that one of the 17 staff -- and I don ' t know whether it was Mr. Grubbs or 18 another staff member -- raised the issue of the proposed 19 structure for the department store Robinson ' s-May and the 20 parking structure, shows an encroachment on another legal 21 parcel . 22 In other words, what they' re proposing is not 23 situated on a single parcel, but on multiple parcels . And 24 Staff at the DRC, on the 14th of August, asked how that 25 was going to be resolved. And then if you look, there is { 35 YOUNGER REPORTING SERVICES 1 a little bit of double-talk by Mr . Ostoich who sort of 2 shuffles his feet and says, "Well, we usually do that -L by, um, um, easement, um, reciprocal easement . " 4 Does that reciprocal easement exist today? 5 Did it exist September 11th? If it didn ' t, how did Staff 6 approve this development permit when it ' s on more than one 7 parcel, and you have a single Applicant? How do you do 8 these things when they don ' t comply with your code? 9 So those basically, in addition to the ones 10 that I brought up about the development agreement, I 11 believe you have an invalid development agreement . I 12 believe your City Council needs to take formal action 13 other than what the Mayor did. I believe you need to deal P 14 with and address having a project on multiple parcels . I 15 also -- oh, also in the documents from the 11th and in the 16 findings, it talks about the liquefaction report . I asked 17 that question August 14th, the same question you did, 18 Madam Chairman, and it ' s in the mitigation monitoring 19 program that they will -- the Applicant will prepare a 20 liquefaction report . I was told August 14th, it would be 21 reviewed by the city engineer . 22 If you look at the findings that were adopted 23 on September 11th, it says that it has to be reviewed by 24 the city geologist . And in order to mitigate it, it ' s not 25 just a matter of cost . It also says that if it turns out 36 YOUNGER REPORTING SERVICES I that there is a fault beneath the site, that they will 2 have to change the setback . So you ' re in the position of 3 approving a development permit where you ' re not even sure 4 where that structure is going to be located. But right 5 now, it looks like it ' s going to be located partially on 6 two different parcels . 7 There are a lot of problems here and a lot of 8 questions . I know you ' re going to do what you ' re going to 9 do and what you have to do . I know that, you know, you ' re 10 going to be told that nothing I said is accurate or 11 correct . Use your common sense . There are a lot of 12 things here . I 've seen you work before; I know you think 13 these things through. And on behalf of my client, I would f.. 14 like to thank you for the opportunity to appear before 15 you, and for your courtesy. And I would be happy to 16 respond to any questions . 17 Did I do that in 12? 18 MS . THRASHER: They didn ' t stop you, so I think so . 19 Thank you very much . 20 Does Staff have any response, or do any 21 Commissioners have any questions at this point? 22 MR. EMPENO: Madam Chairman, if I may just briefly 23 respond to the legal issues design describing what Ms . Fox 24 raised in reference, again, to the pending court cases . 25 Again, as I mentioned previously, and I don ' t want to 37 YOUNGER REPORTING SERVICES 1 spend much more time repeating myself, but there is a 2 judgment entered, a writ of mandate and a statement of 3 decision in one of the court cases , and it ' s clear what 4 that decision is . 5 What Ms . Fox is asking the Planning Commission 6 to do is to disregard the Court ' s decision in this matter, 7 to ignore the Court ' s decision as to these environmental 8 issues, the seismic and the liquefaction issues that she ' s 9 raising tonight . And I ask the Planning Commission to 10 again be consistent with the Court ' s ruling and to 11 consider that Court ' s decision. 12 The project that ' s before you tonight is the 13 development permit involving the Robinson ' s-May Company 14 addition as well as the parking structure . It does not 15 involve the movie theater . The movie theater expansion 16 project is not before this Planning Commission . And that 17 decision of the Court regarding that movie theater 18 expansion has been acted upon by the City, and the City 19 has complied with that Court decision in that regard . 20 That ' s all I ' d like to say, unless the 21 Planning Commission has questions regarding that . 22 MR. HAMILTON: I have a question . 23 MS . THRASHER: Commissioner Hamilton . 24 MR. HAMILTON: It ' s my understanding that we ' re here 25 to approve this first phase and to deny Ms . Fox ' s appeal . 38 YOUNGER REPORTING SERVICES 1 We ' re not attorneys, and the way I look at it, when a 2 construction comes, it ' s the construction engineers, and 3 the people that are financing this situation, whether they 4 want to put out that kind of money to build a complex tha- 5 will be suitable for liquefaction, I don ' t know of all the 6 earthquake faults in San Bernardino, but I imagine we ' re 7 sitting on top of one right here . 8 In fact, the courthouse was designated bad. 9 In fact, I designate the whole area bad, but that ' s not 10 the point . And I 'm going to leave that up to the judges 11 and to the attorneys to fight this out in a court of law. 12 And I 'm going to go ahead and make a motion to deny her 13 appeal and accept the findings of fact for the first { 14 phase . 15 MR. SUAREZ : I ' ll second it . 16 MS . THRASHER: Well, before that, let ' s see if there 17 is anyone else in the audience wishing to speak on this 18 item. 19 Staff, yes . 20 MS . ROSS : We would like to respond to some of the 21 other issues before you make a motion, if we may. 22 MS . THRASHER: All right . Then I won ' t close public 23 comment in case someone has any questions from the 24 audience on them. 25 Go ahead. �( 39 YOUNGER REPORTING SERVICES MR. ROMO: Just for the record, Commissioners, in 2 regards to Ms . Fox ' s comment as to the water department ' s 3 standard requirements . The standard requirements that are 4 in your conditions of approval were in the file after the 5 August 14th meeting . These were given to Staff as draft 6 conditions . The file was handed over to Ms . Fox after the 7 meeting of August 14th . The same goes with the GTE 8 conditions, which we received on July 31st . 9 Every time we do receive conditions from other 10 agencies, they immediately go into the file . Those were 11 not changed from July 31st . 12 In regards to, I would say, the other parcel 13 encroaching, both parcels are owned by the same party. r( 14 When we do have two parcels together like that, one tt 15 encroaching over the other, we do ask, as a condition of 16 approval, that a reciprocal access or parking agreement be 17 recorded after the fact . 18 MS . ROSS : I would like to extend a little on Gus ' s 19 comments and Gus ' s responses also . 20 The comment about requiring CEQA review for 21 the relocation of water mains and easements, I don ' t 22 believe that ' s subject to CEQA. That ' s a standard part of 23 every project that comes in whether it ' s new, whether it ' s 24 a remodel, whatever . It ' s anticipated that there will be 25 some easements that may have to be removed and relocated. 40 YOUNGER REPORTING SERVICES 1 Water and sewer, other utilities generally have to be 2 relocated and new easements drawn up. That ' s a standard 3 part of any project . And I don ' t believe that ' s beyond 4 the scope of what was addressed for the whole 5 Robinson ' s-May proposed department store in the EIR 6 itself . 7 I believe Gus mentioned the reciprocal access 8 easements . That ' s essentially a standard requirement, and 9 that comes on various different types of applications . 10 And the Applicant is required to file that and record it . 11 Both the city engineer and the city geologist 12 will be reviewing the liquefaction reports in this case as 13 outlined in the standard requirements from Building and 14 Public Works and the mitigation monitoring program. 15 And the findings of fact and standard 16 requirements not being available at 4 p .m. but being 17 available the next day, as per the development code, we 18 are required, at the Development Review Committee meeting, 19 to address the findings and note them for the record, and 20 to follow up with a written letter to the Applicant 21 outlining the findings of fact, the conditions of 22 approval, and any applicable standard requirements . This 23 project was a little bit more involved, and Gus went ahead 24 and wrote the findings of fact out so he had something to 25 read from at the DRC meeting . The conditions of approval, (� 41 YOUNGER REPORTING SERVICES 1 he had them in draft form, also, to make sure that we had 2 all of the items addressed. 3 The standard requirements we receive from the 4 other departments generally at the time we propose to take 5 action on the project . Not only is it standard operating 6 procedure, it ' s consistent with the requirements in the 7 development code . And I believe that addresses the 8 issues . 9 MS . THRASHER: Thank you. 10 Are there any comments from anyone in the 11 audience, any questions? 12 Then we ' re going to close public comment . 13 Commissioner Gonzalez . - ' 14 MR. GONZALEZ : Yeah, I have a question. When you say 15 a reciprocal agreement on the multiple parcels, is this 16 recorded with the County Recorder or something? 17 MS . ROSS : Yes, it is a recorded agreement . 18 MR. GONZALEZ : So that ' s attached to that property so 19 that anybody who would contemplate purchasing a property 20 would know this exists? 21 MS . ROSS : That is correct . 22 MR. GONZALEZ : It ' s not -- may I ask, Mr. Empeno, 23 it ' s not required to have a lot merger in this case under 24 state law? 25 MR. EMPENO: I 'm not aware of any legal requirement 42 YOUNGER REPORTING SERVICES 1 for a lot merger . What we ' re discussing is whether the 2 reciprocal easements provide the necessary basis for the 3 development agreement, and we believe it does in this 4 particular instance . 5 MR. GONZALEZ : I believe the Uniform Building Code 6 does not permit the construction of a building on a 7 property line . 8 MR. EMPENO: I am aware of the provision regarding 9 building upon a property line . In this particular 10 instance, I 'm not sure of the timing of when the property 11 lines were recorded. Many times a parcelization of a 12 commercial lot occurs for financing purposes after 13 construction of a structure has been completed, and that { 14 might have occurred in this particular instance when those 15 parcel lines then were drawn after the buildings were 16 already constructed. That does not cause any illegality 17 in terms of the construction of that structure or the 18 parcelization of that lot, or even the processing, like in 19 this instance, if that ' s the facts here, of a development 20 agreement, and this development permit application 21 pursuant to that development agreement . 22 MR. GONZALEZ : So is it your opinion that this is not 23 required? 24 MR. EMPENO: I don ' t believe the presumptions that 25 you ' re making are either necessarily accurate ones or have t� 43 YOUNGER REPORTING SERVICES I 1 any bearing on the pending development permit application. i 2 that ' s before you . 3 MR. GONZALEZ : You ' re not answering the question, 4 though . Is it legal to build on a property line? Can you 5 answer that question, whether it applies here or not? 6 MR. EMPENO: Well, obviously if you ' re stating the 7 Uniform Building Code provision about building a structure 8 upon a parcel or lot line, there is a prohibition against 9 that, I believe, in the Uniform Building Code, in a 10 general sense . 11 MR. GONZALEZ : Wouldn ' t it behoove the City to say, 12 "Just go ahead and merge the lots"? What ' s the problem? 13 Why not just do it? 14 MR. EMPENO: Like I was trying to explain to you, the 15 parcelization of a lot occurs for a variety of reasons, 16 and it sometimes occurs after a structure is completed. 17 What you ' re suggesting may not be even possible in a giver. 18 situation . So what I 'm addressing is that the presumption. 19 that you ' re raising, is that based on a Uniform Building 20 Code regulation, that perhaps there is some illegal 21 condition existing. Is that what I 'm understanding from 22 the nature of your question? 23 MR. GONZALEZ : Yes, that ' s what I understand. And 24 I 'm asking for your opinion . 25 MR. EMPENO: My opinion is that there is no illegal 44 YOUNGER REPORTING SERVICES 1 condition existing . 2 MS . THRASHER: Are there any other questions? 3 MR. GONZALEZ : May I request that the record show 4 that -- or our minutes , that the City Attorney says that a 5 building can be built on a property line . 6 MR. EMPENO: I didn ' t say that, sir . 7 MS . THRASHER: Yes, Staff . 8 MS . ROSS : If I may, I know this was raised as an 9 issue, and I know that the Applicant met with our plan 10 check engineer to address this issue to his satisfaction 11 so that we are able to proceed with the project as 12 proposed. And I don ' t know the building code, and I won ' t 13 pretend that I know the requirements in there . I do 14 believe there are provisions, as long as you meet certain 15 fire conditions or requirements . 16 MS . THRASHER: I believe we have things come before 17 us to be built on a property line from time to time . 18 Are there any other questions? 19 MR. GONZALEZ : Can I ask one more? 20 MS . THRASHER: Yes . 21 MR. GONZALEZ : Is the building designed already? Is 22 this project in plan check, by any chance? 23 MS . ROSS : No, it is not . 24 MR. GONZALEZ : So it ' s still on some architect ' s desk 25 somewhere? {{ 45 fir✓ YOUNGER REPORTING SERVICES 1 MS . THRASHER: I think they ' re waiting, if I 2 understood right, for some of the results on these tests 3 to see what they can design, perhaps . Is that correct? 4 MS . ROSS : Essentially, what you see on the wall 5 there is what the Development Review Committee approved. 6 That ' s the design and the development of the building . 7 They could presumably submit to plan check at any point 8 now upon completion of their geotech and liquefaction 9 studies . 10 MS . THRASHER: Thank you . 11 Are there any other questions? 12 Did the applicant have any more statements 13 or -- 14 MR. OSTOICH : No, thank you . 15 MS . THRASHER: Okay. Then we ' ll close public 16 comments . Any discussion, or can we have a motion? 17 MR. HAMILTON: I ' ll make the motion we go ahead and 18 accept the Permit Number 97-13 based on the findings of 19 fact in Attachment B and E and deny Mrs . Fox ' s request . 20 MR. SUAREZ : I ' ll second it . 21 MS . THRASHER: The motion was to deny the appeal? 22 MR. HAMILTON: Yes . 23 MS . THRASHER: We have a motion and a second.All in 24 favor? 25 (Ayes . ) 46 YOUNGER REPORTING SERVICES 1 MS . THRASHER: Opposed? 2 MR. GONZALEZ : No . 3 MS . THRASHER: One opposed. 4 Motion is passed -- the appeal is denied . 5 (The Motion carried by the following vote : 6 Ayes : Chairman Thrasher . Commissioner 7 Suarez . Commissioner Lockett . Commissioner 8 Hamilton . 9 Nays : Commissioner Gonzalez . 10 Abstained: Commissioner Quiel . ) 11 MS . THRASHER: Can we have a motion to adjourn if 12 there is no further business? 13 MR. HAMILTON: I ' ll make a motion to adjourn . 14 MR. SUAREZ : Second. 15 MS . THRASHER: Moved and seconded. All in favor? 16 (Ayes . ) 17 MS . THRASHER: Opposed? 18 (None . ) 19 MS . THRASHER: Meeting is adjourned. 20 (The Motion carried by the following vote : 21 Ayes : Chairman Thrasher . Commissioner 22 Suarez . Commissioner Lockett . Commissioner 23 Gonzalez . Commissioner Hamilton . 24 Nays : None . 25 Abstained: Commissioner Quiel . ) 47 YOUNGER REPORTING SERVICES r 1 (End of proceedings on Item Number 4 , Appeal 2 of Development Review Committee Approval of Development 3 Permit Type II Number 97-13, 8 : 39 p .m. ) 4 S r O 7 8 9 10 11 12 13 14 �5 to 17 18 19 20 21 22 23 24 25 48 YOUNGER REPORTING SERVICES 1 2 3 4 5 REPORTER' S CERTIFICATE 6 7 8 THE UNDERSIGNED SHORTHAND REPORTER DOES HEREBY 9 DECLARE : 10 11 THAT THE FOREGOING WAS TAKEN BEFORE ME AT THE TIME 12 AND PLACE THEREIN SET FORTH AND RECORDED STENOGRAPHICALLY 13 BY ME AND WAS THEREAFTER TRANSCRIBED, SAID TRANSCRIPT f 14 BEING A TRUE COPY OF MY SHORTHAND NOTES THEREOF. 15 IN WITNESS WHEREOF, I HAVE SUBSCRIBED MY NAME THIS 16 10TH DAY OF OCTOBER, 1997 . 17 18 19 20 DAWN M. DAVILA, CSR NO. 8383 21 22 23 24 25 49 YOUNGER REPORTING SERVICES qpp- �t I;ECORJED AT REQUEST J1C) FIRST r.r. r, i TiE CO. tv 60 6685'►,'U 414 rn '66 AUG 23 PM 1:54 UtF CiAL RECCr.U� C,11 SAN BERNANQINJ CO.CALIF. DECLARATION _'2zdEi? r{; "FrO.ROER ►� OF ESTABLISHMENT OF RESTRICTIONS AND h-� COVENANTS AFFECTING LAND Parties HOMART DEVELOPMENT CO., a Delaware corporation, hereinafter referred to as "HOMART," SEARS, ROEBUCK AND CO. a New York corporation, hereinafter referred to as "SEARS," BROADWAY-HALE STORES, INC., a Delaware corporation, hereinafter referred to as "BROADWAY," and THn MAY DEPARTMENT STORZS COMPANY, a New York corporation, hereinafter referred to as "MAY," hereby declare that Establishment of General they have established and do establish a general plan for Plan of Development the protection, maintenance, development and improvement of certain real property (sometimes hereinafter referred to as "Shopping Center") in the County of San Bernardino, State of California, such property being shown oA Exhibit "A" attached hereto and made a part hereof, and being more/ particularly described as "Shopping Center" in Exhibit "B-1" attached hereto and made a part hereof, as an integrated retail shopping center designed for the mutual benefit of said parties; and said parties have fixed and do hereby fix protective provisions, cvenants, restrictions, setback lines, easements, liens and charges (collectively hereinafter referred to as "restrictions") upon and subject to which all of such property, or any part thereof, shall be improved, held, used, occupied, leased, sold and/or conveyed, each and all of which is and are for the mutual benefit of all of such property and of every portion thereof and of each of the parties hereto and which shall run with the land and shall inure to and pass with such property and shall inure to, apply to and I I 1. r� i eooh 6685 �115 bind the respective successors in interest thereof; and all and each of such restrictions are imposed upon such property as a mutual, equitable servitude in favor of such property and any portion thereof. Such restrictions are as follows: DEFINITIONS V1 N Shopping 1. (a) These restrictions relate to a certain Center parcel of land in the County of San Bernardino, State of California, containing approximately 63.543 acres being situated at the intersection of Colton Avenue and San Bernardino Freeway and extending easterly from such intersection to "E" Street. A part of such parcel situated to the west of the Lytle Creek Flood Control Channel, hereinafter referred to as "Channel," is more particularly described on Exhibit "B-1" and is known as Inland Center, being hereinafter referred to as "Shopping Center." All of such parcel is shown on Exhibit "A." Sears (b) Sears is the owner of a parcel of Parcel C land containing approximately 19.714 acres lying in the northerly part of such Shopping Center. Such parcel is shown on Exhibit "A" as Sears parcel and is described on Exhibit "B-2" as Sears parcel and is hereinafter referred to by such designation. Homart (c) Homart is the owner of a parcel of Parcel land containing approximately 18.749 acres lying in the center portion of the Shopping Center. Such parcel is shown on Exhibit "A" as Homart parcel and is described on Exhibit "B-3" as Homart parcel and is hereinafter referred to by such designation. 2. BOOK 6685 /AcE 416 I C lir�adway (d) Broadway is the owner of a parcel Parcel of land containing approximately 10.658 acres, lying in the easterly part of the Shopping Center. Such parcel is shown on Exhibit "A" as Broadway parcel and is described on Exhibit "B-4" as Broadway parcel and is hereinafter referred to by such designation. t1,y (e) May is the owner of a parcel of U1 Parcel land containing approximately 14.422 acres, lying in the southerly portion of the Shopping Center. Such parcel is shown on Exhibit "A" as May parcel and is described on Exhibit "B-5" as May parcel and is here- inafter referred to by such designation. Y,rc�l (f) Parcels 1 (being the ground level Designation area Only), 2, 3, 4, 5, 6, 6A, 7, 8, 9, 10, 11, 12, 13 and 14 are shown on Exhibit "A," and Parcels 5, 6, 7, 8, 12, 13 and 14 are more particularly described on Exhibit "B-6" and are hereinafter referred to by such designation. i Occu ant (g) The term "oecupane' shall refer f to the parties and to any person or persons from time to time entitled to the exclusive use and occupancy of floor area under any lease, license or concession agreement. Parties (h) The terms "party" and "parties" shall mean the persons executing this instrument, or their successors in interest as hereinafter provided, as shown by the Official Records of the County of San Bernardino, State of California, as of the date of the exercise of powers or rights or the performance of such parties of 3• i soy M85 ►Au 417 obligations created by this instrument. Such reference shall include any person, group, or other entity designated in writing by any of the parties to act in the manner and at the time provided herein with conplete authority and in the place of such party in the matter for which action is taken, powers exercised or performance required, provided such written authority shall be recorded in the Office of the Recorder of San Bernardino County, and C.T (i) In the event of thq assignment, 0.6 transfer or conveyance of the whole of the interest CC of any of the parties in and to the parcel in which such party presently has an interest, without retaining any beneficial interest other than under the terms of a deed of trust or mortgage or without simultaneoual;; acquiring a new interest by way of leasehold, life estate or other possessory interest, then the powers conferred upon such party shall be deemed assigned, transferred or conveyed and the obligations assumed with its interest; (11) In the event the whole of the interest of such party in and to the parcel in which it has a present interest be assigned, transferred or conveyed but a new interest is created in such party simultaneously with the assignment, transfer or conveyance of such interest by way of leasehold or similar possessory arrangement, or in the event such party shall convey its interest in said parcel or any part thereof by deed of trust or other security instrument as security for indebtedness, then none of the powers or obligations conferred upon such 4. `.b 1 1 i boon 6685 ►Au 418 party pursuant to this instrument shall be assigned, transferred or conveyed with the interest assigned, transferred or conveyed by such party, but all of the powers and obligations herein referred to shall remain in such party so long an it retains any possessory interest in and to said parcel other C.± M than as a beneficiary under the terms of a deed of trust or mortgage. In the event the interest of such party referred to in this subparagraph (ii) shall cease and terminate, then upon such termination, the powers and/or obligations of such party shall vest in accordance with subparagraphs (i) or (iii) hereof, whichever is applicable; (iii) In the event any of the parties shall transfer its present interest in its parcel or a portion of such interest, in such manner an to vest its present interest in its parcel in more than one person, then not less than seventy percent (70%) in interest of such transferees shall designate one of their number to act on behalf of all of such transferees in the exercise of the powers granted to such party under thin instrument. Such designee shall, so long as such designation remains in effect, be a party hereunder and such transferees shall not so be deemed to be parties. Any such designation must be in writing and served upon the other parties hereto by registered or certified mail, and must be recorded in the Office of the County Recorder of San Bernardino County. In the absence of such written designation, the acts of the party whose interest is so divided 5. Y 6DO9 6685 PAu 4i9 with respect to the exercise of the powers vested by this instrument shall be binding upon all persons having an interest in such parcel, whether or not said party retains any interest in said parcel, until such time as written notice of such designaticn is given and recorded in the Office of the Recorder of San Bernardino County. C1 (iv) Whenever the rights, powers and obligations conferred upon any of the parties are vested in another party or parties, pursuant to the provisions of subparagraphs (i), (11),or (iii) above, the transferor shall be released or discharged from the obligations thereafter accruing under the terms of this agreement, provided that the transferees of such interest by express agreement in writing assume and agree to be bound by the covenants and restrictions herein contained, and such asGignment and assumption are delivered to the other parties and recorded in the Office of the Recorder of San Bernardino County. Notwithstanding the provision of this subparagraph, the obligation of each signatory to construct its improvements under Ser,tion 6 and/or Section 13 1s personal to such signatory and such signatory shall not be released from such obligation upon or by any transfer of its interest in its parcel until it has completed the construction of its improve- ments as required by such Sections. fc:'s, ns (i) The word "person" or "persons" shall refer to and include individuals, partnerships, firms, association- and corporations, or any other form of business entity. o. 800A6685 PAGE 420 PoJ7nittees (,j) The term "permittees" shall refer to all occupants and all customers, Rmployees and other business invitees of occupants. Common (k) The term "common area" (except as Area _ specifically provided to the contrary) shall refer to vZ all areas which are subject to non exclusive use as F+ hereinafter provided, including the enclosed mall. Such areas shall include motor vehicle parking areas, roadways, walkways, landscaped areas and other such facilities provided for the convenience of the parties, occupants and their respective permitteea. Such common area shall not include buildings, arras or facilities for commercial use. Common (1) All work to construct the Improvements Work provided for in the improvement plans shall be referred to as "common work." Floor (m) The term "floor area" sometimes referred Area to as "commercial area," shall refer to and include the total number of square feet of all areas for exclusive use and occupancy by as occupant whether or not such areas shall then be occupied, measured from the exterior surface of exterior walls (and from the extensions thereof in the case of openings) or other limit of such area if not e—tlosed, including wdrehousing or storage areas, clerical or office areas, and employee facilities, provided, however, floor area shall not include (1) any enclosed mall, community room which shall to located adjacent to Parcel 1-A and which shall not exceed 5,000 square feet in area and which shall be operated on a non profit basis by Homart, building equipment rooms or vault (such as switchboard, boiler, paper baler, elevator and escalator motor and air-conditioning equipment rooms) whether or not within the exterior walls of a building; (Ii) any facil!ty 7. 3 F 1 sooM6685 ►4f 421 for common use including any buildings used exclusively for the purpose of maintenance of the common area; (iii) any subterranean, single-level and/or multi-level parking structure or facility; (iv) any of the following: truck tunnels, docks, ramps and approaches thereto, areas for truck loading and unloading and/or truck parking and/or truck turn-arounds (all being hereinafter called "truck facilities") to the extent that such facilities �+ GC lie outside exterior building lines; (v) employee parking areas; (vi) employee cafeteria and recreation area aggregating not more than 4,000 square feet within each of the Sears, Broadway and May parcels. The certificate of the project architect shall be conclusive as to the number of square feet of floor area in each instance in which a determination thereof shall be required or requested by any party under the provisions of this agreement. Notwithstanding anything to the contrary contained in this agreement, during the i period of any damage, destruction, razing, rebuilding, repairing, replacement or reconstruction to, on or of any buildings on the Shopping Center, the floor area of such buildings during such period shall be deemed to be the same as the floor area of such buildings immediately prior to such period, and upon the completion of the rebuilding, repairing, replacement or reconstruction of such buildings, the project architect shall make a new determination of floor area for such buildings as in the foregoing provisions In this subsection (m) provided. Floor area shall be situated only within Parcels 9, 10 and/or 11. i•�:%:ng (n) The term"parking area" shall refer to and include all of the common area except (i) those portions of the common area devoted to restrooms, 8. I eooK6685 PAGE 422 stairways, service corridors, walkways, malls, enclosed or otherwise, sidewalks, and truck facilities, (11) any area that may be used as common area maintenance offices and equipment sheds, and similar common areas to which free access is not allowed other than to authorized persons, and (111) unimproved areas. Without limiting the generality of the foregoing, parking area shall iinclude all roads excluding Parcels 7 and 8, traffic F� lanes, vehicular parking spaces, spaces between vehicular CC i parking spaces (including landscaped areas), and in addition to the areas specified in this subsection (n), any other common area which shall be improved for motor vehicle use (excepting truck facilities). Enclosed (o) The term "enclosed mall" shall refer Mall - _to and include all of Parcels 1, 2, 3 and 4 delineated i on Exhibit "A." Improvements (p) The term "Homart improvements" shall refer to and include the enclosed mall, all buildings and other improvements including common area situated on the Homart parcel and the enclosure for the enclosed mall on all parcels; i The term "Sears improvements" shall refer to and include all buildings and other improvements including common area but excluding the enclosure for the enclosed mall situated on the Sears parcel; The term "May improvements" shall refer to and include all buildings and other improvements including the common area but excluding the enclosure for the enclosed mall situated on the May parcel; 9. ��ti/r•� - -- soot6685 PA6EC23 The term "Broadway improvements" shall refer to and include all buildings and other improvements 1 including common area but excluding the enclosure for the enclosed mall situated on the Broadway parcel. Lease (q) The term "lease" shall refer to any lease, deed or other instrument or arrangement whereunder a person acquires the right to the use and occupancy of floor area. ]mNruvewent (r) Plans and specifications, including (,Z Plans M+ working drawings, prepared for the development of all of CC the common area (excluding enclosed mall) in the Shopping Center as more particularly set forth in Section 3 of this agreement shall be referred to as "improvement plans." COM14ON AREA DEVELOP14ENT I F Walkways 2. (a) There are hereby established non exclusive t — E� easements for walkways for pedestrian and the incidental uses i shown on the approved enclosed mall plans as provided in Section 6 on, over and across such part of the Shopping ® Center as is included within Parcels 1 2 3, 4 and 1A. f Roadways (h) There are hereby established non exclusive ' 6 easements for roadways for motor vehicles and the incidental uses shown on the improvement plans on, over and across such real property as is included within Parcels 5, 6 and 6A. Parking (c) There are hereby established non exclusive Areas easements, parking of motor vehicles and other incidental uses as shown on improvements plans on, over and across all ` areas within the Shopping Center excluding all floor area, I walkways and roadways. Each party shall at all times maintain not less than 2.375 square feet of parking area for each square foot of floor area within its parcel. Within such t 10. eoox 6685 na 424 parking ratio, each party shall endeavor to provide not less than six (6) motor vehicle parking spaces for each 1,000 square feet of commercial area, in accordance with the diagrammatic and other criteria shown on Exhibit "A." Designation (d) Subject to the other provisions of this of Commercial Areas instrument, Sears within that part of Parcel 9 lying nithin the Sears parcel, Broadway within that part of Parcel 9 N lying within the Broadway parcel and within Parcel 10, and May within that part of Parcel 9 lying within the May parcel and within Parcel 11, shall each have the right from time to time to designate, withdraw and redesignate as commercial area or common area such areas as it may from time to time select, provided a mayor facade of its mayor oommeroial area structure shall be so located as to provide an entrance on and complete the enclosure of the enclosed mall upon completion of the enclosed mall. Areas which are not designated as commercial areas shall be common areas and improved as such areas. Uae by (e) Subject to the rules and regulations Permittees adopted by the parties from time to time for the use thereof, the use of all easements provided for in tads Section 2 shall in each instance, be non exclusive and for the use and benefit of the parties and, to the extent any such party may see fit to give, withdraw and modify the same h from time to time, for the use and benefit of permittees. Project 3. The parties hereby designate Victor Gruen Architect Associates, Inc. of Loa Angeles, California, as project architect to prepare the improvement plans, including .;he general architectural concept of the Shopping Center for the integrated development of all common area of the Shopping Center except the enclosed mall subjeot to a contract for such services negotiated by Homart and 11. i dooK6685 PAA25 concurrently approved by all the parties. A majority of the parties shall have the right from time to time to designate, remove and redesignate the project architect. Any contract for the continuing performance of services by the project architect shall be negotiated by Homart and shall be subject to the LZ approval of all the parties. Cr Improvenent Plans (a) Schematic improvement plans including elevations, perspective renderings reflecting design concepts, ,layout of parking and other common area improve- ments have been submitted to the parties and are approved concurrently herewith. Within thirty (30) days from the date hereof, the project.architect shall submit preliminary improvement plans to the parties for their review. If a party does not specify any objection or make a proposal that would add to or change the preliminary improvement plans to the project architect with a copy to each other party within thirty (30) days from such date of submission, such plans shall be deemed to be satisfactory for final development. If there is such objection or proposal from any party, the project architect shall call a meeting of i all parties to be held within fo^ty-five (45) days from such date of submission, to resolve and adjust any objection or proposal with reference to such preliminary improvement plans. All objections or proposals shall be considered at such meeting with the view to develop the preliminary improvement plans in their final form at such meeting. f 12. �:z.xnnr�slfr — I BOOK 6685 PAC[ 6 If at such meeting the parties are unable to agree unan+.mously, all matters of dis- agreement shall be resolved by the arbitration procedures of Section 28. (b) Such preliminary improvement plans �+ shall be developed from the schematic layout shown on Exhibit "A," and the approved schematic improved plans shall conform to the requirements of this agreement, and shall include without limitation: (1) All access roadways exterior boundary walls or fences, project signs, walkways, curbs, interior roadways (Parcels 5, 6 and 6A), motor vehicle parking areas and layout, utility loops to serve common improvements and such commercial improvements as the parties - may designate, sewer, storm and other drainag: lines or systems including extensions thereof situated outside the Shopping Center to connect to established public systems, fire hydrants, lighting facilities, benches and other similar facilities for common use. (2) The location of all facilities for common use where such location is possible, and if precise location cannot be shown, specifications for such location shall be set forth; (3) A comprehensive rough grading plan for the entire Shopping Centerincluding: the size and dimensions of all facilities for common use; storm sewers including aroa drains, surface drainage installations and taps for house connections; and sanitary sewers for common use including taps for house connections; 13. i soon 6685 roc 427 (4) A composite parking layout for the entire Shopping Center, including location of electroliers and lighting systems, designating areas which may be separately illuminated from time to time at the request i of any party; (5) A composite landscaping plan V� specifying overall plant materials and planting but excluding planting areas adjacent to buildings; (6) Construction of concrete walkways, not less than twelve (12) feet in width, along approved areas of the outer perimeter of the commercial buildings, excluding the enclosed mall. The architectural treatment of such walkways including any planting areas shall be specified in the improvement plans. Such walkways shall be Installed by the party upon whose parcel such walkways are I situated and when installed shall become a part of the common area. (7) The conditions, standards and architectural treatment under which Such improvements shall be located, constructed or installed. Such conditions, standards or architectur" treatment shall not be less than the minimum requirements of the County of San Bernardino, or other governmental agency having jurisdiction of the Performance of such work in the Shopping Center; and shall provide twat sewer, drainage and utility lines, conduits, or systems Shall not be constructed or maintained above the ground level of the common area; (8) The improvement plans shall not include any commercial area but shall reflect the general location of the commercial areas where such locations have been established; (9) Permanent or temporary curbs and gutters and traffic signals on "E" Street and Colton Avenue. 14. r r T'N' i eooK W85 428 Dt.veIopment (c) The parties shall be consulted of Plana during the course of the preparation of the final improvement plans, and 1: any party has a preference as to a particular type of installation, it shall furnish f to project architect typical detailed drawings of such installation or portion thereof to be considered for incorporation in the improvement plans. From time to (� time during the course of the preparation of such plans, the project architect shall cause progressive working drawings of such plans to be submitted to the parties for review and recommendation. Final Plans (d) Within forty-five (45) days after the date of approval of the preliminary improvement plans, r project architect shall submit the final improvement plans to the parties for their approval within thirty (30) daya. If there is no objection or proposal within such period, excluding any matters considered at any earlier meeting, such plans shall be deemed to be final. If there ]s objection or poposal, the project architect shall call a meeting of all parties to be held within forty-five (45) days after such date of submission. All objections or proposals, excluding any matters considered at any earlier meeting, shall be submitted and considered at such meeting. If at such meeting the parties are unable to agree unanimously, the determination of a majority of the parties shall be final and such plans as thus approved shall be the final plans for development of the common areas. If the parties are evenly divided, the issues shall be determined under Section 28. 15. �0o�66�S5 rAu 46 modification (e) Upon the final approval of the of Improve- ment Plane improvement plans, changes may be made therein only i by agreement of the parties. Utility 4. (a) Each party as to its parcel shall Easements develop plans for the installation of such of the 111 following facilities as are not supplied by facilities Ct for common use: sewers, water and gas pipes and systems, drainage lines and systems, electrical power conduits, lines and wires, telephone conduits, lines and wires and other public utilities to serve its commercial areas. The installations herein referred to do not include facilities for common use. Plans for such installations shall be submitted to the project architect for coordination of such plans and installations. All sudiinstallatione shall be installed beneath the ground surface of the Shopping Center and shall be installed prior to the paving or other surface improvement of parking and other areas in which such installation is made or as other improvement work may require. (b) Each party grants to the others non exclusive easements for the construction, installation, maintenance, removal and replacement of the installations referred to in (a) above in the event any party shall require such easements across the common areas of any other parties, provided that in the performance of any such work the party performing such work shall (1) make adequate provision for the safety and convenience of all persons using the surface of such areas; 16. i eooK6685 f4i 4W (2) replace and restore the surface i areas to the condition in which they were prior to the performance of such wc.rk; E (3) hold all other parties harmless against claims including costs and attorneys' fees v1 arising from performance of such work or use of F� such easements; (4) notify in writing the party upon whose land such work is to be performed not leas than thirty (30) days prior to commencement of such work. Any such easement shah terminate upon the cessation of use for more than one hundred eighty (180) days unless notice is given of circumstances affecting suspension and an intention of resumption of use. (c) The installation, construction, maintenance, removal or replacement of such Installations shall not be common work. The expense thereof shall be borne by the party for whose benefit such work is performed except at hereinafter provided. (d) In the event any party within its parcel shall install, construct, or provide any drainage facilities, gas, water or sewer mains or electrical or telephone lines or systems within its parcel which shall be used in part to provide service for commercial areas of other parties, the expense of such erection, construction or installation shall be pro rated between such parties upon such equitable basis as may be agreed upon in writing. In the event such parties are unable to agree, such apportionment shall be determined under the procedures of Section 28. 17. i sooK 6685 ►ka 431 Commencement 5. (a) Upon the approval of the improvement plans, of Improve- ii,pnt W,)rk at the request of any of the parties, the contracting party if the parties shall designate a party to act on behalf of all parties, and in the absence, of such designation, the project architect shall obtain not less than six (6) competitive bids for the common work from a list of N qualified contractors prepared by the project architect and approved by the parties. In the event it is deemed advisable by any party to segregate any part of the common work, the co► tracting party or the project architect shall obtain at least six (6) competitive bids from qualified contractors approved by the parties for such common work. In the event the parties shall be unable to agree upon any bid or bids to be approved, the lowest bid from an approved and bondable contractor submitted for such common work or part thereof shall be deemed to be the approved bid or bids and a contract or contracts for the performance of such common work shall be let to such bidder. The bid documents and contract or contracts under which such common work is to be performed shall be subject to the approval of the parties and executed by all parties or the contracting party. Such contract or contracts shall include provisions requiring a bond of the contractor (subject to waiver thereof by all of the parties) covering performance, completion and labor and material payment with respect to that portion of the common work to be performed by each contractor naming the contractor as principal and the parties jointly and severally as obligees in tha form and with the surety 18. I nox 6685 ruu 432 or sureties approved by the parties which bond will cover the full amount of the contract price and all of which bonds shall aggregate 100% of the amount of the construction contract price for the common work. Scheduling (b) The performance of common work under CC of Common Work _ such contracts shall be scheduled by the project architect in consultation with all parties to coordinate such common wcrk with the commercial area work of the parties. Unless f the improvement of all common areas excluding enclosed malls is substantially completed not less than thirty (30) dejs prior to the opening for business of the commercial area of any party, the Phase 1 common work for each party shall be substantially completed not less than thirty (30) days prior to the opening for business of the commercial area of such party. Phase 1 work for each party shall include the improvement of: (1) The roadways on Parcels 5 and 6. (2) Supplemental parking areas designated on Exhibit "A" for such party. (3) Enclosed mall areas as provided in Section 6 (b). In addition, Phase 1 work as to the May parcel shall include the roadway on Parcel 6A. Such Phase 1 work shall include without limitation, paving, surface drainage, lighting, striping, landscaping and all other common work specified in the improvement plans for such areas. The party for whose benefit such Phase 1 work is 19. + bOOK66&5 433 performed shall clean, maintain nd insure such improved common areas until commercial areas are completed on the parcel upon which such Phase I work was performed. Apportionment (c) The cost of the common work shall of C,)m.mon Work Cost refer to and include: COI (1) The actual cost and expense X of the performance of the common work; (2) The architectural-engineering design, service fees and charges with respect to the common work; (3) The fees of the contractor or contractors with respect to the common work. Payments or disbursements for the common work shall be made in accordance with the prov13ions of the cont*ract with the project architect or the pro,:edures established by the parties with the contracting party. The cost of common work except under Section 3(b)(9) shall be pro rated among the parties upon Awk the ratio that the parcel owned by each bears to the total area of the Shopping Center. Such percentages are: Sears 31.0 % 29 Homart .5 % Broadway 16.7 % May 22.8 % The cost of the work under Section 3(b)(9) shall be pro rated among the parties upon the following ratios: Sears 27.685 % Homart 37.094 % Broadway 14.968 % May 20.253 % 20. BOOK6685 ►Au 434 Maintenance (d) The contracting party or project :' C st architect shall keep accurate records and books of account (in suc;i form as the parties reasonably and compatibly shall direct) of the cost of such work, and shall keep C1 W such records for a period of at least one (1) year from and after the determination of the proportionate share of each party, and each party (or its duly authorized agent) at the cost and expense of such party, shall have the right during said one (1) year period, to audit such records and books of account. In the event that any such audit shall disclose any error in the determination of the cost of the common work and/or proportionate share of any party or parties, then an adjuctme. necessary to correct such error or errors shall promptly be made. ENCLOSED MALL - IMPROVEMENTS Enclosed 6. (a) Homart has prepared schematic plans Mall Plans including elevations and perspective renderings reflecting design. concepts and Zeneral layout of the enclosed mall which are approved concurrently herewith. Homart shall prepare a preliminary plan for the enclosed mall in accordance with the approved schematic plans showing (1) Principal interior and exterior dimensions including scaled elevations and height of principal ccnponents; (2) Design concepts; (3) Materials selection; (4) Outline specifications for heating, ventilation and air-conditioning including performance specifications; 21. WN eoox 6685 PAGE 435 (5) Lighting; (6) Landscaping; (7) Signing; (8) Location and architectural F� treatment of kiosks or other sales, display or demonstration areas within the malls; (9) Attachment of the enclosed mall to commercial areas of the parties. Such preliminary plans shall be submitted to the parties for their approval except that the plans for attachment of the enclosed mall to the commercial area of any party shall be si:bJect to the approval of such party only. In any detemi- nation of the reasonableness of disapproval of any pltn for ouch attachment, insurance requirements,-building-.code.----- requirements, seismic loading, sprinkler protection require- ments, increased or decreased costs of construction of the structure to which attachment is to be made, and the proposed type of facade of the structure to which attachment Is to be made shall be relevant circumstances in resolving questions that may arise in such attachment. Upon such approval, Homart shall prepare final plans for the enclosed mall. The procedures for submission and approval, except those involving attachment of the mall enclosure to commercial areas of the parties, shall follow the equivalent procedures for the submission and approval of improvement plans in Section 3. Subject to such approvala, each party grants to any other party such easements, licenses or other rights as may be required to permit such attachment, or for foundations, footings and other structural encroachments of commercial areas on, over or under its parcel as shown on plans approved under this agreement. 22. IMA6685 w436 Homart, at its expense, shall complete the construction of the enclosed mall in accordance with the approved enclosed mall plans. Improved (b) All work in the improvement of the Work for Enclosed enclosed mall shall be scheduled by the project architect C01 Mall M, to be coordinated with the commercial area improvement work of all the parties, provided (1) the enclosed mall on Parcel 2 and that part of the enclosed mall on Parcel 1 lying between the May Parcel and the intersection of Parcel 1 and Parcel 4 shall be completed not less than thirty (30) days prior to the date on which the May improvements are open to the public for business; (2) the enclosed mall on Parcel 3 and that part of the enclosed mall on Parcel 1 lying between Parcel 3 and the intersection of Parcel 1 and Parcel 4 shall be completed not less than thirty (30) days prior to the date on which the Sears improvements are open to the public for business; (3) the enclosed mall on Parcel 4 shall be completed not less than thirty (30) days prior to the date on which the Broadway improve.nents are open to the public for business; and (4) the entire enclosed mall on Parcels 1, 2, 3 and 4 shall be completed not less than thirty (30) days prior to the date on which the improvements of any two of Sears, E i Broadway or May are open to the public for business. If the enclosed mall is completed prior to the completion of i the facade of any commercial area to which such enclosure is to be attached, the party upon whose parcel such facade is to be completed shall provide on or before the date the enclosed mall is open to the public an architectural enclosure for such part of the mall enclosure until such time as the facade of such commercial area shall be completed. Such architectural enclosure shall be subject to the approval of project architect. 23. 1 bm66 J PACE 438 MANAGEMENT AND MAINTENANCE OF COMMON AREA V1 Joint 7. (a) The common area of any party may be Tana ement jointly managed, controlled and operated for the mutual benefit of any of the parties pursuant to an agreement which such parties may from time to time enter into for such purpose. Any such agreement shall be consistent with the provisions of this agreement relating to maintenance and management of the common area. General (b) The parties shall have the general Control possession and control of the common area and the parties ,Jointly or individually may at any time and from time to time remove, exclude and restrain any person from the use or occupancy thereof except permittees who make use of the common area in accordance with the rules and regulations therefor established from time to time by the parties. If unauthorized use is being made of any of such crmmon area, any of the parties may, if such unauthorized use is not terminated within a reasonable time after notice thereof to the party on whose parcel such unauthorized use occurs, restrain or terminate such unauthorized use by appropriate legal proceedings. ScParate (c) From and after the dates of completion Coll;at ion tz) Maintain of the construction of the respective common area of each party as provided in Section 5 hereof, subject to the provisions of subsection (a) above and of Section 27 hereof, each party shall keep, maintain, manage and operate its respective common area, which for the purposes of this Section 7 and Section 10 shall include truck facilities, in good and clean order, condition and repair, which maintenance,management and operation shall be in conformity with the standards with respect thereto which have been approved by the parties concurrently 25. R eooK6685 PEE 439 I herewith. Such common area, insofar as it is possible, shall be operated and maintained in such manner as to present the appearance of a coordinated and unified common area cf the Shopping Center, and as will not make more burdensome i the common area costs of the other parties. Cr { The expense of use, maintenance, repair f and/or replacement of (1) utility loops, (2) facilities referred to in Section 4(d), and (3) illumination facilities of a party illuminated at the requert of any other party, shall be pro rated among the parties making use of such facility. 'i upon such equitable basis as such parties may agree. In the event such parties are unable to agree, such apportionment shall be determined under the procedures of Section 28. (d) Homart at its expense shall provide heating, cooling and ventilation for the enclosed mall at such times and in such manner as shall be required to maintain the temperature and humidity thereof through the enclosed mall in accordance with performance standards referred to in Section 6. (e) No charge shall be collected from and/or time limit imposed upon any permittee for parking unless all the parties hereto otherwise agree, provided this provision shall not prevent a common area maintenance and operation charge being made by a party to an occupant of such party's parcel. Employee (f) From time to time, by mutual agreement, Lk tng the parties shall designate within the Shopping Center, areas for employee parking. In the event the parties shall be unable to agree upon the designation of such areas for I employee parking, each party shall provide within its own parcel, adequate areas for employee parking. In no event shall any such employee parking area be provideu in an area I within 250 feet of any commercial area of any other party without Its consent. 26. I ID i eooM6685 ►, 440 Employee parking shall be permitted only 4ithin the areas designated for such use from time to time. (g) Landscaping and other decorative treatment of the common area shall be maintained so as to provide the general eiiect contemplated by the improvement b� plans and the approved enclosed :mall plans; for example, �Cr trees and shrubbery shall be properly pruned or otherwise controlled to avoid any condition of overgrowth. Obstruction 8. No building, structure or improvement shall of Common Areas and be constructed, placed, permitted or maintained, or other Enclosed Mall than common use made above the ground level of the common area or on the enclosed mall of any party unless the same is provided for by (i) Tna improvement plans; (11) The approved enclosed :call plans; Use of any area within the enclosed mall designated in the approved enclosed mall plan for sale, display or other promotion of merchandise or services shall aXso be subject to tnc approval of Sears, Broadway or May respectively if such area is located within 18r- feet of an entrance to the commercial area of such party. Such approval sY.all pertain to location, architectural or decorative treatment including signing, maintenance, and type of merchandise or services sold or displayed; (111) Other written consent of the parties; (iv) The construction, reconstruction, enlargement, repair, maintenance, modification, alteration or replacement of the Homart improvements, the Sears improvements, the Broadway improvements, 27. eooe6685 pw 441 and the May improvements, respectively, or any part i or parts thereof (to the extent the same may be permitted in accordance with the applicable provisions of this agreement) at any time or from time to time located on its respective parcel; (v) The use by the parties of C� MJ any part or parts of their respective common � areas for the purpose of display or sale of merchandise pursuant to the provisions of Section 2(d) hereof; (vi) The exercise of the temporary license granted to the parties hereto respectively pursuant to the provisions of Section 14 hereof'; (vii) The construction of the common area on any or all the parcels, as the case may be, or any portion or portions thereof, pursuant to the provisions of Section 5 hereof; and/or (viii) Promotional plans and uses developed and approved by the parties. 9. Each party s;ail hold harmless all other parties from all claim:: or judgments arising from the use of common area located :within its respective parcel, unless such claim, or judcment is caused by the negligence of such other party, any occupant claiming under such party or the agent, employee or contractors of such party or occupant. Such party shall provide public liability insurance (in blanket form. or otherwise) with limits of not less than One Xillicn Dollars ($1,000,000.00) for each occurrence 28. eooK6685 ►xt 442 and Fifty Thousand Dollars ($70,000.00) for property damage in the performance of its obligations under this section. All other parties shall be named as additional assureds. At the request of any party, such party shall be provided with a certificate of such coverage or notice of the uluctiLn to :gulf-insure and C� a ecrmnitmenL of the insurance carrier (if insurance is provided) that cancellation or reduction of any policy shall not be effective unless notice has been given to such party of such cancellation or reduction at least ten (10) days prior to the effective date thereof. Such obligation may also be discharged in whole or in part by self-insurance if approved by the other parties. If any party shall fail to provide such insurance coverage or to self-insure such hazards as provided herein, any other party shall-have the right obtain such insurance upon giving notice to the de- faulting party that such insurance is being obtained. Such party shall be entitled to immediate reinbursement from the defaulting party in the amount of the cost of such insurance and upon the failure of the defaultinG party to pay such sum, such party may establish a lien upon the real property of the defaulting party under the procedures of Section 10. 10. Each party shall have the right to enter I%'prove, 3enair anu upon the common area of any other party within the Shopping Int;ii: Center, without being obligated to do so, to perform the work or furnish the services refer:,ed to in Section 7 in the event such other party or parties shall fail to perform such work or render such service upon or as to its common area in accordance with the approved standards. 29. sooK6685 w443 Prior to the performance of any work or furnishing of service by any party upon the common area of any other party, such party shall give to the other party or parties on whose area such work is to be performed, notice of its intention so to do, apacifying the work to be performed. Such notice shall be given not less than F+ ten (10) days prior to the comamencement of such work. During such period, defaulting party shall have the right to perform or commence performance of such work and provides such work is diligently carried to completion, the right of such other pa.:ty to perform such work shall be suspended. Any dispute arising out of this section may be resolved under the procedures of Section 28. Upon completion of such uoric or service f furnished or from time to time if the work or service is t of a continuing nature, an itemized statement of the cost r thereof shall be submitted to the party upon whose parcel such work was performed and the amount thereof shall be immediately due and payable by such party. Such state- ment of account shall 'bear interest at the rate of six percent (6%) per annum until paid. If the amount thus stated is not paid within thirty (30) days, the part;; performing the work or service, by serving a notice upon the party upon whose parcel the work was performed, dcscribin; the entire parcel of such part; in the Shoppin., Center, the nature of the work or sirvices and the cost thereof and recording a copy of such notice in the Office of the Recorder of San Bernardino County, shall establish 30. eooK6685 ► 444 a lien upon the entire parcel of such party in the fir+ Shopping Center in the amount stated in such recorded notice. No lien shall exist until such notice is recorded. The priority of such lien shall be determined v'I as of the date of filing the same of record. Such lien N CL' shall continue until fully discharged but in no event longer than five (;) years from the date of recording and may be foreclosed in accordance with the law pertaining thereto . Such lien shall also secure the reasonable coats and expenses of enforcing the same including interest at the rate of six percent (6%) per annum and attorneys' fees. In the event any mortgagee or beneficiary under a deed of trust or occupant shall request notice under this section, all notices shall be given ir, compliance with such request. CC:-1:•!ERCIAL AREA DEVELOPMENT Uue of 11. All areas designated or used as commercial Con:icrcial Areas areas may be used for the following commercial purposes and no other purpose: Retail, office and service establishments, including financial institutions, brokerage offices, restaurants, automotive service stations, travel and other personal service agencies, but excluding any bowling alley, theatre, auditorium or other commercial recreational facility, automobile sales agency, automobile body shops, car washing establish- ment, hospital, mortuar;;, commercial laundry plant and similar uses unless such use is approved by the parties. 31. so%6685 w 445 r'urCher 12. (a) Before any commercial area shall be „i;pr,wul initially improved, schematic plans and outline specifi- cations shall be submitted of the location, exterior design concept, color and material selection of such commercial area (or architectural treatment of an N unenclosed or uncovered area) for the approval of the (r other parties for the purpose of achieving a harmonious relationship between the various buildings, facilities and areas which comprise the commercial areas of the Shopping Center. (b) Before any commercial area or common area shall be subsequently improved, altered, repaired or restored, the approval of the parties shall be re- quired as above provided. Such approval need not be obtained for improvement, repair3, restoration, or alterations if such improvement, repairs, restoration or alterations do not represent a material change in design concept, color, mate:~ial selection, parking arrangement o: traffic circulation. i - (c) In the evert ouch plans shall be submitted and such plans shall net bt; disapproved within thirty (30) days from date of submisz ion the plans Shall be deemed to have been approved. In the event any such plans shall be disapproved, Such disapproval Shall indicate the particulars for suci, disapproval. In the event the parties are unable to agree, the :natter shall be determined in accordance with arbitration procedures of Section 28. (d) Awnings or other attachments or pro- jecU ons from the building walls, exterior sound systems, loud speakers or devices for the production or prodection of sound or noise into the co.-..;non area shall not be constructed, operated, or :maintained in the cornmerciai areas unless approved as provided above. 32. z bDOK 6685 PAu 446 (e) If any occupant shall propose to install or erect any sign that does not comply in every particular with the sign criteria concurrently approved by the parties, such sign shall not be erected or installed without the approval of all parties. If after the initial installation G1 M•+ CL^ of any sign, any occupant proposes to make any change or modification therein which is not in conformance with the sign criteria, such change or modification shall be submitted to the parties for approval. Commencement 13. (a) On or before January 1, 1966, Sears of Construction of Commercial shall commence construction on the Sears parcel of a retail Facilities store facility containing not less than 200,000 square feet of floor area and which shall not exceed 40 feet in height. Such facility shall be completed and open to the public for business not later than June 1, 1967. (b) On or before January 1, 1967, Broadway shall commence construction on the Broadway parcel of a retail store facility containing not less than 140,000 square feet of k floor area and which shall not exceed 80 feet in height. Such facility uhall be completed and open to the public for business not later than August 15, 1968. (c) On or before January 1, 1967, May shall commence construction on the May parcel of a retail store facility containing not less than 140,000 square feet of floor area and which shall not exceed 70 feet in height. Such facility shall be completed and open to the public for business not later than August 15, 1958. (d) Homart shall commence construction on tha Homart parcel of occupant facilities at such time as is required for Homart to complete the construction of the exterior structure including walls, roof and facade abutting 33. L b. eooK 6685 ►, 437 In the performance of the work of improvement of the enclosed mall, Homart shall obtain not less than three (3) bids from contractors approved by the parties for the construction of (1) any roof structure of the enclosed mall including covering of such structure, C, any ceiling and wiring and fixtures for lighting, but CL' excluding plumbing, air-conditioning ducts and equipment, and any side wall or other form of side enclosure of such enclosed mall; and (2) the floors of the enclosed mall including landscape plants at floor level but excluding plumbing, drainage pipes or systems, electrical wiring and fixtures and any other architectural treatment of areas above the surface of such floor area. Such work may be included as a part of other work to be performed for Homart upon such conditions as the parties may agree and may be performed by a bidder other than the lowest bidder if Homart so elects, provided the cost of work to be apportioned among the parties shall be the lowest bid or bids obtained for such work. Cost (c) The proportionate share of the cost ;;portionment E:,closed Mall of each party for the work included in items (1) and (2) above shall be: Sears 4.67% Homart 92.36% Broadway 1.08% May 1.89% In addition, Sears, Broadway and May shall contribute the sum of One Inousand Two Hundred Dollars ($1,200.00) for each ent:,ance (which may include multiple doorways) it has upon the enclosed mall . 24. eoN6685 w 447 on the enclosed mall of its commercial area improvement: (1) abutting on Parcel 1 between Parcel 3 and Parcel 4 not `t less than thirty (30) days prior to the date on which Sears commercial area improvements are completed and open to the pub for business,(2) abutting on Parcel 1 between the May parcel and Parcel 4 not less than thirty (30) days prior to the date on which May commercial area improvements are completed and C'1 open to the public for business, (3) abutting on Parcel 4 not less than thirty (30) days prior to the date on which Broadway commercial area improvements are completed and open to the public for business. Except as otherwise provided, such facilities shall be completed and open to the public for business not later than August 15, 1968. When completed, such facilities shall contain in the aggregate not less than 150,000 square feet of floor area and shall not exceed 40 feet in height. (e) The term "shall not exceed feet in height" shall refer to the height of any nompleted building, structure and/or structures on the Shopping Center site, or any portion or portions thereof, exclusive of any roof aerials, measured from the finished level of the mall on Parcel 1 to the highest of any of the following components: (1) roof penthouse, including screen or wall enclosure; (2) roof coping, (3) parapet wall or heating, ventilating, air-conditioning, cooling unit. (f) A party shall be deemed to have commenced construction at such time as any concrete is poured on its parcel by a contractor acting under a contract with such party providing for the construction of its commercial area in accordance with approved plans and specifications for construction of such commercial area. 34. i AWN eooe6685 ?Act 448 (g) In the event Sears, Broadway or May :;hull file a petition in bankruptcy or for reorganization cv ahall be adjudicated a bankrupt, or insolvent, or shall make an assignment for the benefit of its creditors, or c,tjall admit in writln,� its inability to pay its creditors, o ' shall admit in writing its inability to pay its debts CZ generally as thsy become due, or a receiver, trustee or M+ CC liquidator shall be appointed for all or substantially all of the Sears parcel, Broadway parcel or May parcel in any proceeding brought against Sears, Broadway or May respectively, prior to commencement of construction of its commercial area as provided in the prezeding subsectlons,, Homart shall have the right at any time thereafter within one year to repurchase all of the parcel of such party at the purchase price origi- nally paid for such parcel by such party by giving to such party written notice of its intention so to do at least sixty (60) days prior to the date upon wh.'_ch such parcel shall be conveyed. Such repurchase shall not relieve any such party of its obligation to make any payment of its share of the cost of the common we)rk under Section 5 the liab::ity for which had accrued prior to suQh notice, but shall relieve such party of its obligation to construct its commercial areas and of obligations as to common areas accruing after such notice. The conveyance of such party shall be L;; grant deed. A policy of title insurance shall be furnished L,) the purchaser reflecting no encumbrances or defects of title, except: (1) the lien of current real property taxes not delinquent; (u) matters shown on the policy title 1tiuuranee received by cast: of the at the time of ita acquisition of said ( S) vit;ttt8 AnA vestriotiona avis1n.; fr,,w U118 1n:;Lr'uuw11t•; .i' . t D001c UUOJ na 449 (4) governmental requirements; (5) public utility easements granted by the party. Commencemeu 14. The construction to be performed by each Requirements aini Standard-1 party under the foregoing Sections 12 and 13 shall be subject to and in accordance with the following require- ments and standards to the maximum extent to which such ", requirements and standards are applicable to such construction: (a) The construction shall conform to its approved exterior plans and specifications; (b) Upon commencement of construction, such party shall diligently prosecute said construction to completion; (c) The construction shall be performed in good and workmanlike manner using first-class materials and in accordance with all applicable laws, ordinances, rules and regulations; (d) The construction shall be performed su'as not to: (i) cause any unnecessary increase in the cost of construction of the others, or (Ii) unreasonably interfere with the business operations and/or construction of the others; (e) Architects and contractors shall cooperate and coordinate construction to the extent reasonably practicable to achieve the objectives set forth in the preceding subsection (d); (f) At least twenty (20) days prior to the commencement of construction two (2) copies ui the following; documents containing the following informational data shall be prepared and delivered to the project architect and any other party upon 36. eoN6685 PA A50 whose parcel a temporary license is sought for construction purposes, as herein provided: (1) a plot plan of its parcel and areas covered by temporary licenses on its parcel or that of another party, with designations thereon, in relation to its construction CA N to be performed, of the location of (A) material and (X+ equipment storage sites, (B) construction shacks and temporary improvements incidental to its construction and (C) assigned pa,rki;,g areas for its arcrAtects, contractors, subcontractors and their agents, employees and representatives, and (ii) a time schedule ccntaining estimations for the period of use of the facilities set forth in divisions (A), (B) and (C) of the preceding oubuection (i) . The project arer,iti,ct shall have the right, upon five (5) days notice to the parties, to make reasonable adjustments to the designated locations and/or time schedules contained in such documents of each party (which such adjustments shall be binding on the parties) in order to prevent unnecessary conflict between the performance of the work and the performance of the construction of the parties respectively; Upon approval of the project architect, a temporary license shall be granted by the party upon whose parcel such license is sought (Licensor) to the party upon whose parcel construction is to be performed (Licensee) for such period of time during such construc- tion as the Licensee may reasonably require. Such license shall not be granted as to areas upon which commercial areas have been established. A license 37. J �rlas�ra BOOK 6685 ►Act 451 shall be granted under, this subsection for the C) performance of work in connection with the maintenance, repair, razing, construction, reconstruction or replacement permitted pursuant to this agreement. Upon completion of such use and in no event later than completion of construction, such temporary ~ CL' license shall terminate and Licensee shall restore promptly any such licensed area or other area that may have been damaged by performance of such work or use of such area to a condition substantially equal to that existing prior to such use. (g) At all times (1) all safety measures will be taken reasonably required to protect the other parties from injury or damage caused by or resulting from the performance of its said construction, (ii) the other parties will be indemnified and held hac.aless from and against all claims, costs, expenses and liabilities arising from or in respect to the death if or accident, injury, loss or damage what- soever caused to any person or to the property of any person as shall occur in the process of, during the course of or by virtue of its said construction or use of any area under a license, (111) the other parties will be indemnified and held harmless from and against mechanics', materialmen's and/or laborers' liens, and all costs, expenses and liabilities in connection with or arising from its said construction or zhe use of any area under a license and (iv) any other party will be promptly reimbursed for injury or damage sustained by reason cf the performance of such construction; 38. BMK6685 ►Act 452 (f:) Upon the request of any other party, evidence, in form reasonably satisfactory to such requesting party will be delivered within sixty (60) days after any such request, that: (1) the construction performed by it has been done and f+ completed in full compliance with all applicable laws, ordinances, rules and regulations, (11) that said construction has been done and completed in full compliance with its approved plans, and (111) all costs, expenses and liabilities arising out of or in connection with said construction has been Hilly paid and discharged. !storation 15. (a) Each party shall, for the period of Premises - isurance thirty (30) years from the date of completion of its improvements, on its parcel, Keep and maintain, at its own cost and expense, its respective improvements in good order, condition and repair. (b) If at any time during the thirty-year period from the date of completion of its improvements, such improvements shall be damaged or destroyed by fire or other cause, whether or not such damage or .destruction znall be covered by insurance, each party shall promptly commence and diligently prosecute to completion the repair, reconstruction or replacement thereof so that upon completion o: such repair, reconstruction or replacement the floor urea shall comply with the applicable minimum floor area requirements of Section 13. In such repair, reconstruction or replacement, other design concept may be used provided there is compliance with the requirements of Section o and Section 12 respectively. 39. 6 i DON 6685 ► 4W (c) -All work done by any party pursuant to -subsections (a) :a-.d/or (b) of this Section or any reconstruction under subsection (f) hereof, shall be done in accordance with the requirements of Sections 6, 12 and 14 hereof as such sections may be applicable. (d) Each party at all times during N the thirty-year period from the date of completion of its improvements shall keep or cause to be kept its improvement insured against: (1) Loss or damage by fire and any other causes or events from time to time included within the coverage of the standard form extended coverage insurance policy, as written by the insurers referred to in the'following subsection (e) in an amount not less than eighty percent (80%) of insurable value, (exclusive of foundation, footing and excavation cost). At the request of any party, the replacement cost shall be determined by a qualified appraiser not more often than once in every five years; and (11) Loss or damage by explosion of steam boilers, pressure vessels or similar apparatus (if facilities for the supply of steam shall now or hereafter be installed therein) in an amount not leas than Three Hundred Thousand Dollars ($300,000.00) in respect to any one accident. (e) All insurance provided for in the preceding subsection (d) shall be effected under a valid and enforceable policy or policies or contract or contracts issued by an insurer or insurers of recognized eeaponsibility, and shall provide that such insurance m:,,y iwt be cancelled or the amount or scope thereof be changed, without ten (1U) days prior notice to 40. eooK6685 r4E 454 each of the other parties; provided, however, that nothing contained in this subsection (e) shall be deemed Lo prohiult the obtaining of a policy or policies of blanket insurance which may cover any other property ov properties, real and/or personal, and any other N liabilities, of any person in addition to the property and liabilities covered pursuant to subsection (d) of this Section 15; provided, however, that such policy or policies by the terms thereof shall allocate to the properties and liabilities required to be insured hereunCer, an amount not less than the amount of insurance required to be carried pursuant to the preceding subsection (d). Such insurance shall be for the ,point benefit of the parties and the holder of any first mortgage or first deed of trust on the parcel of the party so required to obtain such insurance under a standard mortgagee endorsement to the extant so required by tha first mortgagee, as their respective interests may appear, and shall provide V%at all proceeds of such insurance shall be held and disbursed as a trust fund for the purpose of paying the cost of repair, reconstruction or replacement of the improvements. Should any amount of insurance proceeds remain aster such i repair, reconstruction or replacement shall have been completed and fully paid for, free of any liens, or claims, such remainder shall belong to and shall be paid to the party obtaining such insurance, subject, however, to the rights of any first mortgagee. Any party upon request shall furnish to any other party requesting the same, a certificate or certificates (with an endorsement of premium payment thereon) evidencing the insurance coverage required by this subsection (e), such certificates to be furnished promptly after the date on which any such 41. eooR 6685 W455 insurance (or any renewals thereof) shall become effective. (f) (i) Sears, Broadway and May each shall have the right from time to time to raze or remove the whole or any part of its improvements respectively; provided, however, that in the event the razing or removal of its store building fronting on the enclosed mall shall occur at any time prior to the expiration of the thirty- Col N year period from date of completion of its improvements, (� then Sears, Broadway or May, as the case may be, shall promptly commence and diligently proceed to complete such construction upon its parcel as shall be necessary to cause its major store building to front on the enclosed mall, and upon completion of said construction to comply with requirements of this instrument. (ii) Homart shall have the right from time to time to raze or remove such part of the Homart improvements as will not substantially affect the use of Parcels 1, 2, 3, 4 and lA for pedestrian traffic provided, however, that Homart shall promptly commence and diligently proceed to complete such construction upon its parcel as shall be necessary to complete the enclosure of the enclosed mall and to reconstruct its commercial area fronting on such Parcels to comply with the require- ments of this instrument. Homart shall give to each such other party notice of its intention to raze or remove any such commercial area or the enclosed mall not less than sixty (60) lays prior to the commencement of such work, and upon i-equest of any other party, at its own cost and expense within five (5) days prior to the commencement of 42. sooc 6685 PA&E 456 ,Lny such razing or removal, shall obtain and deliver to t ,c other parties a surety company bond or bonds or �..ccutud counterparts thereof covering performance, completion and labor and material payment with rospect to such razing or removal and with respect to the construction required under this subsection (f) to be completed on the Homart parcel, naming Homart as principal and the other parties as obligees, issued by a responsible A F surety company approved by such parties (which approval CC shall not be unreasonably withheld) qualified and authorized to do business in the State of California, in a form generally and customarily used by such sureties, in an amount equal to the estimated cost of such razing or removal and such construction, guaranteeing and conditioned upon the performance and completion of such work free and clear of all liens, ercumbrancea and liabilities for the cost of such razinZ or removal and construction, except as the same may be financed by mortgages or deeds of trust; provided, however, that the bonding requirement contained in this subsection (ii) will, upon request by Homart, be waived by the parties provided that Homart then has adegaate financial capacity, in the reasonable judgment of such parties, to complete such razing or removal and construction and furnishes to such parties reasonable evidence thereof. (111) If, during such removal, razing or reconstruction, the enclosure of the enclosed mall stall be affected by the removal of any part of any commer- ial area improvement forming a part of such enclosure, auon party shall erect or cause to be erected an adequate and proper appearing construction barricade approved by the p.oject architect, sufficient to enclose the part of 43. 1 I 1 m6685 PA&E 457 i the enclosed mall on its parcel and shall maintain :;uch barricade until its commercial area improvement completes the enclosure of the enclosed mall. (iv) All work performed pursuant to this subsection (f) shall be in accordance with F, Section o, Section 12 and Section 14. (g) Notwithstanding anything contained to the contrary in subsection (d) of this Section 15, all or any part of the insurance required to be carried by Sears, Homart, Broadway and May may be carried under any plan of self-insurance from time to time maintained by Sears, Homart, Broadway and May (but not by any successor or assignee of such parties other than a wholly-owned subsidiary or a successor by merger, consolidation or transfer of substantially all assets unless approved by the parties), provided that the parties have adequate reserves or resources for the risk so self-insured against and furnished to ouch other parties reasonable evidence of the adequacy of such reserves or resources. . (h) Each party hereby releaues each of the other parties from any liability for any loss or damage of the type for which insurance is required in this Section 15, and grants to the other parties respectively, on behalf of any insurer providing such insurance, a waiver of any right of subrogation which any such insurer of any one party may acquire against any other party or parties hereto by virtue of payment of any loss covered by such insurance. 44, 3 eooK6685 PuE 458 Leasing 16. The development of coordinated complementary Control merchandising areas along the enclosed mall adjacent to major entrances of the commercial areas of Sears, May and Broadway provides the basic pattern of intensive promotional activity in the Shopping Center. The merchandising program of each of such parties differs from the merchandising N programs of such other parties. Individual treatment of the areas adjacent to each n.ajor. entrance is required which will provide variety and significant promotional impact for the diffevent areas of the Shopping Center and balance to the Shopping Center as an entity. (a) Prior to the date on which Scare ceases to operate a retail facility on its parcel, no lease shall be entered into as to any floor area (1) abutting upon the northerly 185 feet of Parcel 1 without the unrestricted prior approval of Sears of the location of the floor area to be occupied under such lease and of the identity of the proposed occupant, and (2) abutting upon the remainder of Parcel 1 north of Parcel 4 without the reasonable prior approval of Sears of the location of the floor area to be occupied under such lease and the identity of the proposed occupant. Sears approves the identity cf proposed occupants enumerated in that certain approved tenant list initialled by Sears and Homart concurrently herewith. Any lease for such floor area shall contain restrictions on assignment, subletting or other transfer which will enable Homart to prohibit occupancy of floor area within such designated area unless such occupancy has been previously approved by Sears in accordance with this subsection (a). Homart shall piahibit any such unapproved occupancy. 45. I Dom 6685 put 459 (b) Prior to the date on which Broadway ceases to operate a retail facility on its parcel, no lease shall be entered into as to any floor area (1) abutting upon she easterly 185 feet of Parcel 4, without the unrestricted prior approval of Broadway of the location of the floor area to be occupied under such C1 lease and of the identity of the proposed occupant, ~ CL' (2) abutting upon the remainder of Parcel 4 without the reasonable prior approval of Broadway of the location of the floor area to be occupied under such lease and the identity of the proposed occupant, and not less than fifty percent (50%) of commercial area comprising not less than twelve thousand (12,000) square feet abutting on the northerly line and southerly line respectively of Parcel 4 between the Broadway parcel and Parcel 1 shall be fashion tenants. Broadway approves the identity of proposed occupants enumerated in that certain approved tenant list initialled by Broadway and Homart concurrently herewith. Any lease for such floor area shall contain restrictions on assignment, subletting or other transfer which will enable Homart to prohibit occupancy of floor area within such designated area unless such occupancy has been previously approved by Broadway in accordance with this subsection (b). Homart shall prohibit any such unapproved occupancy. (c) Prior to the date on which May ceases to operate a retail facility on its parcel, no lease shall be entered into as to any floor area (1) abutting upon the southerly 185 feetcf Parcel 1, without the unrestricted prior approval of May of the location of the floor area to be occupied under such lease and of the identity of the proposed occupant, and (2) abutting upon the remainder of Parcel 1 south of Parcel 4 without the reasonable prior approval of 46. OD09 6685 ►Acs 460 May of the location of the floor area to be occupied under such lease and the identity of such occupant. May approves the identity of the proposed occupants enumerated in that certain approved tenant list initialled by May and Homart concurrently herewith. Any lease for such floor area shall contain restrictions on assignment, subletting or other transfer which will enable Homart C!1 F� to prohibit occupancy of floor area within such designated CD area unless such occupancy has been previously approved by May in accordance with this subsection (c). Homart shall prohibit any such unapproved occupancy. ,d) No lease shall be entered into under which any person acquires the right to the use of premises with a floor area of 40,000 square feet or more on the Homart parcel. (e) In the exercise of the reasonable right of approval granted in this section, the parties will endeavor, subject to the requirements of proposed occupants of Parcel B, to locate occupants (including fashion stores) in such manner as to provide a mix and balance of occupants substantially typical of regional shopping centers in the Southern California area. DEVELOPMENT OF LYTLE CREEK FLOOD CONTROL CHANNEL AND AREAS ADJACENT TO SHOPPING CENTER lood Control 17. (a) The parties recognize that the Lytle hannel Areas Creek Flood Control Channel may be (1) diminished in width from Its present 200 feet width, (2) eliminated in its entirety or (3) covered in such manner as to permit its use for Shopping Center purposes in conformance with final plans for the improvement of such Channel by the San 47. BDOK6685 461 Bernardino County Flood Control District and the Corps of Engineers, United States Army. The easterly boundary of the Shopping Center as described on Exhibit "B-1" is the westerly line of the Channel as presently owned by the San Bernardino County Flood Control District. M� h+ At such time as any such land becomes tr available, Homart shall acquire the same in accordance with its agreement with the Flood Control District. Each party shall acquire its pro- protionate share of such land lying west of the middle of the Channel as shown on Exhibit "A." Such share shall be determined in accordance with its then existing acreage within the Shopping Center. Such acquired land insofar as is practical shall be contiguous to the existing parcel of each party. The right to acquire such land shall be at the cost at which Homart acquires such land. All such acquired area shall be a part of the Shopping Center and shall be improved as common area with the cost of such improvement being pro rated among the parties upon the basis of the then existing acreage of such parties in the Shopping Center. In such improvement, roadway Parcel 6 will be moved insofar as practical, based upon the areas available, to such acquired area and the areas of the existing Parcel 6 released from roadway uses will be Improved for parking and other common area uses. Parcel 6A shall be extended to loin relocated Parcel 6. The land?Wying east of the center line of the Channel shall be acquired by Homart and shall be 48. eoN6685 PAu462 incorporated within Parcels 12, 13 and 14 which adjoin such area on the east and improved es common area. If the Channel is eliminated, the acquired lands shall be divided, improved and used as vl provided above and the boundaries of the Shopping Center ►+ shall be extended to include all land presently owned by Homart lying westerly of the western line of "E" Street (Parcels 12, 13 ani 14) and any owners of any part of such land at the time shall become parties to this agreement subject to this Section 17 in the use of such land. At the time of the construction of the Channel under the plans formulated by the United States Army Corps Engineers, such Channel may be covered in accordance with plans prepared by the project architect and approved by such governmental agencies as may have jurisdiction of such work and by the parties upon such terms and conditions as the parties may then agree. In the event the Channel is so covered, the entire area of the cover of the Channel shall become a part of the Shopping Center and in such event the acquired surface areas of the channel enclosure shall be incorporated with the various parcels of the parties and improved and used as provided in the event the Channel is eliminated with the center line of the Channel being the line of division between Parcels 12, 13, 14 and the parcels of the parties in the Shopping Center. )adway (b) Homart has established easements for isement public street and utility uses on, over, along, under and 1 49. BOOK6685 ►Ku 46%3 across Parcels 7 and 8. The City of San Bernardino I has undertaken to improve and maintain such parcels including access across the flood control channel as public streets. Daring construction, repair or other improvement of or on Parcels 7 and 8. Homart shall grant v1 to the other parties temporary licenses over adjacent w CC areas for alternate means of access to the Shopping Center during periods of construction, repair or other improvement. Any cost of improvements on Parcels 7 and 8 which is borne by the parties shall be pro rated among the parties as common area improvements. i tback (c) Homart does hereby establish the strictions following parcels which shall be subject to setback restrictions as provided in this subsection: (1) Within Parcel 12, (i) A parcel bounded by the easterly, southerly and westerly boundaries of such parcel and a line parallel with and distant northerly 60 feet from the southerly boundary of such parcel; (ii) A parcel bounded by the southerly, easterly and northerly boundaries of such parcel and by a line parallel with and distant westerly 60 feet from the easterly boundary of such parcel. (2) Within Parcel 13; (1) A parcel bounded by the northerly and easterly boundaries of such parcel, a line parallel with and distant southerly 60 feet from 50. eooK 6685 Pw 464 the northerly boundary of such parcel and a line parallel with and distant westerly 60 feet from the easterly boundary of such parcel; (ii) A parcel bounded by the easterly and southerly boundaries of such parcel, a line parallel with and distant northerly 60 feet N from the southerly boundary of such parcel and a (b line parallel with and distant westerly 60 feet from the easterly boundary of such parcel. (3) Within Parcel 14; (i) A parcel bounded by the northerly and easterly boundaries of such parcel, --- a line parallel with and distant southerly 60 feet from the northerly boundary of such parcel and a line parallel with and distant westerly 60 feet from the easterly boundary of such parcel. No improvements of any kind shall be constructed or installed above the ground level of all areas lying within such setback parcels unless such improvements are shown on plans for such areas prepared by the project architect and approved in writing by the parties. (d) Within Parcels 12, 13 and 14, Homart hereby establishes easements for the installation, maintenance and repair of Shoppinb Center signs at the location shown on Exhibit "A" or such other location as may to mutually agreed upon. Such Shopping Ce..ter signs shall be developed by the project architect as a part of the imprcvement plans for the common areas and shall be installed coincident with the opening of the Shopping Center. Installation and maintenance of such signs shall be borne by the parties upon the basis of the then existing acreage of the parties in the Shopping Center. 51. E BOCK 8685 na 465 (e) Any commercial development of Parcel 12, Parcel 13 and Parcel 14 shall be sub;ect to the following conditions and restrictions: (1) Within Parcel 12, no building or structure shall be erected that exceeds one story in height above ground level. C1 (2) (1) Within Parcel 13, no building or structure that exceeds one story in height above the ground level shall be erected or maintained within the northerly 120 feet of such parcel. (ii) Within Parcel 13, no building or structure that exceeds one story in height above the ground level shall be erected or maintained within the southerly 120 feet of such parcel. (111) Within Parcel 14, no building or structure that exceeds one story in height above the ground level shall be erected or maintained within the northerly 120 feet of such parcel. (3) All buildings and other improvements constructed or installed shall conform to the standards of quality and design of the buildings or other improve- ments in the Shopping Center and shall be compatible with the architectural treatment of the Shopping Center and its component structures. (4) Motor vehicle parking ratios shall be maintained within each parcel in accordance with the standards established herewith: Retail and service 2.5 square feet of parking establishments area to each square foot of floor area. Office and medical 1 square foot of parking buildings; hotels area to each square foot or motels of floor area. Other Use Adequate parking in relation to the particular use as approved by the parties. 52. eooK6685 FAu 466 Unless approved by the parties, there shall not be any multipie-deck parking structures within Parcels 12, 13 or 14 unless such structures are subterranean. G1 (5) The parcels may be used for the N Cr commercial purposes provided in Section 11 hereof and in addition thereto for the following purposes and no other purposes without the written consent of the partieas Automobile sales agency, gara6e, car washing establishment, office building including but not by way of limitation medical and other professional offices, hospitals, motel, hotel, recreational facilities, such as bowling alley, theater and skating rink. It is the intention of the parties that such areas shall be developed for uses which are complementary to the Shopping Center. (6) No lease shall be entered into under which any person acquires the right to the use of premises with a floor area of 40,000 square feet, o., more, for retail sales purposes, without approval of the parties. (7) All signs except project signs referred to in subdivision (d) above shall conform to the sign criteria or be otherwise approved by the parties. GENERAL PROVISIONS )venants 18. Each easement, restriction and covenant over in Witt, ind the Homart parcel, Sears parcel, May parcel, Broadway parcel and Parcels 7, 8, 12, 13 and 14, shall be a burden thereon and shall be appurtenant to and for the benefit of each parcel in the Shopping Center and each part thereof, and shall run with the land. 53. i BOOK 6685 pw 467 Duration 19. Each easement, setback line, covenant, restriction and undertaking of this agreement shall be for the term of fifty (50) years from the date hereof and shall continue thereafter so long as not less than 100,000 square feet of commercial area on each of any two of the Homart ;r parcel. Sears parcel, May parcel or Broadway parcel shall be used for the uses permitted herein, except that easements for: (a) walkways over the southerly 20 feet of Parcel 1 and over Parcels 2 and 3; (b) roadways over Parcels 5, 6, 6A, 7 and 8; shall continue until released by all parties. Utility easements shall terminate as provided in Section 4 hereof. Injunctive 20. In the event of any violation or threatened Relief violation by any party, lessee or occupant of any part of the Shopping Cente^ of any of the terms, conditions and covenants herein provided, any of the parties shall have the right to enjoin such violation or threatened violation in a court of competent ,jurisdiction. Modification 21. This agreement may not be modified in any Provision respect whatsoever or rescinded, in whole o^ in part, except with the consent of all the parties and then only by written instrument duly executed and acknowledged by all of the parties and recorded in the Office of the County Recorder of San Bernardino County. No occupant other than party shall be required to loin in the execution of or consent to .ny act of the parties under this Declaration. Not a Public 22. Nothing herein contained shall be deemed Dedication to be a gift or dedication of any portion of the Shopping Center to the general public or for the general public or for any public purpose whatsoever, it being the intention of the parties hereto that this agreement shall be strictly limited to and for the purposes herein expressed. 54. WSW eooK6685 ?Au 468 inch :;1 .111 23. It is expressly agreed that no breach of Permit Rnination this agreement shall entitle any party to cancel, rescind or otherwise te:Rninate this agreement, but such limitation shall not affect, in any manner, any other rights or remedies which the parties ma;, have hereunder by reason of any breach of this Declaration. 24. A breach of any of said covenants or restrictions shall not defeat or affect or render invalid C1 the lien of any mortgage or deed of trust made in good Cr faith and for value but such covenant or restriction shall be birding upon and effective against any of the parties whose title to said property or any portion thereof is acquired by foreclosure, trustee's sale or otherwise. 25. If any clause, sentence or other portion of these covenants and restrictions shall become illegal, null or void for any reason or shall be held by any court of competent ,jurisdiction to be so, the remaining portions shall remain in full force and effect. Ices 26. All notices, statements,approvals, demands or other communications (herein referred to as "notices") to be given under or pursuant to this agreement shall be In writing, addressed to the parties at their respective addresses as provided below, and shall be delivered in person, or by certified or registered mail, postage prepaid, or by telegraph or cable, charges prepaid. If mailed or telegraphed as aforesaid, such notice shall be deemed to have been given twenty-four (24) hours after the date of mailing or date of delivery to the telegraph or cable company. The addresses of the parties to which such notices are to be sent shall be those of which the other party or 55. i eooK 6685 PAGE 469 parties actually receive notice, and until further notice are as follows: HOi4ART DEVELOPMENT CO. Attention: President 925 South Homan Avenue Chicago, Illinois 60607 SEARS, ROEBUCK AND CO. Attention: Vice President 2650 East Olympic Boulevard Los Angeles, California 90054 V BROADWAY-HALE STORES, INC. CO Attention: Vice President 600 South Spring Street Los Angeles, California 90014 ' THE MAY DEPARTMENT STORES COMPANY Attention: Executive Vice President 10738 West Pico Boulevard Los Angeles, California 90064 orce Majeure 27. Each party hereto shall be excused from performing any of its respective obligations or undertakings provided in this agreement, except any of its respective obligations to pay any sums of money under the applicable provisions hereof, in the event and/or so long as the performance of such obligations Is prevented or delayed, retarded or hindered by act of God, fire, earthquake, floods, explosion, actions of the elements, war, invasion, Insurrection, riot, mob violence, sabotage, malicious mischief, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, action of labor unions, condemnation, requisitlor, lairs, order of government or civil or military or naval �1Lt,:rities, or any other cause, whether similar or DOox6685 ►-4 70 dissimilar to the foregoing, not within the reasonable control of the respective party. ,rbiti%ition 28. Any dispute, including those arising from ,lack of approval, controversies or disagreements between Lhe parties arising from the interpretation or application of this instrument shall be resolved by arbitration, as N provided herein. CP Any party may request a meeting to be attended by all parties for the purpose of resolving any dispute arising under this agreement. If the matter is not resolved at such meeting, or the meeting is not held, any party may within thirty (30) days from the date set for such meeting file a written request to resolve such dispute by arbitration. Within ten (10) days from the date of receipt of such notice, each party shall se]ect an arbitrator. Such arbitrators shall meet within ten (10) days after selection for the purpose of resolving the dispute. If a majority of such arbitrators are unable to agree, an additional arbitrator shall be selected by the designated arbitrators. If such arbitrators are unable to select such an arbitrator, such arbitrator shall be appointed by the Presiding Judge of the Superior Court of San Bernardino County, State of California, at the request of any party. Within ten (10) days from such appointment, all arbitrators shall meet and determine the matter in dispute and shall resolve the same and all questions pertaining thereto within twenty (20) days from the date of selection of such additional arbitrator. A majority decision shall be final at any stage of the pi-occeding. Each party shall bear its own expense except 57. aoo46685 Put 471 that relating to the selection and services of the additional arbit nitor which shall be borne equally by the parties. In any arbitration proceeding involving Sertions 3 and 6 hereof arbitrators having substantial experience in shopping center design and development C1 shall be selected as arbitrators by the parties, or otherwise. Approvals 29. Unless otherwise stated, whenever approval is required, it shall not be unreasonably withheld. Unless provision is made for a specific period of time, the same shall be deemed to be ten (10) days, and if any party shall neither approve nor disapprove within said ten (10) day period, the party shall be deemed to have given its approval. If a party shall disapprove, the reasons therefor shall be stated. Condemnation 30. Any award, whether the same shall be obtained by agreement, or as a result of any court action or by ,judgment verdict or order after any such court action, resulting from a taking or damaging by condemnation of the Shopping Center or any portion or portions thereof or rights or interests in the Shopping Center or any portion or portions thereof, or resulting in a requisitioning thereof by military or other public authority for any purposes arising out of a temporary emergency or other temporary circumstances, shall be distributed among the parties hereto in accordance with the terms and conditions of such agreement, ,judgment, verdict or order; provided, however, that Homart, Broadway, Sears and Mayor any one 58• • r BoNB685 ►uu 472 or more of them shall have the right to appeal any ,Judgment, verdict or order to a court of last resort with respect to its or their respective interests therein. If any portion(s) of the total award is made C1 for a taking of any portion of any party's parcel which at the time of such taking was parking area, then such portion(s) of such award (which shall include the reciprocal easement interests of other parties) shall be used to replace the parking area so taken, if such replacement is necessary to maintain the then existing parking ratio in such party's parcel, and the other i parties shall, in such event, not unreasonably withhold their consent to the erection of a parking structure for such purpose. I i N WITNESS WHEREOF, the parties hereto have hereunto caused their respective names to be subscribed hereto by 59. MORONS a nooK6685 na 4-7� DECLARATION OF ESTABLISHMENT OF RESTRICTIONS AND COVENANTS AFFECTING LAND (San Bernardino, California) N r I N D E X !etion Description Page PARTIES 1 ESTABLISHMENT OF GENERAL PLAN OF DEVELOPMENT 1 DEFINITIONS a Shopping Center 2 b Sears Parcel 2 c Homart Parcel 2 d Broadway Parcel 3 e May Parcel 3 f Parcel Designation 3 g Occupant 3 h Parties 3-6 1 Persons 6 i Permittees 7 k Common Area 7 i Common Work 7 m Floor Area 7-8 n Pa,*ing Areas 8-9 o Enclosed Mall 9 p Improvements 9-10 q Lease 10 r Improvement Plans 10 COMMON AREA DEVELOPMENT a Walkways 10 b Roadways 10 Parking Areas 10-11 d Designation of Commercial Areas 11 e Use by Permittees 11 I'roject Architect 11-12 a (b) Improvements Plans 12-14 c Development of Plans 15 d Final Plans 1 e Modification of Improvement Plans 16 a -(d) Utility Easements 16-17 a Commencement of Improvement Work 18-19 b Scheduling of Common Work 19-20 c Apportionment of Common Work Cost 20 d Maintenance of Cost Records 21 ENCLOSED MALL - IMPROVEMENTS ;a Enclosed Mall Plans 21-2 b Improved Work for Enclosed Mall 23-2 ,c Cost Apportionment Enclosed Mall 24 eooKS685 ?Act 474 1 N D 9 X jr UQ {action Description Page MANAGEMENT AND MAINTENANCE OF COMMON AREA a Joint Management 25 b General Control 25 c -(e) Separate Obligation to Maintain 25-26 f (g) Employee Parking 26-27 1 Obstruction of Common Areas and Enclosed Mall 2T-28 1 Insurance 29-29 0 Right to Improve, Repair and Maintain 29-31 COMMERCIAL AREA DEVELOPMENT 1 Use of Commercial Areas 31 2 lal-lel Further Approval 32-3' a - g Commencement of Construction of Comm'1 Facilities 3 39 a - h Commencement Requirements and Standards 3 3 9-3g 5 a - h Restoration of Premises - Insurance 4444 6 a - e Leasing Control 45-47_ DEVELOPMENT OF LYTLE CREEK FLOOD CONTROL CHANNEL AND AREAS ADJACENT TO SHOPPIRU-MRPM 7 �a� Flood Control Channel Areas 4;-49 b Roadway Easement 49-50 c -(e) Setback Restrictions 50-53 GENERAL PROVISIONS 8 Covenants Run With Land 53 9 Duration 54 0 Injunctive Relief 54 1 Modification Provision 54 2 Not a Public Dedication 54 3-24-25 Breach Shall Not Permit Tervination 55 6 Notices 55-56 8 Force Majeure 56-5z tl Arbitration 5 -5�S 9 Approvals 0 Condemnation -59 SIGNATURES eoo�6685 ►, 475 their officers thereunto duly euthorIzed and have caused their respective seals to be affixed the 8th day of October, 1965. G1 MAL HOMART DEVELOPMENT CO. BY Vi" Presid THE MA PARTMENT STORES COMPANY BY fxecw r►v)C es en a tQl dw /'A/1 r J Qs ecretar A E SEARS, ROEBUCK AND CO. ew. BY A Vice President BROADWAY-HALE STORES, INC. BY M&AL Vice Presi`ent *ecr 60. r eo%6685 pw 476 STATE OF CALIFORNIA ) SS. COUNTY OF LOS ANGLLES ) G1 N On the 1st_day of October 196 5 , ;,,;fore rnu, Lr ilw unduriigned, a Notary Public in and for the said County and State, personally appeared David May II , Mown to me to be the Executive Vice President , and Frank W. Clark, Jr. known to :ne to be t::eAssistant Secretary of THE IiAY D PAAT.l:cNT STOIU--S CO.vIPANv. the corporation that executed the within instru- mw:t, cn behalf of the corporation herein named, and acknowleabed EL) Ere t1tat such corporation executed :i:e within ins._•,;tre.it pursuant to its by-laws or a resolution of its boL i d of directors. IN WITNESS WHERZOr, I have hereunto set my hand and a::ixed my official sc.al the d"y and year is t:-.is certificai, first above wriLtQn. \otArry Jay iic ut a,d for said County and S:ate V. ...... ........ My CmnmbltN Expires Ott.4,1961 STATE OF CAL.; ORNIA COUNTY Or Oil this If 7W _day of [ %ACS_, 19 ,before me,the undersigned.•Notary Public in and for aid Cmuuty and State.la-rxxally a t as .known b ene to be the V. Pte.ident.and-. 11-42 MI& e41—­—,known b me to be the Secactary.d _ g��n.��l—/fae� ..S' ��-r_ T.✓a ,the corporation that waded ` the within imtrunwnt and knowtf io me to be I persau w o—led the widdu iostrument on behalf ci the eorpontloa therein n.uned aiki"Anowledged to me that such corporation esecused the same,and acknowledged to me that sl A cor- I/aJtWn esmuted the within irutrument pursue;.' .ib by-ktwe or a moolution of lb board of direcmn. WITNESS nor hand Will official real. MOLLY S.(ANGER NOTARY i0%#WX-CALU0F0AWA i �wt�r "LOS Off WE Ik Maur t R ?mi0Tiurr SIC ins ANULlf cotiNTY Lgraent—Corporation—Pres.Of V.P. •a Much 4. 1956 DD 6685 ►Au 477 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS. On this 8th day of October, 1965, before me, the undersigned, a Notary Public in and for said County and State, personally appeared A. M. Mood, , known to me to be the Vice President, and John L. Wheeler known to me to be the ABBiBtant Secretary of SEARS, ROEBUCK AND CO., the corporation that executed the within instrument, known to me to be the person 8 who executed the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the same. WITNESS my hand and official seal. SEAL Notary Public in an or said County and State ON 1 My ..h nom 6685 YA6(478 STATE OF CALIFORNIA ) COUNTY OF LOS ANOET ) SS. On this 8th day of October, 19 65, before me, tht' undersigned, a Notary Public in and for said County and State, personally appeared A. M. Wood , known to me to be the Vice President, and John L. Wheeler known to me to be the Asaistant Secretary of N CL' HOMART DEVELOPMENT CO., .he corporation that executed the within instrument, known to the to be the person s who executed the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the same. WITNESS my hand and official seal. SEAL _ of ry Public in and for said County and State My 74 1-Ld _r 70' uML oorltl IrT10/1 eooK6685 .ma 479 SHWF INS Cam_ MAT rMTNMI Cr ftAm re ANN 54 or TNC RAWAG SM 6UKUW110, Pis FLAT Mcc�NIMCI in MMt 70 PAMC a, M HWOS RCCMNMS M SAN S[MMAIIC 1 w Comm, CAL 1 rMM I A, 90"W" As FOLLOW 1 COMMCING AT TM INTMA�MUSTwICD w TNC SwTMAMT LINK M CM.TMI AVOW 111TH TM MOT LIMA w � Siam, M IT WIN =18", LAIC POINT Ct1NG IMWAGW C uITN A 6' It S' CMRACTC McNOWrTj TNMMcc Som 360 161 W UbT MAW SAID SCrT11LYT LIMt 1016.16 /C[Tj vusma Sam 30 121 40' EAST, 15.30 ruv TC TMC POINT or CMM I INNING; Tmmc fts 1 380 111 43'Wn., M.77 r=T; V. TOM" SMlnit 360 151 W Wm, 553.03 ►tiTj TMCacc 6Mw Us 151 30'Ww, 201.17 raT; � TINLMMt SMI MO 461 W WsT, 70.71 rM, TO A TMNM MT COMM, CO M:AVC TO TM EAST, SAVING A CACIM M 75 "011 TNMNCC SsYTIIOLT ALem "to cMRrc TIwCOM A cCNTRAL AML[ w SZC 111 la', 107.55 rMNT, TD A MTOCC cam, iMlcArt To Tug SMRMOCMT, MAVINA A status w 360 FLCTj Tomt SCr"MmVMLT ALM MIC clRtrt TI Wen A consul ANMIt Or 198 511 040, 56.63 rwi TNM1NCa Serra 343 331 34' EAST, 176.22 mT, TD A POINT MN A Mss T*MKNT Curt, COWAVC p TIK WST, IM111M A RADIUS N 360 OPM, AM A RACIAL MCMIM M as-r t 610 U1 40' hUTj Tit SM111MLT man CAIC cur[ TNNMNIII A CtNTA..N. AI11it M 350 511 30', 21t.OI6aT, TO A TAMUM LINtj TOWNS In 27D 441 10' WWT, 154.63 KLT, TO A TANDIINT CORK, tsACArt TO in EAST, MArIM A RADIM or 160 ruvj Tonot SMTUtNLr MAW MIC cum v IMM A Curve& AMMtc or 50M 631 5t', 110-65 raT j I - --t Swm 2" 061 42' EAST, 151.10 FMI TeeNtc Swill 11/0 061 41" EAST, 770.00 rat j T1Qt Norm 500 631 t1• EAST, 1040 MTj TIMt Swm 610 M/ 03' EAST, 30.23 FUTj TwOWC No 09 Sts/ 21' EMT, 50.00 ruT, TD A Ttaww cMRrc, COMArit TO TOOK MMTIA M.s NArIM A RADIUS OF 1311.10 ruTJ ""N" NOMWMT ALMIM SAID CLAIM, TIMOMM A CiMTRAL ANGLC M 456 111 2r 1034.10 rmi T " M. 150 431 54` EAST, 237.51 FIMT, TO A lr&MW T CON COMArc To TIK WWT, Navin A Amin w 2M05.05 rMs TMM1Rt 'T ALMIM SAID CON11K, TNRCDMN A CtMfsAL AOKI M 4V 011 56', 1670.01 ruTl TNMMt 001 308 451 (91 W=T, 13.17 rt[Tj Tmma MRTM 368 22' 40'WCT, 64.70 rm, TD Toe POUR w CHIMING. GNTAINING 63.543 Asms The Shopping Center also includes Parcel 7 and ALMA C" W Parcel 8 which are described on Exhibit 11B-6". , EXHIBIT "B-1" eoox 6685 FACE. 80 Nam l��oialtl!!! Tam volt emu or fticas 29 am 54 or we rM CC 3M O17i WIW, ma /tAT M awaits in OMt 7, peen 2 w IMPA, mecca" M SAM otaMAAAIMO COwTT, CALIPMM/A, Duals" Y fftLem. Co"W"i w Vice /MmucTIMI w Talc 3WTWAST LOW M CoLm Anomor 111111 TW WOW LI� M mr s111tiT A11 IT VOW t111AT11, MIA POINT MOM MMYWNIY W •_ 116" MM MIC/011c1 . I TWAce i IRM„x'12' %3"WAIT, AMIr 1161. UW"M.T LOW 1016.95 rUTJ TNUM 3"T" 11t' %r CW, 13„p PUT T11 TM PDOW Or OrauNAin; TWACK 3sm7r 16• 1�AT FUT) GLI IN&WA q 111rt11 11 • : =T, 21540 OUTI TNLIIit Soviet 1'j' NOT, naTi TMCMCC 4 - -- GtT, %1011 MT) Tumor DUI 1s• gA11TP . PcCT J t 1r 11119 AT11 �• [AST, 1 M? TO A Dow M A som "Move w TW *ST, now"s A A11111M w IMM PUT, AAIA Niuy AMIw A ANIAL IM nuns M 3 MTN 816 • p" *ST1 11fI1W IM111 T map "is small t 11w1111tl1 A ctlflML man OF me 18• ft•', A MOM= 73 PUT Titllet omm]0! • mew �.1T Pscry TWMC[ NATN g j5• W 1ST .7� rccT T11 TW ''111MT w /11sINWIr. Cs11TAImiIMS 19.71 auto, 1QHIBIT "B-2" Hooff Cm Sap. Is, 1 BOOK6685 ?uE 431 LEGAL DESCRIPTION IiOMA RT PA XCEL 2T.at portion of Blocks 29 sad 54 of the RANCHO SAIL BERNARDINO, per plat rouarded in Book 7 page 2 of Maps, records of San Bernardino County, California, described as follower CONNUCIM at the intersection of the Southeast line of Coiton Avenue with the West line of "E" Street as it now exists, said point bow awnunsnted with a 6" x J" Concrete aenumentl thence South 390 16' 43" West IlonM said southeast line 1046.85 feet; thence South 390 22' 40" East 15.30 feet; Thence South 390 16' 4;," West 779.77 feet; N: thence South 39a 15' 55" West 55]•03 feet; (to (r 1 the point of beg inn of this deseri tion a thence South ]9 yrF[' 30" East, 15.71 feet;_ r n 6.—rte thence South 500 M 1 05" East, '61.31 feet; thence North 15' 55" East, X159.70 feet; thence /oath 44' 0¢" East, 165.10 feet; thence South ' p$" East, T35.91 feet; thence North 890 1�77' ]s" East, 3'f .]1 feet; MMws South 15° 43' " West, 210.92 feet; to the blegi=IP4 of a tangent Curve, cow"ve to the nolthwent and having a radius of 1311.10 feet; thence Southwest• ly along said curve, frog, a tangent bearinf South 150 43' F" Meet, through a central angle of 19° 521 49 a distance of 54.92 feet to the most east0rly cornier of the May Company Pa els thence North 4020 45" West, 413.82 feet; thence North 490 39' 15" East, 11.50 feet; thence North 400 20' 45" West, 295.Q0 teeti; thanes South 49e 39' 15" West, 1+65.87 feet; thence North 400 20' 45" Mast, 537.03 feet; to a point on a curve concave to the West, having a radius ofo 350.00 feet saiS point having a radial bearing of North 76 7' 58" West 21 g' 22", a distance of 130.26 feet to a non-tangent linel thence North 340 33' 34"1608t, 178.22 feet to a tangent curve concave tetthe Southwest, hnring a radius of 350.00 feet; thenot Northwesterly along said Curve through a eentnl angle of 15 51' 04", a d tans of 96.83 feet to the beginning of a reverse curve conease to the East, having a radius of 75.00 feet; otLence Northerly along said guru through a central angle of 82 11' 12, a distance of 107.58 feet thanes North 31 460 34" East 70.76 feet; th•noe Worth 39° 15' 30" East 111.46 feet; to the point of baeinpiag. cw'taiLtir44 16.749. acres. R mart Cotter KXHISIT "si p em •r 15 1965 Aavised Octoter 1, 1965 +. +T ADON 6685 PAGE 452 Luolt/r101t Fv1 +sra�PY rtMVCa 11641 "Iff IMO w &awM 29 r j1 w TM RMG 3M1 LIMO, t.r ft" awwArm in MI 7, Poet 2 of IMm, Rtumn w 3" 11awsh im CMI>ART, CAiI/TIMIM, sCO/Oimico M IOLLAMS COIIMUS w TOOK I111OtttT1lM OF TM 3WTWMT LIS M C1xTM A� WIT"vw W/T liM w %* M IT ow vtiro, MIS KItT 1[111 ISM WIT" W:=-% w gIR�Tt IMImpfM11 swou 3P 1`f ;-f w maw 1Mm an iii M ♦ fR, ii 1 T vl ftwr a, ;w Uwe 10640 ft"s 1111 1 3111w11 03, 4 r Erw, 73.17 iIK I# »TIM slow 1116"/r w t To �v pM�Mt h ids Wim AM ww/w • C1 IMINIM w #,*#" runs h+ a-73 1,111 *Ala sMrt T�MII • MwML � At11" w M= �► TO TR T� MI1w w MIwIMj T1111a 3r wan, W AV r/ Tats la N I IM, PaT j Tlrtt S1rl11 IF Tit �1MI11 -W T1�IIS M1�w t't/ 4w,T�3t �a*/ Tlrrlit Mw w" ♦r %3' (AM, �T, Ti A TA11MR COW, To TONS 1111110 swim A wIM w 2M-03 rams T11=9 01111 1MM 1MM TIOmigir 4011 imam or 1r 6", WAS rm To T1t TOM 1!140/ w dIMIM. c6malm Is." Aplw. EXHIBIT "B-4" 3wrel+ce 15. 1� lip x�+ UMAL oE9cx 1PT IOM eoox 6685 Pace 4S3 MAY i�• P TI.AI rsaTloN or BLOcas 29 us 54 OF TNC FjW-W SAM 8EPKAMINO, PER FIAT AACOw."s NN roar 7, rAbd 2 M MY1►G, RECOMM M SAN I1c11RARGINo CoUltrT, CAL I r b"#A, "241k l a" As FOLLOW, Q01N!]ILIMO AT TM INTSws"vooM M THG 3mT1KAST LINK OF CGLTON AVLueu II/TH TNa LAST LINK GF Z' SWAMT AS IT MOH ei1STS, SAID POINT O"M w000lw as Y I TN A 6' a 6' CONCRSTC TORMafNT t T11LK l som 300 161 43' WmT ALMS SA 18 30MINUST L I ME, 1046 85 rctT; TNANca Swum 390 22' 40' [AST 100.00 raty; Tulma SOUTH 300 451 OC' EAsT 73.17 ►LET TO Tic Mt+SIMNIMs Sr A TAMA.:MT CbMVa, CGMCAVa TO TIRE 1+1[sT mo IMvIMs A om#vo M 2906.06 rscTj TMLMCS SO11THC11LT ALeIs MIO Cssrrc, raw A T"mew NtANIM Sam 30O .16.1 Q2' CANT, TURONGr A CENTRAL AMME OF 460 n0 58', A s1STAic or 117U.U1 FELT; TNawL Sown 150 431 54' HEST 237.53 rm To THE ataimm1NG or A TAw_",[ cwv[, COMCAIIa To Tw NGNTwAmT Ar NAvIM A amour M 1311.10 rml L� T*%mca SOVTNKSTtALV ALONG SAIS CURVE, FMON A TANGENT NEARING SGIFTH FJ 150 43' 54' AST, "Mow" A CENTRAL ANGLE or 190 521 411', A OIsTA1RC M �r 454.32 racy TO A POINT ON SAID CURVE; "is POINT KIM THE TRUE rCIHT M O"IMING; TNLMta NORTH 400 201 46"WsT 413.82 r"Tj Tom" Mwvu 490 38' W EAST 11.00 ruv j TIKNCt NORTH 400 201 45'MST M= P99TI "wacc Sowvu 490 381 15' W*T 136.87 ru!j 171a1KC MMTM 40i0 200 46' WST 537.03 ruT TO A POINT ON A CLANK cGM:lda TS Tug 1ASST, MAYIIr A RASING M 350.00 r"T MIs POINT sAVIM A aAO UAl aLAa I Ns M MORTN 760 471 56' 11,EST j THGINCC SOUTIIIALSTTKLY ALONG SAID CURVE THMUON A CENTRAL ANGLE or ti° 32' 06', A oi*vAw4 or 86.79 ruT; Twmc 3O6-T11 270 441 10' MwT 154.05 rm To THE sE imams of A TAMrnMT cVRVc CMKAVC TO THE EAST, NAVIM A RAGING M 190.00 r"Tj THENCE SO11TMALT ALONG MID CUM THROWN A CENTRAL ANGLE Or 5UO a:2' S2', A sISTmKc or 150.at My; rwulca uoTw 230 08' 42 EAST 251.62 rCLT; TNAMtc Sam 290 06' 47' EAST 710.00 rcETf TNcN►c OnTH 600 861 ' E"T 60.00 P"vi TNasta sourm 610 560 ' EAsT 30.29 FEET; TNaNCt NORTH 600 551 21' EAST 30.00 IFUT TO vm OEGINNING M A TAft"XT cuavc, cowAvc To T" NMTIRKOT AND wvlNG A RASiw or 1311.10 r"tj TNAAKa NORYMEAsTmv ALONG MIG CMR1IC, rNOM A TANGENT DENIM MOSTM bOO 55' 21' EAST, Tw000m A CENTRAL ANGLE or 25-16-6, A DIsTmat or bi9.i8 racy To Twa POINT or NEGIMIM. CONTAINING 14.422 ACRp 1��-t1-N�MRTT CLN�Tan sapum Las 1a, 1 EYHIBIT "13-5° REVISED OcT~ 1, 190 BOOK 6695 FxE 494 uon Umunzox 1U40tW- PA RM # 5 That portion of bloalu 29 and 54 of the RANCHO SAN BXMRDM per Plat recorded Ln Doet T• page 2 of Jkjps records of Ban Bernardino County, California, described as follg+ U("MCM at the intersection of the Southeast line of Colton Avenue with the lest line of "a" street as it now exists• said point being nonunented with a 6" : 0" arnerste monuasatj thence South 390 W 43" West along said Southeast line, 10116.85 feet; thence south 390 22' 40" sasts 15.30 feet] thence south 390 161 4 " Mast, ?79.7 teat] u thence South 3 1 5 " Nest, 552.76 feet; to CX.' the true point of beg". aria the centerline of an easesent 54 feet wide] cheaee South 500 44' 05" East• 270 feat to an angle point which forts the fntetsostim of the above doscriWd 54 foot wide aasw ant and the seaterlins of a 30 foot wide sasommt the centerline of which�b�� bereinaliar 4ascribed; thmwo th J9`' 1' 1 55" West• 3m 00 fostj thence South 22T ' 35" asst• 1112.02 feet to the beginning of a tangent curve, concave to the West• and having a radius of OO feet thano;� Souther along said curve, from a tangent arias of south 2 26' 3r Let, through a central angle of 24�59� 1" a distance of 167.46 fact to a point an the Northwesterly line of the Nry Co. reel, sad the toraisus of the slave described case- sent centerline. EXHIBIT "B-6" Homart Center ep en er 157 1965 Revised October 1, 1p" .'S eou6685 PQ 485 LE�ML �ESalRlan 7w►T "m dam W W.Own 29 Ar T M TIt Rom W wommN0, Yan KAT Aii.M"L It sm 7, PARR I M Wme, wesoomm, or SAII f fthWOM C&AWV, CALI►SSl11A, SCSCAISI AS MAAIISI CIOOMIU Af TOO 1WWSCTIM M 1811 SSIRKAST LINK M CbLWO AVMK YITTI TW WIPT LIM M � �T AS IT IM IMIMS, AAIS Ps1847 091M NOWAILMM 111TH A 1p H cumaR wmwm f) -Imm t 9MT1I 3!' 16'43' WST ALa1A MIS 3WWWLA T LIM, ao►6.65 r"Tj TM119S $Mit* WD LMT, 15.30 PELT TO TIE TIMi POLM M amime s)M THIS 10pCO1110716y TIa1LTi sews 73P U' W Im", 84.70 rams Two" swm 306 45• Or Ea/T, 73.17 vwT T. TK SCAIIMIOS M A fAlfmg+ Oman, CSMCAK TS TM War AIM MTIW A 1111D w a tm.03 VWj Fj TWIISL T AtSM SAID SIlK, /SMI A TAMAIit► 1 ; arrfll JOS , W Ew Ti1wrM 1SL A "evr AWLS K cr T1f mg 3WIT7 15P 4305te wwr, t37.53 rm TO A 1 MOM OM7rE, CMCArt TO M MOTISPIM,4WIM A 11160 1100 M tj11.t�1TYSTj ' SLYIM AllT M T A /M SAID 41111111K, FUN A TMMKWf W&W, TIMMMM A CGWWWAL AWLS K A •1 w434.xruTT1Apeim011 Sam cam r41011I111 TM MAST LASTmvt SAWIa w M IMT Compmw lommu, M TW TONNI'•OIA SI TM LOW 099 1K0 0=116 UIS LIM MIW TW EhermT mom S/ A 36 rwr YIS[ WORM M1W PIIOIALLIIL AIM 9411919MTSIC T1113aTS. EXHIBIT "B-611 k►TO�nt i j, 1}�Fj 1 ~ � I ROOK 6685 oicE 486 g LE1iAL nEAC111Rl� A 60.N now wnI► w LAM, 0AIN A N8T660 or ka" 54, w TW RAN= a KMNS W, 6q PLAT IOA8AA0 #8 ftm 7, /AAA 2 w have, /tAAAwA or !AS H11iietwI10 CAw►r, CALIIAw14, TM consa- L I K M MIA 66640 /MT AT81'w LAM AA I M AA0C818M AA rftka )6 CAM M AT Tlt IMWOMM 6M M T= SGWTMAAT LINE K CWTAr Ar8A111t WITH TIIL WkW LIM Ar "C" AST M IT � Alt1m, AA1A how MOM /wrmw- 1111 Hare A • It P comm. IMO.AA<atTS Town= Sm. no 16' W wwr ALA08 MIL SGWI LAW LIM, ft.1' rARTs Tmw ft- 0 po 43, W' EMT 60.10 rm TA Ta MGIIMM A�r AI TAM�IMW AA61R, AArAAK TO TN WVT Alli Mt1N A AAtIso AA �!�J /NTi ftWWftT � MIA AO6R T—IIBM 6 eeMe L AIMA AI 4 rA A AIANtt 8T 1�.0 �► R Tlt AAA I M I M N A AA1�61 AMR, CARAR TO TO MART We IYT/Al♦ col A •AY IA0 M 2+860.M PIT j AN�yT1�T ALAN 8A I0 94OM rW1 A TMAt11T AA I� AII/N �ArTll ow EMT, T1t- A C wrmL AML[ w up f' `, A 01411TNA[ w RT j T1MiA ft bt �23 EAT , 12.76 rm To TIs Bw I IAIIN w A Spow aw C1111rt, I ARAB TO TIt 1bT AM "vim A malw Ar 2'y"m PMTS Timms AArTImwr mma mm CI A rlI6t1/ A T#Aww 119"11111 s"TOs 01* "I Of EMT, TW08W A COITYL AMLi OF 17+ 03' W*p A 0owsmA uMA .'r5k�/firs Ram um. 'J_ T MO�f, 1�• MT TO A AIIW NI &A10 CORAM , N10 /81117 Al6668 lAIw11 3' 51' Ewr, A aIATAOCA Or bob.10 RAT T\A11 Tw r811w w a/1•IINj TlICMs ALMA 8660 CO1Tt[I1L 1m HMOs *W 23' 51' MIST 20kis rwy TA M1s wIM AMnmmq Tll6wA HT11 �I N' EMT / �Ti ' , 2'x.00 PA=T h T1t WST LIMA or 8A/0 Y' 3w#mT. ECHIBIT °B-611 wMITT SAM SoTwc6I 1Sr 1lbS l BOOK6685 mu 487 1� 1rrr�1 A UrJ.UrJi Iwr •1911! Or LA1NI, KINA A PMTIA11 or BLKK 541 Or TW ft„j*,yo 3M ALM A1OIND� Mom MAT WA/�I�N�IS[D IM DO" 7, FMK 2 M IMF, �Lbn9911i9 M 'SAd BItM1fAA0/IID 0l1NITT, "Let IA, THE CCNT&ftll4L Or .410 J0.00 reel' STAIr M LAID KIM KSCAIMP AS rVLLOMt CQ*WACUS AT TINE INTX KCTINN M TIC SOYTIOC"T LOW M .r."yrb OtiYilRa WITH TW WST LING Or "E' STSRLT AD IT ■W [xISTS, MID avlsr &Alma a wmvm r/ A 6' x 60 Gomm= "mummy; Two" SwITN 3gr16• k3' WaST Mao DAID 51111TNAADT LIIIL, &'2.13 r99T1 Toem" SOim >� �1. 18' wT, i ., RRTi vul"m 3WTN p k5l 0Y FAST, 9.28 r1:L7 TO IVA WIMIM M A TANDi/IT CMRK, CMtAK is TUC 1kal AID "now A &411YG Or M.05 mmTj ""J'" 3MTMM►T MAIM SAID ibDK U641001111 MOTDAL ANUX t/ �0 M• ar, A DISTANC- a 104A PUT r TIC KSINNIM M A tgtl�lAM[J/T CUAK, CDMCAVC TO TIC WkST NO 11611111! A AADIU3 K 2060.00 �t,1rj swnmL<' AAuD DAID CYDrR I'11M A T T K BINS i/MT11 ON 13' .�t LMT, 1IM11M A UNTMAL AA1LR M 3�' 30", A �191yAYiR M N FORT Toms: STN 40' 23" MOAT, 12.76 OUT 10 me K1111D111r N A 000-TOMWT d0111060 es""VC TI TIC w"T AND AMrIM A A"$" N SMITIIOLr M/M MID CMK rM11 A T KMIM J .Uwm 010 yw• FAIT, TIIIDMr A wrH1AL JOIN" W 07• 54%, A D/ATAN" M 1'x.36 rRRT yj A ream M MII carma LINK, RAID MIxT KIM LADT D►DTYIC� 11214.10�s T IrA11 TIC rDIMT M MD1101NDj T11NiR 4 N.�d PUTT To WE POINT OF onomema TIATAiA[ FAIT *.36 FART TO TON 1bT LINT M MID 'Ee slong* EXHIBIT "B-6" "Pow CiM►RIY si..o.cw 15, 1* rt. aooKG685 r11c�488 I LEGAL DESCRIPTION lliAT PORTIO:i OF BLGCKS 29 AND 54 OF THE RANCHO SAN BERNARDINO, PER PLAT HCCOdDEO IN BOOK 7, PAGE 2 OF MAP$, RECORDS OF SAN BERNARDINO CoL:.TY, CALIFORNIA, OESCRIOEO AS FOLLOWS: AT THE INTERSECTION OF THE SOUTHEAST LINE OF COLiO;I AVENUE WITH THE WEST LINE OF "E" STREET AS IT NOW EXISTS, SA10 POINT UCING NONUMENTEO WITH A 6" X 6" CONCRETE MONUMENT; THENCE SOUTH 390 16' 43" WEST ALONG SAID SOUTHEAST LINE v.�.13 FEET; THENCE SOUTH 250 41' 18" EAST, 170-00 FEET' THENCL SOUTH 300 45' 02" EAST, 86,28 FEET TO TMC UEGIN:IING OF A TANGENT CURVE, CONCAVE TO THE WEST AND HAVING A RADIUS OF 2505,05 FEET; 0 THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE Of 24 00' 47", A DISTANCE OF 1049,88 FEET 10 THE 13EGINNING OF A NON- TANGENT CURVE, CONCAVE TO THE WEST AND HAVING A RADIUS OF 2060,00 FEET;. THENCE SOUTHERLY ALONG SAID CURVE FROM A TANGENT BEARING Souili40 13' 39" EAST, THROUGH A CENTRAL ANGLE OF 60 34' 30", A 013TANCC OF 236.40 FELT; THENCE NORTH 890 40' 23" EAST, 12,76 FEET TO A POINT ON A CUriVE CONCAVE TO THE WEST, HAVING A RADIUS OF .�. RAVING A RADIAL BEARING OF NORTH 880 40' 46" EAST, SAID EPOINT ABEING ITHE POINT OF OCGINNING; O THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE Ji 4 2L' 39", A DISTANCE OF 194.34 FEET] THENCE EAST 139.22 FEET TO THE WCST LINE OF SAID "E" STREET; F THENCE NORTH 0p,0, THCNCC SOUTH "7 01{0 3 7" WEST ALONG SAID WEST LINE 195.00 FELT; 1 NG. 401 23" WEST, 134.06 FEET TO THE POINT OF t:N I CONTAINING 0.603 ACRES EXHIBIT "B-6" HOMART CENTER OCTOBER , 65 7 W � dooK 6685 mci 489 LEGAL DESCRIPTION )HAT PORTION OF BLOCKS 29 AND 54 OF THE RANCHO SAN BERNARDINO, PER PLAT RECORDED IN BOOK 7, PAGE 2 Of MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, DCSCRIOCD AS FOLLOWS. COMMENCING AT THE INTERSECTION OF THE SOUTHEAST LINE Of COLTON AVENUE WITH THE WLjT LINE Of "E" STREET AS IT NOW EXISTS, SAID POINT BEING MONUMENTED WITH A O" X 6" CON:RETE MONUMENT; THENCE SOUTH 391 161 43" WEST ALONG SAID SOUTHEAST LINE, 802.13 FEE); THENCE SOUTH 250 41' 18" EAST 170.00 FEET; THENCE SOUTH .700 451 02" EAST 86.28 FEET TO THE BEGINNING Or A TANGENT CURVL, CONCAVE TO THE WEST, HAVING A RADIUS OF 2505.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE Or 240 001 . 47", A DISTANCE OF 1049.88 FEET TO THE BEGINNING or A NON-TANGENT CURVE, CONCAVE TO THC WEST AND HAVING A RAO WS Of 2060.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE FROM A TANGENT BEARING SOUTH 40 131 38" EAST, THROUGH A CENTRAL ANGLE or 60 341 30", A DISTANCE Or 236.00 FEET; THENCE NORTH 690 401 2311 EAST, 12.76 FEET TO A POINT ON A CURVE, CONCAVE TO THE WEST, HAVING A RADIUS of 2505.05 FEET, SAID POINT HAVING A RADIAL BEARING OF NORTH 880 401 4611 EAST; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE or 50 491 12", A DISTANCE OF 254.47 FEET TO THC TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 110 131 58" A DISTANCE Of 491.11 FEET; THENCE SOUTH 150 431 5411 WEST, 158.12 FEET; THENCE NORTH 890 281 4411 EAST, 260.21 FEET TO THE WEST LINE OF SAID "E" JIRErT; THENCE NORTHERLY ALONG SAID WEST LINE NORTH 70 211 08" EAST, 111.95 FEET; THENCE NORTH 00 191 37" WEST, 521.50 FEET; THENCE LEAVING SAID WEST LINE, WEST 142.56 FEET TO THE TRUE POINT OF BEGINNING. GT F a a i t CONTAINING 2.839 ACRES EXHIBIT "B-611 HOMART CENTER OCTOBER 6, 65 — y nn LEGAL•DESCR I PTi W BOOK 6885 "PALE 490 Tw.v PJRIIJN Or BLOCKS 29 AND 54 OF THE RANCHO SAN BERNARDINO, PER PLAT FL.01tJtii IN dJOK 7, PAGE 2 Of MAPS, RECORDS OF SAN BERNAKDINO COUNTY, CALfFUNtI1A, OESCRIULD AS FOLLOWS: CC,'VE`CING AT THE INTERSECTION OF THE SOUTHEAST LINE OF COLTON AVLI.UE Willi THL WLST LINE Of "E" STREET AS IT NOW EXISTS, SAID POINT BEINO NJNCIILNT ED WITH A 6" % 6" CONCRETE MONUMENT; 1HLNCL SOUTH 390 161 43" WEST ALONG SAID SOUTHEAST LINE 802.13 FLLT; THENCE SuuTll 250 411 18" EAST 0.00 FEET; TIII NCE SOUTH 300 451 02" EAST 86.28 FEET TO THE BEGINNING OF A TAN.;0.'i CU,.VE, CONCAVE TO THE WEST HAVING A RADIUS OF 2505.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE or 240 DO, 47", A DISTANCE 1049.88 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE WEST AND HAVING A RADIUS OF 2060.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE FROM A TANGENT BEARING SOUTH 41 13' 38" EAST, THROUGH A CENTRAL ANGLE OF 60 341 30", A DISTANCE OF 230.00 FEET; THENCE NORTH 890 401 23" EAST 12.76 FEET TO A POINT ON A CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 2505.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE Of 170 03' 08", A DISTANCE OF 745.54 FEET; THENCE SOUTH 150 431 54" WEST 218.36 FEET TO HE T UC POINT O BE:.1 NN I NG; THENCE CONTINUING SOUTH 170 431 54" WEST 19.YCETRAL BEGINNING Of A TANGENT CURVE, CONCAVE TO THE NORTHWESTG or 1511.10 FEET; .r THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A ANGLE Or 240 40' 09", A DISTANCE Or 650.62 FEET; THENCE SOUTH 330 451 56" EAST, 20.81 FEET TO A POINT IN A CURVE, CCNCFVE SOUTHERLY, HAVING A RADIUS OF 3770.00 FEET, SAID POINT HAVING A RADIAL UEARING OF NORTH 180 231 07" WEST, SAID CURVE BEING THE NORTHERLY LINE OF THE ;AN BERNARDINO COUNTY FLOOD CONTROL D13TRICT RIGHT or WAY AS IT NOW EXISTS; THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE or cr 60 271 40", A DISTANCE OF 1125.13 FEET; THENCE NORTH 780 04' 33" EAST, 105.74 FEET TO THC WEST LINE Of SAID "E" STREET; THENCE NORTHERLY ALONG SAID WEST LINE NORTH OO 211 22" WEST 02.29 FEET; THENCE NORTH 70 211 08" EAST 413.89 FEET; THENCE SOUTH C>90 281 4411 WEST 257.77 FEET; THENCE NORTH 790 231 51" WEST, 11.21 FECT TO THE TRUE POINT Of BEGINNING. CONTAINING 4.223 ACRES EXHIBIT IIB-611 Ft0WARTr CTNTtx OCTOBER 19 r 10[0 Cat DOCUMM' ' . a a�.: r iT AWAFSOMMA IS Alf 0WIM AMMW IM n is made ,'n 444 Q 1967s l! and betW*M " : oE1. �s s s Qw Co., a New:Taft b • msk co �c . r, oor'otr�tleen, �''� i F:Yi t R $ C_iT' A 1. et4 The iss bar s tin, of Rat4blidngnt of Restz�otsoas d Oovfnantls AA t a+a► 8 Oateber 8s 1965s � hereieaafter raferred to !ts la-*etion, oareet "g ebb D for n the devel030=t itD,rovea�at Maintemmas ems` t of certain zeal rogezty loo Q In the Cvun�y of Dt`pe8'e�irto, to o� �i fazzsia, as s eaore pertic"I"I ' 46,04ar9,lsgd in Mph 1 tl lr Ciora, recorded on Auguat g3s 1966 in 2"k 6" X OYffl4i"1;mss of said CoVnt�r. fitly M%hibit "A, a plst at the ; Center and aa�tt lieaeart Jovelopment Cio. „ was not contzairi in the recorded 9eclaft'Zion. 20 The Mies his-cto mutually desire to am�u3 and supplement said Declarstion as helreisxsft7 provided. 1' ? 71 MI r In consideresti-,aj of t:ha actual berefita ,Md covMAnto herein contained and other good Md valwble cortside:r�ti.��1 'fie zeaei^t and sufficiency whereof are hereby mutually acknc�wledg0d, IT ? =°g� AM= AS FOLLOWS: 1. in order to accaeeew"te Dweart Devel t Co. and to 1 permit the devolopetent of the Aeestl�rity lirmt Rttti Bank w°�thin reel 12, such area being delineated in red on Ubibit "A" and more hereon' described on Eshibit B both , attachad hereto and Made a part su0p&r&grsph (c)(1 of section 17, at D , of the Declaration is hereby modified am amended to read ad f©llowss "(i A parcel bowAed by the easterly, southerly and wea erly b©undnries of suof�yeat►raetaasYj southerly , with and distant'northerly 95 boundary of such parcels ra "(ii A pwmel bounded by the southerly, easterly and no " opt $Wei "real suss by a line parallel wily'd�s'tset t*?IZ in feet frm the 2. In. order to &Qcanaodate g Detvelc tt Co. and to, G Permit the development'of US seonrityn° _t`i ti�Ba�t� •titft9rl 12, such area being delineated on fchibit A sue! so" psarticmalarly described o (�, of Soction lT at on S7[h1,bi. "H" attc &uatsbeti+r+ a ( ) } page 52 or the DeAsrati.otl is Ireby ade ed a dad t o i'seetd as follows "(1) within rat'ee1, 3.p, no butildile�: :�° etn�act�xra staa.].1 be area it that esmoede 4.'$ tee^ in h*i&t tb*ve GrourA lrlrsel. The plat n tlt+an I &Ibibit "A" &tttaeyw&;. fo aetde. n b hereof is the ZW.bit "A" red ea d to s � 1 rf"d kA Ion. as such e:hibi. for All jUVJK s 4. Mwopt as hPirein aeodifI@d.'*ftd sx ,� wI!h• :* r*T 4 covartatt amdtitoioek NA tar= contained iu "said t3.�;clas�ta Z M PIM11: cmtizae with full faros MA af'fent. i' f 4 ri n i BOOK0�6 PAGE6�� IN W717= 4Q&OF, the parties hereto have herelznto set their hands and affixed their seals the da$r and year first above written, the corporate parties by their proper officers duly authorized thereunto. M, MAY Di6f'ARM= STORES COMPANY SEARS CO. idt V1Ee xuRAt` CO. e sen ` i e e6a y HROADWAA`!HAI�E STORES, INC. HOMART DEVE7(JPN T CO. BLAL By v '° , �y a Vic' P;esi ent Vice Pres ant �Secre Asst. Secretary ae�L 4 _�LE�AL ApP 6 y 'L �,`� AFC?7t'D AT RECUEST il LE CO. F�l BDOX6826 PAGE 951 liGY M 8:51 U;_:R c�AL RE�cF,D� � '\"RRO NO CO.CALIF. COUNTY PECORDER n MONO , a s �. I i' B00K6826 FA053 I STATE OF CALIFO"NIA ) SS. ! ; COUNTY OF LOS ANGELES ) �/��/c/£^� %—_ On this day o 1967, before me, the undersigned, a Notary Public in and for said County and State, personally appeared J. G. LOWE, known to me to be the Vice' l President, and JOHN L. WHEELER, known to me to be the Asst. 4 Secretary of SEARS, ROEBUCK AND CO., II the corporation that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of ; the corporation therein named, and ac'-:no%•fledged to me that such corporation executed the same. WITNESS my hand and offic al seal. Notary Pu "ic in a for said County and State R. C t `?nc„d k i i i STATE OF TEXAS ) SS. COUNTY OF �� i i On this 11n- day of 1967, before me, the undersigned, a Notary Public i and for said County and State, personally appeared ROBERT M. ORT, known to me to be the Vice President, and ALAN GRISWOOD, known to me to be the Asst. Secretary of HOMART DEVELOPMENT CO., `the corporation that executed the within instrument, known to me to be the persons who executed the within instrument on'behalf of the corporation therein named, and acknowledged to me that such corporation executed the same. WITNESS my hand and official seal. • G-�— c:��—�--f..-14�/ -- SEAL Notary Public in az.d TE said County and State r I j BODK6826 mu,954 f r STATE OF CALIFORNIA SS. COUNTY OF -LOS ANG ELES,� On this '/L) day of 1967, before me, the undersigned, a Notary Zublic in and for said County and State, p rsonally appea ed I.Cla--�-�d known to me to be the Q� �atrru.(c� p st and •'( known to me to be the G � �• 1 ' MAYEPARTME STORES COMPANY, �I Secretary of 7 the within instrument, known to me i the corporation thwt executed to be the persons who executed the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the. same. WITNESS my hand and official seal. UFFIC:IAL SEA ✓ - a R.AUDREY PRIBUL o ry u�l�c i or n+ t:7TARY PIPALO OFFICE ONNIA i said County an State '•:NCIPAL OFFICE IN . [t LCD �."GELES COUNTY R.AUDREY PRIBUL Commission Expires Dec. 10, 1970 r 1 ' i I 1 STATE OF CALIFORNIA j SS. COUNTY OF LOS ANGELES On this -2-' � day of "'`'"''� 1967, before me, the'undersigned, a Notary Public in and for said County and State, personally appeared E. M. BALLARD, known to me to be the Vice President, and W. D. MEYER, known to me to be the Secretary of BROADIJAY-HALE STORES, INC., the corporation that executed the :within instrument, known to me to be the persons who executed the within instrument on behalf of the corporation therein named, and ackno:'rledged to me that such corporation executed the same. WITNESS my hard and official seal. Nota ublic in an3 for said ounty and State E. J, (-,r'.I 7)E(,O T :. NOTAR'i P.;^Llt:•CA:GORNIA FR;NCG" 0.F':C'L IN l.0$.ANGELE CCUN� Y • fvly rommisslan�rpirc,July 24.1967 ��> a � z .Se'l�d�c 5.9A�'6'�1'�m^Y1S rtG F*/} r.�.,.:-• --- ' BOOK�Oz� Mm PA055 I LEGAL DESCRIPTJC`J PARCEL ,",12. THAT PORTION OF BLOCKS 29 AND 54 OF THE RAPICHO SAN BERiARD1J'JO, PER PLAT RECORDED It! 0009 7, PAGE 2 or KAPS RECORDS OF SAM BERNARDINO ' COU':TY, C%.LIFORKIA, DESCRIBED AS FOLLOWS: C ?tEM,CIKG AT THE INTERSECTION Or THE SOUTHEAST LINE OF COLTOii AVENU°_ WITH THE %'TEST LINE O; "E" STREET AS IT NOW EXISTS SA'n POINT BEING MONUMENTED WITH A 6" X 6" CONCRETE MONUMENT; THENCE SOUTH J90 16' 4J" 1iES7 ALONG SAID SOUTHCAST LINE eO2.13 FEET; o s THENCE SOUTH 25 141+ lei" EAST, 1 CO FEETj THENCE SOUTH 300 45' 02" EAST, 00.23 FEET 70 THE } CEG114:11XG OF A TANGENT CURVE, CONCAVE TO THS NEST AND HAVING A RADIUS i OF 2505.05 FEET; •• THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 240 00' 47", A DISTANCE OF 10.169.0$ FEET TO THE BEGINNING OF A NON- TANGENT CURVE, CONCAVE TO TI:_- WEST AND HAVING A RADIUS OF 20"0.00 FEETj, THENCE SOUTI',' 'LY ALONG SAID CUi2V£ FROM A TANGENT BEARICG SOUTH j±0 13' 33" D-ST, THROUGH A CENTRAL AI;CLE OF 60"3Ji' 30", A DISTANCE f of 236.1A FEET; . THENCE NORTH 890 1160' 23" EAST, 12.76 FEET TO A POINT ON A CURVE CONCAVE 70 THE WEST, HAVINGpA� RADIUS OF 2507.05 FEET, SAID POItIT ' HAVING A RADIAL B£ARtNa OF :ORTH S80 l'O' 46" EAST, SAID POINT E£INC THE O POINT OF BEGINNING; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE of 160 26' 3U°, A DISTANCE OF 19•:".3;" -LET; n-n . Y THENCE EAST 13$.22 FEET TO THE 1'/EST LIME OF SAID t STREET; THENCE N0R7K 00 1 ' 31" VIE ST ALONG SAID WEST LINE 197.00 FEET; 4 y THENCE SOUTH 890 40 23" %-,EST, 134.06 FEET TO THE POINT OF h N'4 BEGINNING. ts O Q y CONTAINING 0.503 ACRES `4 EXHIBIT "B" : 1401•IART CENTER OCTOBER 6, 13v`i mysgiplig mo i'00 '' i 1 " BOOK�q�•U PAGE J�U i �• � t 1 i i - Ol 11 pill BOOK UO2 05 7, ' t ` �1I i • I .u,.,,o;�t$p,:.r �•� ��yy�" Vii. _ o. i rA y . ... . 4 Al IL,. 6C < ,. AID A � 9 44.G";t A t t 'saROME _ t , 4 a /s in � �s!lrla:►� , , ��" � � :+d► �sss�sssss�f ,t �n�iwis�4ki �, t , • ll�i�li7i�i`�;a1�IM��}�1�-�� �'"#!� i �!llrt�as�+!a, � � :� , �11l►'a■!ar &DONOR taibttr w"a s■aarsr� a /�. �aa��aaa" •Kataa� Y"aa��aa�IN�C�;�iar { 1tc� ■hY ±ew�«eir k, ?�lw••s!1 Y a ' ii Yt ' e t :�; ' � '� i r pPthr p� � �tP �• 1p �k t �P ` O � �,V k tR � c �yF x f °.+..P& J �I(W1L ti ,la. I. •�. 4.1 s � � ■■■I.■■L!RP{I� .�/;■►.rlfia iaRi i■■ fir• I,IKi ■■■'ll■iiiAiii@li■/■e/�2 a�Orl■Stoo, � ►w�■■■■■�wel■■.■r...■■■wsr�s■■■ woman a ���•�aan, ,;:r ra�:ar"li■■ta■ws blame . ■■■>` `: 1�I�i■■Hlu�r/!K■aTIr3sRi��6 �312ma 0r►�► G? ' tt■A IRnt■■■/■R■■summ"yleer�lwar�iww► ell_.. k■w�►t■sw■■w■+�■we■■�s�nw,�{�■►��wtws�ls�. ■■a■w/a■wl�sw�r■■�r■■ +Urs,ac�x■p■� 1■/ 11,10 GWR midawr•R■l�`"1 f a e,i.lA40�If! i ■■.\■Ri■ ■i11a.1 ^k■tP51age.r� Wall now \/■►,Ti /tilt ■r' ; WA No nn at BOOK�02U PACE X 60 � x t r ' ;w + m - �-•►. '.5. (; to-.' `V� NX 0. qz) r �i �.� . � '•aooK682� PacE��1 �;J.� I I _ I 1 � 1 a t - � r I N mom \ Aw NJrNa *D n'f c DRAV�N /Y 0l►ARTMtNT A1►ROVA ++[Aflev[WxA Vnr.0 ANn oaelnr,Anow AND Inew. +'+wfc 1•r.: nn'e*: .wn wo r••+ Slat atMT[e rMt+ILfr♦w[.NO ANAIC w[N,.r+wa rnorFn-. u.,+Nn wfc�row IrN ANr wow< '�.�.S• DISIGN -`ELECT. _� +w[aeo♦aNact fx A.rto,olle�uarn ro o.NCwr.oa v+eo� - _ n rwo.[eT en+LS rN4l+'xa f![urilo •FO�r<r row �'eRCN T•�aT'N^rflCprf••wer.neo R[ "" cHicaEO BY 0 0 o[vawr[n vnrNnur TNl Wa.rnw ccwa[wT er+., rN w Tccr y�au <o•-.,�- ARCH. 1 MICH. c< f d ��.+c runs cA ucc r�cAT awa Dxeu. tol.a'r� + < __ �_ _-__...- 1--'•'�- or rr[[[ wlxT•IrnoN[. r��crr [cx o ew1 � . _ W tR[N DIY WfrONf OMTHttt gnAWiNea [NAZI 9 O' Lrt`� ~� 1 CIVIL T� aroN,coNrnACTOws aN[LL v[1Nrp.ewn n.r.[[ro o F F ° ..1,�.o„e n It n S- 1©�1 TRJI:T. iI ..ow.oN+.1[.P►Afeo nNf o [N�FT P[•o• �o” ' i V • AMP((��F�NP1r1My[M0YnI a+'•Twl'ft•Pr,[WfwJf ir•c.• CFr••LO4NVfT.fi[ f�f u�irF4 rr^M' ,)O TNif O[Mv'f�/aOw AI�N0Y41 Yfroa[rwOC[[�O'N�r'A'�,w __— ,s�s�.W� J/f FACE, aoox6$2fi f J Py�9 4�: V��di k�J* TNr �V `a 4n /!/ �, X F' kti. p/ a M =I r Ik nn � 'Id 1 a•. \ s j 1 I !?I VENT A►TROVAL _ ISSUED FOR DATE COORDIHATORi _LECT.^ S MECM. 05 MILS' CIVIL TILA fIC i yyy yam[ t ��t1����.i�r rt� r r r � r rr r�r�r��r �,;•��w�+�. �. , , { I '"�` "' F' ' ". �.° � ..•r;"sw•�awweni��.tar� >, �� , R�I�I q ///�it�uaRa�r eewe '� 4:a aer�rnw�RRRe�. • IR/■/`.i»i,Ei///R19y -w//wlAe��j'7 4 T �yyy r 'v. Ism c 6 N' c • N N,. •• � .1 a ,i.^ _ 7. le 'f*losggI t � �.. n Viggo a'r BOOK6� PA�E-J oQ t r i Q•0 ' A�NGi oar IZ 57 EXPbNVED ' PARCEL 68055 r AREA S.F ' HOMART 2 t SEAP.5 zgO, 64 BROAMW 161 X 141 MAY Ca 214)387 TOTAL Pt i' r i ` O La CAUFoRTJ1A , { a + ry*_ :::.:.::F. '� 1..� ••'V Wit. �{ �-°7• �, '})fir S �,, BOOK fACE JUJ4 — ►r: ass _ R; F , I -+ BLDG. TOTALIR055 RE�1 EXPANDED X2.375 _ , PARCEL- GROSS GROUND AREA AREA S.F S.F. AREA S.F. ACRE5 , ACRE5 ° y, � b NOMART 240,46 b 571 107 2l ,5$3 lB4OQ f 0.�8 =:� 74� 4 . SEAa5 2got 64 69o,go2 �3 ►48 { •9�� q. BROADWAY 16 o X , MAY Go. 214 ,38 509,168 745 13AP �1 TOTAL 1 ��rr. �1�, tM��.��MY if�M.u�A A• 1 1 ?��'m. �. w.: '+' 111Y'�L.p10. In ��• � y L II nlD Or, DC -UMMT IMIN win, i 4 • ._ ,earl o 'f t C� ys3i�-3 6301A Recording Requested by : -CHICAGO 11%E-�►►: U-04PANY T 2: 110 and when recorded , mail to : � � Mr. Stuart Cohen �- Proskauer, Rose , Goetz and �-� wJ.. �-•'� Mende1solin 500 Old Country Road r� —n�}�*) � Garden City , New York 11530 •�.t ASSIGNMENT -AND ASSUMPTION-AGREE`!ENT � a THIS AGREEMENT jr, made and entered into as of the �day MAR"L DEVELOPMENT CO . , a Delaware of January , 1981 between HO corporation ( "Homart" ) and METROPOLITAN LIFE INSURANCE COMPANY, I ? ` yi a New York corporation ( "Metropolitan" ) ; T N E S S E T N WHEREAS , pursuant to a certain Agreement of Sa '.e dated as � of January 15 , 1581 ( the "Agreement" ) , Homart has agreed to convey to Metropolitan all of Homart ' s interest in certain real property located in San Bernardino , California , together with the improvements located thereon, which real property is more particularly described 4.n Exhibit A hereto ( the "Premises" ) ; WHEREAS , Homart , Sears , Roebuck snd Co . , a i.ew Yc : k V ZID corporation, Broadway - Hale Stores , Inc . , a Delaware t.%) corporation and The May Department Stores Company , a New York i corporation , entered into a certain Declaration of Establishment of Restrictions and Covenants Affectine, Land i _i dated October 8 , 1965 and recorded in the Otficial Records of the Recorder of San Bernardino County , California in Book 6685 at page 414 , as amended by a certain First Agreement Amending I V WNW . ! 1 Declaration of Est :, hlish-n• nt of Restrictions and o7ovonants Affecting Land dat •-�d Fobr'rary ' h , 1067 and r,coI-Aed in Said r , r Official Records in P,(,()!( at 3c 451 ( Said Urclar � rion , r� so amended , being herein referred to ns the "RE,A" ) , which REA 1 affects the Premises ; aed WHEREAS , simultaneously with th., si }-ning of thiis Agrees sent , Homart is conv^ving the Premises to Metropolitan and in t r ` connection therewith , Homart will neither acquiro nor reta1n I( any beneficial interest , Irr.aceheld , lif•- ­ tatc or other possec;sory in the Premises ; 14 11 EREAS , sect Lon of the REA provides :hat wilt t any party to the REA designates in writing LhaL another Ontity shall act in place of such party , such a written authority r shall be recorded in th^ office of the Recorder of San Bernardino County , ^aliforni1 W V �M NOW, THEREFORE. , in consiA raLion of Co-, foreroini; and :or �• �: other good and valuahle consideration , the receipt and sufficiency of whic;i r r e h^rebv acknowledged , the p.,rties hereto accordingly . hereby agree as follows : 1 . Hom-rt hereby assigns to Metropolitan , its successors and assigns , all of its right , title and interest in , to and under the REA and hereby designates `ietropolitan to act with ` complete authority and in the place of Homart with respect to the REA. 2 , tetropolitan hereby accepts the • itbin assignment and hereby assumes and agrees to keep , observe , perform and be bound by all the terms , covenants , conditions and provisions of the REA to be kept , performed and observed on Lhe part of � Homart thereunder arising from and after the date hereof and which do not rclat,- to events occurring prior to the date hereof , and Metropolitan further agrees to indemni `v . 4efend and hold harmless Homart from and against all liability , loss , damage and expenses ( includine reasonable attorneys fees ) arising out of , or by reason , of any failure on the part of ; Metropolitan to keep , perform and obLerve , in accordance with + its terms , the covenants and obligations to be kept , performed and nheprvpd by Homart under the REA from and afLcr Lhe date � hereof , to the extent same do not relate to events occurring prior to the date hereof . ✓ IN WITNESS WHEREOF , Homart and Metropolitan have duly z Y executed this instrument the �day of January , 1981 - P,a HOMART DEVELOPMENT CO . , a Delaware corporation Assistant Treasurer rA- ATTrST: 'r Assistant Secretary ;:��n� A,- FNF,csckr� tit r awl 1 3 METROPOLITAN LIFE: lNSU::.Ay6E ' CO'1PANY, a New York corporation j�T-TEST: , �'' '. _ '► y.� hti '_ etary I d STATE -0 F e%.• ti: ) SS . L.., COUIZTY OF . l� o .'N On this �� day of _�/1�Ct.LL ---.--' 1981 h fnro me , the undersigned , a Notary Public in and for said County and State , personally appeared _ �L _Vr,+�J� c� ' nowr to -e to be the Assistant Treasurer and __LLC ; r�_ known to me to be Assistant Secretary of HOMART DEVELOP`tErrT CO. , a Delaware corporation and acknowledged to me that said corpurati.-)n executed the within in.; trument pursuant t,) its hp-laws 0 a resolution of its board of directors . Notary P Iic in and for said Qounty and State JILL K ROMMON ?rOTARY PUBLIC. .^,late a!r:ery V'"It .` No.4723070 Qual.in::a•t:;ea,:Co,my , A. Co•amiasioa Lxpao•Aias:y i S T A•I E OF —f "L� 41; k' SS . COUNTY OF I N t On this : fi` day of , iLli.i% , 19R1 before mo , the (`A ' undersigned , a ;rotary PubYc in an� for said County and State , �..� personally appeared _ , •:�- %!�F_ _---_ known to me to be ! the `�! 'SCl/ P esident ant , known to ,� �..7 .•e to be the _ �``!S iS„ _ Secretary o ',E'rR0P0LIrAN 1,I FE W t INSURANCE COMPANY, a New York corporation and acknawledged to W s Y 4 _ t • 1 ilia rM i. me tl.nt said corporation , executed the within instrument pursuant to its b}•-laws or n resolution of its t- ).lyd of E Ilkdirectors . Notary public , n and for said County' t and State ;,; Jt� K. ror..nTSO�^��o.k NOTAnY runLlc. Stott of N ! Na.477.3:73 Cl-u•� In�Vext:`.e�te: t;on.aue�c� E�F�os:4cs:�JJ�1K'�'7 9 � a N _ S AF rg` Y` t t t t, Exhibit _A PARCEL 1 Legal a criatIon THAT PORTION OF LOTS 35, 36, 3T and 38 IN ffi.001K 54 TOGETHER WITH THAT 1 OF RA C110 SAN BERNARDINO, IN THE RAN C1,10 0! LOTS 5 and 6 IN BLOCK 29 STATE OF CALI1''OR11I1� CITY 0* SAN BERNARDINO, COUNT! OT SAN BFRNARDINO► I ' AS SHOWN ON A MAP RECOFQ)ID IN BOOK T PAO" 2 OF MAPS, I1( OFFICE 0! THE COUNT? RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE CEWERLINES O'r 'E" STREET, INLAND CENTER DRIVE AND MILL STREET AS Si/OWN ON A HAP FILED IN BOOK 39 PAGES 29 TO 32 INCLUSIVE OF RECORD OF SURVEYS, RECORDS OF SAID COUNTY; THENCE ALONG SAID CENTERLINE OF INLAND CENTER DRIVE, SOL?H 39' 16' 32" WEST 1171.92 FEET; THENCE SOUTH 50• 43' 28" EAST 50.04 FEET TO A POINT IN THE SOUTHEAST LINE OF INLAND CENTER DRIVE, AS g SHOWN ON A MAP FILED IN BOOK 21 PAGE 45 OF RECORD OF SURVEYS, RE- NT !� t CORDS OF SAID COUY, SAID POINT BEING THE NORTHWESTERLY ?ERMINUS OF 'THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING AND LENGTH OF 'NORTH 39. 22' 40" WEST 100.00 FEET" IN THE DEED TO SAN BERNAR- !� DINO COUNTY FLOOD CONTROL DISTRICT r.ECORDED SEPTEMBER 13, 1965 IN 'co BOOK 6471 PAGE 333 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY, SAID POINT ALSO BEING THE SORTWESTERLY TERMINUS OF THAT CERTAIN ZC COURSIJ DESCRIBED AS RAVIXt-A BEARING AND LE`;GTH OF "SOUTH 39' .16' C.� 43" WEST 1j46.85 FEET" IN"THOSE DEEDS ALL RL`CORDED AUGUST 23, 1966 IN BOOK 6695 PAGE •491 OF OFFICIAL RECORDS, IN BOOK 6685 PAGE 493 OF OFFICIAL RECORDS, AND IN BOOK 6695 PAGE 495 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE ALONG S?_D FIRST MENTIONED CERTAIN COURSE, SOUTH 39- 22' 40" EAST 10".00 FEET; ','HENCE SOUTH 30" 45' 02" F:aST 73.17 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTER- LY AND HAVING A RADIUS OF 2305.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 46' 28' 56" AN ARC DISTANCE OF ! nnrw.v 115" t7• [," yEciw 2R R1 a+r=: TP-ENCE , a 13i } r THENCE NORTH 39• 15' S5' EAST 459.70 FEETi THENCE SOUTH SO• 44' OS' s: j EAST 165.10 FEETi THENCE-SOUTH 0. 32' 25" EAST 735.91 FLETi THENCE NORTH 89' 27' 35' EAST 375._31 FEET; TLEENCE SOUTH 15. 43' 54" WEST .� 210.92 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWEST— j - MY AND HAVING A RADIUS OF 1311.10 FEETi THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 19' 52' 49" AN ARC DISTANCC OF 454.92 FEET TO A POINT, A RJ�pIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 54' 23' 17" EAST; THENCE NORTH 40' 20' 45" `'• WEST 413.82 FEET; THENCE NORTH 49' 39' 15" EAST 11.50 FEET; THENCE x t NORTH 40' 20' 45" WEST•295.00 FEET; THENCE SOUTH 49' 39' 15" WEST 155.87 FEET; THENCE NORTH 40' 20' 45" WEST 537.36 FEET TO THE EAST— ERLY LINE OF THE LAND DESCRIBED IN THE :EEO TO THE STATE OF CALIF— � •` _ ORNIA RECORDED MARCH 5, 1956 IN BOOK 3875 PAGE 50 OF OFFICIAL RE- a)RDS, RECORDS OF SAID COUNTY; THENCE ALONG SAID EASTERIY LINE TO AND ALONG THE EASTERLY LINE OF THE LAND DESCRIBED IN THE DEED TO � Y ' THE STATE OF CALIFORNIA RECORDED NOVEMBER 27, 1956 IN BOOK 4095 PAGE 197 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY AS FOLLOWS' y 2 NORTHERLY ALONG A CURVE CONCAVE WESTERLY RAVING A RADIUS OF 350.00 FEET FROM WHICH A TANGENT LINE BEARS NORTH 13' 03' 36" EAST THROUGH t A CF.N4RAL ANGLE OF 21' 1�� 45" AN ARC DISTANCE OF 129.48 FEET TO A ' r 1- POINT, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS NORTH 81• � 51' 51" EAST; NORTH 34• 34' 23"WE-CT 178.22 FEET TO THE BEGINNING: I i OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 350.00 FEET; NORTHWESTERLY ALONG SAID CUF.VE THROUGH A CENTRAL ANGLE OF 15. 51' 04" AN ARC DISTANCE OF 96.83 FEET TO THE BEGINNING OF A F REVERSE CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 75.00 FEET; NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 82' 11' 12" AN *4 ARC DISTANCE OF 107.58 FEETi AND LID RTH 31. 45' 45" EAST 185.95 FED:. Ta•T;r• O;.iGItiiw SOUT LAST LINE OF SAIL li•3LA D CEIs= Y DRIVE: _4{ THENCE ALONG SAID INLAND czNrER DRIVE NORTH 39' 16' 16" EAST 113.08 ay' FEET AND NORTH 39. 16' 32"EAST 1336.43 FEET TO THE NORTHWESTERLY. ;: TERMINUS OF SAID CERTAIN CDURSE HEREINAEFORE DESCRIBED AS HAVING A .t Y,• o { 1 BEARING AND LENGTH OF 'NORTH 39' 22' 40" WEST 100.00 FEET" THENCE ALONG SAID CERTAIN COURSE, SOUTH 39' 22' 40" EAST 15. 30 FEET TO THE ! � SOUTHEAST LINE OF 1NLAND CENTER DRIVE AS DESCRIBED IN THE GRANT i OF EASEMENT TO THE OOUNTY VF SAN BERNARDINn RECORDED APRIL 1, 1966 IN BOOK 6600 PAGE 620 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE k&,ONG SAID INLAND CENTER DRIVE SOUr)i 39' 16' .32- WEST 1333. 42 FEET AND SOUTH 39' 16' 16' WEST 115.09 FEET TO A LINE WHICH BEARS .1 SOUTH 50' 44' 05" EAST AND WHICH PASSES THROUGH THE TRUE POINT OF BEGINNING; THENCE SOUTH 50' 44' 05" EAST 561.39 FEET TO THE TRUE POINT OF BEGINNING. ' CONTAINING 19.274 ACRES. ' t � PARCEL P Fy- THAT PORTION OF TATS 35 AND 37 /N BLACK 54 OF RANCHO SAN BERNARDINO, ' • I IN TlX CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STAT$ OF CALIFORNIA, A0 SHOWNON A kAP RECORDED IN BOOK 7 PAGE 2 OF MAPS, xN TNI` OFFICE OF THE COUNTY FXCORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF SOUTH 'E- STREET, VACATED PER RESOLUTION RECORDED I m4 JANUARY 11, 1961 IN BOOK 5324 PAGE 293 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY, ADJOINING SAID LOTS ON THE EAST, DESCRIBM- AS FOLLOWS: BEGINNING AT A POINT IN THE WESTERLY LINE OF SAID "E- STREET, SAID � 4I. POINT BEING THE SOUTHEAST CORNER OF THE LAND DESCRIBED IN THE DEED . TO ATLAS THEATRE COMPANY RECORDED MAY 16, 1962 IN BOOK 5700 PAGE 349 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY,;THENCE ALONG SAID wE.w STP.EE'_; SOLTII C' 20' 00' EAST 776.24 I-EE^; AND SOUTIi 7' IS'. 26' WEST 195.42 FEET TO THE NORTHEASTERLY CORNER OF THE LAND DESCRIBED IN THE DEED TO H. FRANK DOMINGUEZ, DOING BUSINESS AS VANIR RESEARCH COMPANY RECORDED NOVSMBER 24, 1976 IN BOOK 9060 PAGE 1238 OF OFFI- I } • Cl AL RECORDS, RECORDS or SAID COUNTY1 THENCE ALONG 2HE NORTHERLY LINE OF SAID LAST MENTIONED LAND, NORTHWESTERLY ALONG A CURVE CON- ` CAVE SOUTHWESTERLY AND HAVING A F"IUS OF 20.00 FEET FROM A TANGENT BEARING SOUTH 7. 18' 26' WEST THROUGH A CENTRAL ANGLE OF 97. 49' 38" AN ARC DISTANCE OF 34.15 FEE11 SOUTH 89' 28' 48" WEST 235.37 FEETi AND NORTH 79' 23' 47' WEST 10.78 FEET TO THE EASTERLY LINE OF THE ai LAND DESCRIBED IN THE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT RECORDED SEPTEMBER 13, 1965 IN BOOK 6471 PACE 333 OF OFFI- CIAL RECORDS, RECORDS OF SAID COUNTYi THENCE ALONG SAID EASTERLY LINE NORTH 15. 43' S4" EAST 218.11 FEET TO THE BEGINNING OF A TAN- GENT CURVE CONCAVE WESTERLY TEND HAVING A RADIUS OF 2505.05 FEET; 'AND NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 17• 02' ' 53" AN ARC D13TANCE OF 745,36 FEET TO THE SOUTHERLY LIKE OF SAID LAND DESCRIBED IN SAID DEED TO ATLAS THEATRE COMPANY; THENCE ALONG 1 SAID SOUTHERLY LINE NORTH 89. 40' 00" EAST 133.96 FEET TO THE POI11I' { .` • OF BEGINNING. EXCEPTING THEREFROM PARCELS 1 AlfD 2 OF PARCEL MAP 2915, AS PER I PLAT RECORDED IN BOOK 27, PAGE 8 OF PARCEL MAPS, I Go C� -iv 7 • �• ¢�' RFC96® 14 WMIAL RE O"S 0, ,;1JN 221993 AT 8 30 I111+1 3 FILE INSURANCE COWANY 4 1 ' eE�fsa�os14a coo�mr, c,�sF. . COJWIING REOUKSTED BY R nC0 r i,F D MAIL Tr:: LL, i k Oibson, Dunn CrntchOr �' Park Avenue Pine+ t SS Last 52n(. Street New York, t'ew York 10055 , Attentions C. RnnRom Samuelson Its Enq. ),.d► M ASSIGNMFNT AND ASSUMPTION OF RCA Till'S ASSIGNMENT AND ASSUMPTION OF RF:A it entered j t '1 1 into as of Junedd,, 1983 by and between METRO[�OLITAN LIFE } r INSURANCE COMPANY, a New York corporation ( "Metropolitan") , X and NANO MANAGEMENT COMPANY, a Nether ands Antil lei cor,,o- ? ration ( "Assignee" ) , with reference to the following s facts: ` A. Homar.t Development Co. , a Delaware corpora- tion ("Homart") , Sears, Roebuck & Co. , a New York corpora- . � tion• Broadway-Hale Stores, Inc. , a Delaware corporation k (now known as Carter Hawley Hale Stores, Inc. ) , and The May F -° Department Stores Company, a New York corporation, entered ! into that certain Declaration of Establishment of Restric- _ tions and Covenants Affecting Land drted October 8, 1965, and recorded in the Official Records of San Bernardino ' County, California, on August 23, 1966 in Book 6685, Page 414, as amended by that certain First Agreat::ent Amending i Uw2diw . Declaration of Estat�lishment of Restrictions and Covenants Attesting Land dated February 26, 1967, and recorded; _ Is" In said Official Records on May 16, 1967 in nook 6826, Page'" 951. Said Declaration, as so amended, is herein referred to ` as the "REA." The REA affects that certain real property S �- located in San Bernardino, California, more particularly �. . describe, in Schedule 1 hereto together with the improve- atel thereon (the "Premises" ) . ments loc 1 + B . Pursuant to that certain Assignment and Assumption Agreement dated as of January 30, 19E'1 , and i s recorded in the official Records of San Bernardino County, California, on February 2, 1981, as Instrument No. $1-0233270 Homart assigned to Metropoliti. all of its rights and ; f obligations under the REA. C . Concurrently herewith , Metropolitan is + conveying the Fremisce to Assignee and in connection there- with Metropolitan is neither acquiring nor retaining any beneficial interest in the Premises whatsoever, whether. by way of leasehold, life estate or other possessory interest. Accordingly, Metropolitan desires to assign to Assignee, and Assignee desires to accept and assume, all of Metropolitan's rights and obligations under the ..F.A. k NOW, THEREFORE, in consideration of the foregoing, and pursuant to Section 1 (h) of the REA, the parties hereby agree as follows? i -2- f-r t 1 . Metr�p�- titan hereby assigns, transfers and y' -Conveys to Assignee all of Metropolitan' s right, title anaF' � ,. interest in, to and under the REA and hereby designates Assignee to act with complete authority and in the place of € ' ICA . ,Y. Metropolitan with respect to the REA. 2. Assignee hereby agrees to and accepts such assignment and, in addition, exprepsly assumes and agrees ; y to keep, perform and fulfill and be bound by all of the terms, covenants, obligations Lnd conditions of the REA to � be kept, performed and fulfilled by Metropolitan thereunder arising on or after the date hereof. Assignee further a agrees to indemnify, defend and hold harmltsa Metropolitan from and against any and all liability, loss, cost, damage and expense (including attorneys' fees and coet.$) directly k or indirectly arising out of or releted to any breach or default in Assignee' s obligations hereunder. 3. Metropolitan agrees to keep, perform and ,~ fulfill and be bound by all of the terms, covenants, oblige- e tions and conditions of the REA to be kept, performed and '• �� fulfilled by Metropolitan ti..:reunder arising prior to the �. ' i fr! i j date hereof. Metropolitan further agrees to indemnify, ' defend and hold harmless Assignee from and against any and r ,r all liability, loan, cost, damage and expense (including i j y r attorneys' fees and costs) directly or indirectly arising , -3- put_ of or related to any breach or default in t1otrol,'31itan's obligations hereunder. 4. Assignee hereby designates the followtnq address for notices to Assignee puisuent to Section 26 of a the RE'A: Mano Management Company, N.V. , c/o Morgan Guaranty Trust Company 9 heat 57th Street � New York, New YorK 10019 I Attention: James E. Rosasco j 5. The prcvisions of this Assignnent and Assump- � ; k lion of RCA shall be biiiding upon and inure to the benefit" i :a f.. of Metropolitan and Assignee and their respective successors , and permitted assigns. WITNESS WEEP£OF, Metropolitan and Assignee y: . have executed this Assignment and Assur.,ption of RCA as of �, . •h'A date first set forth above. $: r METROPOLITAN: ME—,ROPO AN LIFE INSUF.ANCtr COMPANY* a New k corporation . .. B f MANO MANAGEMENT COMPANY, N.V. , a ASSIGNLE: Netherlands Antilles corporatiun �Jo Ann t:anson is Attorney-In-Fact ' =Ji W , -4- c a� ,rrr�rri.. tt; ;TATC Of CAI•IrCR:JIR ,k 77W, COUNTY OF LOS h2 3ELES ) s, On June J1 , 1983, before me, the un.:crsigned, -' e - . a Notary Public in and for said County and State, P rsonally i , appear proved to Tie on °* k a d . t � r , i the basis of satisfactory evidence 'o be 11 � •���'� tt i : t OLITAI LIFE INSURANCE COMPANY, the corporation that E. ¢y exec ��ted the within instrument, Proved to me on thr basis of satisfactnry evidenced to be the person who executed the within instrument on behalf of said corporation, and acknowledged to me that such corporation executed the -within instrument p ursuanlution of Lis t to its bylaws or a reso board of directors. s 4 Wl,"NESS my hand and official seal. " !Y OFFICIAL SEAL PHILLIP E CALLA NotJ�A+r►WtK•CALKORMA t a r y ub i s a Los mwnn em" "Wa DM 1t. It" r. . 4 3 y y s y 4 I Ft� a , ;w STATE Or CALIFC.:NIA ss . ' COUNTY OF LOS ANGELES On June �,, 1983 , before me, the undersigned, + i a Notary Puhlic in and for said County and Sate, personally ' appeared Jct of Mano Management c Ann Hanson, attorney-in-fa + Company, N.V. , proved to me on the basis of satisfactory f a evidence t- be the person who executed the wit:iin instrument on behalf of the corporation therein named, and she acknowl- �. r edged to me that such corporation executed the same, and I r' also proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within, instru- ment as the attorney-in-fact of said corporation, and she M .: : acknowledged to me that she subscribed the name of said 1 � s x '=a corporation thereto as principal and her own name as ! y attorney-In-fact. WITNESS my hand and official seal. j r O,"I� LEADLO ar ub c o j s pMARY KN.w-CALIFO"]VA i LOS ARKM COIMW y ly Bans a OTC It, y .� k 4. a e THAT PORT 10-4' OF LOTS 35. 36, 37 AND )H IS AL�?CK 5; TOGETHER WITH THAT PORTION OF I,4-)T5 5 "'?n 5 IN BLCN'K 19 OF RANC1:0 SAN a Y SERNARDLNO, IN THE. CIT OF SAN Bt;RNARDINO, CO"';''l OF SAN BERNARDINO, STATE OF A IFORNIA, AS SHOWN ON A MAN FF.COROED + ' # IN BOOK 7 PAGE 2 OF AP3, IN rHE OFFICE OF Tt:E COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWSt BEGINNING AT THE INTERSECTION OF THE CENTERLINES OF "E" } ' STREET, INLAND CENTER DRIVE: AND MIL[, STREET A5 SHOWN ON A MAP FILED IN BOOK 39 PAGES 29 TO 32 INCLUSIVE OF RECORD OF 1 t SURVEYS, RECORDS OF SAID COUNTY; rHeNCE ALONG SAID CENTER- LINE MIN - LINE OF INLAND CENTER DRIVE, SOUTH 39 DEGRECS �!TES u3 32 SECONDS WEST 1171 .82 FEETt THENCE SOUTH 50 DEGREES 43 MINUTES 28 5ECCC:DS EAST 50.00 FEET TO A POINT IN THE SOUTH— EAST LINE OF INLAND CENTER DRIVE, AS SHOWN ON A tAP FILED IN BOOK 21 PAGE 45 OF RECORD OF SURVEYS, RECORDS O^ SAID COUNTY, SAID POINT BEING THE iORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING AND NORTH 39 DEGREES 22 MINUTES 40 SECONDS WEST 100.00 k LENGTH OF � FEET IN THE DEED TO SAN BERNARDINO COUNTY FLOOD CONTROL w DISTRICT RECORDED SePTEMAER 130 1965 IN BOOK 6471 PAGE 333 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY, SAID POINT ALSO } BEING THE SOUTHWESTERLY TERMINUS OF THAT CERTAIN COURSE , P DESCRIBED AS HAVING A BEARING AND LENGTH OF "SOUTH 19 DEGREES 16 MINUTES 43 SECONDS WEST 1046.85 FEET" IN THOSE DEEDS ALL. RECORDED AUGUST 23, 1966 IN BOOK 6G85 PAGE 491 OF OFFICIAL RECORDS, IN BOOK 6685 PAGE 493 JF OFFICIAL RECORDS, . AND IN BOOK 6685 PAt1E 495 OFFICIAL RECORD'S, RECORDS OF SAID r COUNTY; THENCE ALONG SAID FIRST MENTIONED CERTAIN COURSE, SOUTH 39 DEGREES 22 MINUTES 40 SECONDS EAST 100.00 FEET; a THENCE SOUTH 30 DEGREES 45 MINUTES 02 SECONDS EAST 73. 17 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 2305.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 46 DEGREES 28 MINUTES t a 56 SECONDS AN ARC DISTANCE OF 1870.01 FEET; THENCE SOUTH 15 DEGREES 43 MINUTES 54 SECONDS WEST 26.61 FEET; THENCE SOUTH =. 89 DEGREES 27 MINUTES 35 SECONDS WEST 378.31 FEET; THENCE NORTH 0 DEGREES 32 MINUTES 25 SECONDS WEST 735 .91 FEET] - y fi . ; THENCE NORTH 50 DEGREES 44 MINUTES 05 SECONDS WEST 165. 10 hy; FEETS THENCE SOUTH 39 DEGREES 15 MINUTES 55 SECONDS WEST 1 �' 'NNING• THENCE NORTH 39 I F" 459.70 FEET TO THE TRUE POINT OF BEG. s DEGREES 15 KINUTES 55 SECONDS EAST 459.70 FEET; THENCE SOUTH 50 DEr.REES 44 MINUTES 05 SECONDS EAST 165 .10 FEET; THENCE SOUTH 0 DEGREES 32 MINUTES 25 SECONDS EAST 735 .91 FEET; THENCE NORTH 89 DEGREES 27 MINUTES 35 SECONDS EAST 378.31 FEET; THENCE SOUTH 15 DEGREES 43 MINUTES 54 SECONDS WEST .. r. 210.92 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE: NORTHWESTERLY AND HAVING A RADIUS OF 1311 .10 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 19 DEGREES 52 MINJTES 49 SECONDS AN ARC DISTANCE OF 454.92 FEET TO A POINT, A RADIAL:- LINE OF SAID CURVE TO SAID POINT BEARS t� Schedule 1 'x • i �i i hK I' SOL?H 54 r,r :R F:r.S 23 N. I rJUT�B 1 7 SF c'ot:DS f%SST i T!!r.Nf'F, tICRTH 40 e DEGREES 20 F1INt)TF.S 4S SECO'JDS w; ST 413. A2 Fe:ET; Thf.NCf. NORTH i 49. DEGPEES 39 MINIJTFS IS SECONDS EA9T 11. 50 FF.F.TY TlIENCE NORTH �O r�F.GRFES 20 MINUTES 4S SECONDS Wf.eT x95. 00 FEET 4 � THENCE SOUTH 49 DF.rPEF.S 39 M INUTEE; 15 SECONDS WEST 155. q7 j ±, !'EET; T}!ENt:E NORTH 40 DEGRF.F.S 20 MINUTES 45 SECONDS WEST { x37. 36 FEET TO THE. EASTERLY LINE OF THE LAND DGS(:RIBED IN i t � THE DEED TO THE STATE OF CALIFORNIA RECORDED MAPC!! 5, 1'i56 a IN BOOK 3875 PAGE 50 OF OFFICIAL RECORDS, RFCORDS OF i SAID COUNTY; THRICE ALONG SAID EASTERLY LINE TO AND ALONG THE EASTERLY LINE OF THE LAND DESCRIBED IN THE DEED TO T!I? ' STATE Co or RECORDS, RFCORDS ,OFy U SAID COUNTY AS PAGE 199 7 r F FOLLOWS: NORTHERLY ALO'JG A CURVE CONCAVE WEZTERLY HAVING A RADIUS OF 350. 00 FEET FROM WHICH A TANGF.ti"i LINE BEARS NORTH 13 DEGREES j G� 03 MINUTES 36 SECONDS EAST THROUGH A CENTRAL ANGLE OF 21 !I, .. DEGREES 11 MINUTES 45 SECONDS AN ARC DISTANCE OF 129. 48 FEET j TO A POINT, A RADIAL LINE C.F ,;AID CURVE TO SAID POINT BEARS �I NORTH 81 DEGREES 51 MINUTES 51 SECONDS FAST ; NORTH 34 DEGREES 34 MINUTES 23 SECONDS WEST 178. 22 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 350. 00 FEET ; NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15 DEGREES 51 MINUTES 04 SECONDS AN ARC DISTANCE OF 96. 83 FEET TO THE BEGINNING OF A REVERSE CURVE CONCI%VE EASTERLY AND HAVING A RADIUS OF 75. 00 FEET; NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF t 82 DEGREES 11 MINUTES 12 SECONDS AN ARC DISTANCE OF 107. 58 FFFT ; AND NORTH 31 DEGREES 45 MINUTES 45 SECONDS EAST 185. 95 FEET TO THE ORIGINAL SOUTHEAST LINE OF SAID INLAND CENTER DRIVE; THENCE ALONG SAID INLAND CENTER DRIVE NORTH 39 - DEGREES 16 MINUTES 16 SECONDS EAST 113. 08 kEET AND NORTH 39 DEGREES 16 MINUTES 32 SECONDS EAST 1336. 43 FEET TO THE NORTHWESTERLY TERMINUS OF SAID CERTAIN COURSE HEREINBEFORE DESCRIBED AS HAVING A BEARING AND LENGTH OF "NORTH 39 ' DEGREES 22 MINUTES 40 SECONDS WEST 100. OV FEET" THENCE ALONG SAID CERTAIN COURSE SOUTH 39 DEGREES 22 MINUTES 40 SECONDS EAST 15. 30 FEET TO THE SOUTHEAST LINE OF INLAND CENTER DRIVE AS DESCRIBED IN THE GRANT OF EASEMENT TO THE COUNTY OF SAN K " BERNARDINO RECORDED APRIL 1. 1966 IN BOOK 6600 PAGE 620 OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE AWNG SAI D ' INLAND CENTER DRIVE SOUTH 39 DEGREES 16 MINUTES 32 SECONDS ._ WEST 1333. 42 FEET AND SOUTH 39 DEGREES 16 MINUTES 16 SECONDS WEST 115. 09 FEET TO A LINE WHICH BEARS SOUTH 50 DEGREES 1= 44 MINUTES OS SECONDS EAST AND WHICH PASSES THROUGH THE TRUE POINT OF BEGINNING ; THENCE SOUTH 50 DEGREES 44 MINUTES OS F SECONDS EAST 561. 39 FEET TO THE TRUE POINT OF BEGINNING. 4 ' 1 y r. _2_ f F `} PARCEL t10. 2 Y•' THAT PORTION Or LOTS 35 and 37 IN BLOCK 54 OF RAN^`IO 9Al1 °- BERNARD140, IN T11F. CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDIV4, STATE OF CALIFORNIA, AS SHOwy ON MAP RECORDED IN BOOK 7 PAGE 2 OF MAPS, IN -HE OFFICE OF THE COUNTY RECORDER i OF SAID COUNTY, TOGF.TtIER WITH THA•P F'ORrION OF SOUTH "E" STREET, bACP.TED PER RESOLUTION RECORDED JANUARY 11 , 1961 IN BOOK 5324 PAGE 2a3 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ADJOINING SAID LOTS _ IN THE ':AST, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE WESTERLY LINE OF SAIL "E" 1 STREET, SAID POINT BEING THE SOUTHEAST CCRNER OF THE LAND x Y DESCRIBED I" THE DEED T. ATLAS THE NTRE COMPANY RECORDED MAY 16, 1967 IN BOCK 5700 PAGE 349 OF OFFICIAL RECORDS, RECORDS e.z OF SAID COUNTY; THENCE ALONG SAID "E" STREET ; SOUTH 0 i if DEGREES 20 MINUTES 00 SECONDS EAST 776 . 24 FEET; AND SOUTH ! , ' � �• 7 DEGREES 18 MINUTES 26 SECONDS WEST 195 . 42 FEET TO THE - ! NORTHEASTERLY CORNER OF THE LAND DESCRIBED IN THE DEED i TO H. FRANK DOMINGUEZ, DOING BUSINESS AS VANIR RESEARCH COMPANY RECORDED NOVEMBER 24, 1976 IN BOOK 9060 PAGE 1238 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTYi THENCE ALONG THE NORTHERLY LINE OF SAID LAST MENTIONED LAND, NORTHWESTERLY ALONG A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS ; OF 20 . Cn FEET FROM A TANGENT BEARING SOUTH 7 ,DEGREES 18 MINUTES 26 SECONDS WEST THROUGH A CENTRAL ANGLE OF 97 '. 1 DEGREES 49 MINUTES 38 SECONDS AN ARC DISTANCE OF 34. 15 FEET= } ,z SOUTH 89 DEGREES 28 MINUTES 48 SECONDS WEST 235 .37 FEET; AND NORTH 79 DEGREES 23 MINUTES 47 SECONDS WEST 10.78 FEET TO <. THE EASTERLY LINE OF THE LAND DESCRIBED IN rHE DEED TO SA.Y BERNARDINO COUNTY FLOOD CONTROL DISTRICT RECORDED SEPTEMBER 13, 1965 IN BOOK 6471 PAGE 333 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE ALONG SAID EASTFRLY LINE NORTH 15 1 DEGREES 43 MINUTES 54 SECONDS EAST 218. 31 FEET TO THE E BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 2505 .05 FEETT AND NORTHERLY ALONG SAID CURVE , Y" THROUGH A CENTRAL ANGLE OF 17 DEGREES 02 MINUTES 53 SECONDS x. 1 AN ARC DISTANCE OF 745.36 FEET TO THE SOUTHERLY LINZ OF SAID IAND nESC.^..U..D IN SAID DEED TO ATLAS THEATRE COMPANY; THENCE ALONG SAID SOUTHERLY LINE NORTH 89 DEGREES 40 MINUTES 40 } SECONDS EAST 133.96 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM PARCELS 1 AND 2 OF PARCEL MAP 2915, AS PER PLAT RECORDED IN BOOK 27, PAGE 8 OF PARCEL MAPS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: i THAT PORTION OF LOTS 35 AND 37 IN BL.GCK 54 OF RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDIAO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS S.:�. ON A MAP RECORDED IN BOOK 7 PAGE 2 O? t1F.9S, IN THE ;�F CE OF THE COUNTY ' 7 s .R1V' I i ' ItLCOR Df.R OF SAID COUNTY, TOGf.T11rR WITH T111.T POR T I0': OF SOUTH STREE VACATED PLR RESOLUTION RECORDED JANVARY 11, 1961 N BOOK 5324 PAGE 293 OF OFFICIAL RECORDS, RECORDS OF SAID 1! +r COUNTY, ADJOINING SAID LOTS ON THE £AST, LESCRIBED AS— I—$ 4 ,; 1'''FOLLOWS I BEGINNING AT A POINT IN THE WESTERLY LINE OF SAID A STREET, SAID POINT BEING THE SOUTHEAST CORNER OF THE LAND DESCR19ED IN THE DEED TO ATLAS THEATRE COMPANY RECORDED MAY 16, 1362 IN BOOK 5700 PAGE 349 OF OFFICIAL RECORDS, RECORDS OF SAID COUNTY; THENCE ALONG SAID "E" STREET, SOUTH } 0 DEGREES 20 MINUTES 00 SECONDS EAST 425. 02 FEET TO THE t TRUE POINT OF BEGINNING ; THENCE CINTINUING ALONG SAID . t "E" STREET SOUTH 0 DEGREES 20 MINUTES QO SECONDS EAST :. 318. 39 FEET : THENCE SOUTH 89 DEGREES 31 MINUTES ('I SECONDS o; i WEST, 233. 67 FEET TO THE EASTERLY LINE Cr' THE LAND DESCRIBED IN THE DEED TO SAN BERNARDINO COUNTY FLOOD C:`":T.°•OI. DISTRICT RECORDED SEPTEMBER 13, 1965 IN BOOK 6471 PAGE 333 OF OFFI- CIAL RECORDS RECORDS OF SAID COUNTY; THENCE ALONG SAID t EASTERLY LINE NORTH 15 DEGRiES 43 MINUTES 54 SECONDS EAST 8. 12 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE ' WESTERLY AND HAVING A RADIUS OF 2505. 05 FEET; AND NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 7 DEGREES 18 MINUTES 52 SECONDS AN ARC DISTANCF OF 319. 80 FEET TO A POINT A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH pp 81 DEGREES 34 MINUTES 58 SECONDS EAST: THENCE NORTH 89 t � DEGREES 39 MINUTES 37 SECONDS EAST 162. 75 FEET TO THE TRUE .• POINT OF BEGINNING. , PARCEL NO. 31 THOSE CERTAIN EASEMENTS FOR INGRESS, EGRESS, WALKWAYS. ~/r ROADWAYS, PARKING AND PUBLIC UTILITIES INCLUDED WITHIN THE COMMON APEAS AS DEFINED AND CREATED BY THAT CERTAIN DECLkR- ATION OF ESTABLISHMENT OF RESTRICTIOES AND COVENANTS AFFr.C- TING LAND, AND RECORDED AUGUST 23, 1966 IN BOOK 6685 PAGE 414 OF OFFICIAL RECORDS AND MODIFIED E's AN INSTRUMENT RECORDED MAY 26, 1967 IN BOOK 6826 PAGE 951 OF OFFICIAL RECORDS OVER THE FOLLOWING DESCRIBED PROPERTY1 THAT PORTION OF LOTS 35, 36, 37 AND 38 1N BLACK 54 TOGETHER j WITH THAT PORTION OF LOTS 3 , 4 , 5 AND 6 IN BLOC:: 29 OF :. RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY I OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 7 PAGE 2 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWSt ` BEGINNING AT THE INTERS):CTION OF THE CENTERLINES OF "E" STREET, INLA14D CENTER DRIVE AND MILL STREET AS SHOWN ON A MAP FILED IN BOOK 39 P&G'—'S 29 TO 32 INCLUSIVE OF RECORD OF —4— ° } 1. i .................. . .... + f t v T:IF.NCF AWt`G SAID CENTER- i !' SURVEYS, Rf:CORnS OF SAID COVN'T t i-Es 32 LINE OF INLAND CENTER DRIVE, SOUTH 39 DEGREES516 MIND S 43 "---' sECONDB WEST 11 71 . P2 f }:ET ; THENCE E MINUTES 28 SECONDS EAST S0. 00 FEET TO A PCiNT IN ?H:. ~ EAST LINE OF INLAND CENT::R DI'IVE, SURVEYSN RECORDS OF FILED SAID BOOK 21 PAGE 45 OF RECORD OF i COUNTY, SAID POINT BEING TOE NORTIM'CSTERLY TERMINUS OF T�iAT CERTAIN COURSE DESCRIBED A ES{A40NSECONDS BE-%PING "NORTH 39 DEGREES 22 MINUTES f IN THE DEED To SAN 13RN1965 ON BOOK 64 PAGE T333 OFSnFFIT COUNTY FLOOD RECORDED SEF'TumB I SAID POINT ALSO BEING CIAL RECORDS, RECORItiS OF SAID COUNTY, , THE SRECORDS, REy TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A REARING AND L ''G FEET""SOUTH 39 THOSE DEEDS SALL MINUTES 43 SECONDS ;fdE3T 1046- 85 '•+'' ` RECORDED AUGUST 2 6, 1966 PAGE 49300F60FF IC IAL RECOODS�rAND1IN ti A RECORDS, IN BOOK BOOK 6685 PAGE 495 OF OFFICIAL G THE TRUED POINT OF nBEOINNINGD SAID POINT ALSO BEING SOUTH 39 .Lr) CERTAIN COURSE,COMITY, ..A I G THENCE A22 MINUTES 40 SE 3. 17 100. 00 FEET: THENCE SOUTH C SAID FIRST DEGREES I X77 30 DEGREES 45 MINUTES T 02 CURVE CO CAVES WESTERLY F AND HAVING = BEGINNING OF A A ; x A RADIUS OF 2305. OS FEETOFTHENCE DEGREESH28LMINUTES 56 SECONDS THROUGH A CENTRAL ANGLE 1 15 Air ARC DISTANCE OF 1870- 01 EE : FEET TO SOUTH HBEGINNING DEGREES 4A MINUTES 54 SECONDS WESTERLY AND HAVING A RADIUS OF t TANGENT CURVE CONCAVE f 1311- 10 FEET ; THENCE 45 DEGREES SOUTHERLY 11 MINUTES I27 CURVE SE ONDS RANG ARC ",;;;pAL ANGLE ' DISTANCE OF 1034+ 150F00 ; THENCE THENICE NORTH�R6IS DEGREES�56 } t 21 SECONDS WEST MINUTES 03 SECONDS WEST 30. 23 FEET: THENCE SOUTH 60 DEGREES 36 MINUTES 54 SECONDS WEST 60. 28 FEET TO THE NORTHEASTERLY OF LINE OF THE LAND DESCRIBED IN 1956 DEED N BGOK 3855 PAGE 385 CALIFORNIA RECORDED FEBRUARY 14, OF. OFFICIAL RECORDS, RECORDS TO AND SAID COUNTY; HE,NORTHEASTE ALONG SAID NORTHEASTERLY THE AND LASTERLY LINE OF THE DE NMARCHC5, 1956 IN BOOK 38 50 RIBI-1) IN THE DEED PAGE STATE OF CALIFORNIA RECORDED SO OF OFFICIAL 0E AND CIACLkRECDORDSRECORDS OFSSAID BOOK 4095 PA GE 197 0 COUNTY AS FOLLOWS: NORTH 29 DEGREES 09 MINUTES 36 SECONDS WEST 770. 00 FEET: NOsiTH 23 DEGREES 09 MINUTES 31 SECONDS WEST 251. 62 EASTERLY AND HAVING THE BEGINNING OF A TANGENT CURVE CONCAVE A RADIUS OF 180+ 00 feet .- NORTHERLY 5 i ALONG 552DSECO DSTANOARC f A CENTRAL ANGLE OF 50 DEGREES S t DISTANCE OF 159. 85 SFEET :EET 1 NORTH 27 DEGREES E BEGINNING 4OFMANTANGENT ! SECONDS EAST 15 f t t CURVE Ct)':CA%'E Wt:STERLY AND RAVING A RADIUS OF 350.00 FEET: NORTt't:R1.Y At.ONG SAID ('UR.`:'E THROUGH A CE':TRA', ANGLE OF 3S ±� DLOREtS 51 MINUTES 3U SECONDS AN ARC UIaTANCE OF 219.05 f'EET _ TO SAID POINT TO A POINT, A PADIAT, LINE OF SAID CURVE NORTH 81 DEGR FF.S 51 MINUTES S 1 S FCONbS EAST; NORTH H 34 34 DEGREES 34 MINUTES 23 SECONDS Wf:ST 178. 22 FEET TO THE BEGINNING OF A TANGENT CURVE. CONCAVE SOUTHWESTERLY AND HAVING A ,RADIUS OF 350.00 FEET; NORTHWESTERLY ALONG SAID ° CURVE THROUGH A CENTRAL ANGLE OF 15 DEGREES 51 MINU'iES 04 i SECO':DS AN ARC DISTANCE OF 96. 83 FEET TO THE BEGINNING OF A * ° REVERSE CURVE CONCAVE EAST F.RLY AVU HAVING A RADIUS OF 75.00 FEET; NORTHERLY ALONG SAID CUR`JE THROUGH A CENTRAL ANGLE OF 82 D::GREF.S 11 MINUTES 12 SECONDS AN ARC DISTANCE OF 107. 58 FEE': , AND NORTH 31 DEGREES 45 MINUTES 45 SECONDS EAST 185.95 FEET To THE ORIGINAL SOUTHEAST LINE OF ` AID INLAND rr 1 �J CENTER DRIVE, ; THENCE ALONG SAID INLANU CENTER DRIVE NORTH 39 ` DEGREES 16 MINUTES 16 SECONDS EAST 113. 08 FEET AND NORTH TRUE W 6 DEGREES 16 MINUTES 32 SECONDS EAST 1336. 43 FEET TO THE TRUE � pC)INT OF BEGINNING. EXCEPT 1HLREFROM THAT PORTION OF SAID LAND DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE HEREINBEFORE DESCRIFED AS HAVING A BEARING AND LENGTH OF "SOUTH 15 DEGREES 43 MINUTES 59 SECONDS WEST 237. 53 FEET: THENCE: ALONG SAID CERTAIN COURSE SOUT=i IS DEGREES 43 MINUTES 54 SECONDS WEST 26. 61 FEET: THENCE SOUTH 89 DEGRE':S 27 %17%,1'TLS 35 SECONDS WEST 378. 31 FEET; THENCE NORTH! 0 DEGREES 3--, M I Nl:T LS 25 SECONDS WEST 7 3 5. 91 FEET ; THENCE NORTH 50 DEGREES 44 MINUTES 05 SECONDS WEST 165. 10 FEET: THENCE SOUTH 39 DEGREES 15 MINUTES 55 SEC ONDS WEST 459. 70 FEET TO THE *•.s , TRUE POINT OF BEGINNING; THENCE NORTH 39 DEGREES 15 MINUTES 55 SECONDS FAST 459. 70 FEET; THENCE SOUTH 50 DEGREES 44 .'.`.' MINUTES 05 SECONDS EAST 165. 10 FEET; THENCE SOUTH 0 DEGREES T 32 MINUTES 25 SECONDS EAST 735. 91 FEET: THENCE NORTH 89 DEGREES 27 MINUTES 35 SECONDS EAST 378. 31 FEET; THENCE SOUTH IS DEGREES A ITANGENT4CURVEND ONCA E 210-92 FEET TO THE BEGINNING OF F NORTHWESTERLY AND HAVING A RADIUS OF 1311. 10 FEET: THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 19 DEGREES 52 MINUTES 49 SECONDS AN ARC DISTANCE OF 454. 92 FEET TO A POINT, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 54 DEGREES 23 MINUTES 17 SECONDS EAST; THENCE NORTH 40 DEGREES 20 MINUTES 45 SECONDS WEST 413. 82 FEET: THENCE NORTH 49 DEGREES 39 MINUTES 15 SECONDS EAST 11. 50 FEET; THENCE NORTH 40 DEGREES 20 MINUTES 45 SECONDS WEST 295.00 FEET: THENC;: SOUTH 49 DEGREES 39 MINUTES 15 SECONDS WEST 155.87 FEET; THENCE NORTH 40 DEGREES 20 MINUTES 45 SECONDS WEST 537. 36 THE i y TOyTHEO S THE ATE EASTERLY CALIFORNIAFRECORDEDDMARCH IS ED1956 THE IN BOOK -6- s , Entered into Official Records, County of PLEASE COMPUEM'MISiNFORaiAT10N San Bernardino, Errol Mackzun, Recorder 111111111111 HIM RECORDINGREQUESTEDBY: 19946497449 03:30pm 12/16/94 CHICAGO TITLE COMPANY lica; Title # 01 AND WHEN RECORDED MAR TO: PG TYPE FEE ST FEE JAW NMI CY ADD RF PEN PR POOR CASSTDY AND VRRCRS 20 CAT•TPORNTA ST_ QTR_ 500 I SAN FRANCTSCn- .A_ 94111 11 ATTN: DIERDRE M. 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[C:l,.v ':[�,[i Q. .<. .{'-.}: '<•,'v:i� :;})0.t+ .?,'j�`.tt?F:>: S? dj[•s>�... ^x..?;:; ."'r$: ;9k:c. 0.4 .;.,; <q[?::4, j}•'f<',. .Y,.1:.:. .. 0 .s:r4ti� .L :. N'Rk...,.\'4"N:' ��pp���� ::[[ ( \':1:.}: %•:.' MW }:rt.}. `�:�'u..r.:t.-.':��� £<i'.iu'.:rt-• f�,•.w.°s},b &�.`•?�s-.�: �a'[.�` x,r: }� �` #},,a.��M. .SJ:O-n Ct!1D:.} ,�[;. •••r�w. ,i�:j�:Nw ?[[£;?M:, Y),::ttt :t: y�'" ��,: o�of'i,�xy'<�s; ��•F:?dd'?�'" -a... .{;y�: f;[: +S't:: <":'r��i� :. 53j. w:•si£}•"�'"' •ns'i' ,. ,' s.' r i3c. ,�' mob•^ •;;:: THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION 0 ($3.00 Additional Recording Fee Applies) Ow.ttnp:rw (a:1�cYmms�p�suppl.pp) 94-49'7449 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Cassidy and Verges 20 California Street, Suite 500 San Francisco, California 94111 Attention: Deirdre M. Dawson, Esq. Space Above this Line For Recorder's Use Inland Center San Bernardino, California ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made as of the 15 day of ®2�6W , 1994, by and between THE MAY DEPARTMENT STORES COMPANY, a New York corporation, having as its office address 611 Olive Street, St. Louis, Missouri 63101 ("Assignor") , and MANO MANAGEMENT COMPANY, INC. a Delaware corporation, having as its office address c/o UBS Asset Management, Inc. , 1211 Avenue of the Americas, New York, New York 10036 ("Assignee") . W I T N E S S E T H: WHEREAS, Assignor is the lessee of certain real property (the "Premises") located at the Inland Center Shopping Center in the City of San Bernardino, County of San Bernardino, California, which Premises are more particularly described in the attached Exhibit A; and WHEREAS, Assignor is the lessor of a certain portion of the Premises, and all buildings and improvements constituting realty situated thereon (the "Theatre Improvements") pursuant to those certain agreements listed in the attached Exhibit B (collectively, the "Theatre Lease") ; and WHEREAS, the Premises are subject to and/or Assignor is a party to those certain agreements listed in the attached Exhibit C, (collectively the "Operating Agreements") ; and WHEREAS, Assignor is subleasing the Premises to Assignee, pursuant to that certain Sublease dated the date hereof (the "Sublease") ; and 94-49'7449 WHEREAS, Assignor desires to assign, transfer and convey all of Assignor's right, title and interest in, to and under the Theatre Lease and Operating Agreements during the term of the Sublease upon the terms hereinafter set forth; and WHEREAS, Assignee desires to accept the assignment of the Theatre Lease and Operating Agreements and to assume Assignor's obligations and liabilities under and with respect to the Theatre Lease, Theatre Improvements and Operating Agreements as and to the extent hereinafter provided. NOW, THEREFORE, for good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: 1. Effective as of the date hereof, Assignor hereby assigns, transfers and conveys to Assignee all of Assignor's rights, obligations, title and interests in, to and under the Theatre Lease and Operating Agreements (the "Transferred Rights and Obligations") , to have and to hold the same unto Assignee, its successors and assigns, during the term of the Sublease, as may be renewed, subject to the terms, covenants and conditions contained in the Theatre Lease and Operating Agreements. 2. Assignee, for itself and its successors and assigns hereby accepts the assignment of the Theatre Lease and Operating Agreements from Assignor during the term of the Sublease, as may be renewed, and hereby assumes and agrees to observe and perform 4 during such time all the obligations, terms, covenants and conditions thereof to be observed or performed by Assignor thereunder from and after the date hereof and hereby assumes all liabilities arising out of or relating to the Theatre Lease, the Theatre Improvements and/or the Operating Agreements or to acts or events occurring or conditions existing with respect to the Theatre Lease, the Theatre Improvements and/or the Operating Agreements from and after the date hereof, which arise from or relate to the Transferred Rights and Obligations. 3. Assignor hereby agrees to indemnify, defend, protect and hold Assignee harmless of and from any and all claims, loss, liabilities, obligations, costs and expenses of any nature whatsoever, including, without limitation, reasonable attorneys' fees arising out of any default on the part of Assignor pursuant to the terms, covenants and conditions of the Theatre Lease and Operating Agreements up to and including the date hereof (and following the expiration or earlier termination of the Sublease provided that Assignee has not acquired fee title to the Premises) and any and all liabilities and obligations of Assignor which have accrued under the Theatre Lease and Operating Agreements up to and including the date hereof (and after the expiration or earlier termination of the Sublease, provided that Assignee has not acquired fee title to the Premises) . 2 i 94-49'7449 4. Assignee hereby agrees to indemnify, defend, protect and hold Assignor harmless of and from any and all claims, loss, liabilities, obligations, costs and expenses of any nature whatsoever, including, without limitation, reasonable attorneys' fees, arising by reason of any default on the part of Assignee pursuant to the terms, covenants and conditions of the Theatre Lease from and after the date hereof (but only until the expiration or earlier termination of the Sublease, if Assignee has not acquired fee title to the Premises) , and any and all liabilities and obligations which accrue under the Theatre Lease and Operating Agreements from and after the date hereof (but only until the expiration or earlier termination of the Sublease, if Assignee has not acquired fee title to the Premises) , which arise from or relate to the Transferred Rights and Obligations. 5. Upon the expiration or earlier termination of the Sublease, the assignment and assumption agreements contained herein shall terminate, and all rights, obligations, title and interests of Assignee in, to and under the Theatre Lease and Operating Agreements shall revert to Assignor, unless at such time Assignee has acquired fee title to the Premises, in which event Assignee shall retain all of its rights, obligations, title and interests in, to and under the Theatre Lease and Operating Agreements. 6. Except as otherwise provided in that certain Agreement to Sublease, dated bet- 6".- 15 , 1994, and this Agreement between Assignor and Assignee, Assignee acknowledges and agrees that no oral or written representations or warranties concerning the Theatre Lease, the Theatre Improvements or the Operating Agreements have been made in connection with Assignee's agreement to accept the assignment of Assignor's rights under and to the Theatre Lease, the Theatre Improvements and the Operating Agreements and to assume Assignor's obligations with respect thereto. 7. This Agreement shall be binding upon, and shall inure to the benefit of, and shall be enforceable by, the parties hereto and their respective heirs, legal representatives, successors and assigns. In addition to the foregoing, Assignee acknowledges, on its own behalf and on behalf of its heirs, legal representatives, successors and assigns, that the provisions hereof inure to the benefit of, and are enforceable by, each of the other respective parties to each of the respective instruments comprising the Theatre Lease and Operating Agreements, and their respective successors and assigns thereunder. 8. All Exhibits attached hereto are incorporated herein by this reference. 9. Each person or entity executing this document on behalf of a party hereto hereby represents and warrants that he has the 3 94-49'7449 authority to execute this Agreement and to bind the party for which such person or entity so executes this Agreement. 10. This Agreement may be recorded. 11. Upon the expiration or earlier termination of the Sublease or any acquisition of fee title in the Premises by Assignee, Assignor and Assignee each agree to execute any documents reasonably necessary to either terminate this Agreement of record or to eliminate any reversionary interest retained by Assignor in the rights and obligations assigned hereby. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year above first written. Assignor: THE MAY DEPARTMENT STORES COMPANY Attest:2Assistanecret"V By: Title: MCUTIV c PRESIDENTy REAL ESTATE i d Assignee: MANO MANAGEMENT COMPANY INC. � Attest: Title: • Title: EPRif 4 94-497449 STATE OF MISSOURI ) SS CITY OF ST. LOUIS ) On this �/Y'- day of Alb V L ,1 1994, before me, the undersigned Notary Public in and for said City and State, personally appeared E- �GUo/7ctf--" personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument r''trh/� entity upon behalf of which the person acted, executed the Q,P.• . i�rt�ument. my hand and official seal. pFFl�`�r11 i '"[) l i-ER ,- KTnr,r FU6LiU :;4_ Oi ;.i?aS'J'JRI V. QUldhli.iaiU.'4 Ei.7.LS VAR. 6, 1996 ST. LUUIS COUNTY. S•i° &'lure of otary Public ,#"f tkiL STATE OF •�� ) SS COUNTY OF e,,) 21 ) On this I3A day of k±r 4-L 1994, before me, the undersigned Notary Public n and for said City and State, personally appeared : personally known to me (or proved to me on he bas f satisfactory evidence) to be the person whose name is sub sc ed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ature of Notary Public APRIL N.NESS NOM"u_-4 2�Now York pawlified;n Putnom County n CdrnNo+.to FHA in mn��r 31,19..L. Wi%R$\WLH00307.RE EXHIBIT A 94-497449 THAT PORTION OF BLOCKS 29 AND 54 OF THE RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 2, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE SOUTHEAST LINE OF COLTON AVENUE WITH THE WEST LINE OF "E" STREET AS IT NOW EXISTS, SAID POINT BEING MONUMENTED WITH A 6" X 6" CONCRETE MONUMENT: THENCE SOUTH 39° 16' 43" WEST, ALONG SAID SOUTHEAST LINE, 1046.85 FEET; THENCE SOUTH 390 22' 40" EAST, 100.00 FEET; THENCE SOUTH 300 45' 02" EAST, 73.17 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCABE TO THE WEST AND HAVING A RADIUS OF 2305.05 FEET; THENCE SOUTHERLY ALONG SAID CURVE, FROM A TANGENT BEARING SOUTH 30° 45' 02" EAST, THROUGH A CENTRAL ANGLE OF 46° 28' 56", A DISTANCE OF 1870.01 FEET; THENCE SOUTH 150 43' 54" WEST 237.53 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 1311.10 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE, FROM A TANGENT BEARING SOUTH 150 43' 54" WEST, THROUGH A CENTRAL ANGLE OF 190 52' 49", A DISTANCE OF 454.92 FEET TO A POINT ON SAID CURVE; SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 400 20' 45" WEST 413.62 FEET; THENCE NORTH 490 39' 15" EAST 11.50 FEET; THENCE NORTH 400 20' 45" WEST, 295.00 FEET; THENCE SOUTH 490 39. 15" WEST, 155.87 FEET; THENCE NORTH 400 20' 45" WEST 537.03 FEET TO A POINT ON A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 350.00 FEET, SAID POINT HAVING A RADIAL BEARING OF NORTH 760 47' 58" WEST; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14° 32' 08", A DISTANCE OF 88.79 FEET; THENCE SOUTH 270 44' 10" WEST 154.05 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST, HAVING A RADIUS OF 180.00 FEET; a THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 50° 52' 52", A DISTANCE OF 159.85 FEET; THENCE SOUTH 230 06' 42" EAST 251.62 FEET; THENCE SOUTH 290 08' 47" EAST 770.00 FEET; THENCE NORTH 600 55' 21" EAST 60.00 FEET; THENCE SOUTH 610 56' 03" EAST 30.23 FEET; THENCE NORTH 600 55' 21" EAST 50.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 1311.10 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE, FROM A TANGENT BEARING NORTH 600 55' 21" EAST, THROUGH A CENTRAL ANGLE OF 250 18' 38", A DISTANCE OF 579.18 FEET TO THE POINT OF BEGINNING. EXCEPT THAT PORTION OF SAID LAND GRANTED TO SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED JULY 17, 1972, IN BOOK 7978, PAGE 105, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT A 6" X 6" CONCRETE MONUMENT MARKING THE MOST NORTHERLY POINT OF THAT CERTAIN COURSE DESCRIBED AS SOUTH 280 35' 05" EAST, 156.31 FEET, IN DOCUMENT TO THE STATE OF CALIFORNIA RECORDED IN BOOK 3855, PAGE 385, OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG THE NORTHEASTERLY LINE OF SAID STATE OF CALIFORNIA PARCEL OF LAND, NORTH 390 55' 34" WEST (RECORDED NORTH 390 55' 34" WEST) 42.01 FEET; THENCE NORTH 600 50' 25" EAST, 74.70 FEET; THENCE AT RIGHT ANGLES, SOUTH 29° 09' 35" EAST, 100.00 FEET; N R - 94-49'7449 THENCE SOUTH 600 50' 25" WEST, 67.45 FEET TO THE NORTHEASTERLY LINE OF SAID ® STATE OF CALIFORNIA PARCEL OF LAND; THENCE ALONG SAID NORTHEASTERLY LINE, NORTH 280 35' 05" WEST, 58.73 FEET TO THE POINT OF BEGINNING. AWN - - 94-497449 - EIZIBIT B DESCRTPTIOP OF THEATRE LEASE 1. Ground Lease dated February 28, 1986 by and between The May Department Stores Company and Nationwide Theatres Corp. 2. Letter agreement dated February 28, 1986 between The May Department Stores Company and Nationwide Theatres Corp. re: common areas. 3. Letter agreement dated March 14 , 1986 between The May Department Stores Company and Nationwide Theatres Corp. re: commencement date of Lease. 4. Letter agreement dated November 26, 1986 between The May Department Stores Company and Nationwide Theatres Corp. re: indemnity relating to Joint occupancy Agreement, Customer Provided Cable. 5. Notice Letter to Nationwide Theatres Corp. dated January 9, 1992 from The May Department Stores Company re: change of address. 6. Assignment and Assumption of Lease Agreement dated October 24 , 1994 by and between Nationwide Theatres Corp. and Vista Theatres, InG., Page 1 of 1 • EXHIBIT C 94--497449 DESCRIPTION OF REA 1. Declaration of Establishment of Restrictions and Covenants Affecting Land dated October 8, 1965; Homart Development Co. ("Homart") ; Sears, Roebuck and Co. ("Bears") ; Broadway-Hale Stores, Inc. ("Broadway") and The May Department Stores Company ("May") . 2. Common Area Agreement dated October 8, 1965, stating Rules and Regulations for the conduct of persons using the common Area; Homart, Sears, Broadway and May. 3. Maintenance Agreement dated October 8, 1965, stating Rules and Regulations for the Common Areas, Enclosed Mall and Truck Facilities; Homart, Sears, Broadway and May. 4. Sign Regulation dated October 8, 1965, regarding approval of exterior and interior signs; Homart, Sears, Broadway and May. 5. First Agreement Amending Declaration of Establishment of Restrictions and Covenants Affecting Land dated February 26, 1967; Homart, Sears, Broadway and May. 6. Outside Common Area Agreement dated December 1, 1969, by and between May and Homart. 7. Notice of Change of Address dated April 5, 19831 from Carter Hawley Hale Stores, Inc. to May. 8. Notice of June 24, 1983, and Assignment and Assumption of REA dated June 22, 1983 between Metropolitan Life Insurance Company and Mano Management Company as successor to Developer Tract. 9. Letter dated January 1, 1984 , from Carter Hawley Hale Stores, Inc. notifying May that Carter Hawley Hale has assigned all of its rights and obligations under the REA from Carter Hawley Hale Stores, Inc. , a California corporation, to Carter Hawley Hale Stores, Inc. , a Delaware corporation ("Broadway") . 10. Letter Agreement dated October 1, 1985, between May and Sears pertaining to Sears ' consent to Nationwide Theatres Corporation leasing from May its TBA, May consenting to Sears' future development of a 10,000 square foot outparcel, and both parties amending the existing Declaration. 11. Letter Agreement dated October 1, 1985, between May and Carter Hawley Hale Stores, Inc. pertaining to Carter's consent to Nationwide Theatres Corp. leasing from May its TBA and both parties amending the existing Declaration. Page 1 of 2 4 3 i e 94-49'7449 12. Letter Agreement dated October 11, 1985, between May and Mano Management Company, N.V. pertaining to the parties amending the existing Declaration to allow Nationwide Theatres Corp. use of the May TBA. 13. Letter dated December 8, 1988, from Bank of America National Trust and Savings Association to May. 14. Notice of Change of Address dated October 26, 1989, from Carter Hawley Hale Stores, Inc. to May. 15. Letter dated March 26, 1993 from Carter Hawley Hale Stores, Inc. to May re: change of address. Page 2 of 2 94-49'7449 12. Letter Agreement dated October 11, 1985, between May and Mano Management Company, N.V. pertaining to the parties amending the existing Declaration to allow Nationwide Theatres Corp. use of the May TBA. 13. Letter dated December 8, 1988, from Bank of America National Trust and Savings Association to May. 14. Notice of Change of Address dated October 26, 1989, from Carter Hawley Hale Stores, Inc. to May. 15. Letter dated March 26, 1993 from Carter Hawley Hale Stores, Inc. to May re: change of address. I i t Page 2 of 2 EAT') f0I NTY1 l R e__R LAS j t 3$?S FAGE 50 OF OT'f_CIAL P•ECORDS, CO OF i THENCE ALONG SAID EASTERLY LINE To HE AND To T THE F STATE 01' LINE OF Tt'E I.AW7 DESCRIBED IN -, -f;��'E:!",S£P. 27, 1 056 I N BOOK 4095 PAGE 197 CALIFORNIA RECOR iii*� v rc FOLLOWS1 OF OFFICIAL RECORDS, RECORDS OF SAID C_ _..T - 1 NORTHERLY ALONG NORTH A CURVE CONCAVE WESTERLY HAVING A RADIUS Or �� � 350. 00 FELT FRCM WHICH A TANGENT LINE: BEARS NORTH 03 MINUTES 36 SECONDS FAST THROUGH A CENTFAL AiJGLE CF 2I FEET DEGREES 11 MINUTES DIAL LINE SECONDS AN AR URVETTO SAID POINTRBr.AltS N A POINT, A RA SECONDS EAST, NORTH 34 NORTH 81 DEGREES 51 MINUTES ci THE DEGREES 34 MINUTES N�+ENT SECONDS SC01 C VE17SOUTIt ESTFRLOY AND BEGINNING OF A TA W HAVING A RADIUS CENTRAL T350- 0 FEETI 15R DEGREES Is,rER 51 MINUTES SAID CURVE Tt'KOUGH A SECONDS AN 1,X DISTANCE OF 96. 8? FEET TO THE BEGINNING OF A REVERSE CURVE CONING SAID ECURVE NTHROUG`iGAACENTRAL ANGLE • OF � FEET; NORTHERLY A DISTANCE OF 107- 58 82 DEGREES 11 MINUTES 12 SECONDS AN ARC DIST. SECONDS EAST FEET : AND NORTH 31 DEGIIEES 45 MINUTES 45 , 185. 95 FEET TO THENCE ALONG SAID INHLAND CENTER ODRIVE I NORTH 39 t CENTER DRI%'E; T DEGREES 16 MINUTES E J163SECOCONDS ST 113.1336 FEET 43 FEET TOHTHE DEGREES 16 MINUTES SAID CEAST N COURSE HEREINBEFORE NORT!"'ESTERLY TE"4,INUS Of DESCRIBED HES140 SECONDS WEST OF NOR'rH BEST 100. 00 FEET ; THENCE ALONG DEGREES 22 MI NU'1 r SAID CERTAIN CTiTO RSE, SOUTH 39 THE SOUTHEAST LINE OF2 INLAND CENOTEI.EDRIVE EAST 15. 30 FEE AS DESCRIBED IN THE GRANT OF EAS INTBOOKT66UOOPAGE 620 OF BERNARDINO RECORDED APRIL 1, OFFICIAL RECORDS.IE SOUTH OF 39 SAID DEGREES N16 •MINUTES 320SE:CONDS INLAND CENTER 16 SECONDS WEST 1X33. 9 FEET AND O A LINE WHICH EBEARS MSO SOUTH 50 DEGREES WEST 115. 09 44 MINUTES 052SECOND STEpNCE SOUTH IC50 PASSES D£GREESH 44U MINUTES R05 POINT OF BEG SECONDS EAST 561. 39 FEET TO THE TRUE POINT OF BEGINNING. y CA iw CO cz... 0� O L. �'.� � v y � O .�'O CA .0... �•� c•.•• � a) �+. 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OUOO Cd d e= yv� bA �s 3 `nC0 s. p ice. y � -14 "U� ..2 >.= M 0 Cc O1aQ0 � O Oa) c0 � OUx uUC to�= H y 3 C` U "*4 4) C) OC 3 "u.a °03 O cz 0= a)"a C ZoU `n a cz � � pw)= 30 � a c inc. caa�o O �+C .0 .pL" O�- O >��� 00 � � 0 `p4- in oe� .. ea Boa o �' a�i �opa) Ooa, CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM CITY CLERK'S OFFICE RECORDS & INFORMATION MANAGEMENT (RIM) PROGRAM DATE: October 5, 1998 TO: All Clients FROM: City Clerk's Office RE: SCANNING DOCUMENT PROBLEM NOTICE -------------------------------------------------------------------------------------------------------------------------------------- MAYOR AND COMMON COUNCIL MEETING DATE: November 6, 1997 ITEM #: #6 DESCRIPTION: Appeal hearing - Planning Commission's October 7, 1997 action to uphold the Development Review Committee's September 11, 1997 approval of Development Permit Type II #97-13, located at 500 Inland Center Dr. Owner: Mano Management Company,500 Inland Center Dr, San Bernardino, CA 92408. Applicant: Gresham, Savage, Nolan & Tilden, C/O Mark Ostoich, 600 N Arrowhead Ave, Suite 300, San Bernardino, CA 92401. Appellant: Central City Company/Carousel Mall. Request/Location: A proposal to initiate Phase I of the Inland Center Mall expansion project by constructing a 2 level 165,000 square-foot anchor department store to be occupied by Robinson's-May and 4 level parking structure. The appellant is asking the Mayor and Common Council to overturn the development permit approval. The project is located at 500 Inland Center Dr within the CR-1, Commercial Regional (Malls), land use district. ACTION: That the request for a continuance be denied; and that the hearing be closed; and that the Mayor and Common Council deny the appeal and approve Development Permit Type II#97-13, based on the findings of fact attached to the Staff Report dated October 23, 1997, from Michael Hays, Director of Planning and Building Services. NOTICE OF: Bad Ouality Original. X - Document. X - Map. FOR ASSISTANCE: Should you have any questions on this matter, please do not hesitate to contact either the records management staff or the Administrative Operations Supervisor at (909) 384-5002. Rachel Clark City Clerk RC:mam