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Home My WebLink About2020-01-28 Agenda Packet I declare under penalty of perjury that I am employed by the City of Chula Vista in the office of the City Clerk and that I posted the document according to Brown Act requirements. Dated: �' � � Signed1 fly CITY OF CHULA VISTA PAZ Mary Casillas Salas, Mayor John McCann, Councilmember- District 1 Gary Halbert, City Manager Jill M. Galvez, Councilmember- District 2 Glen R. Googins, City Attorney Stephen C. Padilla, Councilmember- District 3 Kerry K. Bigelow, City Clerk Mike Diaz, Councilmember- District 4 Tuesday, January 28, 2020 5:00 PM Council Chambers 276 4th Avenue, Building A Chula Vista, CA 91910 REGULAR MEETING OF THE CITY COUNCIL CALL TO ORDER ROLL CALL: Councilmembers Diaz, Galvez, McCann, Padilla and Mayor Casillas Salas PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY A. 20-0029 OATHS OF OFFICE Joycelyn Persichilli, Commission on Aging Bernardo Andrade, International Friendship Commission CONSENT CALENDAR (Items 1 - 7) The Council will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed immediately following the Consent Calendar. City of Chula Vista Page 1 Printed on 112312020 City Council Agenda January 28,2020 1. 120-0040 APPROVAL OF' MINUTES of JIuly 23 and August 1, 2,101 9. Recommended Action: Coulnicil approve the minutes. 2. 20-0037 ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 5.19.050.D TO ELIMINATE ONE-YEAR WAITING PERIOD APPLICABLE TO CERTAIN NEW CANNABIS BUSINESS, LICENSE, APPLICANTS (SECOND READING AND ADOPTION) Department: City Attorney & City Manager Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review lis required. Notwithstanding the foregoing, it has also been determined that the activity gqualifies, for an Exemption pursuant to Section 15061(b)(3) of the California Environmental Quality Act State Guidelines. Recommended Action: Coulncil adopt the ordinance. 3. .19-0561 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUMMARY VACATION OF THE 5-5-FOOT-WIDE EASEMENT FOR TREE PLANTING AND MAINTENANCE PURPOSES ALONG SHOWROOM PLACE Department: Development Services Department Environmental Notice: The Project was adequately covered in previously adopted Mitigated Negative Declaration (MNDi) IS-00-03, Mitigation Monitoring and Reporting Program (MMRP), and IVIND Findings, of Fact for the Eastlake 11 GDP, Eastlake I SPA Amendments, and Eastlake 11 Business Center 11�. Recommended Action: Council adopt the resolution. 4. 120-0006 RESOLUTION OF THE CITY COUNCIL OF 'THE CITY OF CHULA VISTA APPROVING A JOINT' APPLICATION WITH CHELSEA INVESTMENT CORPORATION FOR FUNDING FROM THE AFFORDABLE HOUSING AND SUSTAINABLE COMMUNITIES PROGRAM 'TO FUND AN AFFORDABLE HOUSING, PROJECT AND INFRASTRUCTURE IMPROVEMENTS WITHIN AND, AROUND MILLENIA Department: Development Services Department Environmental Notice: The Project was adequately covered in previously certified Final Second Tier Environmental Impact Report, (EIR-07-01) and subsequent Addendum (IS-13-001). Thus, no further environmental review or documentation is required. City of Chula Vista Page 2 Printed on 112312020 2020-01-28 Agenda Packet, Page 2 of 288 City Council Agenda January 28,2020 Recommended Action: Council adopt the resolution. 51. 120-0017 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DESIGNATING CERTAIN AUTHORIZED REPRESENTATIVES TO VOTE IN THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT SPECIAL MAIL BALLOT ELECTION Department: Development Services Department Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 150601(c)(3) no environmental review is reqluired., Recommended Action: Coulncil adopt the resol�ution. 6. 120-0008 A. RESOLUTION OF THE, CITY COUNCIL, OFTHE, CITY OF CHULA VISTA APPROVING A MASTER LICENSE AGREEMENT WITH VERIZON WIRELESS (VAWLLC FOR SMALL WIRELESS FACILITIES WITHIN THE CITY'S RIGHT-OF-WAY B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A MASTER LICENSE AGREEMENT WITH NEW CINGULAR WIRELESS RCS, LL,C (AT&T) FOR SMALL WIRELESS FACILITIES WITHIN THE CITY'S RIGHT-OF-WAY Department: Economic Development Department Environmental Notice: The activity is not a ""Project"'' as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review is required. Notwithstanding the foregoing, it has also been determined that the activity qualifies for an Exemption pursuant to Section 15061(b)(3 of the California Environmental Quality Act Sate Guidelines. Recommended Action: Council adopt the (re,solutions. 7. 120-0033 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE AGREEMENT WITH HDL COMPANIES FOR SERVICES RELATED TO CANNABIS BUSINESS APPLICATIONS AND APPROPRIATING $10010010, FROM THE GENERAL FUND, TO BE OFFSET BY APPLICATION FEES (4/5 VOTE REQUIRED) City of Chula Vista Page 3 Printed on 112312020 2020-01-28 Agenda Packet Page 3 of 288 City Council Agenda January 28,2020 Department: Finance Department Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore,, pursuant to State Guidelines Section 15060(c)(3) no environmental review is required. Recommended Action: Council adopt the resolution. ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS Persons speaking during Public Comments may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from discussing or taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for future discussion or refer the matter to staff Comments are limited to three minutes. ACTION ITEMS The Item(s) listed in this section of the agenda will be considered individually by the Council and are expected to elicit discussion and deliberation. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 8. 119-0475 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DIRECTING THE CITY MANAGER TO ENGAGE, IN ALL NECESSARY ADMINISTRATIVE ACTIONS TO IMPLEMENT FIRE DEPARTMENT-BASED EMERGENCY MEDICAL TRANSPORT SERVICES, TO BEGIN NEGOTIATIONS FOR CONTRACTUAL SERVICES WITH THE CITY OF IMPERIAL BEACH AND THE, BONITA SUNNYSIDE FIRE PROTECTION DISTRICT, AND TO BRING BACK FOR CITY COUNCIL CONSIDERATION AND APPROVAL ANY REQUIRED COUNCIL LEVEL IMPLEMENTING ACTIONS Department: Fire Department Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; th�erefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review is required. Recommended Action: Council adopt the resolution. City of Chula Vista Page 4 Printed on 112312020 2020-01-28 Agenda Packet, Page 4 of 288 City council Agenda January 28,2020 9. 19-0506 A. RESOLUTION F THE CITY COUNCIL OF THE CITY F' CHULA VISTA ADOPTING THE, PROJECT REPORT FOR THE PALOMAR STREET RAIL-GRADE SEPARATION c I P STM0361 ROJ! CT, AND TRANSFERRING $100,000 N TRANSNET APPROPRIATIONS FROM CIP TRF013 7 TO CIP S TM03 1 (415 MOTE REQUIRED) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A MEMORANDUM OF UNDERSTANDING WITH SANDAG FOR THE, DESIGN PHASE OF THE PALOMAR STREET RAIL- RAID SEPARATION PROJECT C. RESOLUTION OF THE, CITY COUNCIL, OF' THE, CITY OF CHULA VISTA APPROVING A REIMBURSEMENT AGREEMENT WITH BODEGA LATI A CORPORATION, DOING BUSINESS AS EL SUPER, FOR PUBLIC ,SEWER. INFRASTRUCTURE THROUGH THE PALOMAR GATEWAY SHOPPING CENTS Department.: Engineering Department Environmental Notice: The Project qualifies for a Statutory Exemption pursuant to the California Environmental Quality Act State Guidelines Sectio 21080.13 30.13 Railroad Grade Separation Projects and a categorical Exemption pursuant to State CEQA Guidelines Section 15301 class 1 (Existing Facilities), Section 15302 class 2 (Replacement or Reconstruction , Section 15303 class 3 (Nagy construction or Conversion of Small Structures), and Section 15304 class 4 (Miner Alterations to Land). Under National Environmental Policy Act (NE,PA), The State (California Department of Transportation) has determined that the project is a categorical Exclusion under: 23 CFR 771.117(c): activity (c)1(1). Recommended Action. council adopt the (resolutions. CITY MANAGER'S REPORTS MAYOR'S REPORTS COU NCILM EMBERS' COM ENTS CITY ATTORNEYS REPORTS City of Chula Vista Page 5 Printed on 1/2312020 2020-01-28 Agenda Packet Page 5 of 28 City Council Agenda January 28,2020 CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council meeting at the City Attorney's office in accordance with the Ralph M. Brown Act(Government Code 54957.7). 10. 20-0028 CONFERENCE WITH LABOR NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 549,5 7.6 Agency designated reresent ati�ves: Gary Halbert, Kelley Bacon, Courtney Chase, Ed Prendell, Glen Googins, and Simon Silva Employee organizations.- 1AFF, POA, WCE, ACE, and MM/PR 11. 120-0035 CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9 (d)(1) Name of case: Francis Aguinagia v. City of Chula Vista,, San Diiego Superior Court, Case No. 3,7-2018-00048906-Cu-PO-CTL. ADJOURNMENT to the special joint City Council,, Planning Commission, Growth Management Oversight Commission meeting on January 30, 2020, at 6:00 pm., in the Council Chambers. Materials provided to the City Council related to any open-session item on this agenda are available for public review at the City Clerk's Office, located in City Hall at 276 Fourth Avenue, Building A, during normal business hours. In compliance with the AMERICANS WITH DISABILITIES ACT The City of Chula Vista requests individuals who require special accommodations to access, attend, andlor participate in a City meeting, activity, or service, contact the City Clerk's Office at(619) 691-504 1(Califomia Relay Service is available for the hearing Impaired by dialing 711) at least forty-eight hours in advance of the meeting. Most Chula Vista City Council meetings, including public comments, are, video recorded and aired live on AT&T U-verse channel 99 (throughout the County), on Cox Cable channel 24 (only in Chula Vista), and online at www.chulavistaca.gov. Recorded meetings are also aired on Wednesdays at 7 p.m. (both channels) and are archived on the City's website. City of Chula Vista Page 6 Printed on 112312020 2020-01-28 Agenda Packet, Page 6 of 288 C® of Chula Vista Meetinge Minutes -, Draft Tuesday,July 23,2019 5:00 RM Council Chambers 276 4th Avenue, (Building A Chula Vista, CA 91910 REGULAR MEETING CSF THE CITY COUNCIL CALL TO ORDER A regular meeting of the City Council of the City of Chula Vista was called to, order at 5:00 .m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: P,resento. Councilmember Diaz, Councilmember Galvez, Councilmember McCann, Deputy Mayor Padilla and Mayor Casillas Salas Also Present: City Manager Halbert, City Attorney Googins, City Clerk Bigelow, and Assistant City Clerk Turner PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE Councilmember Diaz led the Pledge of Allegiance. SPECIAL ORDERS OF THE DAY Items C and D were heard before Items A and B. C. 191-0358 SPECIAL RECOGNITION OF THE ALBION SOUTHERN CALIFORNIA BOYS 2009 SOCCER TEAM UPON PLACING TOP IN THE NATION AND BEING DECLARED CHAMPIONS AT THE PREMIER SUPERCOPA TOURNAMENT IN DALLAS, TEXAS Mayor Casillas Salas recognized the members of the Albion ,southern California Boys 2009 Soccer Team for their success, and Councilmembers presented the players with medals. D. 191-0372 PRESENTATION OF A PROCLAMATION TO TIJUANA MAYOR JUAN MANUEL GASTELUM PROCLAIMING JULY 11, 2019, AS CITY OF TIJUANA DAY IN THE CITY OF CHULA VISTA IN RECOGNITION OF ITS 130TI-I ANNIVERSARY Mayor Casillas Salas read the proclamation, and Deputy Mayor Padilla presented it to Mayor Gastelum. Mayor Gastelum expressed his appreciation and honor in receiving the proclamation. Mayor Casillas Salas, also acknowledged Mayor Gastelum's staff. A. 191-0367 OATHS OF OFFICE Christos Koirgan, Sustainability Commission JoEllen Baugh, Sustainability Commission City Clerk Bigelow administered the oaths of office to Commissioners Korgan and Baugh, and Councilmember Galvez presented them with certificates of appointment. City of Chula Vista Page 1 2020-01-28 Agenda Packet, Page 7 of 288 City Council Meeting Minutes-IDraft ,duly 2 ,2019 B. 1 -0345 PRESENTATION BY ,SAN DIEGO ASSOCIATION OF GOVERNMENTS (SANDAG) APPLIED RESEARCH DIVISION DIRECTOR DR. CYNTHIA BURKE REGARDING THE CITI EN'S SURVEY HELD IN THE CITY OF CHUL.A VISTA Police Chief Kennedy introduced the item and Dr. Burke gave a presentation. Councilmembers commented on the iters. JoAnn Fields, Chula 'lista resident, spoke in support of including additional languages in the survey and spoke regarding the process to order a police report. CONSENT CALENDAR (Items 11 - 11 Mayor ,alas Casillas announced that she and Councilmember McCann had potential property-related conflicts of interest on Item 5, but that the item qualified for an exception, which did not prohibit the members from voting. 1. 191-0374 WRITTEN COMMUNICATIONS Memorandum from Deputy Mayer Padilla requesting an excused absence from the July , 2019 City Council meeting. Recommended Action: Council excuse the absence. 2. 19-0364 APPROVAL OF MINUTES of February 1 , 2O 19. Recommended,Action: Council approve the minutes. 3. 191-0366 ORDINANCE NO. 3458 OF THE CITY OF CHULA A VISTA ADDING CHAPTERS 160 AND x.61 'TO THE CHULA VISTA MUNICIPAL CODE RELATING TO COMMUNITY FACILITIES DISTRICTS GENERALLY AND, THE BAYFRONT PROJECT SPECIAL. TAX FINANCING DISTRICT (SECOND READING AND ADOPTION) Recommended Action: Council adopt the ordinance. 4. 191-0363 A. ORDINANCE NO. 3459 OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO OTAY RANCH FREEWAY COMMERCIAL SECTIONAL PLANNING AREA `PA PLANNED COMMUNITY DISTRICT REGULATIONS FOR THE NORTHERLY FC-2 PORTION (SECOND READING AND ADOPTION B. ORDINANCE NO. 3460 OF TIFF CITY OF CH LA VISTA APPROVING A DEVELOPMENT AGREEMENT AMENDMENT BETWEEN THE CITY OF CHU�L.A VISTA, VILLAGE 11 TOWN CENTER, LLC AND BUNRANCH CAPITAL PARTNERS, LLC FOR THE FREEWAY COMMERCIAL NORTH PORTION OF OTAY RANCH PLANNING AREA 12 (SECOND READING AND ADOPTION) Recommended Action: Council adopt the ordinances. City of Chula Vista Page 2 2020-01-28 Agenda Packet, Page 8 of 28 City Council Meeting Minutes-IDraft July 23,2019 5. 1 -0341 A. ORDINANCE NANCCE C F' THE CITY OF CCH LA 'VISTA REPEALING ORDINANCE NO. 2384 RELATI G TO THF ESTABLISHMENT ENT OF THE TELEGRAPH CANYON DRAINAGE DEVELOPMENT IMPACT FEE (FIRST READING) B. RESOLUTION NCS. 2019-136 OF THE CITY COUNCIL L CSF THE CITY OF CC ULA 'VISTA AMENDING CHAPTER 1 (DEVELOPMENT IN-LIEU DEEB) OF THE MASTER FEE SCHEDULE TO REMOVE THE TELEGRAPH CANYON DRAINAGE BASIN DEVELOPMENT IMPACT FEE Recommended Action: Council place the ordinance on first reading and adopt the resolution . 19-0344 RESOLUTION NO. 2019-137 OF THE CITY COUNCIL OF THE CITY OF CCHULA 'VISTA ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 14M ASTERN URBAN C ENTER/ ILLFNIA , AUTHORIZING THE RECORDING OF A NOTICE OF CESSATION O1= SPECIAL TAS LIEN FOR CERTAIN PROPERTIES IES WITHIN SUCH COMMUNITY FACILITIES DISTRICT Recommended Action: Council adopt the resolution. 7. 191-0346 RESOLUTION NO. 2019-138 OF THE CITY COUNCIL O1= TL-I1= CITY OF CCHULA 'VISNA AUTHORIZING THE SUBMITTAL OF AN APPLICATION FOR STATEWIDE PARD DEVELOPMENT AND COMMUNITY REVITALIZATION PROGRAM GRANT FUNDS; AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A STANDARD AGREEMENT IF SELECTED FOR SUCH FUNDING, ANY AMENDMENTS THERETO, AND ANY RELATED DOCUMENTS NECESSARY FOR IMPLEMENTATION OF THE GRANT (LOMA VERDE PARK) Recommended Acton: Council adopt the resolution. . 191-0359 RESOLUTION NO. 2019-139 OF THE CITY COUNCIL OF THE CITY OF CCHULA 'VISTA WAIVING THE CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT WITH WINBOURNE CONSULTING, LLC TO PROVIDE STRATEGIC, OPERATIONAL AND PROJECT MANAGEMENT SUPP'OR'T FOR THE UNMANNED RENAL- SYSTEM PROGRAM Recommended Action: Council adopt the resolution. City of Chula Vista page 3 2020-01-28 Agenda Packet, Page 9 of 28 City Council Meeting Minutes-(Draft ,duly 23,2019 9�. 19 0360 RESOLUTION NO. 2919-149 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, ACCEPTING $83,999 GRANT FUNDS AND APPROPRIATING SAID FUNDS TO THE POLICE GRANTS SECTION OF THE S'TA'TE GRANTS FUND (4/5 VOTE REQUIRED) Recommended Action: Council adopt the resolution. 10. 19-9351 RESOLUTION NO. 2919-141 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT WITH THE COUNTY OF SAN DIEGO FOR THE POLICE DEPARTMENT'S PARTICIPATION IN THE CALIFORNIA IDENTIFICATION SYSTEM REMOTE ACCESS NETWORK Recommended Action: Council adapt the resolution. 11. 19-9355 RESOLUTION NO. 2019-142 OF THE CITY COUNCIL. OF THE CITY OF CHULA VISTA APPROPRIATING $29,9199 TO THE POLICE SECTION OF THE FEDERAL GRANTS FUND FOR DISPATCHER CONSOLES (4/5 VOTE REQU� RED) Recommended Action: Council adopt the resolution. Approval of the Consent Calendar ACTION: A motion was made by Deputy Mayor Padilla, seconded by Councilmember McCann, to approve staff s recommendations on the above Consent Calendar items, headings read,text waived.The motion carried by the following vote: Yes: a- Diaz, Galvez, McCann, (Padilla and Casillais Salas INo: 0 Abstain: 0 ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS JoAnn Fields, Chula Vista resident, commended Cultural ,Arts Manager Tessitore and the volunteers who attended the Battle of the Bands Music in the Park event, and she announced a multi-cultural festival, "Chula Pest.." Mark Twohey, Chula Vista resident, representing the Chula Vista Youth Sports Council, expressed gratitude to the Council for its support and gave an update on the `youth Sports Council's current projects. Dale Stevenson, Chula Vista resident, expressed concern regarding the road construction project on East Palomar. Randy Epstein and Rays Voller, Chub Vista residents, expressed concern regarding maintenance needs on Broadway. City of Chula vista Page 4 2020-01-28 Agenda Packet, gage 10 of 28 City Council Meeting Minutes-IDrarft ,duly 23,2019 Sandy ,pato, Chula Vista resident, recognized the Police Department and expressed concern regarding traffic on Emerson Street and illegal commercial marijuana activity. Patricia Aguilar, Chula Vista resident, suggested a revision to the municipal code to allow one or two Councilmembers to add an item to the agenda. PUBLIC HEARINGS 112 1 �-033 ' RESOLUTION NO. 2019-143 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO THE CHULA VISTA GAMING PLAN INCREASING THE MAXIMUM NUMBER OF TABLES FROM 210 TO 26, INCREASING PER TABLE LICENSE FEES, MAKING RELATED CHANGES AND UPDATES, AND APPROVING AN UPDATED FIVE YEAR OPERATING AGREEMENT Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and no earlier than the time specified in the notice. Director of Economic Development Crockett gave a presentation on the item. Staff responded to questions of the Council. Mayor Casillas Salas opened the public hearing. The following members of the public spoke in support of staff's recommendation.- -Chris,springer, ,fan Diego resident -Juan Carlos Hernandez, representing San Diego County Hispanic Chamber -Adela Garcia, Chula Vista resident, representing Dana de San Diego -JoAnn Melds, Chula Vista resident, representing J umpia Club -Mayra Swanson Chula Vista resident, representing Kiwanis of Chula Vista -Daniel Rice, Chula Vista resident, representing US4 Warriors/Elks Club Chula Vista 2011 -Daniel Hernandez, Chula Vista resident, representing San Ysidro Health -Patti Boman, Bonita resident -Patricia Aguilar, Chula Vista resident -Lisa Cohen, Chula Vista resident, representing the Chula Vista Chamber of Commerce -Monica Montano, Chula Vista resident -Lauren Moreno, Chula Vista resident -Patty Chavez, Chula Vista resident -Rod Stone, representing Seven Mile Casino The following individuals submitted written documentation in support of staffs recommendation and did not wish to speak: -Richard Vuy, Chula Vista resident -,Jennifer Bustamane, Chula Vista resident -,John Moot, Chula Vista resident -,Jacqueline Reynoso, representing National City Chamber of Commerce -Dinah Willier -David Zumaya, representing San Diego Hispanic Chamber The following individuals submitted written documentation in support of staff's recommendation and were not present when called: -Lynnette Tessitore, Chula Vista resident -Kathryn Lembo, San Diego resident City of Chula Vida Page 2020-01-28 Agenda Packet, gage].I of 28 City Council Meeting Minutes-IDraft ,duly 23,2019 There being no further members of the public who wished to speak, Mayor Casillas Salas closed the public hearing. Council discussion ensued.. ACTION: A motion was made by Mayor Casillas Salas, seconded by Councilmember Galvez, to adopt (Resolution No. 2019-143, heading read, text waived. The motion carried by the following vote: "des: 5- Diaz, Calvez, McCann, (Padilla and Casillas Salas INo: 0 Abstain: Mayor Casillas Salas recessed the meeting at x:02 p.m. The Council reconvened at 7.-11 p.m., with all members present. BOARD AND COMMISSION REPORTS 13. 191-0339 PRESENTATION BY THE CHARTER REVIEW COMMISSION OF SURVEY RESULTS REGARDING PROPOSED AMENDMENTS TO CITY CHARTER AND SOLICITATION F DIRECTION BY CITY COUNCIL. N (WHICH AMENDMENTS TO PURSUE, IF ANY Assistant City,attorney Maland introduced the item. Charter Review Commissioners O'Donnell and Felber presented survey results regarding proposed amendments to the City Charter and answered questions of the Council. Patricia Aguilar, Chula 'Vista resident, spoke regarding the merits of the items in the survey. She recommended including an item on the ballot regarding Mayor and Council salaries and also using outside counsel to facilitate discussions regarding City Attorney seat requirements if a ballot measure was going to be pursued. Theresa Acerro, Chula 'Vista resident, spoke in support of including an item on the ballot regarding Mayor and Council salaries and campaign contribution regulations. John Moot, Chula Vista resident, spoke regarding the City.Attorney salary and residency requirements. Council discussion ensued regarding the item. ACTION: A motion was made by Councilmember McCann, seconded by Councilmember Diaz, to accept the recommendation of the Charter Review Commission and direct the Commission to draft potential ballot measures for Council's consideration for the November 2020 election on the following items: 1) Requiring that the elected City Attorneys be a resident of the City; 2) Creating a process to suspend an elected official if the official is charged with a felony; and 3) Using maul-in ballots, only, for special elections involving the Mayor, Councilmembers,or the City Attorney. 'The motion carried by the following vote: Yes: 5- Diaz, Galvdez, McCann, (Padilla and Casiillas Salas INo: 0 Abstain: 0 City of Chula Vista Page 6 2020-01-28 Agenda Packet, gage 12 of 28 City Council Meeting Minutes-IDraft ,duly 23,2019 ACTION ITEMS 14. 1 -0362 A. RESOLUTION NCS 2019-144 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA SUPPORTING THE SUBMITTAL BY RIVER PARTNERS OF THE PROPOSITION - STATEWIDE PAR PROGRAM GRANT APPLICATION, AND OTHER FUTURE FUNDING OPPORTUNITIES TO FUND THE ACQUISITION O1= APPROXIMATELY 2 ACRES OF PARKLAND AND OPEN SPACE E ADJAC ENT TO OTAY VALLEY REGIONAL PARK AREA 4/BEYER WAY B. RESOLUTION NCS 2019-145 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY MANAGER TO PURCHASE A 2,5-ACRE SITE LOCATED ADJACENT TO THE OTAY VALLEY REGIONAL PARK FORPARK PURPOSES FOR THE. NEGOTIATED PRICE O 00,000, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL NECESSARY DOCUMENTS TO PURCHASE THE SITE, AND AMENDING THE FISCAL YEAR 2019/20 BUDGET AND APPROPRIATING WESTERN PA K AND ACQUISITION AND DEVELOPMENT FEE FUNDS THEREFOR 4/5 VOTE RECD IRED Development Services Director Broughton gave a presentation on the item. Rich Simmons, representing Sudl erry Properties, spoke in support of staffs recommendation. ACTION: A motion was made by Counclmember Diaz, seconded by Councilllmemlber McCann, to adopt Resolution Naas. 2019-144 and 2019-145, headings read, text waived.The motion carried by the following vote: Yea: 5- Diaz, Galv+e , McCann, Padilla and Casillas Salas No: 0 Abstain: 0 115. 19-0329 CHULA VISTA COMMUNITY CHOICE AGGREGATION EAST ILI Y STUDY Chief Sustainability Officer C`akunga and Conservation Specialist Downs gave a presentation on the item. Sustainability Commission Vice Chair Richeson and Howard Choy, representing ,EES Consulting, gage presentations on the item and answered questions of the Council. The following members of the public spoke in support of staff's recommendation. -Cody Hoo+ven, representing City of San Diego -Carolina Rodriguez, Chula Vista resident -Denia Martin, Chula Vista resident -Matthews Vasilakis, San Diego resident, representing Climate Action Campaign -Gina Woodard and students, Chula Vista residents -Patty Bessie and Madeline Baldwin, Chula Vista residents -Becky Thimm, Chula Vista resident -Rita Clement, Chula Vista resident - Teresa Acerro, Chula Vista resident City of Chula Vida Page 7 2020-01-28 Agenda Packet, gage 13 of 28 City Council Meeting Minutes-IDraft July 2 ,2019 Dinah Willier, representing SDG&E, spoke regarding the item and answered questions of the Council. The following members of the public submitted written documentation in support of staff's recommendation and did not wish to speak- -Patricia Aguilar, Chula Vista resident -Madison Manes, Chula Vista resident -Cambria McClelland, Bonita resident -Auishai Adato, Chula Vista resident -Kailee Noble, Chula Vista resident -Mia Aguimatang, Chula Vista resident -Batya Bimstein, Chula Vista resident -Francisco Modal, Chula Vista resident -Jesselle Lopez, Chula Vista resident -Rachel Cepe, Chula Vista resident Kevin Soto, Chula Vista resident, submitted written documentation in opposition to staff's recommendation and did not wish to spear. Council discussion ensued.. ACTION: A motion was made by Deputy Mayor Padilla, seconded by Gounc'ilmember McGann, to accept the Chula. Vista Community Choice Aggregation Feasibility Study, heading read,text waived.The motion carried by the following vote: Yes: 5- Diaz, Glv+ez, McCann, (Padilla and Casillas Balms INo: 0 Abstain: ACTION: A motion was made by Deputy Mayor Padilla, seconded by Gouncilmember McGann, to direct staff to proceed with a more specific analysis on governance options and to provide recommendations for Council's consideration. The motion. carried by the following vote: Yes: 4- Diaz, McCann, Padilla and Casillas Sanas No: 1 - Galvez Abstain: 0 16. 191-0347 A. RESOLUTION NO. 2019-146 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE COMPENSATION SCHEDULE ULE TCS REFLECT SALARY INCREASES EFFECTIVE JULY 1, 20151 JULY 1, 20173 AND JULY 11 2018 FOR CITY ATTORNEY (ELECTED) IN ACCORDANCE WITH SECTION 503(C) OF THE CITY OF CHULA A VISTA CITY CHARTER B. RESOLUTION NO. 2019-147 OF THE CITY COUNCIL OF TIME CITY OF CHULA VISTA APPROVING THE REVISED FISCAL YEAR 2016/17 COMPENSATION SCHEDULE EFFECTIVE JULY 1, 2016 AND ITS INCLUSION IN TF1 REVISED COMPENSATION SCHEDULES EFFECTIVE JULY 87 2016, AUGUST 5, 2016, SEPTEMBER 16, 201 , NOVEMBER 11, 2016) AND APRIL 14, 201 I AS REQUIRED BY CALIFORNIA CODE OF REGUL AT IONS, T ITLF 2, SECTION 570.5 City of Chula Vida Page g 2020-01-28 Agenda Packet, gage 14 of 28 City Council Meeting Minutes-IDraft ,duly 23,2019 C. RESOLUTION NO. 2019-148 OF THE CITY COUNCIL F THE CITY OF CHULA VISTA APPROVING THE. REVISED FISCAL. YEAR 2017/1 COMPENSATION SCHEDULE EFFECTIVE JULY 1, 2017 AND ITS INCLUSION IN THE REVISED COMPENSATION SCHEDULES EFFECTIVE JULY 7, 2017,1 DECEMBER 22, 2017, JANUARY 5, 2018) FEBRUARY 16, 20185 AND MARCH 2, 201 8AS REQUIRED BY CALIFORNIA CODE OF REGULATIONS, TITLE 2, SECTION 70.5 D. RESOLUTION NO. 2019-149 OF THE CITY COUNCIL F THE CITY OF CHULA VISTA APPROVING THE. REVISED FISCAL. YEAR 2018119 COMPENSATION SCHEDULE EFFECTIVE JULY 1, 2018 AND ITS INCLUSION IN THE REVISED COMPENSATION SCHEDULES EFFECTIVE JULY 5, 2018, AUGUST 17, 2018, DECEMBER 21, 2018) JANUARY 4, 2019, MARCH 1, 2019) AND MAY 1 O, 2019 AS REQUIRED BY CALIFORNIA COOP OF REGULATIONS, TITLE 2, VECTION 5 70.5 E. RESOLUTION NO. 2019-150 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE. REVISED FISCAL. YEAR 2019/20 COMPENSATION SCHEDULE EFFECTIVE JULY 5, 2019 AS REC U!IR U BY CALIFORNIA CODE OF REGULATIONS, TITLE 2, SECTION 570.5 Human Resources Director Chaseannounced that approval of the item would affect executive compensation. ACTION: A motion was made by Counc llmemlber McCann, seconded by Mayor Casillas Salas, to adopt Resolution Nos. 2019-146 through 2019-150, headings read, text waived.The motion carried by the following vote: Yes: 5- Diaz, Galvez, McCann, (Padilla and Casillas Salas No: 0 Abstain: 0 17. 19-0348 A. RESOLUTION NO. 2019-151 OF THE CITY COUNCIL OF TIME CITY OF CHULA VISTA AMENDING THE COMPENSATION SCHEDULE TO REFLECT SALARY INCREASES EFFECTIVE JULY 1) 2010, JULY 1, 2017) AND JULY 1, 2018 FOR TIFF MAYOR AND COUNCII. MFMBFRB IN ACCORDANCE WITH SECTIONS, 302 AND 304(C) OF THE CITY OF CHULA VISTA CITY CHARTER B. RESOLUTION NO. 2019-152 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE. REVISED FISCAL. YEAR 2015117 COMPENSATION SCHEDULE, EFFECTIVE JULY 1, 2015 AND ITS INCLUSION IN THE REVISED COMPENSATION SCHEDULES EFFECTIVE. JULY Y 87 2010, AUGUST 5, 2015, SEPTEMBER 10, 2015, NOVEMBER 11, 29155 AND APRIL 14, 2017 AS REQUIRED BY CALIFORNIA CODE. OF REGULATIONS, TITL.E 2, SECTION 570.5 City of Chula Vista page 9 2020-01-28 Agenda Packet, gage 15 of 28 City Council Meeting Minutes-IDraft July 23,2019 C. RESOLUTION NO. 2019-153 OF THE CITE` COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE REVISED FISCAL YEAR 2017118 COMPENSATION SCHEDULE EFFECTIVE JULY 1, 2017 AND ITS INCLUSION IN THE REVISED COMPENSATION SCHEDULES EFF=ECTIVE JULY 71 2017, DECEMBER 22, 2017, JANUARY 5, 20181 FEBRUARY 15, 2018, AND MARCH 2, 2018 AS REQUIRED BY CALIFORNIA CODE OF ROUI AT IONS, T ITLE 2, SECTION 570.5 D. RESOLUTION NO. 2019-15 OF THE CITY COUNCIL OF THE CITY OF CHUL A VISTA APPROVING THE REVISED FISCAL. YEAR 2018119 COMPENSATION SCHEDULE EFFECTIVE JULY 1, 2018 AND ITS INCLUSION IN THE REVISED COMPENSATION SCHEDULES EFFECTIVE JULY 53 2018, AUGUST 17, 2018, DECEMBER 211,1 20181 JANUARY 4, 2019, MARCH 1, 2019, AND MAY 1 CJ 2019 AS REQUIRED, BY CALIFORNIA CODE OF REGULATIONS, TITLE 2, SECTION 570.5 E. RESOLUTION NO. 2019-155 OF THE CITY COUNCIL. OF THE CITY OF CHUL A VISTA APPROVING THE REVISED FISCAL. YEAR 2019120 COMPENSATION SCHEDULE EFFECTIVE JULY 5, 2019 AS REQUIRED D Y CALIFORNIA CODE OF REGULATIONS, TITLE 2, SECTION 570.5 Duman Resources Director Chase announced that revised attachments had been distributed to the Council and that approval of the item would affect executive compensation. City Attorney Coogins responded to questions regarding the consequences of not adopting the resolution. Council discussion ensued. The following members of the public submitted written documentation in opposition to staffs recommendation. -Peter Watry, Chula Vista resident - Theresa Acerro, Chula Vista resident -Anne Peeing -Diedre Springer -Anne,springer ACTION: A motion was made by Councilmember McCann, seconded by Deputy Mayer Padilla, to adapt (Resolution Naas. 2019-151 through 2019-155, headings read, text waived.The motion carried by the following vote: Yes: 5.. Diaz, Galvez, McCann, IPadlla and Casillas Salas No: 0 Abstain: 0 CITY MANAGER'S REPORTS There were none. City of Chula Veda Osage 10 2020-01-28 Agenda Packet, gage 16 of 28 City Council Meeting Minutes-IDraft ,duly 23,2019 MAYOR'S REPORTS fib. 1 g-031 " CONSIDERATION OF REAPPOINTMENTS TO THE FOLLOWING BOARDS & COMMISSIONS: NS: A. REAPPOINTMENTS TO FIRST TERM (initial term less than two years) - Dana Tomlinson, Board of Library Trustees - Andrew strong, Growth Management Oversight Comm - Susan Lake, Human Relations Commission - Robert Godinrez, Human Relations Commission - Alexandra Maas., International Friendship Commission - Ken Muraoka, International Friendship Commission - Francisco Escobedo, Measure A Citizens' Oversight Com - Raymundo Alatorre, Measure A Citizens's' Oversig t Comm - Gary Ficacci, Measure A Citizens' Oversight Comm - Adriana Guevara-Gluyas, sustainability Commission - Michael Cie La Rosa, Planning Commission - Jerome Torres, Planning Commission B. REAPPOINTMENTS TO S CON D T R - Mary Johnson, Commission on Aging - Mary Cruz, Healthy Chula Vista Advisory Commission - Dwaine Hooker, Growth Management Oversight Comm - Diana Milburn, Healthy Chula Vista Advisory Commission - Manuel Delgado, Mobilehome Rent Review Commission - Thomas Doyle, Parks and Recreation Commission - Jennifer Mueller, Veterans Advisory Commission ACTION: A motion was made by Councilllmemlber McCann, seconded by Mayor Casillas salas, to reappoint the above members to first terms (item 1A) and allow members who were not in compliance with required ethics training 60 days to come into compliance.The motion carried by the following vote Yes: 5- Diaz, Galvdez, McCann, Padilla and Casillas Salas No: 0 Abstain: 0 ACTION: A motion was made by Councillmemlber McCann, seconded by Mayor Casillas alas, to reappoint the above members to second terms (Item 1813) and allow members who were not in compliance with required ethics training 6 days to come into compliance.The motion carried by the following vote: Yes: 5- Diaz, Galvez, McCann, (Padilla and Casillas Salas No-, 0 Abstain: Mayor Casillas Salas spoke regarding her attendance at the Bloomberg Harvard City Leadership Initiative program, and stated that Director of Economic Development Crockett and Chief Sustainability officer Gakunga would also attend. City of Chula Vista Osage 11 2020-01-28 Agenda Packet, gage 17 of 28 City Council Meeting Minutes-IDrarft July 23,2019 COU C►ILM MRERS" COMMENTS Deputy Mayor Padilla reported that former Councilmember batty Davis was in ill health. Councilmember Calvez spoke in support of Director of Economic Development Crockett and Chief Sustainability Officer Gakunga attending the Bloomberg Harvard City Leadership Initiative program and she reported on her attendance at the 130th anniversary celebration for Tijuana. CITY ATTORNEY'S REPCS S There were none. ADJOURNMENT The meeting was ad�joumed at 10:51 p.m. Minutes prepared b : Tyshar L. Turner,Assistant City Clerk Kerry K. Bigelow,i MMC, City Cler City of Chula vista Osage 12 2020-01-28 Agenda Packet, gage 18 of 28 C® of Chula Vista Meetinge Minutes -, Draft Thursday,Augiust 1,2019 6:00 RM Council Chambers 276 4th Avenue, (Building A Chula Vista, CA 91910 CITY COUNCIL WORKSHOP CALL TO ORDER A special joint meeting of the, City Council, Planning Commission and Growth Management Oversight Commission of the City of Chula Vista was called to order at 6:03,p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: P,resento. Councilmember Diaz, Councilmernber Galvez, Councilmember McCann, Deputy Mayor Padilla and Mayor Casillas Salas ROLL CALL: PLANNING COMMISSION Present:Commissioners Burroughs, De La Rosa, Milburn, Torres, Faker; and Chair Gutierrez Absent- Commissioner Nava ROLL CALL: GROWTH MANAGEMENT OVERSIGHT COMMISSION Present:Commissioners Alatorre, Caudillo, Juarez, Lengyel, Strong, ,faker, and Chair Hooker Also Present. City Manager Halbert, City,Attorney Googins, and City Clerk Bigelow. PLEDGE, OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE Planning Commission Chair Gutierrez led the Pledge of Allegiance. Mayor Casillas Salas called for a moment of silence in tribute to former Councilmember Patty Davis and retired Chief of Police Bill Winters, who both recently passed away. WORKSHOP 1. 191-0172 REVIEW AND CONSIDERATION OF THE GROWTH MANAGEMENT OVERSIGHT COMMISSION'S (GMOC'S FISCAL YEAR 2018 ANNUAL REPORT A. RESOLUTION NO. MPA18-00018 OF 'THE PLANNING COMMISSION OF THE CITY OF CHULA VISTA ACCEPTING THE, FISCAL YEAR 2018 GMOC ANNUAL REPORT, AND RECOMMENDING ACCEPTANCE BY THE CITY COUNCIL City of Chula Vista Page 1 2020-01-28 Agenda Packet, Page 19 of 288 City Council Meeting Minutes-IDraft August 1,2019 B. RESOLUTION NO. 2019-156 OFT E CITY COUNCIL OF THE CITY OF CHUL.A VISTA ACCEPTING THE FISCAL YEAR 2018 GMOC ANNUAL REPORT, AND DIRECTING THE CITY MANAGER TO UNDERTAKE ACTIONS NECESSARY TO IMPLEMENREPORT RECOMMENDATIONS AS PRESENTED IN THE RECOMMENDATIONS AND STAFF RESPONSES SUMMARY Growth Management Oversight Commission (GMOC) Chair Hooker presented the GMOC annual report. He reported non-compliant threshold standards for the following areas and provided the Commission's recommendations.Associate Planner Vander Bie provided staff responses to each item. -Libraries -Police, Priority I and - Traffic Council and Commissioner discussion ensued and staff responded to questions. In response to comments from Council and Commissioners regarding the timing of the presentation of the GMOC report in relation to the City's budget preparation, City Tanager Halbert suggested that the GMOC report be presented in January in the future. ACTION: A motion was made by Planning Commissioner Zaker, seconded by Planning Commissioner Milburn, to adopt Planning Resolution MPA 18-0008. The motion carried by the following vote: Yes: 6 Burroughs, Cie La Rosa, Milburn, Nava,Torres,Zaker,and Gutierrez No: 0 ACTION: A motion was made by Mayor Casil as Salas, seconded by Councilmember McCann, to adopt Resolution No. 2019-156, heading read, text waived. The motion carried by the following vote: Yes: 5- Diaz, Ga vez, McCann, (Padilla,and Casi las Salas No: 0 Abstain: 0 ADJOURNMENT The meeting was adjourned at 7:24 p.m. Minutes prepared by.-Leah Larrarte, Deputy City Clerk Kerry K. Bigelow,i MMC, City C Ier City of Chula vista Page 2 2020-01-28 Agenda Packet, gage 20 of 28 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 2 B,2020 File ID: 20-00 20-0037 TITS ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 5.19.050.1) TO ELIMINATE ONE-YEAR WAITING PERIOD APPLICABLE TO CERTAIN NEVA' CANNABIS BUSINESS LICENSE APPLICANTS (SECOND READING AND ADOPTION) RECOMMENDEDT Council adopt the ordinance. SUMMARY This proposed ordinance amends Chula Vista Municipal Code section .19.0150.1) to remove the provision restricting certain cannabis business applicants from submitting a new license application within one year of application rejection or conditional license expiration. ENVIRONMENTAL REVIEW The proposed ordinance amending Chula Vista Municipal Code Section 5.1 .050.1), General pules, has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined That the activity is not a`Project"as defined under Section 15378 of the state CEQA Guidelines because it will not result in a physical change in the environment; therefore, pursuant to Section. 1.So o(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Notwithstanding the foregoing, it has also been determined that the activity qualifies for an Exemption pursuant to Section 1.' 061.(b)(3) of the California Environmental Quality Act State Guidelines.Thus,no environmental review is required. BOARD/COMMISSION/COMMITTEE, Not applicable. DISCUSSION In Marchi of 2018, City Council approved Ordinance 341.8, which added Chapter 5.19 to the Chula Vista Municipal Code `ACV 'IC") to regulate commercial cannabis in the City of Chula Vista. In 20119, City began processing its first cannabis business license applications. In processing license applications for non- restricted license types,staff has had the opportunity to observe the factors and issues that result in rejection of phase one license applications. Based on such observations, staff anticipates that certain applicants may the able to correct application deficiencies or remove associated persons with disqualifying criminal histories and,upon subsequent reapplication,be deemed qualified and proceed to City licensure. 1 . 0 0 1 P � 1 2020-01-28 Agenda Packet, gage 21 of 28 Staff currently plans to re-open the application period for non-retail license types in late, February or early March 2020. As CVMC 5.19.050D.1 is currently dr�afted,in cases where a phase one or phase two application was denied or in cases where a conditional license has expired, no applicant or person named therein is eligible to submit a new phase one application until one year after the date of denial or expiration. The municipal code, as currently drafted, therefore prohibits rejected applicants and persons from reapplying within one year after their rejection. Staff recommends that the restriction currently contained in 5.19.05O.D.1 be removed in order to allow rejected applicants to reapply during any new application period without an associated waiting period,. DECISION-MAKER C"ONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and consequently, the real property holdings of the City Council members do not create a disqualifying real property-related financial conflict of interest under the Political Reform Act(Cal.Gov't Code§87 100,et seq.). Staff is not independently aware, and has not been informed by any City Council member, of any other fact that may constitute a basis for decision-maker conflict of interest in this matter. CURRENT-YEAR.FISCAL IMPACT The subject amendment to 5.19.050.D may result in an increase in the number of non-retail cannabis businesses operating in the City during calendar year 2020, which could result in increased tax revenue. However,it is difficult and speculative to predict whether and when such revenue would be received,and in what amounts., ONGOING FISCAL IMPAC oil The subject amendment to 5.19.050.1) may result in an increase in the number of non-retail cannabis businesses operating in the City during calendar year 2020, which could result in increased tax revenue. However,it is difficult and speculative to predict whether and when such revenue would be received,and in what amounts. A""FTACHMENTS 1. Proposed Ordinance 2. Proposed amended 5.19.050.1) red-line strikeout version Staff Contact:Kelley Bacon;Megan McClurg P 2 2020-01-28 Agenda Packet, Page 22 of 288 S ECOND READING AND ADOPTION ORDINANCE No. ORDINANCE of THE CITY of CHULA VISTA AMENDING CIIULA VISTA MUNICIPAL CODE SECTION 5.19.050.1 TO ELIMINATE ONE- YEAR WAITING PERIOD APPLICABLE To CERTAIN NEW CANNABIS BUSINESS LICENSE APPLICANTS WHEREAS, pursuant to its police powers, including but not limited to California Constitution Article XI, Section 5(b) authority over municipal affairs, the City of Chula lista has general authority over the public health, safety, and welfare of its citizens; and WHEREAS, under California Business and Professions Code section 26200(a)(1), local. jurisdictions are authorized to either permit and regulate or prohibit the operation of cannabis businesses within their boundaries; and WHEREAS, Chula Vista Municipal Code chapter 5.19 identifies and describes the City's regulatory structure for Commercial Cannabis Businesses; WHEREAS, Chula Vista Municipal. Code section 5.19.050.D contains general rules regarding the City of Chula Vista's cannabis license application process and WHEREAS, a provision requiring certain applicants to wait twelve months prior to reapplying for a commercial cannabis license is unnecessary and prevents the submission of applications that may otherwise qualify for licensure; and WHEREAS, the proposed amendments do not cause a substantial chane to the objectives and policies contained in Chula Vista Municipal Code chapter 5.19, but instead facilitate City's ability to implement t such objectives and policies; WHEREAS, it is the intent of the City Council to authorize lawful cannabis businesses to operate in the City of Chula Vista, subject to the City's identified regulations and restrictions; Now THEREFORE the City Council of the City of Chula Nista does ordain as follows: Section 1. A. Chapter 5, Section 5.19.050.1) of the Chula Vista Municipal cipal Code is amended to read as follows: D. General. ides. 1. Phase one and Phase Two applications shall include such supplemental materials as required by the rules and regulations adopted.pursuant hereto. The City may, at the City Manager's discretion, require additional documentation associated with, any application as may be necessary to enforce the requirements of State Daws, and this Code. C:\Users\legistar\AppData\Local\Tei-np\BCL Technologies leasyPDF 8\ ,B+CL@,F40D21 L I@,'BCL@,F4t D21 E8.doc 2020-01-28 Agenda Packet, gage 23 of 28 Ordinance Page 2 2. Applicants shall have no right to operate under a City License until a City License is actually issued thereto by the City. Each Applicant assumes the risk that, at any time prior to the issuance of a license,, the City Council may terminate or delay the program created under this chapter. 3. Issuance of a City License does not create a land use entitlement. Furthermore, no City License will be officially issued and no Applicant awarded a City License may begin operations until the City Licensee is fully in compliance with all State and local laws and regulations, including but not limited to State Laws. 4. The City reserves the right to reject or approve any and all applications and conditional licenses based on the standards set forth in this chapter, or otherwise in its sole discretion, taking into account the health, safety and welfare of the community, and in accordance with its general police powers authority. Section 11. Severability If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional. Section 111. Construction The City Council of the City of Chula Vista intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal law and this, Ordinance shall be construed in light of that intent. Section IV. Effective late This Ordinance shall take effect and be in force on the thirtieth day after its final passage. Section V. Publication The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. Presented by Approved as to form by Gary Halbert Glen R. Googins City Manager City Attorney 2020-01-28 Agenda Packet, Page 24 of 288 5.19,.050 City license application process I Chula Vista Municipal Code Page 1 of 1 5,19,0510 City license application process. The following procedures shall govern the application process for the issuance of any City License under this chapter: [Sections S.79.050 (A) through (C) remain unchanged.] D. General Rules. j... ..w-41-be.....u-44-fi-edt o-.....s-L-i-l-an,ex w...Rfi-a-seQn-e---- Ja-1 12. Phase One and Phase Two applications shall include such supplemental materials as required by the rules and regulations adopted pursuant hereto. The City may, at the City Manager's discretion, require additional documentation associated with any application as may be necessary to enforce the requirements of State Laws and this Code. 2,-v'3. Applicants shall have no right to operate under a City License until a City License is actually issued thereto by the City. Each Applicant assumes the risk that, at any time prior to the issuance of'a license, the City Council may terminate or delay the program created under this chapter. 3.4. Issuance of'a City License does not create a land use entitlement. Furthermore, no City License will be officially issued and no Applicant awarded a City License may begin operations until the City Licensee is fully in compliance with all State and local laws and regulations, including but not limited to State Laws. 4-5. The City reserves the right to reject or approve any and all applications and conditional licenses based on the standards set forth in this chapter, or otherwise in its sole discretion, taking into account the health, safety and welfare of the community, and in accordance with its general police powers authority. [Section 5.19.050 (E) remains unchanged.] The Chula Vista (Municipal Code is current through Ordinance 3466, passed November 12, 2019. 2020-01-28 Agenda Packet, Page 25 of 288 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 2 B,2 0 2 0 File ID: 19-0561 „MITI RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUMMARY VACATION OF THE 5.5-FOOT-WIDE EASEMENT FOR TREE PLANTING AND MAINTENANCE PURPOSES ALONG SHOWROOM PLACE RECOMMENDED171 Council adopt the resolution. SUMMARY Spectrum Development Croup, Inc. is constructing the Eastlake Marriott Springhill Suites Hotel within a vacant lot located at the northwest corner of Fenton Street and Showroom Place (see Attachment 1) and has requested the vacation of an existing 5.5-foot tree planting and maintenance easement along Showroom. Place at the north easterly boundary of the project to accommodate a proposed driveway. Said easement was dedicated to the City in Map No. 14395 recorded on May 16th, 2002. In accordance with Streets and Highways Code Division 9, Part 3, Chapter,4,this type of vacation may be performed summarily through adoption of resolution. ENVIRONMENTAL REVIEW The Director of Development Services has reviewed the proposed project for compliance with the California Environmental Quality pct (CEQA) and has determined that the Project was adequately covered. in previously adopted. Mitigated Negative Declaration (MNL) IS-00-03, Mitigation Monitoring and Reporting Program (MMRP), and MND Findings of Fact for the Eastlake II General Development flan (CIDP), Eastlake I Sectional Planning Area (SPA) Amendments,and Eastlake II Business Center II. Thus, no additional environmental review is required. BOARD/COMMISSION/COMMI"TTEE RECOMMENDAtrION Notapplicable. DISCUSSION Eastlake Business Center II is an expansion of the original Eastlake :Business Center established in the Eastlake I SPS approval in 1985. The character and form of the business center has been implemented through a series of guidelines and development standards prescribed in the Eastlake II Planned Community District Regulations, Eastlake Business Center II Design Guidelines, the Eastlake Business Center 11 Supplemental SPA Plan and other associated regulatory documents. Because these design guidelines 1 . 0 0 1 P IiI 1 2020-01-28 Agenda Packet, gage 26 of 28 dictate that the site be landscaped to create a serene, park-like setting for high quality employment uses, the City required a 5.5 feet wide tree planting and maintenance easement along the frontage of the properties within the Eastlake Business Center Development. In May 2006,the Eastlake Company recorded Final Map No. 14395 creating the Eastlake Business Center 11, Phase 2 Development, consisting of 14 lots for the purpose, of' employment/industrial uses and 9 lots as open space areas, totaling 86 acres within the Planned Community of Eastlake. Subsequently, in August 2008, the property owner of Lots 5 and 6 of Map No. 14395 adjusted the common boundary between the lots creating Parcel "A" and "B"'; this lot line adjustment was memorialized by the recordation of Certificate of Compliance ("CoC" o. ER399, Document No., 2008-0435281. Currently,the City is processing Design Review Application DR19-0029 and Conditional Use Permit CUP19- 0029 for the Eastlake Marriott Springhill Suites to be constructed in Parcel "A" of CoC No. ER399 and with address of 870 Showroom Place (refer to Attachment 1). As part of the Conditions of Approval for the project, staff is requiring the vacation of the 5.5 feet wide tree planting and maintenance easement along Showroom Place where the proposed driveway for the hotel will be located (see Attachment 2). At present, Parcel "A" sits vacant and the location where the tree planting and maintenance easement is being proposed to be vacated has never been used since it is the location of the entrance to the property. With adoption of the resolution,the City will vacate approximately 69 feet of the 5.5 feet wide tree planting and maintenance easement along Showroom Place recorded with Final Map No. 14395 on May 16, 2002 (see Attachment 2) and based on the Streets and Highways Code Division 9, Part 3, Chapter 4, Section 8333(a) which states that the local agency may summarily vacate a public service easement if the easement has not been used for the purpose for which it was dedicated or acquired for five consecutive years immediately preceding the proposed vacation. The vacation of the easement requires the adoption of a resolution of vacation by the City Council and recordation without acknowledgment,, certificate of acknowledgment,or further proof in the office of the recorder of San Diego County by the City Clerk. DECISIOM-MAKER CONFLICT Staff has reviewed the property holdings of the City Council members and has found no property holdin63 within 1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this item does not present a disqualifying real property-related financial conflict of interest under California Code of Regulations Title 2, section 18702.2(a)(7) or (8),for purposes of the Political Reform Act(Cal. Gov't Code§87100,et seq.). Staff is not independently aware, and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision-maker conflict of interest in this matter. CURRENT-YEAR FISCAL IMPACT All costs associated with processing the easement vacation are borne by the developer, Spectrum Development Group, Inc.,resulting in no net impact to the General Fund or the Development Services Fund. P 12 2020-01-28 Agenda Packet, Page 27 of 288 ONGOING FISCAL IMPACT There will be no ongoing fiscal impact as a result of this action. Ongoing maintenance of the driveway, where the 53 feet wide easement is,will be provided by the property owner. AT rACI-IMEN rs Attachment 1: Site Plan Attachment 2 Location of Proposed Tree Planting and Maintenance Easement Vacation Staf`Contact Sandra Hernandez,Associate Engineer P 3 2020-01-28 Agenda Packet, Page 28 of 288 i f Jf IJl i II .. .. 2,3 77 19 10 jj _ { i, jjj co 1 w PATIO ( PATIO Pi I( TPS ui I� 1 ; U1W U�NJR�h rJ 179 KEY' R f 5 STORY' �.,_. f J///� iii., t.i ❑ //////��j%%%%%F� �. `'--. HOTEL CHERF I iiiiiiiiiiiiiiii1,27s,628 SF r f ". III[i��1� f D 1 •,..,,,�,,, f /iiiiii%% EVENT LAWN i� 884,o0o a� ,VI i r IIIIIIIIIII � y'/,✓ 11111 1.1 i iy i IIIIIIII � � .111111111111Illlumulll,;'iViii �` _� �- �' � IIIIIIIIIIIIIIIIIIIIII VIII � ,b%' '/ / "°YYYY°ul 11 I 111111111, IIIIIIII IIIIIIIIIIII IIIVI // , IIIIIIII 1111111 II na ' IIIIIIII 1111111 �. i 11 III a di i Y �y„, Illllllliii luu��. yi uu 111 :II a. F 111 p� i MARRIOTT SPRIN HILL SUITES - EASTLAKE N �+I FUTURE PLAN MONUMENT � J@ W BY OTHER �l �I 2020-01-28 Agenda Packet Page 29 of 28 I` II I I tuui I"n nl I CL- d`'1�Y1„"Iiq, Eastlake Design PEN District Attachment N CITY OF CHULA VISTA S Disclaime2WOAel�ir&gdodaii9aiAeVed to be accurate,but accuracy is not guaranteed. This is not a legaldocument and should not be substituted for a title search„appraisa gai&pc fcMning verification. RESOLUTION N NO. RESOLUTION N F THE CITY COUNCIL OF TIME CITY OF CHULA VISTA ORDERING THE SUMMARY VACATION OF THE 5.5-FOOT-WIVE EASEMENT FOR TREE PLANTING ANIS MAINTENANCE PURPOSES ALONG SHOWROOM PLACE WHEREAS, Spectrum Development Group, Inc. is constructing the Eastlake Marriott Springhill Suites hotel within a vacant lot located at the northwest corner of Fenton. Street and Showroom Place and is requesting the vacation of an existing 5.5-foot tree planting and maintenance easement along Showroom Place at the north easterly boundary of the project to accommodate for a proposed driveway; and WHEREAS, said easement was dedicated to the City in Flap No. 14395, recorded on. May 16th, 2002; and WHEREAS, the City is processing Design Review Application DR 19-0029 and Conditional Use Permit CLIP 1'9-0029 for the Eastlake Marriott Springhill Suites to be constructed in Parcel "A" of Certificate of Compliance No. FR399 and with address of 870 Showroom Place, and as part of the Conditions of Approval for the project, city staff will require the vacation of the 5.5-foot-wide tree planting and maintenance easement along Showroom Place where the proposed driveway for the hotel will be Located.; and WHEREAS, at preset, Parcel "A" sits vacant and the location where the tree plating and maintenance easement is being proposed to be vacated has never been used, because it is the location of the entrance ce to the property; and WHEREAS, Section 8333(a) of the California Street and Highway Code states that the local agency may summarily vacate a public service easement if the easement has not been used for the purpose for which it was dedicated or acquired for five consecutive years immediately preceding the proposed vacation. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it hereby orders the summary vacation of the 5.5-foot-wide easement for tree planting and maintenance purposes g g p No. 14395 to the City of u ores a on Showroom Place rants �n 1Ia Chula Vista within Parcel "..A" of Certificate of Compliance No. Ex.399, and based on the Streets and Highways Code Division 9, Part 3, Chapter 4, Section 333(x , which states that the local agency may summarily vacate a public service easement if the easement has not been used for the purpose for which it was dedicated or acquired for five consecutive years immediately preceding the proposed vacation. BE IT FURTHER R RESOLVED by the City Council, of the City of Chula Vista, that it hereby orders the City Clerk to record without acknowledgment, certificate of acknowledgment, or further proof in the office of the recorder of San Diego County, this adapted City Council. Resolution of Vacation. 2020-01-28 Agenda Packet, gage 31 of 28 Presented by: Approved as to form by: Kelly G. Broughton, FASLA Glen R. Goggins Director of Development Services City Attorney 2020-01-28 Agenda Packet, Page 32 of 288 X1111w« �rrx�W ,11 r 4. H E1 L � ,, O RR OTREE , EE PLANTING LT I G D A Ci' rn XI g ISE Tw o T I O'N,, r( ISI �iP� 1 'I"y � °w��"', TRUE r LX B, 3 I I IS % � p� IIIIW�� e �I ;; I w r�w� Iti� �� .,,I.... �a a„�w� r,»rrnlllll ,�, a�� I I I I.....I....I... � m u m SED 7 �M �.�r �Ii �,o.m� ��w....I ��' � 0 V $ PLAC, u1411�idwlli, Illy IA VI� u �E° w O ,. R. 1 Fill ul�e,. Io�mV1 m 13 P 0 15kG°IIII. 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I rr wlulrrWl 760 71 It 3 0 m H li.,A„..^.ral�I�.��'&w.J. lr".,.Jil III 1N w 2020-01-28 Agenda Packet, Page 33 of 288 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 2 B,2020 File ID: 20-0006 TITS RESOLUTION OF THE CITY COUNCIL OF THE CITY of CHULA VISTA APPROVING A JOINT APPLICATION WITH CHELSEA INVESTMENT CORPORATION FOR FUNDING FROM THE AFFORDABLE HOUSING AND SUSTAINABLE COMMUNITIES PROGRAM To FUND AN AFFORDABLE HOUSING PROJECT AND INFRASTRUCTURE IMPROVEMENTS WITHIN AND AROUND MILLENIA. ACTIONRECOMMENDED " Council adopt the resolution. SUMMARY Chelsea Investment Corporation is proposing to build an approximately Zoo-unit affordable housing project within the master planned community o 'Millenia. Chelsea seeks to fund the project through the Mate of California's Affordable Housing and Sustainable Communities "A SC„ program. The proposed funding source requires that a portion of the award contribute to transit, pedestrian, and bicycle infrastructure improvements within a one-mile radius oft e project. Also,given this funding source,no financial assistance will be required from the City or the Chula Vista. Dousing Authority to finance the development. However, The AHSC does require the City's participation in the grant. Tonight's action would authorize staff to submit a joint application for funding. ENVIRONMENTAL REVIEW The Development Services Director has reviewed the proposed project for compliance with the California Environmental Quality Act(CEQA) and has determined that the proposed project was adequately covered in previously certified Final Second. Tier Environmental Impact Report, (FIR-o7-o1.) and subsequent Addendum (IS-13-001). Thus,no further environmental review or documentation is required. BOARD/COMMISSION/COMMITTEE RECOMMENDATION Not applicable. DISCUSSION In the fall of 2019, Chelsea Investment Corporation ("Applicant") and Meridian, the master developer of Millenia, proposed development of an approximately Zoo-unit affordable housing rental complex on Lot 1 ("Project") of the Millenia Sectional Planning Area ("EU SPS" or "SPA"), which is located just south of the Bus Lapid Transit stop in Millenia (see Attachment 1, Project Location). It is the intent of the Applicant to 1 . 0 0 1 P � 1 2020-01-28 Agenda Packet, gage 34 of 28 seek funding oft e Project through the State of California's Affordable Housing and Sustainable Communities program. Given this funding source,no financial assistance will be required from the City or the Chula Vista Housing Authority to finance the development. However,the AHSC does require the City's participation in the grant. The AHSC program's primary purpose is to reduce greenhouse gas emissions through projects implementing land-use,housing,transportation,and agricultural land preservation practices to support infill and compact development and support related and coordinated public policy objectives. Funding for the AHSC program is provided from the Greenhouse Gas Reduction Fund, an account established to receive Cap-and-Trade auction proceeds. The Applicant is applying under the Transit Oriented Development Project Area which requires that improvements be made within a one-mile radius ("Project Area") of'the Project. AHSC allows up to a total not to exceed amount of$30 million,of which$20 million is requested as a loan for an Affordable Housing Development ("AHSC Loan") and $10 million is requested for a grant for Housing- Related Infrastructure, Sustainable Transportation Infrastructure, Transit-Related Amenities or Program activities ("AHSC Grant"). The City has worked with the Applicant to identify qualifying projects under the AHSC Grant within the Project Area,and has proposed the following: 0 Pedestrian Bridge over Hunte Parkway; 9 Sidewalk along the south side of Hunte Parkway between Exploration Falls and Discovery Falls; 9 Upgrading Eastlake Parkway bike lanes to a Class IV facility from Hunte Parkway to Olympic Parkway in both directions; and 0 Lead pedestrian timing at key intersection in the project area. If successful,the bulk of the,AHSC Grant funding would be dedicated to the pedestrian bridge which is part of a larger network of trails that connect communities within Otay Ranch. The Hunte Parkway Bridge would specifically compliment the Eastlake Parkway Bridge currently under construction and provide a direct connection from Ota y Ranch Village It to High Tech High to the south and the future trail and sidewalk network that will lead to the University site. Under City Ordinance No. 2003-2898,an Otav Ranch Village 11 Pedestrian Bridge Developer Impact Fee ("TGIF) was established to secure funds for the construction of the Hunte Parkway Bridge. Due to, significant construction cost increases between the time of DIF collection from developments in Otay Ranch Village 11 and the planned construction of the bridge, the DIF is insufficient to fully fund bridge construction; therefore, this funding, if awarded, would enable the bridge construction,. All other improvements identified are direct projects to meet the threshold scoring criteria of the grant application. Additional transit and urban greening related items have also been proposed under the AHSC Grant that would directly benefit residents of the new Project and surrounding neighborhood of Millenia to promote transit,pedestrian and bicycle use. P 2 2020-01-28 Agenda Packet, Page 35 of 288 Article 34 Article XXXIV of the California Constitution ("Article 34") requires that voter approval be obtained before any"state public body"develops, constructs or acquires a"low rent housing project".The City of Chula Vista obtained voter approval on April 11, 1978 and subsequently on November 6, 2006 with the passage of Proposition C, which authorized the development, construction and acquisition of housing for persons of low-income. While neither the City nor the Housing Authority is providing any financial assistance to the Project, as a State funding program, the AHSC grant guidelines require addressing Article 34. Based upon the AHSC funding,the Applicant has requested authorization to utilize the City's Article 34 authorization. With the use of its Article 34 authority,should the Applicant be,successful with the AHSC Loan,the City will be a party or beneficiary to the restrictive covenants of the Project. Therefore, should funding be granted the City will execute all necessary agreements and/or documents to restrict the affordable units in the favor of the City. With the 200 total units of the proposed Project,there remains a balance of 767 units (assuming 200 units are built) under the City's current authority to facilitate these activities. DIECISION,MAKER CONFLICT "C4 Staff has reviewed the property holdings of the City Council members and has found no property holdings within 1,000 feet oft e boundaries of the property which is the subject of this action.Consequently,this item does not present a disqualifying real property-related financial conflict of interest under California Code of Regulations Title 2, section 18702.2(a)(7) or (8), for purposes of the Political Reform Act (Cal. Gov't Code §8,7100,et seq.). Staff is not independently aware and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision-maker conflict of interest in this matter. CURRENYYEAR FISCAL IMPACT All costs associated with the preparation of this report and the grant application are borne by Meridian,the master developer of Millenia, resulting in no net fiscal impact to the General Fund or the Development Services Fund. ONGOING FISCAL IMPACT If an AHSC Grant is awarded staff would return to City Council to appropriate funds. ATTACHMENTS 1. Project Location StaffContact: Stace Kurz,Senior Project Coordinator, Development Services Department Y Frank Rivera, Principal Civil Engineer, EngineeringlCapital Projects Department P 3 2020-01-28 Agenda Packet, Page 36 of 288 ZZ ART1SAN ST PRaECT ... LOCAMCN � ,.. YA 1t`' CHULA VISTA DEVELU" PMENT SERVICES DEDARTMENT PROJECT PROJECT DESCRIPTION:APPLIC LOCATOR PRODE�T T Chelsea Investment Corp`orationl MISCELLANEOUS PROJECT Northeast Garner of Orion Av. Ned Suninar PeA at Mlleni 1 market-rate ADDRESS: &Optima St. nicer apartmaits 5-story residentiall building with clubhouse SCALE: FILE NUMBER: aridwm- a Sp") NORTH N o Scale N/A atm :Nom 1-;1Gebe IFfle -LM9 0 9 for\DR1800274.12.12.18 age_ o RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A JOINT APPLICATION WITH CHELSEA INVESTMENT CORPORATION FOR FUNDING FROM THE AFFORDABLE HOUSING AND SUSTAINABLE COMMUNITIES PROGRAM TO FUND AN AFFORDABLE HOUSING PROJECT AND INFRASTRUCTURE IMPROVEMENTS WITHIN AND AROUND MILLET` IA WHEREAS, the Affordable Housing and Sustainable Communities (AHSC) Program, established under Division 44, Part I of the Public Resources, Code section 75200 et seq., funds certain types of project areas by providing grants and/or loans that will achieve greenhouse gas emissions reductions and benefit disadvantaged communities by increasing accessibility of affordable housing and sustainable transportation; and WHEREAS the AHSC. Program is administered by the Strategic Growth Council (SGC) and implemented by the California Department of Housing and Community Development (Department); and WHEREAS, the State of California, SGC, and the Department issued a Notice of Funding Availability under the AHSC Program dated November 1, 2019 (NOFA), with an 4-1 application deadline of February 11, 2020; and WHEREAS, the City will work with Chelsea Investment Corporation, a California corporation, (Developer), to develop two affordable family apartments of approximately 100 units each (approximately 200 total units) on Lot 13 of the Millenia Sectional Planning Area ("EUC SPA" or "SPA") and to provide transit improvements, including sidewalk, bicycle and protected intersection improvements in the Millenia Housing and Active Transportation Project area (Project); and WHEREAS, Developer and the City of Chula Vista (City), as joint applicants, will apply for up to $30,,000,000 in AHSC Program funds, of which up to $20,000,000 will be requested as a loan to Developer or its Project development designee) for the Project (AHSC Loan) and up to $10,000,000 will be requested as a grant to the City for Housing-Related Infrastructure (HRI), Sustainable Transportation Infrastructure (STI), T'ransit-Related Amenities (TRA) or Program (PGM) activities (AHSC Grant); and WHEREAS, if awarded AHSC Program funds, the City will enter into, execute, and deliver a State of California Standard Agreement (Standard Agreement), which fully incorporates the application for AHSC Program funds under the NOFA (AHSC. Program Application.). NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that: 2020-01-28 Agenda Packet, Page 38 of 288 1. The City Manager, or designee, is authorized and directed to apply, jointly with Developer, to the Department for the AHSC Program funds and execute and submit the AHSC Program Application as detailed in the NOFA, in a total amount not to exceed $30,000,000 of which up to $20,000,000 will be requested as an AHSC Loan to Developer, or its Project development designee, for the Project and up to $10,000,000 will be requested as an AHSC Grant to the City for grant-eligible purposes. 2. The City Manager, or designee, is authorized to enter into and execute the Standard Agreement, all amendments, and any and all documents necessary or appropriate to secure the AHSC Program funds from the Department. Presented by Approved as to form by Kelly G. Broughton, FASLA Glen R. Googins Director of Development Services City Attorney 2020-01-28 Agenda Packet, Page 39 of 288 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 2 B,2020 File ID: 2 -00 .7 „MITI RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULAVISTA DESIGNATING CERTAIN AUTHORIZED REPRESENTATIVES To VOTE IN THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT SPECIAL MAIL BALLOT ELECTION RECOMMENDEDT Council adopt the resolution. SUMMARY Formation proceedings for the Bayfront Project Special Tax Financing District(the 'Bayfront District")were initiated on September, 10, 2019. A special mail ballot election to consider the formation +efthe Bayfront District will be herd on Februarys 18, 2020. As a property owner in the proposed Bayfront.District, the City may participate in the scheduled election. Authorizing and directing the City Manager, or designee,to vote in the special mail ballot election is recommended. ENVIRONMENTAL REVIEW The Director of De elopmentSer ices has reviewed the proposed activity for compliance with the California Environmental Quality pct (CEQA) and has determined that the activity is not a `Project" as defined under Section 1.5378 of the State CEQA Guidelines because the proposed activity consists of authorizing and directing the City Manager, or designee, to vote for and on: behalf of the City in an election to create a ;governmental fiscal/funding mechanism which does not result in a physical change in the environment; therefore, pursuant to Section 150 o(c)(3) of the State CEQA Guidelines,the activity is not subject to CEQA. Thus,no environmental review is required. BOARD/COMMISSION/COMMITTEE RECOMMENDATION Not applicable. DISCUSSION On September 10,2019,the City Council initiated proceedings to form the Bayfront District with the adoption of City Council Resolution Nos.2019-167,2,019-168,and.2019-169,adopting a boundary map of the Bayfront District,declaring,the intention of the City Council to establish the Bayfront District and to authorize the levy of special tax therein, and declaring the necessity of the Bayfront District to incur a bonded indebtedness, respectively.. Resolution No. 2019-169 was subsequently amended by the City Council on November 12, 1 . 0 0 1 P IiI 1 2020-01-28 Agenda Packet, gage 40 of 28 2019 to increase the maximum bonded indebtedness for the Bayfront District from $125,000,000 to $175)000)000. On November 19, 2019,the City Council took additional formation actions,approving Resolution Nos. 2019- 218) 2019-219, 2019-220, 2019-22,1 and 2019-22,2. These resolutions approved an Amended and Restated Revenue Sharing Agreement by and between the City and the San Diego Unified Port District (the "Port District"), approved a Joint Community Facilities Agreement by and between the City and the Port District, approved forming and establishing the Bayfront District and submitting the levy of special tax to the qualified electors, deemed it necessary to incur a bonded indebtedness of the Bayfront District, and called a special mail ballot election to submit the following three (3) propositions to the qualified electors: PROPOSITION A Shall the measure to authorize the Bayfront Project Special 'Tax Financing District (the "District") to levy special taxes at rates not to exceed 5%, of Rent charged on Hotel Property and Campsite Property (as such terms are defined in Resolution No. 2019-219 accompanying this ballot) within the District,until the end of the term set forth in such resolution, raising an estimated $30,000,000 annually to finance Improvements and Services described in such resolution,be approved? Yes No PROPOSITION B Shall the measure to authorize the Bayfront Project Special Tax Financing District(the"District") to incur a bonded indebtedness of'the District in an amount not to exceed$175,000,000,to be secured by special taxes subject to the approval of Proposition A above,be approved?. Yes No PROPOSITION C Shall the measure to establish an Article XIIIB appropriations limit equal to $125,000,000 for the Bayfront Project Special'Tax Financing District be approved? Yes No The mail ballot special election will be held on February 18, 2020. All ballots must be received by the City Clerk by 12:00 pm on this date. The qualified electors will be asked to vote on the authorization to levy special taxes, the authorization to incur a bonded indebtedness of the Bayfront District, and to establish an P 12 2020-01-28 Agenda Packet, Page 41 of 288 appropriations limit for the Bayfront District. Once the votes are cast,Council will be requested to certify the results of the election. The City owns approximately 6 acres within the boundaries of the Bayfront District. This is the former City corporation yard property located at 707 F Street,accounting for approximately 2%,of the taxable property within such boundaries. Staff recommends that the City Manager, or his written designee, be authorized and directed to vote for an on behalf of the City in favor of Propositions A,B,and C. DECISION-MAKER C"ONFLICT Staff has reviewed the property holdings of the City Council members and has found no property holdings within 1,000 feet oft e boundaries of the property whi ch is the subject of this action.Consequently,this item does not present a disqualifying real property-related financial conflict of interest under California Code of Regulations Title 2, section 18702.2(a)(7) or (8), for purposes of the Political Reform Act (Cal. Gov't Code §87100.etsea.). Staff is not independently aware, and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision-maker conflict of interest in this matter. CURREN'T-YEAR FISCAL IMPACT There is no current year fiscal impact as a result of this action. ONGOING FISCAL IMPAC oil Approving the resolution authorizes and directs the City Manager, or designee, to vote in favor of propositions forming the Bayfront District. Following formation,all costs associated with the administration of the Bayfront District will be offset by special tax levies within such district, resulting in no net impact to the General Fund. X'"I'TACHMENTS None. Staff Contact: Tiffany Allen, Development Services Department P 3 2020-01-28 Agenda Packet, Page 42 of 288 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DESIGNATING CERTAIN AUTHORIZED REPRESENTATIVES TO VOTE IN THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT SPECIAL MAIL BALLOT ELECTION WHEREAS, the City of Chula Vista, California(the"City")is a municipal corporation and charter city duly organized and existing under a charter pursuant to which the City has the right and power to make and enforce all laws and regulations with respect to municipal affairs and certain other matters in accordance with and as more particularly provided in Sections 3, 5, and 7 of Article XI of the Constitution of the State of California and the Charter of the City; and WI-Ii EREASI Chapter 3.61 of the Chula Vista Municipal Code (Chapter 3.6 1) was enacted for the purpose of establishing a procedure for financing certain public and private in and maintenance and services to serve the Chula Vista Bayfront Project through the establishment of the Bayfront Project Special Tax Financing District (the "District"), the levy and collection of special taxes within the District and the issuance of bonds of the District secured by such special taxes for the purpose of financing a Convention Center Facility (as defined in Chapter 3.61) and certain other public and/or private improvements, and WHEREAS, on November 1.9, 2019,the City Council of the City of Chula Vista(the"City Council"), acting pursuant to Chapter 3.6 1, duly adopted its Resolution No. 2019-220 establishing the District,Resolution No. 2019-221 deeming it necessary that a bonded indebtedness be incurred by the District and Resolution No. 2019-222 calling a special mail ballot election(the "Election") to be held on February 18, 2020 for the purpose of submitting three separate propositions (the "Propositions") to the qualified electors of the District; and WHEREAS, pursuant to Chapter 3.61 the vote in the Election shall be by Landowners (as such term is defined in Chapter 3.6 1) as the qualified electors of the District and each Landowner, or authorized representative thereof, shall have one (1) vote for each acre or portion of an acre of land owned within the District; and WHEREAS, the City is, the Landowner of certain real property located within the boundaries of the District; and WHEREAS, the City desires to designate an authorized representative to vote for and on behalf of the City in favor of the Propositions in the Election. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, as follows: SECTION 1. Recitals. The above recitals are all true and correct. SECTION 2. Desi nation of Authorized Re resentative. It is hereby determined by this City Council that the City Manager, or his written designee, is hereby authorized and directed to vote for and on behalf of the City in favor of the Propositions in the Election. 2020-01-28 Agenda Packet, Page 43 of 288 Resolution No Page No. 2 Presented by: Approved as to form by: Kelly G. Broughton, FA SLA. Glen R. Goo ns Director of Development Services City Attorney 2020-01-28 Agenda Packet, Page 44 of 288 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 28, 2020 Dile ID: -0008 TITLE A. RESOLUTION of THE CITY COUNCIL of THE CITY OF CHULA VISTA APPROVING A MASTER LICENSE AGREEMENT WITH VE IZ,ON WIRELESS ( AW) LLC FOR SMALL WIRELESS LESS FACILITIES WITHIN THE CI Y'S RIGHT-of-WAY E. RESOLUTION of THE CITY COUNCIL of THE CITY OF CHULA VISTA APPROVINGAMASTER LICENSE AGREEMENT E WITH NEW CINGU AR " TIRELESS CS, LLC (AT&T) FOR SMALL WIRELESS FACILITIES WITHIN THE CITY'S RIGHT-OF-WAY RECOMMENDED ACTION Council adopt the resolutions.. SUMMARY "T"heroth personal wireless g in p services coupled with consumers needs for more data capacitor and faster speeds have created an increased demand for new wireless antennas and equipment. Existing 3 and 4 Generation (G) wireless technology was primarily deployed using macro cell sites installed on large cell towers. These macro sites allow for a greater coverage area, but have limited capacity. Increased usage of cellular data functions has subsequently increased the demand for greater capacitor on cellular networks.To provide higher bandwidth signals and extend coverage for more users,the next phase of cellular technology, 5G, will use a small cell concept. These small cell deployments are significantly smaller than the previously built macro cell sites and have a more limited range by serving only users within the immediate proximity. As a result, the telecommunications industry is planning for a far greater density of small cell sites. Wireless service providers are proposing to install small cell equipment in outdoor applications on City-owned poles and City-owned streetlights located in City tight-of-Ways to provide faster data coverage and capacity for mobile phones and other cellular devices. To facilitate the installation of' this technology, City staff have prepared a Master License Agreement for the deployment of Small Cell facilities. ENVIRONMENTAL,REVIEW The proposed activity has been reviewed for compliance with the California Environmental Quality Act C QA) and it has been determined that the activity is not a "P"roject" as defined under Section 15378 of the state CEs. Guidelines therefore, pursuant to Section 150o(c)(3) of the State- CEQA Page 1 2020-01-28 Agenda Packet, gage 45 of 28 Guidelines, the activity is not subject to CEA. Although environmental review is not required at this time, once the scope of potential project(s) has been defined, environmental review will be required for each project and the appropriate environmental determination will be made. Notwithstanding the foregoing, it has also been determined that the activity qualifies for an Exemption pursuant to Section 15061(b)(3) of the California Environmental Quality Act State Guidelines. Thus, no environmental review is required. BOARD/COMMISSION/COMMITTEE RECOMMENDATION Not applicable. DISCUS,SION Wireless telecommunications facilities are regulated by federal, state and local laws. Over the last few decades,legislation at the federal and state levels have been proposed and implemented to strip municipalities of their local zoning and permitting authority regarding the regulation of telecommunications facilities. A brief overview of the most notable acts and their implications is provided below. Telecommunications Act Federal law significantly limits the City's ability to regulate telecommunication facilities. Under the Telecommunications Act of 1996, a city cannot prohibit the provision of wireless service or unreasonably discriminate among wireless service providers. Also, under federal law, the city may not regulate the placement, construction or modification of wireless communications facilities based on radio frequency emissions, so long as the facilities comply with the FCC regulations concerning such emissions. Despite federal limitations, cities historically have retained the ability to regulate the aesthetic of wireless facilities, including factors such as height and property line setbacks. However, federal law developments continue to erode that ability thereby reducing local control. The S,p,ectrum Act In 2012, Congress enacted the Middle-Class Tax Relief and Job Creation Act (The Spectrum Act of 2012). The Spectrum Act was intended to facilitate the telecommunication industry's rapid deployment of 3G and 4G wireless infrastructure by requiring local governments, to approve any application that sought to modify an existing wireless telecommunication facility that does not "substantially change" the existing facility. The Spectrum Act itself contains no specific definitions, but in 2015, the FCC promulgated regulations containing definitions, processing requirements, timelines and remedies for applications that seek to modify an existing wireless telecommunication facility in accordance with the Spectrum Act. These FCC rules are binding on local governments. Most significantly for cities, the federal regulations established very short permit processing timelines, referred to as "shot clocks," of' o, 90 and 150 days depending on the type of facility. If these time limits are not met., the city can face legal challenges from the telecom, that in turn encourage swift overviews of applications rather than thorough reviews. Page 2 2020-01-28 Agenda Packet, Page 46 of 288 September 26, 2018 FCC RuliLa On September 26, 2018, the FCC issued a ruling designed to further promote the expeditious deployment of small cell sites in the public ROW. This ruling was initially scheduled to take effect on January 14, 2019; however,that deadline was extended to April 15, 2019.,The FCC ruling applies to all small wireless facilities defined as follows: Small wireless facility . is a facility that meets each of the following conditions: 1. The structure on which antenna facilities are mounted a. is 50 feet or less in height, or b. is no more than 10 percent taller than other adjacent structures, or c. is not extended to a height of more than 10 percent above its preexisting height as a. result of the collocation of new antenna facilities; and . Each antenna (excluding associated antenna equipment) is no more than three (3) cubic feet A n volume; and 3. All antenna equipment associated with the facility(excluding antennas) are cumulatively no more than 28 cubic feet in volume,- and . The facility does not require antenna structure registration under part 17 of this chapter; S. The facility is not located on Tribal lands; and . The facility does not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified in federal lave. The FCC ruling established the following new standards for small wireless facilities: • Broad interpretation of local prohibitions.- The FCC order attempts to further limit the city's ability to adopt a regulation that"materially limits or inhibits the ability of wireless carriers.` • Cost-basedees:The FCC ruled that cities are limited to charging fees that are no greater than a "reasonable approximation" of their costs for processing applications and for managing deployments in the right of way (ROW). The FCC established a presumptively lawful, nationwide fee schedule for small cell applications as follows: $500 for a single up-front application that includes up to five (5) small wireless facilities, with an additional $100 for each small wireless facility beyond five, or $1,000 for non-recurring fees for a new pole to support one or more small wireless facilities; * $270 per small wireless facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to city-owned poles in the ROW. • Aesthetic regulations These are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments and (3) published in advance. • Underground requirements. The FCC ruled that a requirement that all wireless facilities be deployed underground would amount to an effective pirohiblition and is thus not permitted. Quid Pro Quo "in kind service"'. The FCC discouraged situations where the city makes clear it will approve a deployment only on condition that the provider supply an "in-kind" service or public benefit, such as installing a communications network dedicated to city's exclusive use. Batched applications: !pities cannot prohibit batched applications (e.g.,multipile streetlights). it is expected that the City will receive dozens of pole attachment requests in a single application. Page 3 2020-01-28 Agenda Packet, gage 47 of 28 In addition, the FCC ruling established a new set of even more restrictive "shot clocks" applicable only to small wireless facilities. hese shot clocks are: • Sixty(60) days for small cell wireless facility attachments to existing poles or structures; and • Ninety (90) days for small cell wireless facilities on new poles or structures. impact,s on MunidDallfties The FCC's interest to make access quick and easy for telecom companies has limited municipalities' ability to exercise control over local policies unique to their community. The impacts of SG regarding diverse local governments are disheartening in most cases, as many cities are disappointed that they are unable to set their own rules related to the placement of telecom equipment on publicly owned infrastructure. One critical concern is that the FCC's ruling overlooks community decision-making and substantially impedes cities' ability to ensure their public safety and well-being. It is not the issue of utilizing 5,G,but the approach of placing a one-size-fits-all policy on diverse,local governments that is unreasonable. Master Mcense Aureement The proposed MLA for wireless facilities on City poles in the ROW allows the carriers and third party 'ders to install small cell wireless facilities I provi I I I i ies on property owned and/or controlled by the City and to operate within the scope of the MLA for a period of ten (10), years from the issuance of Pole License Agreement (PLA). All the applicant's construction, installation, maintenance and removal costs of the, small cell facilities,will be at their sole responsibility and cost. The applicants are required to comply with all local, state and federal applicable laws. Each PLA under an MLA shall be administratively approved for each site and contain specific conditions that must be satisfied and maintained in order to use the wireless facility. The PLA will be submitted to the Engineering Department and circulated to all other appropriate departments. If the applicant causes any damage to the public ROW or City property, they are required to repair it promptly at their sole cost.The applicant will not be allowed to activate their site until the City signs off on final construction and the app�licant obtains all necessary regulatory approvals. The MLA and the PLA provide for a number of risk mitigation measures for the City including: indemnity, insurance requirements, limitation on remedies available to the applicant in the event of a City breach, and reservation of the City's emergency and police powers. tv Impacts on Cily Proper , The installation will vary depending on the particular location and technology deployed. As mentioned, all installations will be required to receive all applicable permits and carriers will work closely with Development Services and Engineering to ensure that they do not interfere with City operations or facility maintenance. The installations will require maintenance and administration on a limited basis.All proposed facilities are required to secure all necessary land use, building and engineering permits. Annual License Fee The telecommunication providers will be compensating the City for use of each site by paying an annual license fee to the City General Fund for each pole attachment installed. The annual license fee is $270 dollars per pole, in accordance with the FCC order. The annual fee increases by 3% a year. Page 4 2020-01-28 Agenda Packet, Page 48 of 288 Staffwill also work with carriers to implement basic facility improvements or enhancements at each site to help them complement the facilities' function when the construction and demolition or site programming warrant it. For example, it is common for light standards to be replaced or upgraded when antennae are added. These improvements would be in addition to the license payments. Administrative Fees The MLA requires payment of two (2) administrative fees by applicants: a Master License Preparation Fee and a Pole License Processing Fee. Both fees reflect full cost recovery of the estimated reasonable cost of providing the associated service. The cost of service associated with preparing a Master License Agreement is estimated to total $8,00 O per agreement. The cost of processing a Pole License Agreement (PLA) is estimated to total $1,000 per pole, which is higher than the FCC order, but has been agreed to by the providers to reimburse staff costs incurred with the review and approval of the PLA. Over the last two years, there have been 78 deployments of small cell equipment on city facilities and additional applications continue to be reviewed by the Engineering Department. DECISION-MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site- specific and consequently, the 500-foot rule found in California Code of Regulations Title 2, section 18702.2(a)(11), is not applicable to this decision for purposes of determining a disqualifying real property-related financial conflict of interest under the Political Reform Act (Cal. Gov't Code § 87100, et seq.).S,taff is not independently aware and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. LINK TO STRATEGIC GOALS The City's, Strategic Plan has five major goals: Operational Excellence, Economic Vitality, Healthy Community, Strong and Secure Neighborhoods, and a Connected Community. The resolution supports the Economic Vitality Goal as the use of safe and secure access to data can help promote an environment for residents and businesses, to prosper in. The goals of Strong and Secure Neighborhoods and Connected Community are also linked to this resolution as it will ensure the future installation of this technology will maintain acceptable aesthetics within the City's streets cape. CURRENT-YEAR FISCAL IMPACT The City's General Fund will receive the revenue from the annual license fee of$2,70 per pole which will increase 3% per annum.Administrative fees are subject to full cost recovery. ONGOING FISCAL IMPACT As positive ongoing fiscal impact, the City's General Fund will receive the revenue from the annual license fee of$270 per pole which will increase 3% per annum. Administrative fees are subject to full cost recovery. Page 5 2020-01-28 Agenda Packet, Page 49 of 288 ATTACHMENTS 1. Master License Agreements (Verizon and A' .'T Staff Contact: Miranda Evans, Economic Development Department Page 6 2020-01-28 Agenda Packet, Page 50 of 288 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOLA VISTA APPROVING A MASTER LICENSE AGREEMENT WITH VERIZON WIRELESS (VAST) LLC. FOR SMALL WIRELESS FACILITIES WITHIN THE CITYS RIGHT- OF-WAY WHEREAS, the City Council approved Resolution 18601 on March 18, 1997, conceptually approving the marketing of City properties for use by telecommunication companies; and WHEREAS, the City Council has requested that staff ensure that consumers have access to competitive, state of the art telecommunication services within the City; and WHEREAS, as the need for these and related services increases, various telecommunication companies desire new locations to site their facilities and equipment; and WHEREAS, the City has an interest in locating such facilities where potential visual impacts are minimized; and WHEREAS, over the years, the City and communication companies have negotiated a standard agreement called a Master License Agreement(MLA)that provides, for siting, installing, and operating small cell and substantially similar facilities in accordance with City standards and subject to regulatory approvals, while establishing a regular revenue stream to the City; and WHEREAS,the proposed MLA with Verizon Wireless (VAW) LLC is for a ten-year term and contains standard rates, terms, and conditions applicable to the deployment of small cell facilities to be located within the City's right-of-way, on a competitively neutral, and nondiscriminatory basis; and WHEREAS, pursuant to the MLA, the Licensee will be required to enter into individual Pole License Agreements (PLA) for use of each individual pole within the City; and WHEREAS, during the first year of the initial term,the Licensee will compensate the City for each pole attachment with an annual license fee of$270, subject to annual fee increases of3% per year, to be deposited in the City General Fund; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it approves the Master License Agreement with Verizon Wireless (VAW) LLC for Small Wireless Facilities Within the City's Right-of-Way, in the form presented, with such minor modifications as may be required or approved by the City Attorney, a copy of which shall be kept on file in the Office of the City Clerk, and authorizes and directs the City Manager, or designee, to execute same. 2020-01-28 Agenda Packet, Page 51 of 288 BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista that it authorizes the City Manager, or designee, to execute on behalf of the City of Chula Vista all other documents necessary to implement the Master License Agreement, including but not limited to Pole License Agreements, on forms prescribed or approved by the City Attorney. Presented by Approved as to form by Eric Crockett Glen R. Goo ns Economic Development Director City Attorney 2020-01-28 Agenda Packet, Page 52 of 288 MASTER LICENSE FOR WIRELESS FACILITIES ON CITY POLES IN THE, RIGHT-OF-WAY �between CITY OF CHULA VISTA, A CALIFORNIA MUNICIPAL CORPORATION and VERIZON WIRELESS (VAW) LLC, D/B/A VERIZON WIRELESS Effective Date: Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 53 of 288 TABLE OF CONTENTS 1. GENERAL DEFINITIONS ..........................................................................................................2 2. SCOPE OF LICENSE, ........................................................................................... 5 2.1. License Area................................................................................... 5 2.1.1. Pole License Issuance and Effect............................................................ 5 2.1.2. Limitations on License Areas................................................................. 5 2.2. Limitations on Licensee's Interests................................................................. 6 2.2.1. Limited Interest Created................................................................................6 2.2.2. Limited Rights Created................................................... 6 2.2.3. No Impediment to Municipal Uses............................................................... 6 2.3. Diminutions in Light, Air and Signal..................................................................6 2.4. License Area Condition .......................................................................................7' 2.4.1. "As-is and With All Faults" Condition .....................................................7' 2.4.2. Licensee's Due Diligence................................................................. 7 2.4.3. Certified Access Specialist Disclosure....................................................7' 3. TERM ................................................................................................. 7 3.1. Master License Term ....0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 7' 3.2. Pole License Term ........................................................................................... 7 4. LICENSE FEE; OTHER PAYMENTS ................................................................ 8 4.1. License Fees.................................................................................................. 8 4.1.1. Commencement Date................................................................ 8 4.1.2. Acknowledgment 8 4.1.3. License Fee Amount................................................................ 9 4.1.4. Annual License Fee Adjustments ............................................................ 9 4.1.5. License Fee Due Date................................................................ 9 4.2. Administrative Fees.........................................................................................9 4.2.1. Master License Preparation Fee...............................................................9 4.2.2. Pole License Processing Fee ...................................................................9 4.3. Late Charges .................................................................................................... 10 4.4. Default Interest............................................................................................... 10 4.5. Additional Fees .............................................................................................. 10 4.6. Payment Procedures ................................................................ 10 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 54 of 288 4.7. Liquidated Charges and Fees ................................................................. 11 5. USES................................................................................................. 11 5.1. Permitted Use................................................................................................. 11 5.2. Prohibition on "Macro Cell" Uses................................................................. 11 5.3. Prohibition on Illegal Uses or Nuisances..................................................... 12 5.4. Signs or Advertisements................................................................. 12 6. POLE LICENSES................................................................................................ 12 6.1. City Approval Required ................................................................................. 12 6.2. Pole License Application................................................................. 12 6.3. Pole License Application Review Procedures............................................. 13 6.3.1. Incomplete Pole License Applications ................................. 13 6.3.2. Required Changes to the Pole License Application............................. 13 6.3.3. Consultation with Other City Departments............................................ 13 6.3.4. Pole License Application Approval........................................................ 14 6.3.5. City's Right to Disapprove................................................................. 14 6.3.6. Federal and State Regulations Inapplicable.......................................... 14 7. EQUIPMENT INSTALLATION.,................................................................ 15 7.1. Approved Plans and Equipment Specifications.......................................... 15 7.1.1. Site Identification 15 7.1.2. Changes Required for Regulatory Approvals................................ 15 7.1.3. Corrections to Approved Plans.............................................................. 15 7.2. Prior Regulatory Approvals Required 15 7.3. Installation; Strict Compliance with Approved Plans .................................. 16 7.3.1. Alterations to city's Property.................................................................. 16 7.3.2. Licensee's Contractors................................................................ 16 7.4. Labor and Materials Costs ..... 16 7.5. Project Managers, 17' 7.6. Coordination with the City................................................................ 17 7.7. Fiber-Optic Cables ......................................................................................... 18 7.8. Title to Licensee's Equipment and Other Improvements ........................... 1 8. PUBLIC WORKS OPERATIONS................................................................................ 18 8.1. City's Access to License Areas ............................................................ 18 8.2. Repairs, Maintenance and Alterations to Poles .......................................... 1 8.3. Repairs, Maintenance and Alterations to License Areas............................ 1 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 55 of 288 8.4. Emergencies................................................................................................... 19 9. LICENSEE'S MAINTENANCE OBLIGATIONS......... 20 9.1. Damage to Poles ............................................................................................ 20 9.11.1. Notice to the City.........................................................................................................1 20 9.1.2. Damage Caused by Licensee ................................................................1. 20 9.11.3. No Right 'to Repair.....................................................................................................1 20 9.2. Equipment Maintenance...............................................................................................1 20 9.3. Graffiti Abatement.......................................................................................... 21 9.4. Standard of Work ........................................................................................... 21 9.5. Inspections ....................................................................................................1. 21 ILIENS.................................................. ................. 21 111. UTILITIES .....................................................................................................................1 22 12. TAXES AND ASSESSMENTS............................................................ ................................................................1. 22 112.11. Possessory Interest Taxes.............VIVIVIVIN, ... ........... 22 112.2. Licensee's Tax Obligations..................State.................. 22 13. COMPLIANCE WITH LAWS...............................N 0 0 0 0..........................................1. 23 113.11. Compliance with Current and Future Laws ...........................................................1 231 13.2. Licensee's Personnel ................................................................................1. 23 13.2.1. Personnel Training and Certification................................ 23 113.2.2. Licensee's Indemnification for Personnel Injuries............................ 231 113.3. Compliance with CPUC GO 35.................................................................... 24 13.4. Compliance with Building and Electric Codes 24 113.5. Compliance with RIF Exposure Regulations.......................................................... 24 114. DAMAGE OR DESTRUCTION .......N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N 24 14.1. City's Rights After Damage or Destruction ................................ 24 14.1.1. Election to Repair or Replace Damaged 25 14.1.2. Election to Remove Damaged Polle 14.1.3. Election to Remove Equipment from Damaged Pole........................ 25 14.2. Licensee's Rights upon Termination ........................................................25 14.3. Waiver of Statutory Rights..................................................................................25 15. CONDEMNATION............................................................................................... 25 15.1. Permanent Takings................................................................IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN..........26 15.1.1. Termination...........................................................................................26 15.1.2. Award ....................................................................................................26 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 56 of 288 15.1.3. No Statutory Right to Terminate ......................................................... 26 15.2. Temporary Takings................................................................1. 26 16. ASSIGNMENT AND OTHER TRANSFERS ....................................................... 26 16.1. General Restriction................................................................. 26 16.2. Proposed Assignment Procedures ........................................................... 27 16.2.1. Proposed Assignment Notice. ............................................................. 27 16.2.2. City Response ...........................................................................................................1 27 16.3. Permitted Assignments.............................................................................1. 27 16.3.1. Definition.......................................... ............................................. 27 16.3.2. Conditions............................................................................................. 28 16.4. Effect of Assignment.................. .................a a a a 23 16.5. Assumption by Transferee....**seesIt............................*Ibsees....................................1 28 16.6. Licensee's Customers................................................................................1. 28 17. DEFAULT......................................................................................I...................... 29 17.1. Events of Default by Licensee .............state...................................................1 29 17.2. City's Remedies .......................................................................................... 29 1x".2.1. License Continuation..............NNONNOW,...........state................................................1 29 17.2.2. Pole License Termination...................................................................1. 29 17.2.3. Master License Termination.................................................................................. 310 17.2.4. Default Fees.......................................................................................... 310 17.3. Licensee's Remedies ..0 0 0 0 0 No 0 0 0 0 30 17.4. Cumulative Rights and Remedies 31 18. LICENSEE'S INDEMNIFICATION OBLIGATIONS ................................ 31 1 19. INSURANCE ................................................................................................ 31 19.1. Licensee's Insurance...... 31 19.1.1. Required Coverages .... 32 119.11.2. Required Endorsements 312 19.1-3. Cancellation Notices........................................................................................ 32 19.1.4. Claims-Made Policies................................................................IN IN IN IN IN IN IN I.I.I.I. 3�2 19.1.5. General Aggregate Limit............................................................................ 33 19.1-6. Certificates............................................................................................ 33 19.1.7. Insurer Qualifications ................................................................IN IN IN IN IN IN I.I.I.1. 33 19.1-8. Effective Dates............................................................................................................ 33 19.1-9. Licensee's Self-insurance Alternative.............N N N N N N N N N N N N N N N N N N N IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN 33 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 57 of 288 19.1.10. No Limitation on Indemnification Obligations................................ 34 19.1.11. Right to Terminate ................................................................. 34 19.2. City's Insurance .......................................................................................... 34 19.3. Subrogation Waiver.................................................................................... 34 13.4. Contractors' Bonds and Insurance ........................................................... 34 20. LIMITATIONS ON THE CITY'S LIABILITY ........................................................ 34 20.1. General Limitations on the City"s Liability................................................ 35 2 .2. Consequential Damages ............................................................................ 35 20�.3. No Relocation Assistance................................................................. 35 20.4. Non-Liability for City Officials, Employees and Agents .......................... 3�5 20-5. Licensee's Waiver....................................................................................... 3�6 21. RECORDS .......................................................................................................... 36 21.1. Accounting Records................................................................. 3�6 21.2. Estoppel Certificates .................................................................. 3�7 22. RULES AND REGULATIONS ......................x x x x x ................................................ 37' 23. SECURITY DEPOSIT...........seat.....***sees..............**sees........................................... 3,7 23.1. Amount ................................................................................................. 3�7 23.2. Further Deposits ......................................................................................... 37' 23.3. Application 0 0 0 0 0 0 0 0 0 0 0 a a a a a a a 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 38 24. SURRENDER OF LICENSE AREA................................................................ 38 24.1. Surrender.................................................................................................. 3�8 24.2. Abandonment............................................................................................... 38 24.3. Holding Over ............................................................................................... 39 25. HAZARDOUS MATERIALS........ 39 25.1. Hazardous Materials in License Area........................................................ 39 25.2. Licensee's Environmental Indemnity........................................................ 33 26. TERMINATION ......................................................................................................40 26.1. Termination for Failure to Obtain Regulatory Approvals ........................ 40 26.2. Licensee's Termination Rights..................................................................40 26.2.1. Master License Termination 26.2.2. Pole License Termination Rights........................................................ 40 26.2.3. Termination Rights after Pole Replacement............................... 41 26.3. City's Absolute Right to Terminate Pole Licenses ..................................41 26.4. Licensee's Rights after Termination .........................................................41 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 58 of 288 27. INTERFERENCE, ................................................................................................ 41 27.1. Licensee's Obligation Not to Cause, Interference ....................................41 27.2. Impairment Caused by Change in City Use................................. 42 27.3. Impairment Caused by City Access .......................................................... 42 28. MISCELLANEOUS PROVISIONS......................................................................42 28.1. Ntit ices................................................................................................. 4 3 28.2. Waiver; No Implied Waivers.......................................................................44 28.3. Amendments ............................................................................................... 44 28.4. Interpretation............................................................................................... 44 28.4.1. General..................................................................................................44 28.4.2. Multi-party License................................................................. 44 28.4.3. Captions................................................................................................ 45 28.4.4. City Actions .......................................................................................... 45 28.4.5. Words of Inclusion...................east* ...&**test ....................&a a a a 45 28.4.6. Laws ......................................................................................................45 28-5. Successors and Assigns ................................................................. 45 28.6. Brokers ................................................................................................. 4 5 28.7. Severability....... 46 28.8. Governing Law; Venue.......0 0 0 0 0 0 0 0 0 0 0 0 0 0 46 28.9. Time for Performance.0 0 0 0 0 0 0 0 0 0 0 0 0 0 No***DOWN 0 0 0 0 0 0 0 0 46 28.10. Survival..........................................................................................................46 28.11. Recording...................................................................................................46 28-112. Counterparts............................................................................................ 47 28.13. Approval Authority................................................................ .#######4 7' 28.14. Most Favored Nation Provisions.............................................................47' EXHIBITA ................................................................................................ 49 EXHIBITAA .................................................................................................................................. 51 EXHIBITANN02 .................................................................................................................................. 52 EXHIBITA-3 ................................................................................................ 53 SCHEDULEANN04........................................................................................................................ 55 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 59 of 288 MASTER LICENSE AGREEMENT 3R WIRELESS FACILITIES ON CITY POLES IN THE RIGHT-OF-WAY This MASTER LICENSE AGREEMENT FOR WIRE.L.ESS FACILITIES ON CITY POLES IN 'THE RIGHT-C -WAY "Master License") dated (the "Effective Cate"' is between the CITY OF CHU A VISTA, a chartered California municipal corporation (the "city") and VERI,ON WIRELESS VAW LLC, D/B/A VER ZON WIRELESS, (the "Licensee"). This License may refer tote city and/or Licensee individually as a "Party" or collectively as the "Parties." BACKGROUND A. WHEREAS, technology developments and demand for high-speed mobile data service and capacity has extended beyond the capabilities, of traditional macrocell wireless communications facilities. To meet this demand, wireless providers have accelerated their small cell deployments in the public right-of-way and the City has a clear incentive to develop public-private agreements that manage these accelerated deployments in a way that preserves local aesthetics and public health and safety while also deriving the benefits of these new technologies for the city's residents to the greatest extent practicable; and B. WHEREAS, Licensee desires, to advance its small cell network for they benefit of the residents and businesses in the City and support the City's efforts to advance the Chula Vista)Is smart city strategic Action Plan including projects such as the City smart Bayfront, Telecom municat'ions Master Plan, U!nmanned Aerial Systems, and participate in the city digital Equity and Inclusion efforts; and C. WHEREAS, section 253 of the Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 stat. 56, codified as 47 U.S.C. § 253, preserves the City's authority to control access to and use the rights-of-way within the city's jurisdictional boundaries, and to require reasonable compensation for such use on a. competitively-neutral and nondiscriminatory basis so long as such compensation is disclosed; and D. WHEREAS, Licensee is a commercial mobile radio service provider in California, registered with from the California Public Utilities commission ("CPUC"); and F. WHEREAS, Licensee typically installs, maintains and operates its communications yp' y i , p cations network facilities on existing vertical infrastructure in the public aright-of-way pursuant to authority granted by the CPUC; and F. WHEREAS, the city owns as its personal property a substantial number of existing poles within the pubic right-of-way that are suitable for installing wireless communications facilities within the City's jurisdiction and has a duty to derive appropriate value from the City 7s property assets for the public good; and G. WHEREAS, Licensee desires to install,,, maintain and operate communications network facilities on the City's poles in the public right-of-way in a manner Master License for Wireless Facilities on city Poles in the Right-of-Way 2020-01-28 Agenda Packet gage 60 of 28 consistent with the City's regulatory authority and Licensee is willing to %.A compensate the City for the right to use the City's poles for communications purposes; and H. WHEREAS, consistent with all applicable Laws, the City does not intend this Master License to grant the Licensee any exclusive right to use or occupy the public rights-of-way within the City's territorial and/orjurisdictional boundaries, and Licensee expressly acknowledges that the City may in its sole discretion enter into similar or identical agreements with other entities, which include without limitation Licensee's competitors; and I. WHEREAS, the City desires to authorize Licensee's access to individual City- owned poles based on a comprehensive and uniform Master License according to the terms and conditions set forth in this Master License, any applicable Pole License, and pursuant to, all the appilicable permits issued by the City to protect public health and safety; and J. WHEREAS, on December 5, 2017, the City Council of the City of Chula Vista adopted Resolution No. 2,017-217, which approved the form and material terms for a Master License Agreement for Wireless Facilities on City Poles iin the Right-of- Way to be used in connection the licensing of Poles and other City-owned property for wireless communications facilities. NOW THEREFORE, for good, valuable and sufficient consideration received and acknowledged by the City and Licensee, the City and Licensee agree as follows: AGREEMENT 11. GENERAL DEFINITIONS "Agient" means, agent, employee, officer, contractor, subcontractor, and representative of a party in relation to this Master License and the License Area. "Assignment" means any of the following: (a) a imerger, acquisition, or other transfer of a controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee's, sale, assignment, encumbrance, pledge, or other transfer of any part of its, interest in or rights A with respect to the License Area, and (c) any action by Licensee to permit any portion of the License Area to be occupied by anyone other than itself,, including a sublicense. "Claim" mean any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect. "Common Control" means two entities that are both Controlled by the same third entity. "Control" means (a) as to a corporation, the ownership of stock having the right to exercise more than 50% of the total combined voting power of all classes of stock of the controlled corporation, issued and outstanding; or (b) as to partnerships and other forms of business associations, ownership of more than 50% of the beneficial interest and voting Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet, Page 61 of 288 control of such association. Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet, Page 62 of 288 TP UC" means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or it's duly appointed successor agency., TMF" means electromagnetic fields or radio frequency between 30 kHz and 300 GHz in the electromagnetic spectrum range. "Environmental Laws"' means any Law relating to industrial hygiene, environmental conditions, or Hazardous Materials. "Equipment"' means antennas and any associated utility or equipment box, and battery backup, transmitters, receivers, radiols, amplifiers, ancillary fiber-optic cables and wiring, and ancillary equipment forte transmission and reception of radio communication signals for voice and other data transmission, including the means and devices used to attach Equipment to a licensed City Pole, peripherals, and ancillary equipment and installations, including wiring, cabling,, power feeds, and any approved sign�agie attached to, Equipment. "FCC" means the Federal Communications Commission or its duly appointed successor agency. "Hazardous Material" means any material that, because of its quantity, concentration, or physical or chemical characteristics, is at any time now or hereafter deemed by any Regulatory Agency to pose a present or potential hazard to uman health, welfare, or safety or to the environment. Hazardous Material includes any material or substance defined as a "hazardous substance," or"'pollutant 11 or"contaminant" in the Comprehensive Environmental Response, Compensation and Liablility Act of 1980 (codified as 42 U.S.C. §§ 9601 et seq.) or section 25316 of the California Health & Safety Code; and any "hazardous waste" listed California Health & Safety Code § 25140; and petroleum, including crude oil or any fraction thereof,1 natural gas or natural gas liquids. "Investigate and Remed1lialte" means the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the License Area or that has been, is being, or is in danger of being Released into the environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material. Invitee" means the client, customer, invitee,, guest, tenant, subtenant, licensee, assignee and sublicensee of a party in relation to the License Area. "Laws" means all present and future statutes, ordinances, codes, orders, regulations and implementing requirements and restrictions of federal, state, county and municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question. Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet, Page 63 of 288 "Licensee's On-Call Representative" mean the person(s) assigned by Licensee to be on-call and available to the City regarding the operation of Licensee's Equipment. Such person(s) shall be qualified and experienced in the operation of Equipment and shall be authorized to act on behalf of Licensee in any emergency in and in day-to-day operations of the Equipment. "Permitted Use" means Licensee's installation, operation and maintenance of Equipment for the transmission and reception of wireless, cellular telephone and data and related communications, equipment on License Areas. "Pole"' means a street light pole, utility pole or other support structure located in the public right-of-way within the City and owned by the City., "Pole License)I means the document in the form of Exhibit A that, when fully executed, incorporates the provisions of this Master License and authorizes Licensee to, install, operate and maintain Equipment for the Permitted Use on City Poles identified in the Pole License. "Pole Location"' means the geographic information identifying each City Pole on which Licensee is authorized to install, operate and maintain Equipment under Pole Licenses. Pole Locations will be identified in Exhibit A-1 to each Pole License. 66 Property 513 means any interest in real or personal property, including land, air and water areas, leasehold interests, possessory interests, easements, franchises and other appurtenances, public rights-of-way, physical works of improvements such as buildings,, structures, infrastructure, utility and other facilities, and alterations, installations, fixtures, furnishings and additions to existing real property, personal property and improvements. "Regulatory Agency"' means the local, regional,, state or federal body with jurisdiction and responsibility for issuing Regulatory Approvals in accordance with applicable Laws. "Regulatory Approvals" means licenses, permits and other approvals necessary for Licensee to install, operate and imaintain Equipment on the License Area. "Release"when used with respect to Hazardous Material includes any actual or imminent spilling,, leaking, pumping, pouring, emitting, emptying, discharging,, injecting, escaping, leaching, dumping or disposing on, under or about the License Area, other City Property or the environment. "RF means radio frequency or electromagnetic waves between 30, kHz and 300 GHz in the electromagnetic spectrum range. "RF' Compliance Report" means a report prepared and certified by an RF engineer ne,er acceptable to the City that certifies that the proposed facility, as well as any collocated facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels in watts ERP) for all Master License for Wireless Facilities on City Poles in the Right-of-Way 12 2020-01-28 Agenda Packet, Page 64 of 288 existing and proposed antennas, at the site and exhibits that show the location and orientation of all transmitting antennas and the, boundaries of areas with RF exposure's in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess, of the control led/occu pational limit as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. 2. SCOPE OF LICENSE 2.11. License Area 2.1.1. Pole License Issuance and Effect Subject to the terms and conditions in this Master License, the City will tissue to, Licensee one or more Pole Licennses, which will grant Licensee a contractual privilege to use the space on the subject Pole approved for the Equipment, which includes any conduits, pull boxes or other City Property specifically identified in the Approved Plans attached to the Pole License (individually for each licensed Pole and collectively for all licensed Poles, the "License Area"'). Any approved Pole License will become effective on the first day of the month following the date on which both the City and Licensee execute such Pole License. 2.1.2. Limitations on License Areas This Master License applies to only Poles identified in final and fully executed Pole Licenses. This, Master License does not authorize Licensee or any other persons or entities to enter on to or use any other City Property, except the License Areas specified in any Pole Licenses. Furthermore, neither this Master License nor any Pole License authorizes or confers any rights in Licensee or any other persons or entities to use any portions of the public rights-of-way, or any improvements or other personal property within the public rights-of-way owned by any third parties. The City reserves the absolute right to reject any Pole License Application. Licensee expressly acknowledges and agrees that the City will not be obligated to issue any Pole License to Licensee for any purpose related to, the following poles: (1) any decorative Pole, which includes any Pole or light standard with ornate features,or characteristics designed or intended to enhance the appearance of the Pole or light standard, (2) any Pole in a City-approved underground district when the Licensee does not propose to install the non-antenna equipment (other than the electric meter as may be required by Licensee)s utility provider) underground; 2.2. Limitations on Licensee's Interests 2.2.1. Limited Interest Created Master License for Wireless Facilities on City Poles in the Right-of-Way 13 2020-01-28 Agenda Packet, Page 65 of 288 Licensee expressly acknowledges and agrees that (1) Licensee does not have any rights to use or interest in any Pole for any purpose whatsoever until and unless the City issues a Pole License for such Pole; and (2) neither this Master License nor any Pole License issued pursuant to this, Master License creates or will be deemed to, create any leasehold, easement, franchise or any other possessory interest or real property interest whatsoever in the License Area. 2.2.2. Limited Rights Created Any Pole License, the City approves pursuant to this Master License grants, to Licensee only a non-possessory and revocable license to enter on to and use the License Area for the Permitted Use. Licensee expressly acknowledges and agrees that (1) neither this Master License or any Pole, License will be coupled with an interest; (2) the City retains legal possession and control overall Poles for the City's operations, which will be superior to, Licensee's interest at all time&- (3) subject to the terms and conditions in this Master the City may term�inate a Pole License in whole or in part at any time'- (4) except Licensey y as specifically provided otherwise in this Master License, the City may enter into, any agreement with third parties in connection with use and occupancy of Poles and other City Property; and (5) neither this Master License nor any Pole License creates or will be deemed to create any partnership or joint venture between the City and Licensee. 2.2.3. No Impediment to, Municipal Uses Except as specifically provided otherwise in this, Master License, neither this Master License nor any Pole License limits, alters, or waives the City's, right to use any License Area in whole or iin part as, infrastructure established and maintained for the City's and the public's benefit. 2.3. Diminutions in Light, A11'r and Signal In the event that any existing or future structure diminishes any light,, air or signal propagation�, transmission or reception, whether erected by the City or not, Licensee shall not be entitled to any reduction in any License Fee, Additional Fees or any other sums payable to the City under this Master License or any Pole License, the City shall have no liability to Licensee whatsoever and such diminution will Inot affect this Master License, any Pole License or Licensee's obililgations except as may be expressly provided in this Master License. 2.4. License Area Condiition 2.4.1. "As-is and With All Faults" Conditiion Licensee expressly acknowledges and agrees to enter on to and use the, License Area in its "al is and with all faults''' condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the License Area's, condition or suitability for Licensee's use. Licensee expressly acknowledges and agrees that neither the City nor its Agents have made,, and the City expressly disclaims, any Irepreselntations or Master License for Wireless Facilities on City Poles in the Right-of-Way 14 2020-01-28 Agenda Packet, Page 66 of 288 warranties whatsoever, whether express or implied, with respect to the physical, structural or environmental condition of the License Area, the present or future suitability of the License Area for the Permitted Use or any other matter related to the License Area. 2.4.2. Licensee's Due D'Iligence Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably diligent and independent investigation, either for itself or through an Agent selected by Licensee into the License Area condition and suitability for Licensee's intended use, and that Licensee relies solely on its due diligence, for such determination. Licensee further expressly represents and warrants to the City that Licensee's intended use is the Permitted Use as defined in Section 5 in this, Master License., 2.4.3. Certified Access Specialist Disclosure Pursuant to California Civil Code § 19,38, and to the extent applicable to this Master License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53,) has not inspected any License Area in wholle or in part to determine whether it meets all applicable construction-related accessibility requirements., 3. TERM 3.1. Master License Term The term under this Master License (the it Term") will commence on the Effective Date and will automatically expire 10 years from the Effective Date (the "Expirat'ion Date"),, unless, earlier terminated in accordance with this Master License. 3.2. Pole License Term The term under each Pole License will commence on the Commencement Date as defined in 4.1.1 below) and will automatically expire 10 years after the Commencement Date, unless earlier terminated in accordance with this Master License. To determine the applicable License Fee for each Pole License, the minimum term will be one year from the Commencement Date (the "Minimum Term"). Except as specifically provided otherwise in this, Master License, the Minimum Term will prevail over Licensee's, right to abate rent or terminate this Master License or any Pole License. Notwithstanding the expiration or termination of this Master License, the terms and conditions of the Master License shall continue to apply to each Pole License during the term of such Pole License. 4. LICENSE FEE; OTHER PAYMENTS 4.1. License Fees 4.1.1. Commencement Date Licensee shall pay an annual License Fee under each Pole License beginning on its Master License for Wireless Facilities on City Poles in the Right-of-Way 15 2020-01-28 Agenda Packet, Page 67 of 288 "Commencement Date,"' which will be either: (1) the date six months from effective date of the Pole License or (2) the first day of the month after the date on which Licensee has obtained all Regulatory Approvals necessary for the Permitted Use on the License, Area (whichever occurs first). The parties, define a "License Year"' to mean any 12-month period or shorter period in the event that a Pole, License commences less than 12 months from the next July 1 or the Expiration Date) that begins on the Commencement Date for each Pole License. 4.1.2. Acknowledgment Letter For each Pole License approved byte City pursuant to Section 6.4.4 (Pole License Application Approval), Licensee shall deliver to, the City a letter in the form shown in Exhibit A-3 to the Pole License (the "Acknowledgment Letter"') within approximately 10 business days after Licensee obtains all Regulatory Approvals necessary for the Permitted Use on any License Area. The parties intend the Acknowledgement Letter tol:(a) confirm the Commencement Date; (b) tender or confirm payment by wire transfer of the License Fee for the first License Year and the Security Deposit; (c) provide the City with copies, of all Regulatory Approvals for the Equipment on each licensed Pole; and (d) confirm that Licensee has submitted all information required in Section 19 (Ins,urance) under this Master License. Upon written notice to Licensee, the City shall have the right to, correct the Commencement Date stated in Licensee's Acknowledgement Letter after the City examines the Regu�latory Approvals if, in the City's reasonable determination, the Commencement Date stated on the Acknowledgment Letter is incorrect or inaccurate. The City's reasonable determination in connection with this Section 4.1.2 will be final for all purposes under this Master License. The City will use Treasonable efforts to, deliver a countersigned Acknowledgement Letter to Licensee within approximately five business days after the City receives the partially executed Acknowledgment Letter with all required attachments and enclosures from Licensee. The fully executed Acknowledgment Letter will be Licensee's notice to proceed with its installation. The date on which the City countersigns the Acknowledgement Letter will be the effective date for the subject Pole License. 4.1-3. License Fee Amount Licensee shall pay to the City an annual fee at the rate specified in the License Fee Schedule attached to each Pole License (the "License Fee"). The License Fee Schedule will reflect the annual License Fee adjustments as provided in Section 4.1.4 (Annual License Fee Adjustments). Licensee shall pay each annual License Fee in advance without any prior demand,,, deduction, setoff or counterclaim for any reason, except to account for a partial year in the event that (1) the Commencement Date falls on a date other than January 1; (2) this Master License expires or terminates; or (3) any other abatement rights expressly granted in this Master License become effective. Any amounts for less than a full year or full month will be calculated based on a 360-day year and a 30-day month. 4.1.4. Annual License Fee Adjustments Master License for Wireless Facilities on City Poles in the Right-of-Way 16 2020-01-28 Agenda Packet, Page 68 of 288 Each year throughout the Term on January 1 (each an "Adjustment Date"), the License, Fee will be increased 3.5% over the License Fee payable in the immediately previous year. The adjustment provided in this Section will be effective even if the first License Year was for less than a full calendar year. 4.1.5. License Fee Due Date Licensee shall pay the License Fee for the first year at the same time Licensee delivers the Acknowledgement Letter without any deduction or setoff for any reason. Thereafter, Licensee shall pay the annual License, Fee on January 1 in each year throughout the Term. 4.2. Aminiistrative Fees 4.2.1. Master License Preparation Fee At the time Licensee delivers to the City a partially executed counterpart to this Master License, Licensee shall pay to the City a nonrefundable administrative fee equal to Eight Thousand and 00/1010 Dollars ($8,000.00) (the "Master License Preparation Fee,") to recoup the City)I s costs to review and execute this Master License. The City will not be obligated to execute any Master License until the City receives the Master License Preparation Fee. The City's execution of this Master License shall be its acknowledgment that Licensee has paid the full Master License Preparation Fee., 4.2.2. Pole License Process'�ing Fee At the time Licensee, delivers to the City a Pole License Application, Licensee shall pay to, the City a nonrefundable administrative fee equal to, One Thousand and 00/100 Dollars ($1,000.00) (the "Pole License Processing Flee"). Licensee recognizes that the City will incur costs to review each Pole License Application, which may include without limitation staff time, legal fees, and expert fees. The parties further acknowledge that these costs may vary among and/or between various Pole License Applications due to circumstances particular to any given Pole, and that it would impracticable (if not impossible)to accurately predict such costs.Accordingly, the parties agree that the Pole License Processing Fee set forth in this Section represents a reasonable estimate of the City's administrative costs to ireview each Pole in the typical Pole License Application. The parties further acknowledge that the Pole License Processing Fee is intended to cover the City y s administrative costs incurred in its proprietary capacity as the licensor and the, Pole License, Processing Fee does not substitute for or diminish the Licensee's obligation to pay any regulatory permit fees required by the City's departments,. The City will not be obligated to commence its review for any Pole License Application until the City receives the Pole License Processing Fee. The parties to this Master License collectively prefer to the Master License Preparation Fee and the Pole License Processing Fee as "Adm"Inistrative Fees." Master License for Wireless Facilities on City Poles in the Right-of-Way 17 2020-01-28 Agenda Packet, Page 69 of 288 4.3. Late Charges In the event that Licensee fails to pay any License Fee,, Additional Fee, Administrative Fees or any other amount payable tete City within 10 days after the City notifies that such amounts are due and unpaid, such amounts will be subject to, a late charge equal to, 6% olf' unpaid amounts. 4.4. Default Interest Any License Fees, Additional Fees, Administrative Fees and all other amounts payable to, the City other than late charges will bear interest at 10% per annum from the due date when not paid within 101 days after d�ue, and payable to the City. Any sums received shall be first applied towards any interest,, then to the late charge and lastly to principle amount owed. Any interest or late charge payments will not alone excuse or cure any default by Licensee. l4.5. Additional Fees, The parties to this Master License define "Addit'�ionall Fees" to collectively mean any sums payable by Licensee to the City in its proprietary capacity as the licensor, which includes without limitation any late charges, default interest, costs in connection with a request for the City's consent to an Assignment under Section 16.,2 (Proposed Assignment Procedures) and Default Fees under Section 17.2.4- provided, however, that the term excludes any (1) License Fees; (2) Administrative Fees; (3) any other amounts payable to the City by Licensee in connection with the City's review of Pole License Applications or coordinating and inspecting Equipment installed on the License Area; and (4) any payments to the City in its regulatory capacity. 4-6. Payment Procedures Licensee shall pay all License Fees, Additional Fees, Administrative Fees, and all other amounts payable to, the City in cash or other immediately available funds by (1) local check payable to City of Chula Vista, Finance Department, 276 Fourth Avenue, Chula Vista, CA 91910 or (2) electronic wire transfer to an account specified by the City. Any payment made with a dishonored check will be deemed unpaid. The parties may change the payment address from time to time by written notice. 4.7. Liquidated Charges and Fees The parties agree that the Additional Fees payable under this Master License represent a fair and reasonable estimate of the administrative costs that the City will incur in connection with the matters for which they are imposed and that the City's right to impose the Additional Fees is in addition to, and not in lieu of, any other rights it may have under this Master License. Furthermore: THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CITY'S ACTUAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT ARISING Master License for Wireless Facilities on City Poles in the Right-of-Way 18 2020-01-28 Agenda Packet Page 70 of 288 PROM LICENSEE DEFAULTS AND OTHER ADMINISTRATIVE, MATTERS UNDER THIS MASTER LICENSE WOULD BE EXTREMELY DIFFICULT O IMPRACTICABLE, TO DETERMINE.. EY PLACING HIS OR HER INITIALS BELOW, EACH PARTY'S AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT THE, PARTIES HAVE AGREED, AFTER A NEGOTIATION,1 ON THE AMOUNT of THE ADDITIONAL FEES As REASONABLE, ESTIMATES of THE CITY'S ADDITIONAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT. IMENT. Licensee City 5. USES 5.1. Permitted Use Licensee may use the License Area solely for the installation, operation and maintenance of Equipment four the provision of communications services (the "Permitted Use") in compliance with all applicable Laws and any conditions in any Regulatory Approvals and for no other use whatsoever without the City's prior written consent, whiich the City may withold in its sole and absolute discretion for any or no reason. 5.2. Prohibition on "Macro Cell" Uses The City and Licensee intend this Master License and any hole License to cover only ``small cell" installations, which are commonly understood to mean small,, low-power, low- elevation, unobtrusive wireless facilities intended to cover relatively small geographic areas. Licensee expressly acknowledges and agrees that the Permitted Use under this Master license does not include the right to use any Pole as a support structure for a ``macro cell"'' or a traditional wireless, tomer typically constructed on private property. 53. Proh i ibon on l'llega l Uses or Nuisances, Licensee shall not use the License Area in whole or in part in any unlawful manner or for any illegal purpose. In addition, licensee shall not use the License Area in whole or in part in any manner that constitutes a nuisance as determined by the City in its reasonable judgment. Licensee shall take all precautions to eliminate any nuisances or hazards in connectionwith its uses and activities on or about the License Area. 5.4. Signa or Advertisements Licensee acknowledges and agrees that its rights under this Master License and any Pole License do not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any signs, notices, graphics or advertisements whatsoever on the License Area. 6. POLE LICENSES Master License for Wireless Facilities on City Poles in the Right-of-Way 19 2020-01-28 Agenda Packet gage 71 of 28 6.1. City Approval Required Licensee shall not have any right to use the License Area in whole or in part for any purpose until and unless the City approves a Pole License. Subject to any express limitations in this Master License, the City will not be obligated to subordinate its municipal functions or proprietary interest in any manner whatsoever to Licensee's interest under any Pole License. When the City considers whether to approve or disapprove any Pole License Application, the, City may consider any matter that affects its unicipal functions or proprietary interests, which include without limitation: (1) Licensee's proposed plans and Equipment specifications; (2) compliance with any applicable Laws; (3,) impacts on the City's street light operations; (4) any potential hazards or unsafe conditions that could result from Licensee's installation, operation or maintenance; (5) any potential visual or aesthetic impacts provided the proposed Equipment is in conformance with objective design standards adopted by the City, which includes without limitation whether any alternative locations or configurations would be more aesthetically desirable or appropriate in the City 51 s sole discretion; (61) the additional load on the Pole the proposed Equipment would create only if: (a) such additional load would exceed such Pole's permitted capacity; and (b) such Pole could not be replaced to support Licensee's, proposed Equipment; and (7) any municipal plans for the Pole or right-of-way in proximity to the Pole. 6.2. Pole License Application Each Pole License Application must include: (1) two partially executed duplicate counterparts of a Pole License in the form attached as Exhibit A to this Master License, with fully completed Exhibit A-1 and Exhibit A-2 attached to such partially executed Pole License; (2)the Pole License Processing Fee; and (3)a complete RIF Compliance Report. 6.3. Pole License Application Review Procedures The City will review complete Pole License Applications within applicable timeframes under the Wireless Infrastructure Order, provided that such Wireless Infrastructure Order is in effect, and pursuant to applicable Law, taking iiinto account any tolling periods for such timeframes. Licensee shall provide the City with at least 60 days' prior notice before Licensee submits, any Pole License Application that covers 15 or more Poles to allow the City sufficient time to prepare and/or augment its staff as necessary; provided, however, that Licensee shall snot submit a single Pole License Application that covers 15 or more Poles within 120 days of the Effective Date of this Master License Licensee shall not submit successive Pole License Applications if those Pole License Applications would collectively cover 15 or more Poles, and will grant the City a reasonable extension of the applicable timeframe for the City's ireview if such successive Pole License Applications are submitted. 6.3.1. Incomplete Pole License Applications The City will not be, obligated to review or approve any incomplete Pole License, Application. In the event that Licensee submits an incomplete Pole License Application, Master License for Wireless Facilities on City Poles in the Right-of-Way 20, 2020-01-28 Agenda Packet, Page 72 of 288 the City may, with or without notice to Licensee suspend its review for that incomplete Pole License Application until Licensee delivers all required elements for a complete Pole License Application. In addition, the City may suspend all pending Pole License Application, whether complete or 'incomplete, reviews when Licensee fails to timely submit any Pole License Processing Fee. The date and time when Licensee submits the missing elements will be deemed the date and time that Licensee submitted the Pole License Application. 6.3.2. Requiredl Changes to the Pole License Application In the event that the City determines for any reason that the Permitted Use at any particular Pole Location would impede its municipal functions or otherwise negatively affects, its proprietary 'Interests, the City will provide notice to Licensee as soon as reasonably practicable. Licensee will have 14 days from such notice to change its Pole License Application without any impact on the Pole License Application's priority relative to, any other applications then under review or later received by the City. Any changes received after the 14-day period or any other changes Licensee may make to the Pole License Application will cause the date and time on which the application was submitted or deemed submitted to, be changed to the date and time on which Licensee submitted the proposed changes. 6.3-3. Consultation with Other City Departments The City may consult with other departments within the City to assess whether Licensee 51 s proposed Equipment poses any concerns, which includes,without limitation any concerns about aesthetics, historic or environmental iimpacts, traffic control, pedestrian access and general right-of-way management. Licensee acknowledges that any consultation with any other City departments in accordance with this Section 6.3.3 and any actions, or failures to, act by the City that may result from such consultations would be in the City's, proprietary capacity as the Pole owner and not an exercise of the City's regulatory authority. 6.3.4. Pole License Appfication Approval In the event that the City approves a Pole License Application, the City will return one fully executed Pole License to Licensee. Licensee acknowledges and agrees that the City's decision to approve or disapprove any Pole License Application is not, and will not be deemed to be, a regulatory determination subject to any administrative appeal, but is an exercise of the City's proprietary authority over its Poles as its personal property. In the event that Licensee fails to commence construction pursuant to the Pole, License within one year from the date the City fully executes the Acknowledgment Letter, the Pole License shall automatically expire unless the City Manager grants a written extension that may not exceed one additional year. Licensee shall not be entitled to any refund for any fees, which include without limitation the License Fee, paid in connection with a Pole License that expires pursuant to this Section 63.4. Nothing in this Section 6.3.4 is intended to prohibit or prevent Licensee, from submitting a new Pole License Application for the same or substantially the same Poles as those covered under a Pole License that expired pursuant to this Section 6.3.4. Master License for Wireless Facilities on City Poles in the Right-of-Way 21 2020-01-28 Agenda Packet, Page 73 of 288 6.3.5. Waiver of Certain Federal and State Rights of Licensee Inapplicable Subject to the, provisions of Section 13.1, despite any New Law d�u�ring the initial 10-year term of this, Master License or any Pole License, Licensee expressly waives any State or Federal rights to challenge: (1) the fees paid to the City pursuant to this, Master License and any Pole License; and (2) the timeframes established in this, Master License by which the City must review and process Pole License Applications, including any notices, tolling, or extensions required under this Master License. Preceding the commencement of an extension to this Master License or any Pole License after expiration of the Master License, Licensee may request from the City an amendment of this, Master License or any Pole License to comply with such changed laws, if applicable. For the avoidance of doubt, any such amendment would be effective only after the initial 10-year term of this Master License expires or as otherwise agreed to in writing by the Parties., 6.3.6. City's Right to, Disapprove Licensee acknowledges that the City reserves the absolute aright to, reject any Pole License Application for any or no reason. In addition, Licensee acknowledges that the City reserves the absolute right to disapprove any license within a Pole License Application when the subject Pole would involve above-ground equipment (other than the antenna and any required electric meter) in a residential district or in close proximity to a residential use. 7. 7. EQUIPMENT INSTALLATION 7.11. Approved Plans and Equipment Specifications Licensee must submit complete plans and equipment specifications as Exhibit A-2 to any Pole License Application, which must include without limitation all equipment, mounts, hardware,1 utilities, cables, conduits,, signage, concealment elements and other improvements proposed in connection with the License Area. Licensee acknowledges that Exhibit A-2 to any approved Pole License will be deemed to be the "Approved Plans" and that Licensee will be permitted to install only the Equipment and other improvements, shown on such Approved Plans. 7.1.1. Site Identification Required On each licensed Pole, Licensee must install one identification plate in strict compliance with the size, material, form and substance as shown on the Approved Plans. The identification plate must include Licensee,y s corporate name, and telephone number at which Licensee's On-Call Representative can be reached at all times (24 hours per day and 7 days per week). Licensee must replace the, identification plate in the event that any information on such plate changes. 7.1.2. Changes Required for Regulatory Approvals Licensee may amend previously Approved Plans when such changes are required to obtain or maintain compliance with other Regulatory Approvals necessary to install the, Master License for Wireless Facilities on City Poles in the Right-of-Way 22 2020-01-28 Agenda Packet, Page 74 of 288 Equipment. Any such changes, will require the City's prior written approval. The City will provide notice of its decision to Licensee in accordance with Section 28.1 (Notices). 7.1.3,. Correct'lons to Approved Plans Licensee shall have the obligation to correct any errors or omissions in any Approved Plans and related Regulatory Approvals. Licensee, shall immediately send written notice to, the City in the event that Licensee discovers any such defects. Any Approved Plans and/or amendments to Approved Plans by the City will not release or excuse Licensee's obligations under this Section 7.1.3. 7.2. Prior Regulatory Approvals Requ'lred Licensee shall not commence any work at the License Area until Licensee obtains all necessary Regulatory Approvals, which includes without limitation a Wireless Communications, Facilities Permit on Public Property from the City I s, Development Services Department and any other permit obtained through any other City department, and tenders full and complete copies of each Regulatory Approval to the City. The City's consent or refusal to consent to any Pole License issued by the City in lits proprietary capacity as the Pole owner will not be deemed to be any approval or denial in connection with any Regulatory Approval issued by the City in its regulatory capacity as a municipal government. 7.3. Installation; Strict Comphance wit/ Approved Plans Licensee shall not commence any work at the License Area until the City provides, Licensee with the Acknowledgement Letter or an equivalent letter to confirm the Commencement Date. Licensee shall perform all work in connection with the License Area in strict compliance with the Approved Plans and in a diligent, skillful and workmanlike manner. All installed Equipment must be high quality, safe, fire resistant,, modern in design and attractive in appearance, all as approved by the City. After any work at the License Area concludes,, Licensee shall restore the License Area and any other City Property to the condition that existed immediately prior to the work commenced. 7.11. Alterations to City's Property Licensee shall not remove, damage or in any manner alter any City Property without prior written consent from the City and any other City agencies with jurisdiction over the subject City Property. The City may withhold its consent in its sole and absolute discretion, and may reasonably condition its consent in each instance based on scope and nature of the proposed alterations. Licensee shall immediately notify the City if any removal, damage or other alteration occurs to City Property for any Treason and through any cause. 7.3.2. Licensee's Contractors Licensee and all of its contractors shall obtain all necessary licenses, including without limitation Contractor State Licensing Board licenses and a City of Chula Vista Business License, prior to performing work on or about the License Area. Licensee shall use only Master License for Wireless Facilities on City Poles in the Right-of-Way 23 2020-01-28 Agenda Packet, Page 75 of 288 qualified and trained persons and appropriately licensed contractors for all work performed on or about the License Area. Licensee shall give the City at least ten (10) days' prior written notice of commencement of any construction or installation on any part C17 of the License Area except for minor and routine repair and maintenance of Licensee s, Equipment. At least five (5) business days before any work commences on or about the License Area, Licensee shall provide the City with: (1) a schedule with all activities, to be performed in connection with the work; and (2) a list with all the names, contractor's license numbers and business addresses for all contractors who will perform the work. 7.4. Labor and Materials Costs Licensee shall be responsible for all direct and indirect costs (labor, materials, and overhead) in connection with designing, purchasing and installing all Equipment in accordance with the Approved Plans and all applicable Laws. Licensee shall also bear all costs to obtain and maintain all Regulatory Approvals required in connection with the installation, which includes without limitation all direct and indirect costs to comply with any approval conditions or mitigation measures that arise from Licensee's proposed installation. Licensee shall timely pay for all labor, materials, Equipment and all professional services related to the Permitted Use oir furnished to the License Area at Licensee's direction or for Licensee's benefit. 7.5. Project Managers The City and Licensee each designate the person listed in this Section 7.5 as its project manager to coordinate Licensee's Equipment design and installation, and serve as each party's respective primary contact person for all design, engineering, construction and installation issues that may arise between the parties in connection with this, Master License. City's Project Manager: �Name: William Valle Title: City Engineer Phone: (619) 691-5021 Address: 276 Fourth Avenue Chula Vista, CA 91910 M Licensee's Project Managier�. Name: Shahriar Afshar Title: Real Estate & Regulatory Manager Phone-. 619-318-3756 Email: Shahriar.Afshar@Verizon.com Address: 15505 Sand Canyon Avenue Irvine CA 92618 Licensee's Network Operations Center (800) 264-6620 Master License for Wireless Facilities on City Poles in the Right-of-Way 24 2020-01-28 Agenda Packet, Page 76 of 288 Licensee acknowledges that the City's project manager is, not exclusively assigned to this Master License, and that the City's project manager may not always be immediately available to Licensee, or its project manager. Licensee further acknowledges, that the authority delegated by the City to the City's project manager is limited to,the administration of this Master License, any Pole License, Applications and any approved Pole Licenses. The parties' respective project managers will have no obiligation to perform any term or covenant to be performed by the other party under this Master License., Notices to the parties' respective project managers alone will not be deemed effective notice for any purpose under th�is Master License. The, parties may designate a new project manager from time-to-time by written notice to the other party. 7.6. Coordination with the City Licensee must coordinate all its installation, construction and other work on or about the License Area with the City so as to avoid any interference (physical, electronic or otherwise) with any existngi utilities, substructures, facilities,, City Property and the City's municipal operations. 7.7. Fiber-Optic Cables Intentionally Omitted. 7.8. Dedicated Short Range Cornmuniicat'�ions (DSRC) Intentionally Omitted. 7.9. Title to Ucensee's Equipment and Other Improvements Except as specifically provided otherwise in this Master License, all Equipment and other improvements installed, constructed or placed on or about the License Area by Licensee or its Agents or InvItees will be and remain at all times Licensee's personal property. All structural improvements to any Pole, and any replacement Pole all as approved by the City and shown in the Approved Plans, will become City Property and remain should Licensee vacate or abandon such License Area, unless the City elects in a written notice to, Licensee that it does not wish to take title to such structural improvements, in which case Licensee shall remove such improvements, at its sole cost and in a manner acceptable to City, and shall restore all affected areas by such removal to a condition compliant with all applicable Laws. Subject to Section 24 (Surrender of License Area), Licensee may remove, its Equipment from the License Area at any time after 30 days' written notice to the City. 8. PUBLIC WORKS OPERATIONS 8.1. City's Access to License Areas Except as specifically provided otherwise in this Master License, the, City and its Agents have the right to access any License Area in whole or in part at any time without notice for Master License for Wireless Facilities on City Poles in the Right-of-Way 25 2020-01-28 Agenda Packet, Page 77 of 288 any purpose., The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City''s or its Agents' access to the License Area, which includes any Equipment removed in an emergency or ether exigent circumstances pursuant to section 8.4 (Emergencies),, except to the extent that the damage arises directly and. exclusively from the sole active negligence or willful misconduct of the City and not contributed to by the acts, omissions or negligence of Licensee, its Agents or Invitees. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages, that may arise from the City's or its Agents' so e active negligence or willful misconduct and not contributed to by Licensee's or its Agents' or Invitees' acts, omissions or negligence. 8.2. Repairs, Maintenance and Alterat'lons to Poles The City and/or the City's Public Works Department will: (1) maintain and repair Poles as needed, in its ju�dgiment and in accordance with City standards and practices, for its street light operations and other municipal functions; and 2 correct any immediately hazardous condition. If City requires the termination of electrical service to they Equipment in order to maintain or repair any Poles, the City shall inform Licensee at the telephone numbers provided in section 7.5 and the parties shall coordinate in good faith to determine suitable dates and times to complete such actions. If City requires the termination of electrical service to the Equipment in order to correct any immediately hazardous condition, Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to ;all Equipment. If City uses Licensee's emergency shut-off switch, City will notify Licensee ars soon as reasonably possible at the telephone numbers provided in section 7.5. Except as provided in section 28 (Term inat'iioin , and excluding conditions that arise from the City's or its Agents' sole active negligence or willful misconduct, neither any City work on any Pole nor any condition on any Pole will: 1 entitle Licensee to any damages; (2) excuse or reduce any obligation by Licensee to pay any License Fees or Additional Fees or perform any covenant under this Master License; or (3) constitute or be construed as a constructive termination of this Faster License or any Pole License. 8.3. Repairs, Maintenance and Alterations to ieense Areas The City may, at any time, alter, add to, repair, remove from and/or improve the License Area in whole or in part for any operational purpose, which includes without limitation maintenance and improvements in connection with street light services and compliance with Laws; provided, however, (1) the City makes a giood-faith effort to provide advance notice to Licensee's Chin-Call Representative; (2)the City allows Licensee's representative to observe the City's work; and (3) the City takes reasonable steps not to disrupt Licensee's ordinary operations on the License Area. If City irequires the termination of electrical service to the Equipment in order to alter, add to, remove from, and/or improve the License Area, the City shall inform Licensee at the telephone numbers provided in section 7.8 and the parties shall coordinate in good faith to determine suitable dates and times to complete such actions. The provisions in this Section 8.8 will not be construed to allow Licensee's ordinary operations to impede or delay the City's authority and ability to make changes to the License Areas necessary to maintain street light services. Master License for wireless Facilities on City Poles in the Right-of-Way 26 2020-01-28 Agenda Packet, gage 78 of 28 8.4. Emergencies In emergencies, the, City's work will take precedence over Licensee's operations, which includes without limitation any Equipment operated on the License Area, and the City may access the License Area in whole or in part as the City deems necessary in its sole determination and in accordance with this Section 8.4, whether the City has notified Licensee of such emergency or other exigent circumstances or not. When safe and practicable, the City will notify Licensee of any emergency or other exigent circumstances that requires the City to remove or replace any Pole and will allow Licensee to remove its Equipment before the City removes or replaces, the Pole; provided, however, that the City will remove the Equipment from the Pole when in the City's sole determination it would (1) be unsafe or not practicable to wait for Licensee to perform the work; (2) cause sign�ificant delay; or(3) otherwise threaten or compromise public safety or public services., In order to allow City to remove Equipment under this section, Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to all Equipment. If City uses Licensee's emergency shut-off switch, City will notify Licensee as soon as reasonably possible at the telephone numbers provided in section 7.5. The City will remove any Equipment with reasonable care and store the Equ�ipment for retrieval by Licensee. Licensee shall have the right to reinstall such removed Equipment or equivalent Equipment at Licensee's sole expense on the repaired or replaced Pole and in accordance with Section 7 C quiipment Installation). The City's removal of Licensee's Equipment in emergencies or other exigent circumstances will not be deemed to be a forcible or unlawful entry onto the License Area or any interference with Licensee's contractual privilege to use the License Area. 9. LICENSEE'S MAINTENANCE OBLIGATIONS 9.11. Damage to Poles 9.1.1. Notice to the City Licensee agrees to give the City inotice of the need for any repair to a Pole promptly after Licensee discovers any damage from any cause. Licensee's agreement to provide notice is not an assumption of liability for any life-threatening or hazardous conditions unless caused by the acts, omissions or negligence of Licensee or its Agents or Invitees. Failure to, provide such notice will be a material default under this Master License. 9. 1.2 Damage Caused by Licensee In the event that any use or maintenance by Licensee or its Agents or Invitees cause any damage to any Pole, Licensee must irepair such damage within 30 days after the City provides a notice to Licensee that describes such damage. Such 301-day cure period may be extended to a date certain if the City agrees the cure reasonably requires more time. In the event that Licensee fails to timely cure the damage, the City may repair the damage at Licensee's expense. Licensee will ireimburse the City for all costs incurred to irepair such damage within 10 days after Licensee, receives the City's demand for payment, together with copies of invoices or other evidence to document the costs incurred. Master License for Wireless Facilities on City Poles in the Right-of-Way 27 2020-01-28 Agenda Packet, Page 79 of 288 9.1.3'. No Right to Repair Absent notice from the City with a demand to cure any damage to a Pole, Licensee is not authorized to make any repairs to any Pole. Licensee expressly waives all rights, it may have under any applicable Laws to make repa I irs at the City's expense. 9.2. Equipment Maintenance Licensee shall, at its sole cost and expense, install, maintain and promptly repair any damage to any Equipment installed on the License Area whenever repair or maintenance may be required, subject to the City's prior approval if required under Section 7 (Equipment Installation). Licensee, is not required to seek the City's prior approval for any Equipment repair, maintenance, replacement or other installation on the License Area when such Equ�ipment is shown on the Approved Plans. Licensee must obtain the City's prior written approval for any Equipment repair, maintenance, replacement or other installation that involves larger, different or additional Equ�ipment than shown on the Approved Plans. Without City's prior consent, Licensee may: (a) perform routine maintenance and repair of any Equipment and (b) perform "like-for-like" replacements of Equipment provided (1), any "like-for-like" replacement does not materially alter the size, height, and weight of the installed Equipment; (ii) the resu t'iingi installation does not increase the load on the Pole beyond the loading or utilization, iif any, established in the Pole License Application; and (iii) does, not alter, modify, destroy, or damage any City Property. Any work on Licensee's Equipment installed on Poles that its authorized or permitted under this Subsection is subject to Licensee obtaining any required Regulatory Approvals. 9.3. Graffiti Abatement Licensee's repair and maintenance obligation includes the removal of any graffiti from the License Area within seven (7) days after the City notifies Licensee. 9.4. Standard of Work For all work performed by or for Licensee under this Section 9.5, Licensee shall be: (1) at Licensee's sole cost and expense; (2) performed only qualified and trained persons and appropriately licensed contractors; (3) performed in a imanner and with equipment and materials that will not interfere with or impair the City's operations; and (4) compliant with all applicable Laws. 9.5. Inspections At least once in every License Year, Licensee shall perform an inspection of all Equipment. Upon the City's request, Licensee shall furnish, within 30 days, a written report to the City on the condition of such Equipment that includes, without limitation, any identified concerns and corrective action taken or planned to be taken. In the event that Licensee's inspection reveals any maintenance concerns in connection with any Pole or any other City Property, Licensee shall promptly notify the City. Master License for Wireless Facilities on City Poles in the Right-of-Way 28 2020-01-28 Agenda Packet, Page 8,0 of 288 10. LIENS Licensee shall keep the License Area free and clear from any and all Bens in connection with any work performed, material furnished or obligations incurred by or for Licensee. Licensee shall inform each and every contractor and material isupplier that provides any fl7c!ks work, service, equipment or material to Licensee n any way connected with Licensee use of the License Area that the, License Area is public property and is not subject to mechanics' liens, or stop notices for Equipment or other materials or services, provided for Licensee's Equipment. If Licensee does not cause the release, of lien of a mechanic's lien or stop notice by any contractor, service provider or equipment or material supplier purporting to attach to the License Area or other City Property within 30 days after notice or discovery of the lien, the City will have the right, but not the obligation, to cause the same to be released by any means it deems proper, including payment of the Claim giving rise to such lien. Licensee must reimburse the City for all expenses it incurs in connection with any such lien (including reasonable attorneys' fees) within 10 days following receipt of the City's demand together with copies of invoices or other evidence to document the costs incurred. Licensee shall give the City at least 10 days' prior notice of commencement of any construction oir installation on any part of the License Area except for minor and routine repair and maintenance of Licensee's Equipment. Licensee shall not create, permit, or suffer any other encumbrances, affecting any portion of the License Area. 11. UTILITIES Licensee shall be responsible to secure its own utility services for its Permitted Use and shall not be permitted to use or submeter from any electrical service provided to the City on any Pole. The City may, in its sole and absolute discretion, permit License to, connect to, or submeter from any electrical service provided to the City on any Pole snot subject to a flat rate from the City's electrical service provider. Licensee shall timely pay when due all charges, for all utilities furnished to its Equipment. 112. TAXES AND ASSESSMENTS 112.11. Possessory Interest Taxes Licensee understands and acknowledges that this Master License may create a possessory interest subject to taxation and that Licensee will be required to pay any such possessory interest taxes. Licensee further understands and acknowledges that any sublicense or assignment permitted under this Master License and any exercised options to renew or extend this Master License may constitute a change in ownership for taxation purposes and therefore result in a revaluation for any possessory interest created under this Master License. 12.2. Licensee's Tax ObligaUons Licensee agrees to pay when due and prior to delinquency any and all taxes,1 assessments, charges, excises and exactions whatsoever, including without limitation Master License for Wireless Facilities on City Poles in the Right-of-Way 29 2020-01-28 Agenda Packet, Page 8,1 of 288 any possessory interest taxes, that arise from or in connection with Licensee's use within the License Area or Licensee's Equipment that may be imposed on Licensee under Law. Licensee shall not allow or suffer any lien for any taxes assessments, charges, excises or exactions whatsoever to be imposed on the License Area or Licensee 51 s Equipment. In the event that the, City receives any tax or assessment notice's on or in connection with the License Area or Licensee's Equipment, the City shall promptly (but in no event later than 30 calendar days after receipt) forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount attributable to Licensee's Equipment. 13. COMPUANCE WITH LAWS 13.1. Compliance with Current and Future Laws Licensee shall install, operate, and maintain the Equipment, and shall perform all work yin connection with such installation, operation and maintenance, in strict compliance with all applicable Laws and all conditions in any Regulatory Approvals issued in connection with the Equipment or its installation and operation on any Pole. The parties agree that Licensee's obligation to comply with all Laws is a material part of the bargained-for consideration under this Master License, irrespective of the degree to which such compliance may interfere with Licensee's use or enjoyment of the License Area, the likelihood that the parties contemplated the particular Law involved and whether the Law involved is related to Licensee's particular use of the License Area. 13.1.1. FCC 20,18 Order In the event the Federal Communications Commission's Declaratory Ruling and Third Report and Order, FCC 18-133,, Released September 27, 2018 ("FCC 2018 Order"), is reversed in a final and unappealable order of the FCC or a court of competent Jurisdiction ("Reversal Decision"), and no legal or regulatory requirement exists that would constrain or otherwise limit the price that Licensor may charge, Licensee for the right to place small cells on Licensor's property in the public rights of way,, the annual Fee payable for all of Licensee's Wireless Installation(s) located in Licensor's right-of-way shall be One Thousand Five Hundred and No/100 Dollars ($1,500.00) ("Alternate License Fee"). The Alternate License Fee shall apply as of the License Fee due after the date the Reversal Decision is issued or the Reversal Decision is effective. 13-1.2. Addit"lonal Changes in Laws Either Party may, upon thirty(30)days' written notice, request that the terms of this Master License which are affected by any New Law (defined below in this Section 13.1.2) be renegotiated to conform to the New Law on a going forward basis for all existing and new Equipment, unless the New Law requires retroactive application. In the event that the Parties are unable to agree upon such new rates, terms, or conditions within ninety (90) days after such notice, the parties may elect to attend mediation to resolve the new rates, terms, or conditions. If a mediation is agreed to, the mediation shall be conducted before a single mediator to be agreed upon by the Parties. If the, Parties cannot agree, on the mediator, each Party shall select a mediator and such mediators shall together Master License for Wireless Facilities on City Poles in the Right-of-Way 30, 2020-01-28 Agenda Packet, Page 8,2 of 288 unanimously select a neutral mediator who will conduct the mediation. Except as provided above, all terms, in the existing Master License shall remain in effect while the parties are negotiating and mediating such new rates, terms, or conditions. As used herein,1 "New Law" means any legislative, regulatory, Judicial, or other action affecting the rights or obligations of the Parties, or establishing rates, terms, or conditions for the construction, operation, maintenance, repair or replacement of Equipment on public infrastructure or in the right-of-way, that differ, in any material respect from the rates, terms or conditions of this Master License (other than a Reversal Decision as defined in Section 13.11.11). 13.2. Licensee's Personnel 13.2.1. Personnel "raining and Certification Licensee shall ensure that all persons who, install, operate or maintain the Equipment are appropriately trained and licensed by the California State Contractors Licensing Board as, required under applicable CPUC rules and regulations. Licensee shall ensure that such persons are trained in and observe all safety requirements established by the City, the CPUC and the California Division of Occupational Safety and Health,1 Department of Industrial Relations, which includes without limitation site orientation, tag- out and lock- out de-energization rules, ladder and lift restrictions and track and street right-of-way safety requirements. 13.2.2. Licensee's Indemnification for Personnel Injuries Licensee acknowledges that (1) the City has, delegated to Licensee control over the License Area at any time In which Licensee or its Agents are installing, operating or maintaining the Equipment; and (2) the City is not a co-employer of any employee of Licensee or any employee of Licensee's Agents,, and the City shall not be liable for any Claim by Licensee's, or its Agent 7 s employee(s). Licensee agrees to fully indemnify, defend and hoild the City harmless in the same manner as provided in Section 18 (Licensee's Indemnification Obligations) against any Claim by any employee of Licensee or its Agents that arises in connection with Licensee's, or its Agents' access, uses or other activities on or about the License Area, except to the extent arising out of the sole active negligence or willful misconduct of City. 113.3. Compliance with CPUC GO 95 Licensee shall conduct all activities on the License Area in accordance with CPUC General Order 95 and the, crules and other requirements enacted by the CPUIC under that General Order, as applicable and as amended. 13.4. Compliance with BWHWing and Electric Codes Licensee shall conduct all activities on the License Area in accordance with the requirements of all applicable codes and regulations related to building and construction safety,y which includes without limitation the California Building Code, the California Electric Code, National Electric Safety Code IEEE C2 (the "NESC") and any applicable Master License for Wireless Facilities on City Poles in the Right-of-Way 31 2020-01-28 Agenda Packet, Page 8,3 of 288 local building electrical code,, as those codes exist now or may be amended in the, future. To the extent that CPUC General Order 95 does not address cellular telephone antenna installations, on Poles carrying electrical lines, Licensee shall apply appl�icabl�e provisions of the NESC, with particular attention to paragraphs 224, 235C, 235F, 238, 239 and 239H and sections 22, 41 and 44. Where any conflict exists between the Californ�ia Bu�ilding Code, the NESC, the California Electric Code, any local code and CPUC General Order 128, the more stringent requirements will apply, as determined by the City. 13.5. Compliance with RF Exposure Regulations Licensee's obligation to comply with all Laws includes all Laws related to maximum permissible exposure to, RF or EIVIF emissions on or about the License Area, which includes all applicable FCC standards, whether such RF or EMFemissions or exposure results from Licensee's Equipment alone or from the cumulative effect of Licensee's Equipment added to all other sources on or near the License Area. Licensee must provide to, the City one RF Compliance Report for allproposed Poles on which the Licensee desires to install or operate its Equipment. If not provided earlier, Licensee must submit the RF Compliance Report to the City with the applicable Pole License Application. 114. DAMAGE OR DESTRUCTION 114.11. City's RI'ghts After Damage or Destruction In the event the License Area in whole or in part becomes damaged due to any cause, the City (1) will have no obligation whatsoever to repair or replace the damaged License Area; and (2) may, in the City's sole and absolute discretion, elect to take any of the following, actions-, 14.2. Election to Repair or Replace Damaged Polle Within 30 days after the date on which the City discovers damage or destruction of a Pole licensed to Licensee, the City will give Licensee notice of the City's decision whether to repair or replace the damaged Pole and its good faith estimate of the amount of time the City will need to complete the work,. If the City cannot complete the work within 30 days after the date that the City specifies in its notice, or if the City elects not to do the work, then Licensee will have the right to, terminate the affected Pole License on 30 days' notice to, the City. However, the City will not unreasonably withhold consent concerning an alternative pole location should Licensee request an alternative location to facilitate the continuation of service. 14.1.1. Election to Remove Damaged Pole If the City elects to remove, rather than repair or replace, a damaged Pole licensed to Licensee,,, then the applicable Pole License will automatically terminate on the last day of the month in which the removal occurs. 14.1.2. Ellectiion to Remove Equipment from Damaged Pole Master License for Wireless Facilities on City Poles in the Right-of-Way 32 2020-01-28 Agenda Packet, Page 8,4 of 288 If the acts of third parties or an act of nature or other force, m�ajeure circumstance outside the control of Licensee or its Agents or Invitees destroys or damages any Pole to such an extent that, in the City's reasonable determination, the Equipment on the Pole cannot be operated, the City may decide to terminate the affected Pole License on 30 days' written notice to Licensee and require Licensee to remove,the Equipment from the damaged Pole before the termination date specified in the City's notice. 114.2. Licensee's R'lghts upon Termination After the City terminates a Pole License pursuant to Section 14.1 (City's Rights After Damage or Destruction), the City will1) refund any pre-paid License Fee in connection with the terminated Pole License on a pro-rata basis determined by the number of months left in the current License Year at the time such termination occurs, subject to the Minimum Term as defined in Section 3.2 (Pole License Term) in this Master License; and (2,) prioritize Licensee's Pole License Application for one replacement Pole. 114.3. Waiver of Statutory Rig�hts The parties understand, acknowledge and agree that this Master License fully governs their rights and obligations in the event that any licensed Poles become damaged or destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases the provis,ions in California Civil Code §§ 1932(2) and 1933(4) or any similar Laws. 15. CONDEMNATION 115.11. Permanent Takings In the event that any entity with the power to condemn permanently takes any License Area in whole or in part, or in the event that the City transfers any License Area in whole or iin part to such entity in lieu of eminent domain, the following provisions will apply: 15.1-1. Termination Any affected Pole License will automatically terminate as to the part taken or transferred on the date the permanent taking or transfer occurs, and the License Fee under the affected Pole License will be ratably reduced to account for the reduction in License Area. 15.1.2. Award The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking. Licensee will have no Claim against the City for the value of any unexpired Term of any Pole License, or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee's loss or damage to Licensee's Equipment. Master License for Wireless Facilities on City Poles in the Right-of-Way 33 2020-01-28 Agenda Packet, Page 8,5 of 288 15.1.3. No Statutory Right to Terminate The parties understand, acknowledge and agree that this Section 15.1 (Permanent Takings) is intended to fully govern the parties' rights and obligations, in the event of a permanent taking. Licensee and the City each hereby waives and releases any right to terminate this Master License, in whole or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130 and under any similar Laws to the extent applicable to this Master License., 115.2. Temporary Takings Any taking that affects any License Area in whole or in part for less than 90, days will have no effect on the affected Pole License, except that Licensee will be entitled to a pro-rata abatement in the applicable License Fee to the extent that such temporary taking materially impairs Licensee's use of the License Area. Furthermore, in the event that the City receives an award, if any, in connection with such temporary taking, Licensee will receive the portion from the award that represents compensation for the use or occupancy of the License Area during the Term but not to exceed the License Fees and Additional Fees payable by Licensee for the period of the taking, and the City will retain the balance of the award. 116. ASSIGNMENT NaAOTHER TRANSFERS 16.1. General Restriction Except as specifically provided in Section 16.3 (Permitted Assignments), Licensee shall not directly or indirectly assign its interests or rights, whether in whole or in part,, in connection with this Master License, any Pole License or the License Area without the City's prior written consent. The City shall not unreasonably withhold its consent to any proposed Assignment; provided, however, that the parties acknowledge that the City imay reasonably withhold its consent to, any proposed Assignment at any time in which any monetary or other material default by Licensee under this Master License remains uncured. 116.2. Proposed Assignment Procedures 16.2.1. Proposed Assignment Notice In the event that Licensee desires to Assign its interests or rights, whether in whole or in part; in connection with this Master License, any Pole License or the License Area,y Licensee shall first send written notice, (the "Proposed Assignment Notice") to the City, which states in detail the proposed terms and conditions for the Assignment and complete information, which includes without limitation financial statements, business track records, references and other information about the proposed assignee, (the "Proposed Assignee") that the City Treasonably requires to fully evaluate Licensee's request and render an informed decision. In the event that Licensee does not provide all the such information simultaneously with the Proposed Assignment Notice, the Proposed Master License for Wireless Facilities on City Poles in the Right-of-Way 34 2020-01-28 Agenda Packet, Page 8,6 of 288 Assignment Notice shall not be deemed effective until Licensee, delivers al�l such information as the City may reasonably require. 16.2.2. City Response The City shall approve or disapprove any request for consent to an Assignment within 30 days after the City receives a complete Proposed Assignment Notice, or 3,0 days after the deemed-effective date if Licensee delivers an incomplete Proposed Assignment Notice as described in Section 16.2.1 (Proposed Assignment Notice) in either case, the "Assignment Response Period"). If the City fails to respond within the Assignment Response Period, the request for consent will be deemed disapproved. If the City delivers to, Licensee written consent to the proposed Assignment,, then Licensee shall have 1010 days from such written consent to complete the Assignment. The City's consent will be deemed revoked if Licensee fails to complete the proposed Assignment within the 100- day period; provided, however, that the 1o0-day period may be extended to, a date certain in a written agreement, which the City shall not unreasonably refuse. 116.3. Permitted Assignments 16.3-1. Definition The City agrees that Licensee will be permitted to enter into an Assignment of this Master License and Pole Licenses issued under iit(a"Permitted Assignment"), without the City's prior consent but with notice to the City as provided below, to: (i) Licensee's parent; (ii) Licensee's subsidiary; (iii) an entity that acquires, all or substantially all of Licensee)I s assets, in the market in which the License Area is located as the market is defined by the FCC under an order or directive of the FCC; (11v) an entity that acquires Licensee by a change of stock ownership or partnership interest; or (v) an entity Controlled by Licensee orthat, with Licensee, Is under the Common Control of a third party. 16-3.2. Conditlioons A Permitted Assignment is subject to all the following conditions: (a) the Assignee uses the License Area only for the Permitted Use and holds all Regulatory Approvals necessary to, lawfully install, operate, and maintain Equipment on the License Area; (b) Licensee provides the City with notice 30 days before the effective date of Permitted Assignment, stating the contact information for the proposed Assignee and providing financial information establishing that the proposed Assignee has the capital and fiscal qualifications greater than or equal to Licensee's; and (c) Licensee is in good standing under this Master License. 16.4. Effect of Assignment No Assignment by Licensee,, consent to Assignment by the, City, or Permitted Assignment under Section 16.3 (Permitted Assignments) will relieve Licensee of any obligation on its part under this Master License, unless expressly provided in a writing signed by the City. Any Assignment that is not in compliance with this Article will be void and be a material default by Licensee under this Master License without a requirement for notice and a aright Master License for Wireless Facilities on City Poles in the Right-of-Way 35 2020-01-28 Agenda Packet, Page 8,7 of 288 to cure. The City's acceptance of any License Fee, Additional Fee, or other payments from a proposed Assignee will not be deemed to be the City's s consent to such Assignment, recognition of any Assignee, or waiver of any failure of Licensee or other transferor to comply with this Section 16. 116.5. Assumption by Transferee Each Assignee shall assume all obligations of Licensee under this Master License and each assigned Pole License and will be and remain liable Jointly and severally with Licensee for all obligations to be performed by Licensee. No Assignment will be binding on the City unless Licensee or the Assignee delivers to the City evidence satisfactory to the City that the Assignee has obtained all Regulatory Approvals required to operate as a wireless telecommunications service provider on the assigned License Area, a copy of the Assignment agreement or other document reasonably satisfactory to the City in the event of a Permitted Assignment under Section 16.3 (Permitted Assignments)), and an instrument in recordable form that contains a covenant of assumption by such Assignee satisfactory in substance and form to the City, consistent with the requirements of this Article. However, the failure or refusal of an Assignee to execute such instrument of assumption will not release such Assignee from its liability as set forth in this Section. Except for a Permitted Assignment as provided in Section 16.3 (Permitted Assignments), Licensee shall reimburse the City on demand for any reasonable costs that the City incurs in connection with any proposed Assignment, including the costs of investigating the acceptability of the proposed Assignee and legal costs incurred in connection with considering any requested consent. The City agrees that its, right to reimbursement under this Section during the Term will be limited to Two, Thousand Dollars ($2,oOo-00)for each request. 16.6 Licensee's Customers Licensee may provide capacity to Licensee's customers using, or permit such customers to, use, the Equipment installed by Licensee without the City's consent required in this Section provided that (1) Licensee remains solely responsible for such Equipment and (2) such use by Licensee or Licensee's customers does snot involve any physical changes to, the Equipment other than changes permitted in writing by the City. In any other case, Licensee may provide capacity to Licensee's customers using, or permit such customers to, use, the Equipment installed by Licensee upon prior written notice to the City that (a) identifies the customer who will be using the Equipment and the location(s) where such use will occur; and (bi) includes the appropriate annual fee for the additional carrier as specified in Schedule, A-4, prorated to account for any partial year. Thereafter,1 Licensee shall pay the additional carrier fee each year in the same manner as the License Fee so long as the additional carrier continues to use the Equipment. Notwithstanding anything in this Master License to the contrary, Licensee shall not be required to pay any additional fee to allow Licensee's customers to use the wireline portions of the Equipment for data transport, backhaul or similar services. 17. DEFAULT 17.1. Events of Default by Licensee Master License for Wireless Facilities on City Poles in the Right-of-Way 36 2020-01-28 Agenda Packet, Page 8,8 of 288 Any of the following will constitute, an event of defau�lt by Licensee under this Master License and any Po Poe Licenses issued under it: (1) Licensee fails to pay any sums due to, the City within 110 days after notice from the City; (2,) Licensee fails to perform or comply with any other obligation or representation made under this Master License, if the failure continues for 30 days after the date of notice from the City, or, if such default is not capable of cure within the 30-day period, Licensee fails to promptly undertake action to cure such default within such 30-day period and thereafter fails, to use its best efforts to complete such cure within 60 days after the City's notice; (3) Licensee removes, its Equipment or abandons the License Area for a continuous period of more than 60 days, such that the License Area is longer being used for the Permitted Use; or (3) any of the following occurs: (i) the appointment of a receiver due to Lice,nsee's insoilvency to take possession of all or substantially all of the assets of Licensee; (ii) an assignment by Licensee for the benefit of creditors; or (iii) any action taken by or against Licensee under any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief Laws, if any such receiver,, assignment, or action is not released, discharged, dismissed, or vacated within 60 days. 17.2. City's Remedies In addition to all other rights, and remedies available to the City at law or in equity, the City will have the following remedies following the occurrence of an event of d�efau�lt by Licensee. 17.2.1. License Continuation Without prejudice to its right to other remedies, the City may continue this Master License and applicable Pole Licenses in effect, with the right to enforce all of its rights and remedies, including the right to payment of License Fees,, Additional Fees, and other charges as, they become due. 17.2.2. Pole L'icens,e Termination If a default specific to one or more Pole Licenses is, not cured by Licensee within the applicable cure period,, if any, specified in Section 17.1 (Events of Default by Licensee), the City may terminate each Pole License in default. 17.2.3. Master License Termination If Licensee's default is of such a serious nature in the City's reasonable determination that the default imaterially affects the purposes of this Master License, the City may terminate this Master License in whole or in part. Termination of this Master License in whole will terminate all Pole Licenses issued under it automatically and without the need for any further action by the City. In either case, the City will deliver notice to Licensee providing 30-days' notice of termination and specify whether the termination affects the entire Master License or only certain Pole Licenses in the notice,. The City will specify the amount of time Licensee will have to remove its Equipment from any affected City Pole, which will be at least 30 days after the date of the, City's notice for up to 50% of licensed Master License for Wireless Facilities on City Poles in the Right-of-Way 37 2020-01-28 Agenda Packet, Page 8,9 of 288 City Poles and an additional 30, days for more than 51% of licensed City Poles. If Licensee does not remove its Equipment within the specified period,, the City will be entitled to remove Licensee's Equipment from the City Pole. The City will have the right to make any terminated portion of the License Area available for license to other parties as of the effective date of the termination, even if Licensee's Equipment is still on the, Pole. 17.2.4. Default Fees Without limiting the City's other rights and remedies, under this Master License, the City may require Licensee to pay Additional Fees for the City's administrative cost in provid�ing notice or performing inspections for the events described below (each, a "Default Fee") by giving notice of the City's demand that Licensee cure the default and specifying the cure period. The Default Fee for the initial notice from the City will be due and playable to, the City 10 days after delivery of notice to Licensee. In addition, if Licensee fails to cure the condition within the cure period set forth in the initial notice, and the City then delivers to, Licensee a follow-up notice requesting compliance, then the Default Fee for the follow- up notice will be due and payable to the City 10 days after delivery of the follow-up notice to, Licensee., Default Fees will apply to any of the following events: (1) Licensee constructs or installs any alteration or improvement without the City's prior approval as required by Section 6 (Pole Licenses), Section 7 (Equipment Installation), or Section 7.3.1 (Alterations to, City's Property) of this Master License-, (2) Licensee fails to cure damage required by Section 9 (Licensee 51 s Maintenance Obligations) on a timely basis; (3) Licensee fails to notify the City, through its project Imalnager, before accessing the License Area or foillowin�g the plan approval procedures as set forth in Section 7 (Equipment Installation); or (4) Licensee fails to provide evidence of the required insurance coverage described Kiln Section 19 (insurance) on a timely basis. 117.3. Licensee's Remedies Licensee's sole remedy for the City 51 s breach or threatened breach of this Master License or any Pole License issued under it will be an action for damages, subject to Section 20 (Limitations on City's Liability). 117.4. Cumulative Rights and Remedies All rights and Iremedies under this Master License are cumulative, except as otherwise provided. 18. 11.110ENSEE'S INDEMNIFICATION OBLIGATIONS To the maximum extent permitted by applicable Laws, Licensee, for itself and its successors and assigns, shall indemnify, defend,, protect and hold the City, its Agents, Invitees and their respective heirs, legal representatives, successors and assigns (the "Indemnified Parties"'), harmless from and against any and all liabilities, losses, costs, claims, judgments, settlements, damages,; liens, fines, penalties and expenses,, whether direct or indirect, incurred in connection with or arising in whole or in part from: (1) death or personal injury to any person or property damage or other loss that occurred on or Master License for Wireless Facilities on City Poles in the Right-of-Way 38 2020-01-28 Agenda Packet, Page 90 of 288 about the License Area or arises in connection with Licensee's or its Agents' or Invitees' authorized or unauthorized uses on or about the License Area; (2) any failure or refusal by Licensee to observe or perform any term, covenant or condition in this Master License to, be observed or performed on Licensee's part; (3) Licensee's or its Agents' or Invitees" uses or occupancy, or manner of use or occupancy, of the License Area; (4)any exposure to, RF emissions or EMF s from Licensee 51 s Equipment or uses on or about the License Area; (5) the License, Area condition or any occurrence on or about the License Area attributable to the events, described 'in clauses (1), (2), (3) or (4) in this Section 18,; or (6) any act, omission or negligence of Licensee, its Agents or Invitees in, on or about the License Area; except to the extent that such Claim(s) arise from the Indemnified Parties' willful misconduct or sole active negligence. Licensee's obligations, under this Section 18 includes, without limitation, reasonable fees, costs and expenses for attorneys, consultants and experts, and the City's costs to investigate any Claim. Licensee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the Indemnified Parties from any Claim that actually or potentially falls within this Section 18, even when the allegations in such Claim are groundless, fraudulent or false, and which obligation arises at the time the Indemnified Parties tender such Claim to Licensee and continues at all times until such Claim's final resolution. Licensee's obligations under this Section 18 will survive the expiration or termination of this Master License. Included in Licensee's ob,ligations under this Section 18 is Licensee's obligation to immediately pick up tender and defend, at Licensee's own cost, expense and risk, any and all suits,, actions or other legal proceedings that may be brought or instituted against one or more of the Indemnified Parties,. Subject to the limitations in this Section 18, Licensee shall pay and satisfy any judgment,, award or decree that may be rendered against one or more of the Indemnified Parties for any and all related legal expenses and costs incurred by any of them. 119. INSURANCE As a condition to issuance of any Pole License, Licensee must provide proof of compliance with the insurance requ1irements in this Section except to the extent the City's Risk Manager agrees otherwise. 19.1.1. Required Coverages Licensee shall procure and keep in effect at all times during the, Term, at Licensee)S cost insurance in the following amounts and coverages: (1) Commercial General Liability insurance (including premises operations; explosion, collapse and underground hazard; prod ucts/completed operations; contractual liablility; independent contractors; personal and advertising injury) with limits of at least $2 million per occurrence for bodily injury and property damage and $4 million general aggregate; (2) Worker's Compensation Insurance per California statutory limits witEmployer's Liability Limits of$1 million each accident/d isease/pol icy limit; (3)Commercial Automobile Liability Insurance in the amount of $2 million combined single limit each accident for bodily injury and property damage covering all owned and non-owned and hired vehicles. Master License for Wireless Facilities on City Poles in the Right-of-Way 39 2020-01-28 Agenda Packet, Page 91 of 288 19.1.2. Additional Requirements Commercial General Liability Insurance and Commercial Automotive Liability Insurance policies shall: (1) include the City, its officers, agents, employees and volunteers as additional insureds as their interests may appear under this Master License; (2) be primary insurance to any other coverage available to the additional insureds with respect to, any Claims that arise in connection with this Master License,; (3) apply separately to each insured against whom a Claim is made or brought, except with respect to the limits; (4) provide for the severability of interests and that an act or omission of one of the named insureds that would void or otherwise reduce coverage shall not void or otherwise reduce coverage as to any other named insured; and (5) afford coverage for all Claims based on acts, omissions, injury or damage that occurred or arose or the onset occurred or arose) in whole or in part duringi the policy period. Additional Insured Endorsement shall not exclude products/completed operations. 19.1-3. Cancellation Notices Upon receipt of notice from its insurer(s), Licensee shall provide the City with thirty (30) days' prior written notice of cancellation by the insurer for any reason of any required coverage., 19.1.4. Intentionally Omitted 19.1.5 General Aggregate Limit The general aggregate limit for any required insurance under this Master License must be double the per-occurrence or Claims limits specified in Section 119.1 when coverage includes a general annual aggregate limit or provides, that Claims investigation or legal defense costs will be included in such general annual aggregate limit. 19.1.6. Certificates On the Effective Date, Licensee shall deliver to the City all insurance certificates and additional insured endorsements from Licensee's insurance providers in a form reasonably satisfactory to the City that evidences all the irequired coverages under this Master License,. In addition, Licensee shall promptly deliver to the City all certificates and endorsements required herein after Licensee receives a request from the City. Upon written request, Licensee shall make coplie,s of complete policies available for review by City staff in the presence of a representative of Licensee at a local office of Licensee located within fifty (50) miles of the City of Chula Vista City Hall. After review is complete, copies shall not be made available to City and policies will be returned to Licensee's corporate office in New Jersey. 19.1.7. Insurer Qualifications Licensee's insurance providers must be licensed to do business in California and must meet or exceed an A.M. Best I s Key Rating A-VII or its equivalent. Master License for Wireless Facilities on City Poles in the Right-of-Way 40, 2020-01-28 Agenda Packet, Page 92 of 288 19.1.8. Effective Dates The City shall not authorize Licensee to install any Equipment on any Pole until and unless all insurance coverages required to be carried by Licensee under this Master License have been obtained. Licensee shall ensure that all insurance coverages required to, be carried by Licensee under this Master License remain in effect at all time until all Equipment has been removed from the, License Area. The requirements, in this Section 19.1.8 (Effective Dates) shall survive the expiration or termination of this Master License. Master License for Wireless Facilities on City Poles in the Right-of-Way 41 2020-01-28 Agenda Packet, Page 93 of 288 19.1.9. No Limitation on Indemnification Obligations Licensee's insurance obligations under this Section 191 in no way relieves or decreases, Licensee's liability under Section 18 (Licensee's Indemnification Obligations) or any other provision in this Master License. 19.1.10. Right to Terminate The City may elect, in its sole and absolute discretion, to terminate this Master License on written notice to Licensee if Licensee allows any required insurance coverage to lapse and does not reinstate the lapsed insurance coverage within three days after Licensee receives such written notice. 20. 201.11. City's Insurance Licensee acknowledges that the City self-insures against casualty, property damage and public liability risks. The City agrees to maintain an adequate program of self- insurance for public l�iabil�ity risks during the Term and will not be required to carry any third party insurance with respect to the License Area or otherwise. 20.2. Su�brogation Waiver The City and Licensee each hereby waives, any right of recovery against the other party for any loss or damage sustained by such other party with respect to the License Area or any portion thereof or the contents ofthe same or any operation therein, whether or not such loss is caused by the fault or negligence of such other party, to the extent such loss or damage is covered by insurance obtained by the waiving party under this Master License or is, actually covered by insurance obtained by the wa vingi party. Each waiving party agrees to cause its insurers to issue appropriate waiver of subrogation rights endorsements to all policies relating to the License Area, but the failure to obtain any such endorsement will not affect the waivers in this Section. 201-3. Contractors' Bonds and Insurance Licensee shall require its contractors that install, maintain,, repair, replace or otherwise perform any work on or about the License Area: (1) to provide bonds to guarantee the performance of the work and the payment of subcontractors and suppliers for any installation of Equipment, and (2) to have and maintain insurance of the same coverage and amounts as required of Licensee. 21. LIMITATIONS ON THE CITY'S LIABILITY 21.1. General Limitations on the City's Liability The City is not �respionsible or liable to Licensee for, and Licensee hereby waives all Master License for Wireless Facilities on City Poles in the Right-of-Way 42 2020-01-28 Agenda Packet, Page 94 of 288 Claims against the City and its Agents and releases the City and its Agents from, all Claims from any cause (except to the extent caused by the sole active negligence or willful misconduct of the City or its Agents), including acts or omissions of persons using the sidewalk or street adjoining or adjacent to or connected with the License Area; utility interruption; theft; burst, stopped or leaking water, gas, sewer or steam pipes; or gas, fire, oil, or electricity in, flood, or vehicle collision on or about the License Area or other City Property. 21.2. Consequential Damages Licensee expressly acknowledges and agrees that the License Fees and Additional Fees payable under this Master License do not take into account any potential liability of the City for consequential or incidental damages. The City would not be willing to enter into this Master License or issue any Pole Licenses in the absence of a complete waiver of liability, to the fullest extent permitted by Law, for consequential or incidental damages due to the acts or omissions of the City or its Agents, and Licensee expressly assumes the risk with respect thereto. Accordingly, without limiting any Indemnification obligations of Licensee or other waivers contained in this Master License and as a material part of the consideration for this Master License, Licensee fully releases, waives and discharges forever any and all Claims against the City for consequential and incidental damages arising out of this Master License or any Pole License, including lost profits arising from the disruption to Equipment, any interference with uses conducted by Licensee under this Master License and Pole Licenses, regardless of the cause, and whether or snot due to, the active or passive negligence or willful misconduct of the City or its Agents,, and covenants not to sue for such damages the City, and the City's other departments, and all City agencies, officers,, directors and employees, and all persons acting by, through or under each of them. Without i�mitingi any Indemnification obligations, of Licensee or other waivers contained iin this Master License, iin no event shall Licensee be liable to the City for any special, consequential or indirect damages. 21.3. No Relocation Assistance This Master License creates no right in Licensee to receive any relocation assistance or payment for any reason under the California Relocation Assistance Law (Cal. Gov. Code §§ 7260 et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act(4,2 U.S.C. §§4601 et seq.)or similar Law upon any termination of occupancy except as provided In Section 15 (Condemnation). To the extent that any relocation law may apply, Licensee waives, releases and relinquishes forever any and all Claims that it may have against the City for any compensation from the City except as specifically provided in this Master License upon termination of its occupancy of all or any part of the License Area. 21.4. Non-Uabillity for city Officials, Employees and Agents �No elective or appointive, board,, agency, member, officer, employee or other Agent of the City will be personally liable to Licensee, its successors and assigns, in the event of any default or breach by the City or for any amount which may become due, to Licensee, Master License for Wireless Facilities on City Poles in the Right-of-Way 43 2020-01-28 Agenda Packet, Page 95 of 288 its successors and assigns, or for any obligation of the City under this Master License. 21.5. Licensee's Waiver Licensee acknowledges the City's rights under this Section and waives any Claims arising from the exercise of their rights. In connection with the preceding sentence and releases and waivers under, including but not limited to, Section 13.1 (Compliance with Current and Future Laws), Section 15.1.3 (No Statutory Right to Terminate), Section 19.3 (Subrogation Waiver), Section 20.1 (General Limitations on City's Liability), Section 20.2 (Consequential Damages), Section 20.3 (No Relocation Assistance), Section 23.3 (Application) and any other waiver by Licensee under this Master License, Licensee acknowledges,that it is familiar with section 1542 of the California Civil Code, which reads: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT' KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE 'TIME, OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE, DEBTOR. Licensee realizes and acknowledges that the waivers and releases contained in this Master License include all known and unknown, disclosed and undisclosed, and anticipated and unanticipated Claims. Licensee affirms that it has agreed to enter into this, Master License in light of this realization and, being fully aware of this situation it nevertheless intends to waive the benefit of California Civil Code section 1542 and any similar Law. The releases and waivers contained in this Master License will survive its expiration or earlier termination,. 22. RECORDS 22.1. Accounting Records Licensee shall maintain throughout the Term and for at least three years after this Master Agreement expires or terminates the follow'�i�ngi records in physical format or electronic format: (1) site identification and location for all Poles under active Polle Licenses; (2) the amount and payment date for all License Fees paid to the City pursuant to this Master License; and (3) all Regulatory Approvals issued in connection with the Equipment on Poles. The City,, or its desiginee, will have the aright to inspect and audit Licensee's records at Licensee's place of business during iregular business hours on 10 days' notice to Licensee. 22.2. Estoppel Cert"Ificates Licensee,,, at any time and from time-to-time on snot less than 30 days' notice from the City, shall execute, acknowledge and deliver to the City or its designee, a certificate of Licensee stating: (a) that Licensee has accepted the License Area or, if Licensee has not done so, that Licensee has not accepted all or any part of the License Area and specifying the applicable portions of the License Area and reasons for anon-acceptance); (b) the Commencement Dates of any Pole Licenses then in effect, (c) the Effective Date Master License for Wireless Facilities on City Poles in the Right-of-Way 44 2020-01-28 Agenda Packet Page 96 of 288 and Expiration Date,of this Master License; (d)that this Master License and Pole Licenses are unmodified and in full force and effect or, if modified, the manner in which they are modified; (e) whether any defenses then exist against the enforcement of any of Licensee's obligations under this Master License (and if so, specifying the same); (f) whether any of the City's obligations under this Master License are outstanding (and if so, identifying any City obligations that Licensee believes that the City has failed to, meet); (g) the dates, if any, to which the License Fees and Additional Fees have been paid; and (h) any other information that may be reasonabily required by any such persons. 23. RU�LES AND REGULATIONS At all times throughout the Term, Licensee, shall faithfully comply with any and all reasonable rules, regulations and instructions that the City may from time-to-time establish and/or amend with respect to the License Area. 24. SECURITY DEPOSIT 24.11. Amount At the time Licensee tenders to the City the first Acknowledgement Letter, Licensee must also tender to the City for deposit a sum equal to Four Thousand and 00/100 DoIllars ($4,000.00) (the "Securifty Depos'[V) to secure Licensee's faitful performance of all terms, covenants and conditions, in this Master License and any Pole License. 214.2. Further Deposits In the event that the City applies or uses the Security Deposit in whole or in part to cure any default by Licensee under this Master License or any Pole License, Licensee shall replenish the Security Deposit in the amount and on the date specified in a written notice to, Licensee. The City may,, in the City's reasonable judgment, require Licensee to increase the Security Deposit amount from time-to-time when the City determines that Licensee's past acts or omissions in connection with the License Area warrants additional secu rity. 24.3. Application Licensee agrees that the City may use the Security Deposit in whole or in part to remedy any damage to the License Area caused by Licensee, its Agents or Invitees or any failure by Licensee to perform any term, covenant or condition in this Master License or any Pole License (including without limitation any failure to pay any License Fee or other sums due under this Master License or any Pole License either before or after any default). In the event that the City uses the Security Deposit in whole or in part, the City will not be deemed to have, waived any rights under this Master License, or legal or equitable rights whatsoever. Licensee expressly waives any rights it may have under California Civil Code section 1950.7 or any similar Law and agrees that the City may retain from the Security Deposit any portion reasonably necessary to compensate the City for any foreseeable or unforeseeable loss or damage caused by Licensee's,, its Agents' or Invitee's acts or Master License for Wireless Facilities on City Poles in the Right-of-Way 45 2020-01-28 Agenda Packet, Page 97 of 288 omissions. The City's obligations with respect to the Security Deposit shall be in the nature of a debtor, and the City shall not be deemed to hold the Security Deposit in trust for any reason. The City may (but shall not be obligated to keep the Security Deposit separate from general funds. Licen�see shall not be, entitled to any interest on the Security Deposit. 25. SURRENDER OF L,ICEN�SE AREA 25.11. Surrender No later than 90, days after the Expiration Date or other termination of this Master License or any Pole License, Licensee all peaceably remove its Equipment from the applicable portion of the License Area and surrender it to the City in good order and condition, normal wear and tear excepted, free of debris and hazards, and free and clear of all liens, and encumbrances. Immediately before the Expiration Date or other termination of this Master License, Licensee shall remove all of Licensee's Equipment and repair any damage resulting from the removal. Licensee's obligations under this Section 24.1 will survive the Expiration Date or other termination of this Master License. 25.2. Abandonment At its option, the City may deem any items of Licensee's, Equipment that remain on a City Pole or otherwise on the License Area or other City Property moire than 90 days after the Expiration Date of this Master License to be abandoned and in such case the City may dispose of the abandoned Equipment in any lawful manner after expiration of a 90-day period initiated by the City's notice to Licensee to remove the Equipment. Licensee agrees that California Civil Code sections 1980 et seq. and similar provisions of the Civil Code addressingi abandoned property by residential or commercial tenants do not apply to any abandoned Equipment. 25.3. Holding Over Any holding over after the Expiration Date with the express consent of the City will be construed to automatically extend the Term of this Master License for a pen I old of one License Year at a License Fee equal to 150% of the License Fee in effect immediately before the Expiration Date, and the Master License otherwise will be on its express terms and conditions. Any holding over without the City's consent will be a default by Licensee and entitle the City to exercise any or all of its remedies, even if the City elects to accept one or more payments of License Fees, Additional Fees or other amounts payable to the City from Licensee after the Expiration Date. 26. HAZARDOUS MATERIALS 26.1. Hazardous Materials '�in License Area Licensee covenants and agrees that neither Licensee nor any of its Agents or Invitees shall cause or permit any Hazardous Material to be brought upon, kept, used, stored, Master License for Wireless Facilities on City Poles in the Right-of-Way 46 2020-01-28 Agenda Packet, Page 98 of 288 generated, disposed of or Released in, on, under or about the License Area or any other part of city Property, or transported to or from any City Property in violation of Environmental Laws, except that Licensee may use somal quantities of Hazardous Materials as needed for routine operation, cleaning and maintenance of icensee'a Equipment that are customarily used for routine operation, cleaning and maintenance of such equipment and so long as all such Hazardous Materials are contained, handled and used in compliance with Environmental Laws. Licensee shall immediately notify the city if and when Licensee learns or has reason to believe any Release of Hazardous Materia has occurred in, on, under or about the License Area or other city Property. 6 Licensee's Environmental Indemnity If Licensee breaches any of its obiligations contained in this Section, or if any act, omission, or negligence of Licensee or any of its Agents or Invitees results in any contamination of the License Area or other city Property, or in a Release of Hazardous Material from, on, about, in or beneath any part of the License Area or other City Property, or the violation of any Environmental Law, then Licensee, on behalf of itself and its successors and assigns, shall indemnify, defend and hod harmless the city, including its Agents, and their respective successors and assigns from ,and against any and all Claims (in�cludin�g damages for decrease in value of the License Area or other City Property, the loss or restriction of the use of usable space in the License Area or other City Property and sums pard in settlement of claims, attorneys' fees, consultants' fees, and experts' fees and related costs) arming during or after the 'Term of this Master License relating to such Release or violation of Environmental Laws; provided, however, Licensee shall not be liable for any claims to the extent such release was caused by the sole active negligence or willful misconduct of the city or its Agents. Licensee's Indemnification obligation include costs incurred in connection with any activities required to Investigate and Remediate any Hazardous Material brought onto the License Area or other city Property by Licensee or any of its Agents or Invitees and to restore the License Area or other city Property to its condition prior to Licensee's introduction of such Hazardous Material or to correct any violation of Environmental Laws. Licensee specifically acknowledges and agrees that it has an immediate and independent obligation to defend the city and the other Indemnified Parties from any Claim that ,actually or potentially falls within this Indemnity provision even if the allegations supporting the claim ,are or may be groundless, fraudulent, or false, which obligation arises at the time such Claim is tendered to Licensee by the Indemnified Party and continues until the claim is finally resolved. Without limiting the foregoing, if Licensee or any of its Agents or Invitees causes the Release of any Hazardous Material on, about,, in, or beneath the License Area or other City Property, then in any such event Licensee shall, immediately, at no expense to any Indemnified Party, tape any and ,all necessary actions to return the License Area or other City Property, as applicable,, to the condition existing prior to the Release of any such Hazardous Materials on the License Area or other city Property or otherwise abate the Release in accordance with all Environmental Laws, except to the extent such Release was cawed by the sole active negligence or willful imisconduct of the city or its Agents. Licensee shall afford the city a full opportunity to participate in any discussions with Regulatory Agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise or proceeding involving Hazardous Material. Master License for wireless Facilities on city Poles in the Right-of-Way 47 2020-01-28 Agenda Packet, gage 99 of 28 27. TERMINATION 27.1. Termination for Failure to Obtain Regulatory Approvals In the event that Licensee cannot obtain all Regulatory Approvals required for any Pole License after six months from the subject Pole License effective date, then either the City or Licensee may terminate that Pole License, on 60 days'' notice to the other party delivered within 10 days after said six-month period elapses. The parties agree that the Commencement Date will be deemed to have not occurred for any Pole License terminated under this section, and Licensee will have no obligation to pay the applicable License Fee for that Pole License. 27.2. Licensee's Termination Rights 27.2.1. Master License Termination Rights Licensee may, in Licensee's sole discretion, elect not to extend this Master License at the end of the initial ten (1�0) year term or any subsequent extension terms with at least one (1) year's written notice to the City at any time after the effective Date. Licensee may not terminate this Master License during the initial ten (10) year term except as expressly provided in this Master License. 27.2.2. Pole License Termination Rights Licensee may, in Licensee's sole discretion, terminate any Pole License on 90 days' written notice to the City at any time after 12 months from the subject Pole License Commencement Date so long as Licensee is not in default with respect to the subject Pole License. 27.2.3. Termination Rights after Pole Replacement In the event that the City exercises its absolute right to replace any Pole, the City shall make a reasonable effort to provide Licensee with at least 60 days' notice,. The City's failure to provide at least 60 days' notice prior to any Pole replacement shall not affect the City's rights under this Master License. Within 90 days after Licensee receives notice from the City,, Licensee may elect to either(1) install Licensee)I s Equipment on the replacement Pole at Licensee's sole cost and expense or (2) terminate the applicable Pole License as to the replacement Pole. 27.3. City's Absolute Right to Terminate Pole Licenses The City has the absolute right to terminate any or all Pole Licenses on 30 days' written notice to Licensee when the City determines,; in the City's sole discretion, that Licensee's continued use of the, License Area adversely affects or threatens public health and safety, constitutes a nuisance, interferes with the City's municipal functions or requires the City to maintain a Pole no longer necessary for the city's purposes. Master License for Wireless Facilities on City Poles in the Right-of-Way 48 2020-01-28 Agenda Packet, Page 100 of 288 27.4. Licensee's Rights after Termination In the event that the City terminates any Pole License or requires Licensee to relocate tis Equipment for reasons, unrelated to Licensee's failure to perform its obligations under this Master License, the City shall refund any pre-paid Licensee Fee on a pro-rata basis. In addition, the City shall prioritize Licensee's Pole License Application for any Pole License to, replace the terminated Pole License; provided, however, that (1)the City shall prioritize only as many Pole License Applications as Pole Licenses terminated by the City and (2) the City's prioritization will not affect Licensee's obligations under this Master License. 28. INTERFERENCE 28.1. Licensee's Obligation Not to Cause Interference Licensee will not operate or maintain its Equipment in a manner that interferes with or impairs other communication (radio, telephone and other transmission or reception) or computer equipment lawfully used by any person, including the City or any of its Agents. Such interference will be an event of default under this Master License by Licensee, and upon notice from the City, Licensee shall be responsible for eliminating such interference promptly and at no cost to the City. Licensee will be required to use its best efforts to remedy and cure such interference with or impairment of City operations,. If Licensee does not cure the default promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the City will have the right to bring an action against Licensee to enjoin such interference or to terminate all Pole Licenses where the Equipment is causing interference or impairment, at the City's election. 28.2. Impairment Caused by Change in City Use If any change in the nature of the City's use of the License Area during the Term results in measurable material adverse impairment to Licensee's normal operation of its Equipment making iit necessary to alter the Equipment to mitigate the adverse effect, Licensee shall notify the City and provide evidence of the claimed impairment. Upon receipt of such notice, the City will have the right to make its own reasonable determination and, if it agrees with Licensee, investigate whether it can Treasonably and economically mitigate that interference. The City will provide notice to Licensee of the City's determination. If the City determines in its sole discretion that mitigation is feasible, and can be achieved for a reasonable cost in the City's reasonable judgment, the City's notice will specify when the City will mitigate the adverse effect. The City's mitigation will effect a cure, and the City will not be liable to Licensee in any other way or be required to take any other measures with respect to the Equipment. If the City determines in its sole discretion that mitigation is not feasible or cannot be achieved for a reasonable cost in the City's reasonable judgment, Licensee may elect either to: (1) terminate the Pole License as to the, affected City Pole and receive a ratable, reduction in the License Fee; or(2)take steps itself at its own cost to mitigate the adverse effect and continue, to operate the Equipment on the City Pole, and receive from the City Master License for Wireless Facilities on City Poles in the Right-of-Way 49 2020-01-28 Agenda Packet, Page 101 of 288 waiver of the License Fee, for the, first six months of the following License Year under the affected Pole License to offset the cost of mitigation. Licensee agrees that the City's temporary and partial abatement or waiver of the, License Fee under this Section 27.2 will bete only compensation due to Licensee for costs, incurred or otherwise arising from the adverse effect as liquidated damages fully compensating Licensee for all Claims that may arise or be related to the adverse effects. Under no circumstances may the City be, required to alter its operations at the, identified City Pole or provide a replacement City Pole to Licensee. 28.3. Impa'irment Caused by C'Ity Access Licensee agrees that it will not be entitled to any abatement of License Fees if the City exercises its, rights of access under Section 8.1 (City Access, to License Area) unless the City's activities cause Licensee to be unable, to operate Equipment on the License Area for its permitted use for a period of more than 10 days, in which case, subject to proof, License Fees will be abated ratably for the entire period that Licensee is unable to operate any Equipment on any affected City Pole. 29. MISCELLANEOUS PROVISIONS 29.1. Notices Except as may be specifically provided otherwise in this Master License, all notices, demands, or other correspondence required to be given under this Master License must written and delivered through (1) an established national courier service that maintains delivery records and confirmations; (2) hand delivery; or (3) certified or registered U.S. Mail with prepaid postage and return receipt requested, and addressed as follows: TO CITY: Department of Economic Development Attn: RIck Rya 276 Fourth Avenue Chula Vista,, CA 919110 Telephone: (61 9) 6911-5118 Email: rryals@c�hulavistaca.gov with a copy to: City Attorney 276 Fourth Avenue Chula Vista, CA 91910 Telephone: (61 91) 6911-5037 Facsimile-. (61 9) 4091-5823 Email: cityattorney@ci.chula-vista-ca-us TO LICENSEE: Verizon Wireless (VAW) LLC, d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Master License for Wireless Facilities on City Poles in the Right-of-Way 50, 2020-01-28 Agenda Packet, Page 102 of 288 Attn-. Network Real Estate, With a copy to: Verizon Wireless (VAw Lc, d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 017921 Attn.-I Legal Department All notices under this, Master License will be deemed to have been delivered: (i) five days after deposit if delivered by first class mail; ('11) two days after deposit if delivered by certified mail; (iii) the, date delivery is made, by personal delivery or overnight delivery; or (iv) the date an attempt to make delivery falls because a party has failed to provide notice of a change of address or refuses to accept delivery. Telephone,, facsimile and email information are provided for convenience and for couriers who may require such information, and any notice given solely through electronic means will not be deemed to be effective notice. Any copies required to be given constitute an administrative step and not actual notice. The parties may change the notice addresses above from time-to- time through written notice to the addresses above or the then-current notice address. 29.2. Waiver; No lm�plied Waivers No failure by either party to insist upon the strict performance of any obligation of the other under this Master License or to exercise any right, power or remedy arising out of a breach thereof, irrespective of the length of time for which such failure continues, will constitute a waiver of such breach. No acceptance by the City or any of its Agents of full or partial payment of License Flees, or Additional Fees during the continuance of any such breach will constitute a waiver of such breach or of the City's right to demand strict compliance with such term, covenant or condition, or operate as a waiver of any requirement of this Master License. No express waiver by either party of any default or the performance of any provision hereof will affect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. One or more waivers, of a default or the performance of any provision hereof by either party will snot be deemed to be a waiver of a subsequent default or performance. The City's consent given in any instance under the terms of this Master License will not relieve Licensee of any obligation to secure the City's consent in any other or future instance under the terms of this Master License. 29.3. Amendments No part of this Master License (including all Pole Licenses) may be changed, waived, discharged or terminated orally,; nor may any breach thereof be waived, altered or modified, except by a written instrument signed by both parties. 29.4. Interpretation The following rules of interpretation apply to this Master License. 29.4.1. General Master License for Wireless Facilities on City Poles in the Right-of-Way 51 2020-01-28 Agenda Packet, Page 103 of 288 Whenever required by the context, the singu�lar includes the plural and vice versa; the masculine gender includes the feminine or neuter genders and vice versa; and defined terms encompass all correlating forms of the terms (e.g.,, the definition of "indemnify" applies to "indemnity,"' "Indemnification," etc.). 29.4.2. Mau lti-1party License In the event that the City provides, consent, which the City may withhold for any or no reason, to enter into this Master License, with more than one Licensee, the obligations and liabilities under this Master License 'imposed on Licensee will be joint and several among them. 29.4.3. CapUons The captions preceding the sections of this Master License and in the table of contents have been inserted for convenience of reference and such captions in no way define or limit the scope or intent of any provision of this Master License. 2 .4.4. C1101ty Actions All approvals, consents or other determinations permitted or required by the City under this Master License will be made by or through the Public Works Director/City Engineer or his or her designee, unless otherwise provided in this Master License or by the City Charter, Municipal Code or any City ordinance. 29.4.5. Words of Inclusion I The use of the term "Including,YJ ti such as,)' or words of similar import when following any general or specific term, statement or matter may not be construed to limit the term, statement or matter to the stated terms, statements or matters,,, whether or not language of non-limitation, such as "including, but not limited to," and "including without limitation" are used. Rather, the stated term, statement or matter will be interpreted to refer to all other items or matters that could reasonably fall within the broadest scope of the term, statement or matter. 2 4.6. Laws References to all "Laws," including specific statutes, relating to the rights and obligations of either party mean the Laws in effect on the Effective Date and as they are amended, replaced, supplemented, clarified; corrected or superseded at any time while any obligations under this Master License or any Pole License, are, outstanding, whether or not foreseen or contemplated by the parties. 29-5. Successors and Assigns The terms, covenants and conditions contained in this Master License bind and inure to Master License for Wireless Facilities on City Poles in the Right-of-Way 52 2020-01-28 Agenda Packet, Page 104 of 288 the benefit of the, City and Licensee and, except as otherwise, provided herein, their successors and assigns. 29.6. Brokers �Neither party has had any contact or dealings regarding the license of the License Area, or any communication in connection therewith, through any licensed real estate broker or other person who could claim a right to a commission or finder's fee in connection with the license contemplated herein ("Broker"'), whose commission, if any is due, is to be paid pursuant to a separate written agreement between such Broker and the, party through which such Broker contracted. In the event that any Broker perfects a claim for a comm�ission or finder's fee based upon any such contact, dealings or communication, Licensee shall indemnify the City from all Claims brought by the Broker. This Section will survive expiration or earlier termination of this Master License. 29.7. Severability If any provision of this Master License or the application thereof to, any person, entity or circumstance is invalid or unenforceable, the remainder of this Master License, or the application of such provision to persons, entities or circumstances other than those as to which it is invalid or unenforceable, will not be affected thereby, and each provision of this Master License will be valid and be enforced to the full extent permitted by Law, except to, the extent that enforcement of this Master License without the invalidated provision would be unreasonable or Inequitable under all the circumstances or would frustrate a fundamental purpose of this Master License. 29.8. Governing Law; Venue This Master License must be construed and enforced in accordance with the laws of the State of California and the City Charter, without regard to the principles of conflicts of law. This Master License its made,, entered and will be performed in the City of Chula Vista, County of San Diego, State of California. Any action concerning this Master License must be brought and heard in Superior Court for the County of San Diego or in the United States District Court for the Southern District of California. 29.9. Time for Performance Provisions in this Master License relating to number of days mean calendar days, unless otherwise specified. "Business day"' means a day other than a Saturday, Sunday or a bank or City holiday. If the last day of any period to give notice, reply to a notice, or to undertake any other action occurs on a day that is not a business day, then the last day for undertaking the action or giving or ireplying to the notice will be the next succeeding business day. Time is of the, essence with respect to all provisions of this Master License in which a definite time for performance is specified. 29.10. Survival Master License for Wireless Facilities on City Poles in the Right-of-Way 53 2020-01-28 Agenda Packet, Page 105 of 288 Expiratiolni or earlier termination of this Master License will not affect the right of either party to enforce any and all Indemnities and representations and warranties given or made to the other party under this Master License,, or any provision of this Master License that expressly survives termination. 29.11. Recording Licensee agrees not to record tis Master License, any Pole License or any memorandum or short form of any of them in the Official Records of the County of San Diego. 29.112. Counterparts This Master License may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will be one and the same instrument. 29.13. A�p�provall Authority Each person signing this Master License and any Pole License on behalf of Licensee warrants and represents that: (i) he or she has the full right, power and capacity to act on behalf of Licensee and has the authority to bind Licensee to the performance of its obligations under those agreements without the subsequent approval or consent of any other person or entity- (ii) Licensee is a duly authorized and existing entity; (iii) Licensee is qualified to do business in California; and (iv) Licensee has full right and authority to, enter into this Master License and Dolle Licenses. Upon the City's request, Licensee shall provide the City with evidence reasonably satisfactory to the City confirming the representations, and warranties above. [END OF MASTER LICENSE — SIGNATURES APPEAR ON NEXT PAGE] Master License for Wireless Facilities on City Poles in the Right-of-Way 54 2020-01-28 Agenda Packet, Page 106 of 288 The City and Licensee executed this Master License as of the date last written below: THE CITY: LICENSEE: City of Chula Vista, Verizon Wireless (VAW) LLC, a California municipal corporation d/b/a Verizon Wireless By: By: Mary Cas las Salas Its: Mayor Its: Date: Date: APPROVED AS TO FORM: By: Glen R. Googiins City Attorney Date-. APPROVED BY CITY COUNCIL RESOLUTION No., 2017- 217 ATTEST: B y: Kerry K. Bigelow City Clerk Date: [END OF S1GNATURE — EXHIBITS AND SCHEDULES APPEAR ON NEXT PAGE] Master License for Wireless Facilities on City Poles in the Right-of-Way 55 2020-01-28 Agenda Packet Page 107 of 288 EXHIBIT A FORM OF POLE, LICENSE AGREEMENT MLA NO. [INSERT] POLE LICENSE NO. [INSERT NUMBER IN CONSECUTIVE ORDER] Pursuant to that certain Master License between the City of Chula Vista, a California chartered municipal corporation (the "City"') and C"Licensee"'}, Licensee submits to the City two partially executed counterparts of this Pole License, together with all the materials listed below, as its Pole License Application in accordance with Section 6 under the Master License: 1., Exhibit A-ly which designates all Pole Locations that Licensee seeks to be included in the License Area under this Pole License; 2. Exhibit A-2, which includes complete, detailed and final plans and specifications for all Licensee's Equipment to be installed in the License Area, subject to Regulatory Approvals-, 3., an Pole License Processing Fee equal to [$1,000 multiplied by the number of polle locations]-, 4. an RF Compliance Report, if snot previously provided; Licensee acknowledges that: (1) this Pole License will not be effective until the City returns a fully executed copy to, Licensee; (2)the City may require Licensee to supplement the Administrative Fee on conditions specified in Section 4.2 under the Master License, (3) Licensee will not have the irigiht to access or install Equipment on the License Area until after Licensee has: (a) submitted a complete Acknowledgment Letter to the City with all information and funds required,1 which includes the applicable License Fee specified in Schedule A-4; (b,) submitted insurance information to the City as specified in Exhibit A-3; and (c) the City has provided notice to proceed by returning to Licensee a countersigned copy of the Acknowledgment Letter. This Pole License is, executed and effective on the last date written below and, upon full execution will be the City's authorization for the City to begin its review of the Pole Locations and plans and specifications proposed in this Pole License application. [Signatures begin on next page] 2020-01-28 Agenda Packet Page 108 of 288 THE CITY: LICENSEE: City of Chula Vista, a California municipal corporation By: : Its: Its: Cate: Cate: 2020-01-28 Agenda Packet, Page 109 of 28 EXHIBIT A-1 POLE LOCATIONS / LICENSE AREA IVILA No. / Pole License No. [Licensee to list all proposed Pole Locations requuested in this Pole License Application] 2020-01-28 Agenda Packet Page 1 10 of 288 EXHIBIT A-2 LICENSEE'S PLANS AND SPECIFICATIONS MLA No. / Pole License No. [Licensee to attach all plans and specifications for all Equipment proposed to be installed at all proposed ole Locations,] 2020-01-28 Agenda Packet Page 1 I I of 288 EXHIBIT A-3 FORM OF ACKNOWLEDGEMENT LETTER [Licensee to complete and submit with Pole License Application or upon obtaining all Regulatory Approvals] [insert date] [insert addressee information] RE: MLA No. Pole License No. Dear City Manager: This letter will confirm the following-. (1) that Licensee has obtained all the Regulatory Approvals required for the Permitted Use under this Pole License, and (2) the Commencement Date of this Pole License is [insert date], which is the first day of the month after Licensee obtained all Regulatory Approvals. This letter also confirms that Licensee has submitted all required insurance and bond information to the City. A check for the full Security Deposit if not already provided) and the License Fee for the first License Year of this Pole License is enclosed herewith. Please acknowledge the city's receipt of this letter and the items listed below,,, and issue the City's approval for Licensee to begin installation of Equipment on the License Area by si �ni�ni and returning a copy of this letter. Sincerely, [insert name] [insert title [Intentionally deleted] [Acknowledgement signature on next page] 2020-01-28 Agenda Packet Page 1 2 of 288 Acknowledgment By signing below, the City acknowled�ges receipt of this letter and the enclosures listed below. Based upon receipt of the same, the City issues a notice to Licensee to proceed with installation of the, approved Equipment in strict accordance with the Pole License and the Master License as of the date below. City of Chula Vista, a California municipal corporation By: Its: Date. Enc. Executed Pole License Approved WTF Permit All other Regulatory Approvals Insurance certificates Contractor's, bonds First License Year's License Fee 2020-01-28 Agenda Packet, Page 1 3 of 288 SCHEDULE A-4 ANNUAL, LICENSE FEE AND DEFAULT FEE SCHEDULE Pole License No Per Pole Fee Year 1 270.00 2 $278.10 3 $286.44 4 $295.04 5 $303-89 6 $313.00 7 $322-39 $332.07 $342.03 10 $352.29 DEFAULT FEE SCHEDULE VIOLATION INITIAL NOTICE EACH FOLLOW-UP NOTICE unauthorized installations $500 $500 failure to make required $300 $350 repairs access violations $300 $350 insurance violations $300 $350 2020-01-28 Agenda Packet Page 1].4 of 28 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOLA VISTA APPROVING A MASTER LICENSE AGREEMENT WITH NEW CINGULAR WIRELESS RCS, LLC (AT&T) FOR SMALL WIRELESS FACILITIES WITHIN THE CITY'S RIGHT-OF-WAY WHEREAS I PA the City Council approved Resolution 18601 on March 18, 1997, conceptually approving the marketing of City properties for use by telecommunication companies; and WHEREAS, the City Council has requested that staff ensure that consumers have access to competitive, state of the art telecommunication services within the City; and WHEREAS, as the need for these and related services increases, various telecommunication companies desire new locations to site their facilities and equipment; and WHEREAS, the City has an interest in locating such facilities where potential visual impacts are minimized; and WHEREAS, over the years, the City and communication companies have negotiated a standard agreement called a Master License Agreement(MLA)that provides, for siting, installing, and operating small cell and substantially similar facilities in accordance with City standards and subject to regulatory approvals, while establishing a regular revenue stream to the City; and WHEREAS, the proposed MLA with New Cis gular Wireless RCS, LLC (AT&T) is for a ten-year term and contains standard rates, terms, and conditions applicable to the deployment of small cell, facilities to be located within the City's right-of-way, on a competitively neutral and nondiscriminatory basis; and WHEREAS, pursuant to the MLA, the Licensee will be required to enter into individual Pole License Agreements (PLA) for use of each individual pole within the City; and WHEREAS, during the first year of the initial term,the Licensee will compensate the City for each pole attachment with an annual license fee of$270, subject to annual fee increases of3% per year, to be deposited in the City's General Fund; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it approves the Master License Agreement with New Lingular Wireless RCS, LLC (AT&T) for Small Wireless Facilities Within the City's Right-of-Way, in the form presented, with such minor modifications as may be required or approved by the City Attorney, a copy of which sball be kept on file in the Office of the City Clerk, and authorizes and directs the City Manager, or designee, to execute same. 2020-01-28 Agenda Packet, Page 1]5 of 288 BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista that it authorizes the City Manager, or designee, to execute on behalf of the City of Chula Vista all other documents necessary to implement the Master License Agreement, including but not limited to Pole License Agreements, on forms prescribed or approved by the City Attorney. Presented by Approved as to form by Eric Crockett Glen R. Googins Economic Development Director City Attorney 2020-01-28 Agenda Packet, Page 1]6 of 288 MASTER LICENSE FOR WIRELESS FACILITIES ON CITY POLES IN THE, FIGHT-OF-WAY etween CITY OF CHULA VISTA, A CALIFORNIA MUNICIPAL CORPORATION N and NEW CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY Effective Date Mester License for Wireless Facilities on Comity Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 1].7 of 28 TABLE OF CONTENTS 1. GENERAL DEFINITIONS ..........................................................................................................2 2. SCOPE OF LICENSE, ........................................................................................... 5 2.1. License Area................................................................................... 5 2.1.1. Pole License Issuance and Effect............................................................ 5 2.1.2. Limitations on License Areas................................................................. 5 2.2. Limitations on Licensee's Interests................................................................. 6 2.2.1. Limited Interest Created................................................................................6 2.2.2. Limited Rights Created................................................... 6 2.2.3. No Impediment to Municipal Uses............................................................... 6 2.3. Diminutions in Light, Air and Signal..................................................................6 2.4. License Area Condition .......................................................................................7' 2.4.1. "As-is and With All Faults" Condition .....................................................7' 2.4.2. Licensee's Due Diligence................................................................. 7 2.4.3. Certified Access Specialist Disclosure....................................................7' 3. TERM ................................................................................................. 7 3.1. Master License Term ....0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 7' 3.2. Pole License Term ........................................................................................... 7 4. LICENSE FEE; OTHER PAYMENTS ................................................................ 8 4.1. License Fees.................................................................................................. 8 4.1.1. Commencement Date................................................................ 8 4.1.2. Acknowledgment 8 4.1.3. License Fee Amount................................................................ 9 4.1.4. Annual License Fee Adjustments ............................................................ 9 4.1.5. License Fee Due Date................................................................ 9 4.2. Administrative Fees.........................................................................................9 4.2.1. Master License Preparation Fee...............................................................9 4.2.2. Pole License Processing Fee ...................................................................9 4.3. Late Charges .................................................................................................... 10 4.4. Default Interest............................................................................................... 10 4.5. Additional Fees .............................................................................................. 10 4.6. Payment Procedures ................................................................ 10 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 1]8 of 288 4.7. Liquidated Charges and Fees ................................................................. 11 5. USES................................................................................................. 11 5.1. Permitted Use................................................................................................. 11 5.2. Prohibition on "Macro Cell" Uses................................................................. 11 5.3. Prohibition on Illegal Uses or Nuisances..................................................... 12 5.4. Signs or Advertisements................................................................. 12 6. POLE LICENSES................................................................................................ 12 6.1. City Approval Required ................................................................................. 12 6.2. Pole License Application................................................................. 12 6.3. Pole License Application Review Procedures............................................. 13 6.3.1. Incomplete Pole License Applications ................................. 13 6.3.2. Required Changes to the Pole License Application............................. 13 6.3.3. Consultation with Other City Departments............................................ 13 6.3.4. Pole License Application Approval........................................................ 14 6.3.5. City's Right to Disapprove................................................................. 14 6.3.6. Federal and State Regulations Inapplicable.......................................... 14 7. EQUIPMENT INSTALLATION.,................................................................ 15 7.1. Approved Plans and Equipment Specifications.......................................... 15 7.1.1. Site Identification 15 7.1.2. Changes Required for Regulatory Approvals................................ 15 7.1.3. Corrections to Approved Plans.............................................................. 15 7.2. Prior Regulatory Approvals Required 15 7.3. Installation; Strict Compliance with Approved Plans .................................. 16 7.3.1. Alterations to city's Property.................................................................. 16 7.3.2. Licensee's Contractors................................................................ 16 7.4. Labor and Materials Costs ..... 16 7.5. Project Managers, 17' 7.6. Coordination with the City................................................................ 17 7.7. Fiber-Optic Cables ......................................................................................... 18 7.8. Title to Licensee's Equipment and Other Improvements ........................... 1 8. PUBLIC WORKS OPERATIONS................................................................................ 18 8.1. City's Access to License Areas ............................................................ 18 8.2. Repairs, Maintenance and Alterations to Poles .......................................... 1 8.3. Repairs, Maintenance and Alterations to License Areas............................ 1 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 1 9 of 288 8.4. Emergencies................................................................................................... 19 9. LICENSEE'S MAINTENANCE OBLIGATIONS........... 20 9.1. Damage to Poles ............................................................................................ 20 9.11.1. Notice to the City.........................................................................................................1 20 9.1.2. Damage Caused by Licensee ................................................................1. 20 9.11.3. No Right 'to Repair.....................................................................................................1 20 9.2. Equipment Maintenance...............................................................................................1 20 9.3. Graffiti Abatement.......................................................................................... 21 9.4. Standard of Work ........................................................................................... 21 9.5. Inspections ....................................................................................................1. 21 ILIENS.................................................. ................. 21 111. UTILITIES .....................................................................................................................1 22 12. TAXES AND ASSESSMENTS............................................................ ................................................................1. 22 112.11. Possessory Interest Taxes.............VIVIVIVIN, ... ........... 22 112.2. Licensee's Tax Obligations..................State.................. 22 13. COMPLIANCE WITH LAWS...............................N 0 0 0 0..........................................1. 23 113.11. Compliance with Current and Future Laws ...........................................................1 231 13.2. Licensee's Personnel ................................................................................1. 23 13.2.1. Personnel Training and Certification................................ 23 113.2.2. Licensee's Indemnification for Personnel Injuries............................ 231 113.3. Compliance with CPUC GO 35.................................................................... 24 13.4. Compliance with Building and Electric Codes 24 113.5. Compliance with RIF Exposure Regulations.......................................................... 24 114. DAMAGE OR DESTRUCTION .......N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N 24 14.1. City's Rights After Damage or Destruction ................................ 24 14.1.1. Election to Repair or Replace Damaged 25 14.1.2. Election to Remove Damaged Pelle ................................ 25 14.1.3. Election to Remove Equipment from Damaged Pole........................ 25 14.2. Licensee's Rights upon Termination ........................................................25 14.3. Waiver of Statutory Rights..................................................................................25 15. CONDEMNATION............................................................................................... 25 15.1. Permanent Takings................................................................IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN..........26 15.1.1. Termination...........................................................................................26 15.1.2. Award ....................................................................................................26 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 120 of 288 15.1.3. No Statutory Right to Terminate ......................................................... 26 15.2. Temporary Takings................................................................1. 26 16. ASSIGNMENT AND OTHER TRANSFERS ....................................................... 26 16.1. General Restriction................................................................. 26 16.2. Proposed Assignment Procedures ........................................................... 27 16.2.1. Proposed Assignment Notice. ............................................................. 27 16.2.2. City Response ...........................................................................................................1 27 16.3. Permitted Assignments.............................................................................1. 27 16.3.1. Definition.......................................... ............................................. 27 16.3.2. Conditions............................................................................................. 28 16.4. Effect of Assignment.................. .................a a a a 23 16.5. Assumption by Transferee....**seesIt............................*Ibsees....................................1 28 16.6. Licensee's Customers................................................................................1. 28 17. DEFAULT......................................................................................I...................... 29 17.1. Events of Default by Licensee .............state...................................................1 29 17.2. City's Remedies .......................................................................................... 29 1x".2.1. License Continuation..............NNONNOW,...........state................................................1 29 17.2.2. Pole License Termination...................................................................1. 29 17.2.3. Master License Termination.................................................................................. 310 17.2.4. Default Fees.......................................................................................... 310 17.3. Licensee's Remedies ..0 0 0 0 0 No 0 0 0 0 30 17.4. Cumulative Rights and Remedies 31 18. LICENSEE'S INDEMNIFICATION OBLIGATIONS ................................ 31 1 19. INSURANCE ................................................................................................ 31 19.1. Licensee's Insurance...... 31 19.1.1. Required Coverages .... 312 119.11.2. Required Endorsements 312 r%rN 19.1-3. Cancellation Notices............ 0Z 19.1.4. Claims-Made Policies................................................................IN IN IN IN IN IN IN I.I.I.I. 3�2 19.1.5. General Aggregate Limit............................................................................ 33 19.1-6. Certificates............................................................................................ 33 19.1.7. Insurer Qualifications ................................................................IN IN IN IN IN IN I.I.I.1. 33 19.1-8. Effective Dates............................................................................................................ 33 19.1-9. Licensee's Self-insurance Alternative.............N N N N N N N N N N N N N N N N N N N IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN IN 33 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 121 of 288 19.1.10. No Limitation on Indemnification Obligations................................ 34 19.1.11. Right to Terminate ................................................................. 34 19.2. City's Insurance .......................................................................................... 34 19.3. Subrogation Waiver.................................................................................... 34 13.4. Contractors' Bonds and Insurance ........................................................... 34 20. LIMITATIONS ON THE CITY'S LIABILITY ........................................................ 34 20.1. General Limitations on the City"s Liability................................................ 35 2 .2. Consequential Damages ............................................................................ 35 20�.3. No Relocation Assistance................................................................. 35 20.4. Non-Liability for City Officials, Employees and Agents .......................... 3�5 20-5. Licensee's Waiver....................................................................................... 3�6 21. RECORDS .......................................................................................................... 36 21.1. Accounting Records................................................................. 3�6 21.2. Estoppel Certificates .................................................................. 3�7 22. RULES AND REGULATIONS ......................x x x x x ................................................ 37' 23. SECURITY DEPOSIT...........seat.....***sees..............**sees........................................... 3,7 23.1. Amount ................................................................................................. 3�7 23.2. Further Deposits ......................................................................................... 37' 23.3. Application 0 0 0 0 0 0 0 0 0 0 0 a a a a a a a 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 38 24. SURRENDER OF LICENSE AREA................................................................ 38 24.1. Surrender.................................................................................................. 3�8 24.2. Abandonment............................................................................................... 38 24.3. Holding Over ............................................................................................... 39 25. HAZARDOUS MATERIALS........ 39 25.1. Hazardous Materials in License Area........................................................ 39 25.2. Licensee's Environmental Indemnity........................................................ 33 26. TERMINATION ......................................................................................................40 26.1. Termination for Failure to Obtain Regulatory Approvals ........................ 40 26.2. Licensee's Termination Rights..................................................................40 26.2.1. Master License Termination 26.2.2. Pole License Termination Rights........................................................ 40 26.2.3. Termination Rights after Pole Replacement............................... 41 26.3. City's Absolute Right to Terminate Pole Licenses ..................................41 26.4. Licensee's Rights after Termination .........................................................41 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 122 of 288 27. INTERFERENCE, ................................................................................................ 41 27.1. Licensee's Obligation Not to Cause, Interference ....................................41 27.2. Impairment Caused by Change in City Use................................. 42 27.3. Impairment Caused by City Access .......................................................... 42 28. MISCELLANEOUS PROVISIONS......................................................................42 28.1. Ntit ices................................................................................................. 4 3 28.2. Waiver; No Implied Waivers.......................................................................44 28.3. Amendments ............................................................................................... 44 28.4. Interpretation............................................................................................... 44 28.4.1. General..................................................................................................44 28.4.2. Multi-party License................................................................. 44 28.4.3. Captions................................................................................................ 45 28.4.4. City Actions .......................................................................................... 45 28.4.5. Words of Inclusion...................east* ...&**test ....................&a a a a 45 28.4.6. Laws ......................................................................................................45 28-5. Successors and Assigns ................................................................. 45 28.6. Brokers ................................................................................................. 4 5 28.7. Severability....... 46 28.8. Governing Law; Venue.......0 0 0 0 0 0 0 0 0 0 0 0 0 0 46 28.9. Time for Performance.0 0 0 0 0 0 0 0 0 0 0 0 0 0 No***DOWN 0 0 0 0 0 0 0 0 46 28.10. Survival..........................................................................................................46 28.11. Recording...................................................................................................46 28-112. Counterparts............................................................................................ 47 28.13. Approval Authority................................................................ .#######4 7' 28.14. Most Favored Nation Provisions.............................................................47' EXHIBITA ................................................................................................ 49 EXHIBITAA .................................................................................................................................. 51 EXHIBITANN02 .................................................................................................................................. 52 EXHIBITA-3 ................................................................................................ 53 SCHEDULEANN04........................................................................................................................ 55 Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 123 of 288 MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES ON CITY POLES IN THE RIGHT-OF-WAY This MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES ON CITY POLES INT RIGHT-OF-WAY ("Master License") dated 3 2020 (the "Effective Date"') is between the CITY OF' CHULA VISTA, a chartered California municipal corporation (the "City") and New Cingular Wireless PCS, LLC, a Delaware limited liability company (the "Licensee"). This License may refer to the City and/or Licensee individually as a "Party" or collectively as the "Parties." BACKGROUND A. WHEREAS, technology developments and demand for high-speed mobile data service and capacity has extended beyond the capabilities, of traditional macrocell wireless communications facilities. To meet this demand, wireless providers have accelerated their small cell deployments in the public right-of-way and the City has a clear incentive to develop public-private agreements, that manage these accelerated deployments in a way that preserves local aesthetics and public health and safety while also deriving the benefits of these new technologies for the City's residents to the greatest extent practicable; and B. WHEREAS, Section 253 of the Telecommunications Act of 1996, Pub. L. N�ol., 104- 1041 1110 Stat. 56, codified as 47 U.S.C. § 253, preserves, the City's authority to control access to and use the rights-of-way within the City's Jurisdictional boundaries, and to require reasonable compensation for such use on a competitively-neutral and nondiscriminatory basis so long as such compensation is disclosed; and C. WHEREAS, Licensee is a public communications utility in California, holding a Certificate of Public Convenience and Necessity from the California P,ubililc Utilities Commission ("CPUC"); and D. WHEREAS, Licensee typically installs,, maintains and operates its communications network facilities on existing vertical Infrastructure in the public right-of-way pursuant to authority granted by the CPUC; and E. WHEREAS, the City owns as its personal property a substantial inumber of existing poles within the public right-of-way that are suitable for installing wireless communications facilities within the City's jurisdiction and has a duty to derive appropriate value from the City's property assets for the public good; and F. WHEREAS, Licensee desires to install, maintain and operate communications network facilities on the City's poles in the public right-of-way in a manner consistent with the City's regulatory authority and Licensee is willing to compensate the City for the right to use the City's poles for communications purposes- and G. WHEREAS, consistent with all applicable Laws, the City does not intend this Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet Page 124 of 288 Master License, to grant the Licensee any exclusive right to use or occupy the public rights-of-way within the City's territorial and/or Jurisdictional boundaries, and Licensee expressly acknowledges that the City may in its sole discretion enter into similar or identical agreements with other entities, which include without limitation Licensee's competitors; and H. WHEREAS, the City desires to authorize Licensee"s access, to individual City- owned poles based on a comprehensive and uniform Master License according to the terms and conditions set forth in this Master License, any applicable Pole License, and pursuant to, all the applicable permits issued by the City to, protect public health and safety; and I. WHEREAS, on December 5, 2017, the City Council of the City of Chula Vista adopted Resolution No. 2017-217, which approved the form and material terms for a Master License Agreement for Wireless, Facilities, on City Poles in the Right-of- Way to be used in connection the licensing of Poles and other City-owned property for wireless communications facilities. NOW THEREFORE, for good, valuable and sufficient consideration received and acknowledged by the City and Licensee, the City and Licensee agree as follows: AGREEMENT 1 GENERAL DEFINITIONS "Aglent"' means, agent,, employee, officer, contractor, subcontractor, and representative of a party in relation to this Master License and the License Area. "Assignment" means any of the following: (a) a merger, acquisition, or other transfer of a controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee'''s sale, assignment, encumbrance, pledge, or other transfer of any part of its interest in or rights with respect to the License Area; and (c) any action by Licensee to permit any portion of the License Area to be occupied by anyone other than itself, including a sublicense. "Claim" mean any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines,, penalties and expenses, whether direct or indirect. "Common Control" means two entities that are both Controlled by the same third entity. "Control"' means (a) as to a corporation, the ownership of stock having the right to exercise more than 50% of the total combined voting power of all classes of stock of the controlled corporation, issued and outstanding; or (b) as to partnerships and other forms of business associations, ownership of more than 50% of the beneficial interest and voting control of such association. Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet, Page 125 of 288 TP UC" means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or it's duly appointed successor agency., "Discretion", "sole discretion", and "sole and absolute discretion" shall have, their ordinary meaning.. "EMF" means electromagnetic fields or radio frequency between 30 kHz and 300 GHz in the electromagnetic spectrum range. "Environmental Laws" means any Law relating to industrial hygiene, environmental conditions, or Hazardous Materials. "Equipment" means antennas and any associated utility or equipment box, and battery backup, transmitters, receivers, radios,, amplifiers, ancillary fiber-optic cables and wiring, and ancillary equipment for the transmission and reception of radio communication signals for voice and other data transmission, including the means and devices used to attach Equipment to a licensed City Pole, peripherals, and ancillary equipment and installations, including wiring, cabling, power feeds, and any approved signage attached to, Equipment. "FCC" means the Federal Communications Commission or its duly appointed successor agency. "Hazardous Material"' means any material that, because of its quantity, concentration, or physical or chemical characteristics,, is at any time now or hereafter deemed by any Regulatory Agency to pose a present or potential hazard to human health, welfare, or safety or to the environment. Hazardous Material includes any material or substance defined as a "hazardous substance,"or" ollutant77 or"contaminant" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (codified as 42 U.S.C. §§ 9601 et seq.) or section 25316 of the California Health & Safety Code; and any "hazardous waste" listed California Health & Safety Code § 251401; and petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids. "Investigate and RemeWalte" means the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the License Area or that has been, is being, or is in danger of being Released into the environment, and to clean up, remove,, contain, treat, stabilize, monitor or otherwise control such Hazardous Material. Invitee" means the client, customer, invitee,, guest, tenant, subtenant, licensee, assignee and sublicensee of a party in relation to the License Area. "Laws" means all present and future statutes, ordinances,,, codes, orders, regulations and implementing requirements and restrictions of federal, state, county and municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question. Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet, Page 126 of 288 "Licensee's On-Call Representative" mean the person(s) assigned by Licensee to be on-call and available to the City regarding the operation of Licensee's Equipment. Such person(s) shall be qualified and experienced in the operation of Equipment and shall be authorized to act on behalf of Licensee in any emergency in and in day-to-day operations of the Equipment. "Permitted Use" means Licensee's installation, operation and maintenance of Equipment for the transmission and reception of wireless, cellular telephone and data and related communications, equipment on License Areas. "Pole"' means a street light pole, utility pole or other support structure located in the public right-of-way within the City and owned by the City., "Pole License 75 means the document in the form of Exit A that, when fully executed, incorporates the provisions of this Master License and authorizes Licensee to, install, operate and maintain Equipment for the Permitted Use on City Poles identified in the Pole License. "Pole Location"' means the geographic information identify'iingi each City Pole on which Licensee is authorized to install, operate and maintain Equipment under Pole Licenses. Pole Locations will be identified in Exhibit A-1 to each Pole License. 66 Property 517 means any interest in real or personal property, including land, air and water areas, leasehold interests, possessory interests, easements, franchises and other appurtenances, public rights-of-way, physical works of improvements such as buildings,, structures, infrastructure, utility and other facilities, and alterations, installations, fixtures, furnishings and additions to existing real property, personal property and improvements. "Regulatory Agency"' means the local, regional,, state or federal body with jurisdiction and responsibility for issuing Regulatory Approvals in accordance with applicable Laws. "Regulatory Approvals" means licenses, permits and other approvals necessary for Licensee to install, operate and imaintain Equipment on the License Area. "Release"when used with respect to Hazardous Material includes any actual or imminent spilling,, leaking, pumping, pouring, emitting, emptying, discharging,, injecting, escaping, leaching, dumping or disposing on, under or about the License Area, other City Property or the environment. "RF means radio frequency or electromagnetic waves between 30, kHz and 300 GHz in the electromagnetic spectrum range. "RF' Compliance Report" means a report prepared and certified by an RF engineer ne,er acceptable to the City that certifies that the proposed facility, as well as any collocated facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels in watts ERP) for all Master License for Wireless Facilities on City Poles in the Right-of-Way 2020-01-28 Agenda Packet, Page 127 of 288 existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the, boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupations imit as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. 2. SCOPE OF LICENSE 2.11. License Area 2.1.1. Pole License Issuance and Effect Subjecttotheterms and conditions in this Master License, the City will issue to Licensee one or more Pole Licenses, wch will grant Licensee a contractual privilege to use the space on the subject Pole approved for the Equipment, which includes any conduits, pull boxes or other City Property specifically identified in the Approved Plans attached to, the Pole License (individually for each licensed Pole and collectively for all licensed Poles, the "License Area"). Any approved Pole License will become effective on the first day of the month following the date on which both the City and Licensee execute such Pole License. 2.1.2. Limitations on License Areas This Master License applies to only Poles identified in final and fully executed Pole Licenses. This Master License does snot authorize Licensee or any other persons or entities to enter on to or use any other City Property, except the License Areas specified in any Pole Licenses. Furthermore, neither this Master License nor any Pole License authorizes or confers any rights in Licensee or any other persons or entities to use any portions of the public rights-of-way, or any improvements or other personal property within the public rights-of-way owned by any third parties. The City reserves the absolute right to reject any Pole License Application. Licensee expressly acknowledges and agrees that the City will not be obligated to issue any Pole License to Licensee for any purpose related to the following poles: (1) any decorative Pole, which includes any Pole or light standard with ornate features, or characteristics designed or intended to enhance the appearance of the Pole or light standard; (2) any Pole in a City-approved underground district when the Licensee does not propose to install the non-antenna equipment (other than the electric meter as may be required by Licensee)s utility provider) underground; 2.2. Limitations on Licensee's Interests 2.2.1. Limited Interest Created Master License for Wireless Facilities on City Poles in the Right-of-Way 12 2020-01-28 Agenda Packet, Page 128 of 288 Licensee expressly acknowledges and agrees that (1) Licensee does not have any rights to use or interest in any Pole for any purpose whatsoever until and unless the City issues a Pole License for such Pole; and (2) neither this Master License nor any Pole License issued pursuant to this Master License creates or will be deemed to create any leasehold, easement, franchise, or any other possessory interest or real property interest whatsoever in the License Area. 2.2.2. Limited Rights Created Any Pole License the City approves pursuant to this Master License grants, to Licensee only a non-possessory and revocable license to enter on to and use the License Area for the Permitted Use. Licensee expressly acknowledges and agrees that (1) neither this Master License or any Pole License will be coupled with an interest; (2), the City retains legal possession and control over all Poles for the City's operationsy which will be superior to Licensee's interest at all times; (3) subject to the terms and conditions in this Master License, the City may terminate a Pole License in whole or in part at any time; (4,) except as specifically provided otherwise in this, Master License, the City Imay enter into any agreement with third parties in connection with use and occupancy of Poles and other City Property; and (5) neither this Master License nor any Pole License creates or will be deemed to create any partnership or joint venture between the City and Licensee. 2.2.3. No Impediment to Municipal Uses Except as specifically provided otherwise in this Master License, neither this Master License nor any Pole License limits, alters or waives the City's right to use any License Area in whole or in part as infrastructure established and maintained for the City's and the public's benefit. 2.3. Diminutolons 11[n Leight, Air and Signal In the event that any existing or future structure diminishes any light,, air or signal propagation, transmission or reception, whether erected by the City or not, Licensee shall not be entitled to any reduction in any License Fee, Additional Fees or any other sums payable to the City under this Master License or any Pole License, the City shall have no liablility to, Licensee whatsoever and such diminution will not affect this Master License,,, any Pole License or Licensee's obligations except as may be expressly provided in this Master License. 2.4. License Area CondiUon 2.4.1. "As-is and With All Faults" CondIftion Licensee expressly acknowledges and agrees to enter on to and use the License Area in its ``as-is and wfth all faults 13 condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the License Area's condition or suitability for Licensee's use. Licensee expressly acknowledges and agrees that Master License for Wireless Facilities on City Poles in the Right-of-Way 13 2020-01-28 Agenda Packet, Page 129 of 288 neither the City nor its Agents have made, and the, City expressly disclaims, any representations or warranties whatsoever, whether express or implied, with respect to the physical, structural or environmental condition of the License Area, the present or future suitability of the License Area for the Permitted Use or any other matter related to, the License Area. 2.4.2. Licensee's Due D'Illigence Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably diligent and independent investigation, either for itself or through an Agent selected by Licensee, into the License Area condition and suitability for Licensee's intended use, and that Licensee relies solely on its due diligence for such determination., Licensee further expressly represents and warrants to the City that Licensee's intended use is the Permitted Use as defined in Section 51 in this Master License., 2.4.3. Certified Access Specialist D110sclosure Pursuant to California Civil Code § 1938, and to the extent applicable to this Master License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist as defined in California Civil Code § 55-53) has not inspected any License Area in whole or Kiln part to determine whether it meets all applicable construction-related accessibility requirements. 3. TERM 3.1. Master License Term The term under this Master License (the "Term") will commence on the Effective Date and will automatically expire ten (10) years from the Effective Date (the "Expiration Date"), unless earlier terminated in accordance with this Master License. 3.2. Pole License Term The term under each Pole License will commence on the Commencement Date as defined in Section 4.1.1 below) and will automatically expire ten (10) years after the Commencement Date, unless earlier terminated in accordance with this Master License. Notwithstanding the expiration or termination of this Master License, the terms and conditions of the Master License shall continue to apply each Pole License during the term of such Pole License. 4. LICENSE FEE; OTHER PAYMENTS 4.1. License Fees, 4.1.1. Commencement Date Licensee shall pay an annual License Fee under each Pole License beginning on its "Commencement Date," which will be either: (1) the date six months from effective Master License for Wireless Facilities on City Poles in the Right-of-Way 14 2020-01-28 Agenda Packet, Page 130 of 288 date of the Pole License or(2)the first day of the month after the date on which Licensee has obtained all Regulatory Approvals necessary forte Permitted Use on the License Area (whichever occu�rs first). The parties define a "License Year" to mean any 12- month period (or shorter period in the event that a Pole License commences less than 12 months from the next July 1 or the Expiration Date) that begins on the Commencement Date for each Pole License. 4.1.2. Acknowledgment Letter For each Pole License approved by the City pursuant to Section 6.,4.4 (Pole License Application Approval), Licensee shall deliver to the City a letter in the form shown in Exhibit A-3 to the Pole License (the "Acknowledgment Letter") within approximately ten (10) business days, after Licensee obtains all Regulatory Approvals necessary for the Permitted Use on any License Area. The parties intend the Acknowledgement Letter to:(a) confirm the Commencement Date; (b) tender or confirm payment by wire transfer of the License Fee for the first License Year and the Performance Bond; provide the City with copies of all Regulatory Approvals, for the Equipment on each licensed Pole-, and (d) confirm that Licensee has submitted all information required in Section 19 (Insurance) under this Master License. Upon written notice to Licensee, the City shall have the right to correct the Commencement Date stated in Licensee's Acknowledgement Letter after the City examines the Regulatory Approvals if, in the City's reasonable determination, the Commencement Date stated on the Acknowledgment Letter is incorrect or inaccurate. The City's reasonable determination in connection with this, Section 4.1.2 will be final for all purposes under this Master License. The City will use reasonable efforts to, deliver a countersigned Acknowledgement Letter to Licensee within approximately five business days after the City receives the partially executed Acknowledgment Letter with all required attachments and enclosures from Licensee. The fully executed Acknowledgment Letter will be Licensee's notice to proceed with its installation. The date on which the City countersigns the Acknowledgement Letter will be the effective date for the subject Pole License. 4.1.3. License Fee Amount Licensee shall pay to the City an annual fee at the rate specified in the License Fee Schedule attached to each Pole License (the "License Fee"). The License Fee Schedule will reflect the annual License Fee adjustments as provided in Section 4.1.4 (Annual License Fee Adjustments). Licensee shall pay each annual License Fee in advance without any prior demand, deduction, setoff or counterclaim for any reason, except to account for a partial year in the event that (1) the Commencement Date falls on a date other than January 1; (2) this Master License expires or terminates; or (3) any other abatement frights expressly granted in this Master License become effective. Any amounts for less than a full year or full month will be calculated based on a 360-day year and a 30-day imonth. 4.1.4. Annual License Fee Adjustments Each year throughout the Term on January 1 (each an "Adjustment Date" the License Master License for Wireless Facilities on City Poles in the Right-of-Way 15 2020-01-28 Agenda Packet, Page 131 of 288 Fee will be increased 3.5% over the License Fee payable in the immediately previous year. The adjustment provided in this Section will be effective even if the first License Year was for less than a full calendar year., 4.1.5. License Fee Due Date Licensee shall pay the License Fee for the first year at the same time Licensee delivers the Acknowledgement Letter without any deduction or setoff for any reason. Thereafter, Licensee shall pay the annual License Fee on January 1 in each year throughout the Term. 4.2. Administrative Fees 4.2.1. Master License Preparation Fee At the time Licensee delivers to the City a partially executed counterpart to this Master License, Licensee shall pay to the City a nonrefundable administrative fee equal to Eight Thousand and 00/100 Dollars, ($8,000.001) (the "Master License Preparat1lon Fee") to recoup the City's costs to review and execute this Master License. The City will not be obligated to execute any Master License until the City receives the Master License Preparation Fee. The City's execution of this Master License shall be its acknowledgment that Licensee has paid the full Master License Preparation Fee. 4.2.2. Pole License Processl'ng Fee At the time Licensee delivers to the City a Pole License Application, Licensee shall pay to, the City a nonrefundable administrative fee equal to One Thousand and 00/100 Dollars ($1,000.00) (the "Pole Ucense Proicessing Fee"). Licensee recognizes that the City will incur costs to review each Pole License Application, which may include without, limitation staff time, legal fees, and expert fees,. The parties, further acknowledge that these costs may vary among and/or between various Pole License Applications due to circumstances particular to any given Pole, and that it would impracticable if not impossible) to accurately predict such costs. Accordingly, the parties agree that the Pole License Processing Fee set forth in this Section represents a reasonable estimate of the City's administrative costs to review each Pole in the typical Pole License Application. The parties further acknowledge that the Pole License Processing Fee is intended to cover the City's administrative costs incurred in its proprietary capacity as the licensor and the Pole License Processing Fee does not substitute for or diminish the Licensee y s obligation to pay any regulatory permit fees required by the City's departments. The City will not be obligated to commence its review for any Pole License Application until the City receives the Pole License Processing Fee. The parties to this Master License collectively refer to the Master License Preparation Fee and the Pole License Processing Fee as "Admin"Istrative Fees.11 4.3. Late Charges Master License for Wireless Facilities on City Poles in the Right-of-Way 16 2020-01-28 Agenda Packet, Page 132 of 288 In the event that Licensee fails to pay any License Fee, Additional Fee, Administrative Fees or any other amount payable to the City within 10 days after the City notifies that such amounts are due and unpaid, such amounts will be subject to a late charge equal to, 6% of unpaid amounts. 14.14. Default Interest Any License Fees, Additional Fees, Administrative Fees and all other amounts payable to, the City other than late charges will bear interest at ten percent (1�0%) per annum from the due date when not paid within ten (10 days after due and payable to the City. Any sums, received shall be first applied towards any interest, then to the late charge and lastly to principle amount owed. Any interest or late charge payments will not alone excuse or cure any default by Licensee. 4.5. Additional Fees The parties to this Master License define "Additll'onall Fees" to collectively mean any sums payable by Licensee to the City in lits proprietary capacity as the licensor, which includes without limitation any late charges, default interest, costs in connection with a request for the City's consent to an Assignment under Section 16.2 (Proposed Assignment Procedures) and Default Fees under Section 17.2.41; provided, however, that the term excludes any (1) License Fees; (2) Administrative Fees; (3) any other amounts payable to the City by Licensee in connection with the City I s review of Pole License Applications or coordinating and inspecting Equipment installed on the License Area; and (4) any payments to the City in its regulatory capacity. 4.6. Payment Procedures Licensee shall pay all License Fees, Additional Fees, Administrative Fees and all other amounts payable tothe City in cash or other immediately available funds by (1) local check payable to City of Chula Vista, Finance Department, 276 Fourth Avenue, Chula Vista,, CA 91910 or (2) electronic wire transfer to an account specified by the City. Any payment made with a dishonored check will be deemed unpaid. The parties may change the payment address from time to time by written notice. 4.7. Liquidated Charges and Fees, The parties agree that the Additional Fees payable under this Master License represent a fair and reasonable estimate of the administrative costs that the City will incur in connection with the matters for which they are, imposed and that the City's right to impose the Additional Fees is in addition to, and not in lieu of, any other rights it may have under this Master License. Furthermore: THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CITY'S ACTUAL ADMINISTRATIVE COSTS AND OTHER DETRIMENT ARISING FROM LICENSEE DEFAULTS AND OTHER Master License for Wireless Facilities on City Poles in the Right-of-Way 17 2020-01-28 Agenda Packet Page 133 of 288 ADMINISTRATIVE MATTERS UNDER THIS MASTER LICENSE WOULD, EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. EKY PLACING HIS OR HER INITIALS BELOW, EACH PARTY'S AUTHORIZED REPRESEN'TA'TIVE ACKNOWLEDGES THAT THE PARTIES NAME AGREED, AFTER A NEGOTIATION, ON THE AMOUNT oF THE ADDITIONAL FEES AS REASONABLE ESTIMATES OF THE CITY'S ADDITIONAL. ADMINISTRATIVE COSTS AND OTHER DETRIMENT. Licensee city 5. USES 5.11. Permitted Use Licensee may use the License Area solely for the installation, operation and maintenance of Equipment for transmission and reception of wireless communications signals (the"Permitted Use") in compliance with all applicable Laws and any conditions in any Regulatory Approvals and for no other use whatsoever without the City's prior written consent, which the City may withhold in its sole and absolute discretion for any or no reason. 5.2. Prohibition ition on "Macro Cell's Uses The City and Licensee intend this Mauer License and any Pole License to cover only "small cell" and/or distributed antenna system installations, which are commonly understood to mean small,, low-power, low-elevation,, unobtrusive wireless facilities intended to cover relatively small geographic areas. Licensee expressly acknowledges and agrees that the Permitted Use under this Master License does not include the right to, use any Pole as a support structure for a `macro cell' or a traditional wireless tower typically constructed on private property. 5m3m Prohibition on l l legal Uses or Nuisances, Licensee shall not use the License Area in whole or in part in any unlawful manner or for any illegal purpose. In addition, Licensee shall not use the License Area in whole or in part in any manner that constitutes a nuisance as determined by the City in its reasonable judgment. Licensee shall take all precautions to eliminate any nuisances or hazards in connection with its uses and activities on or about the LicenseArea. 5.4. Signs or Advertisements Licensee acknowledges and agrees that its rights under this Master License and any Pole License do not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any sigins, notices, graphics or advertisements whatsoever on the License Area other than the site identification notice required by Section 7.1.1, below and/or any notice required by the City in its regulatory capacity to ensure Master License for wireless Facilities on City Poles in the Right-of-way 1 2020-01-28 Agenda Packet Page 134 of 28 compliance with Laws related to maximum permissible e,xposulre to RF emissions on or about the License Area. 6. POLE LICENSES 6.11. City Approval Required Licensee shall not have, any right to use the License Area in whole or in part for any purpose until and unless the City approves a Pole License. Subject to any express limitations in this Master License, the City will not be obligated to, subordinate, its municipal functions or proprietary interest in any manner whatsoever to Licensee's interest under any Pole License., When the City considers whether to approve or disapprove any Pole License Application, the City may consider any matter that affects its municipal functions or proprietary interests, which include without limitation: (1) Licensee's proposed plans and Equipment specifications; (2) compliance with any applicable Laws; (3) impacts on the City's street light operations; (4) any potential hazards or unsafe conditions that could result from Licensee's installation, operation or maintenance; (5) any potential visual or aesthetic impacts provided the proposed Equipment is in conformance with objective design standards adopted by the City, which includes, without limitation whether any alternative locations or configurations would be more aesthetically desirable or appropriate in the City's sole discretion; (6) the additional load on the Pole the proposed Equipment would create only if: (a) such additional load would exceed such Pole's permitted capacity; and (b) such Pole could not be replaced to support Licensee's proposed Equipment; and (7)any municipal plans foir the Pole or right-of-way in proximity to the Pole. 6.2. Pole Llice�nse Application Each Pole License Application must include: (1) two partially executed duplicate counterparts of a Pole License in the form attached as Exhibit A 0to this Master License, with fully completed Exhibit A-1 and Exhibit A-2 attached to such partially executed Pole Licensel; (2) the Pole License Processing Fee; and (3) a complete RF Compliance Report. 6.3. Pole Licelnse Application Review Procedures The City will review complete Pole License Applications within applicable timeframes and pursuant to applicable Law, taking into account any tolling periods for such timeframes. Licensee shall provide the City with at least sixty (60) days' prior notice before Licensee submits any Pole License Application that covers fifteen (1 5) or more Poles to allow the City sufficient time to prepare and/or augment its staff as necessary; provided, however, that Licensee shall not submit a single Pole License Application that covers fifteen (1 5) or more Poles within one hundred twenty (120 days of the Effective Date of this Master License to give the City sufficient time to complete the procurement process for contract services. Licensee shall use best efforts not to submit successive Pole License Applications if those Pole License Applications would collectively cover fifteen (1 5) or more Poles, and will grant the City a reasonable extension of the Master License for Wireless Facilities on City Poles in the Right-of-Way 19 2020-01-28 Agenda Packet, Page 135 of 288 applicable timeframe for the City's review if such successive, Pole License Applications are submitted. 6.3.1. Incomplete Pole License Apipflications The City will not be obligated to review or approve any incomplete, Pole License Application. In the event that Licensee submits an incomplete Pole License Application, the City will notice in writing Licensee that it has suspended its review for that incomplete Pole License Application until Licensee delivers all required elements for a complete Pole License Application., In ad�d�ition, the City may suspend the applicable pending Pole License Application, whether complete or 'incomplete, reviews when Licensee fails, to timely submit the, appl�icable Pole License Processing Fee'. The date and time when Licensee submits the missing elements will be deemed the date and time that Licensee submitted the Pole License Application. 6.3.2. Requiredl Changes to the Pole License Applicafloon In the event that the City reasonably determines for any reason that the Permitted Use at any particular Pole Location would impede its municipal functions or otherwise negatively affects its proprietary interests, the City will provide written notice to Licensee as soon as reasonably practicable. Licensee will have fourteen (1 4) days from such notice to change its Pole License Application without any impact on the Pole License Application's priority relative to any other applications then under review or later received by the City. Any changes received after the fourteen (1�4) day period or any other changes Licensee may make to the Pole License Application will cause the date and time on which the application was submitted or deemed submitted to, be changed to, the date and time on which Licensee submitted the proposed changes. 6.13. Consultation with Other City Departments The City may consult with other departments within the City to assess whether Licensee's proposed Equipment poses any concerns, which includes without limitation any concerns about aesthetics,y historic or environmental impacts, traffic control, pedestrian access and general right-of-way management. Licensee acknowledges that any consultation with any other City departments in accordance with this Section 6.3.3 and any actions or failures to act by the City that may result from such consultations would be in the City's proprietary capacity as the Pole owner and not an exercise of the City's regiulatory authority. 6.3.4. Pole License Appfication Approval In the event that the City approves a Pole License Application, the City will return one fully executed Pole License to Licensee. Licensee acknowledges and agrees that the City's decision to approve or disapprove any Pole License Application is not, and will not be deemed to be,, a regulatory determination subject to any administrative appeal,l but is an exercise, of the City's proprietary authority over its Poles as its personal property. In the event that Licensee fails to commence construction pursuant to the Pole License within one year from the date the City fully executes the Acknowledgment Master License for Wireless Facilities on City Poles in the Right-of-Way 20, 2020-01-28 Agenda Packet, Page 136 of 288 Letter, the Pole License shall automatically expire unless the City Manager grants a written extension that may not exceed one additional year. Licensee shall not be entitled to any refund for any fees, which include without limitation the License Fee, paid in connection with a Pole License that expires pursuant to this, Section 6.3.4. Nothing in this Section 6.3.4 is, intended to prohibit or prevent Licensee from submitting a new Pole License Application for the same or substantially the same Poles as those covered under a Pole License, that expired pursuant to this Section 6.3.4. 6.3.5. f=ederal and State Regulat'lons InappflicaWe Subject to the provisions of Section 11 3.1, despite any New Law during the initial 10- year term of this Master License or any Pole License, Licensee expressly waives any State or Federal rights to challenge: (1) the fees paid to the City pursuant to this Master License and any Pole License; and (2) the timeframes, established in this Master License by which the City must review and process Pole License Applications, including any notices, tolling, or extensions required under this Master License. Preceding the commencement of an extension to this Master License or any Pole License after expiration of the Master License, Licensee may req�uest from the City an amendment of this Master License or any Pole License to comply with such changed laws, if applicable. For the avoidance of doubt, any such amendment would be effective only after the initial 1 0-year term of this Master License expires or as otherwise agreed to in writi ngi by the Parties. 6.3.6., C1101ty's Right to Disapprove Licensee acknowledges that the City reserves the absolute right to reject any Pole License Application in whole or in part when the City finds in its sole, reasonable discretion that the subject Pole Location of proposed equipment interfere with the City 51 S municipal functions or proprietary interest or create a hazardous or unsafe condition,. In addition,1 Licensee acknowledges that the City reserves the absolute right to disapprove any license within a Pole License Application when the subject Pole would involve above-ground equipment (other than the antenna and any required electric meter) in a residential district or in close proximity to a residential use. 7. EQUIPMENT INSTALLATION 7.1. Approved Plans and Equipment Specifications Licensee must submit complete plans and equipment specifications as Exhibit A-2 to any Pole License, Application, which must include without limitation all equipment, mounts, hardware, utilities, cables,, conduits, signage, concealment elements and other improvements proposed in connection with the License Area. Licensee acknowledges that Exhibit A-2 to any approved Pole License will be deemed to be the "Approved Plana''' and that Licensee will be permitted to install only the Equipment and other improvements shown on such Approved Plans. Master License for Wireless Facilities on City Poles in the Right-of-Way 21 2020-01-28 Agenda Packet, Page 137 of 288 7.1.1. Site Identification Required On each licensed Pole, Licensee must install one identification plate in strict compliance with the size, material, form and substance as shown on the Approved Plans. The identification plate must include Licensee's, corporate name and telephone number at which Licensee's On-Call Representative can be reached at all times (twenty-four (24 hours per day and seven (7) days per week). Licensee must replace the 'Identification plate in the event that any information on such plate changes. 7.1.2. Changes Required for Regu�l�atory Approvals Licensee may amend previously Approved Plans when such changes are required to obtain or maintain compliance with other Regulatory Approvals necessary to install the Equipment. Any such changes will require the City's prior written approval. The City will provide notice of its decision to Licensee in accordance with Section 28.1 (Notices). 7.1.3. Corrections to Approved Plans Licensee shall have the obligation to correct any errors, or omissions in any Approved Plans and related Regulatory Approvals. Licensee shall immediately send written notice to, the City in the event that Licensee discovers any such defects. Any Approved Plans and/or amendments to Approved Plans by the City will not release or excuse Licensee's obligations under this Section 7.1.3,. 7.2. Prior Regulatory Approvals Required Licensee shall not commence any work at the License Area until Licensee obtains all necessary Regulatory Approvals, which includes without limitation a Wireless Communications Facilities Permit on Public Property from the City's Development Services Department and any other permit obtained through any other City department,, and tenders full and complete copies of each Regulatory Approval to the City. The City's consent or refusal to consent to any Pole License issued by the City in its proprietary capacity as the Pole owner will not be deemed to be any approval or denial in connection with any Regulatory Approval issued by the City in its regulatory capacity as a municipal government. 7.3. Installation; Strict compliance with Approved Plans Licensee shall not commence any work at the License Area until the City provides Licensee with the Acknowledgement Letter or an equivalent letter to confirm the, Commencement Date. Licensee shall perform all work in connection with the License Area in strict compliance with the Approved Plans and in a diligent,, skillful and workmanlike manner. All installed Equipment must be high quality, safe, fire iresistaint, modern in design and attractive, in appearance, all as approved by the City. After any work at the License Area concludes, Licensee shall restore the License Area and any other City Property to the condition that existed immediately prior to the work commenced. Master License for Wireless Facilities on City Poles in the Right-of-Way 22 2020-01-28 Agenda Packet, Page 138 of 288 7.3.1. Alterations to City's Property Licensee shall not remove, damage or in any manner alter any City Property without prior written consent from the City and any other City agencies with jurisdiction over the, subject City Property. The City may withhold its consent in its sole and absolute discretion, and may reasonably condition its consent in each instance based on scope and nature of the proposed alterations. Licensee shall immediately notify the City if any removal, damage or other alteration occurs to City Property for any reason and trough any cause. 7.3.2. Licensee's Contractors Licensee and all of its contractors shall obtain all necessary licenses, including without limitation Contractor State Licensing Board licenses and a City of Chula Vista Business, License, prior to performing work on or about the License Area. Licensee shall use only qualified and trained persons and appropriately licensed contractors, for all work performed on or about the License Area. Licensee shall give the City at least ten (10) days' prior written notice of commencement of any construction or installation on any part of the License Area except or minor and routine repair and maintenance of Licensee's Equipment. At least five (5) business days before any work commences on or about the License Area, Licensee shall provide the City with: (1) a schedule with all activities to be performed in connection with the work; and (2) a list with all the names, contractor's license numbers and business addresses for all contractors who will perform the work. 7.4. Labor and Materials Costs Licensee shall be responsible for all direct and indirect costs (labor, materials, and overhead) in connection with designing, purchasing and installing all Equipment in accordance with the Approved Plans and all applicable Laws. Licensee shall also, bear all costs to obtain and maintain all Regulatory Approvals required in connection with the installation,1 which includes without limitation all direct and indirect costs to comply with any approval conditions or mitigation measures that arise from Licensee's proposed installation,. Licensee shall timely pay for all labor, materials, Equipment and all professional services related to the Permitted Use or furnished to the License Area at Licensee's direction or for Licensee's benefit in accordance with state and federal law. 7.5. Project Managers The City and Licensee each designate the person listed in this Section 7.5 as its project manager to coordinate Licensee's Equipment design and installation, and serve as each party's respective primary contact person for all design, engineering, construction and installation issues that may arise between the parties in connection with this Master License. City's Project Manager. Name: William Valle Master License for Wireless Facilities on City Poles in the Right-of-Way 23 2020-01-28 Agenda Packet, Page 139 of 288 Title: City Engineer Phone: (619) 691- 5021 Address: 276 Fourth Avenue Chula Vista, CA 91910 Licensee's Project Manager: �Name: Title: Phone: Email: Address: Licensee acknowledges that the City's project manager is not exclusively assigned to this Master License, and that the City's project manager may not always be immediately available to Licensee or its project manager. Licensee further acknowledges that the authority delegated by the City to the City's project manager is limited to the administration of this Master License, any Pole License Applications and any approved Pole Licenses. 'The parties' respective project managers will have no obligation to perform any term or covenant to be performed by the other party under this Master License. otices to the parties' respective project managers alone will not be deemed effective notice for any purpose under this Master License. The parties may designate a new project manager from time-to-time by written notice to the other party. 7.6. coordination with the City Licensee must coordinate all its installation, construction and other work on or about the License Area with the City so as to avoid any interference (physical, electronic or otherwise) with any existing utilities, substructures, facilities, City Property and the City's municipal operations. 7.7. Fiber-Optic Cables Intentionally omitted. 7.8. Dedicated S Range Comm u n icaUons (csRc) Intentionally omitted. 7.9. Title to Licensee's Equ"ipment and Other Improvements Except as specifically provided otherwise in this Master License, all Equipment and other improvements installed, constructed or placed on or about the License Area by Licensee or its Agents or Invitees will be, and remain at all times Licensee's personal Master License for Wireless Facilities on City Poles in the Right-of-Way 24 2020-01-28 Agenda Packet, Page 140 of 288 property. All structural improvements, to any Pole, any replacement Pole and any underground fiber optic cables, all as approved by the City and shown in the Approved Plans, will become City Property and remain should Licensee vacate or abandon such License Area, unless the City elects in a written notice to Licensee that it does not wish to, take title to such structural improvements, in which case Licensee shall remove such improvements at its sole cost and in a manner acceptable to City, and shall restore all affected areas by such removal to a condition compliant with all applicable Laws. Subject to Section 24 (Surrender of License Area), Licensee may remove its Equipment from the License Area at any time after thirty (30) days' written notice to the City., 8. PUBLIC WORKS OPERATIONS 8.1. City's Access to License Areas Except as specifically provided otherwise in this, Master License, the City and its, Agents have the right to access any License Area in whole or in part at any time without notice for any purpose. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience,, disturbance, lost business,, nuisance or other damages that may arise from the City's or its Agents' access to the License Area, which includes any Equipment removed in an emergency or other exigent circumstances pursuant to Section 8.4 (Emergencies), except to the extent that the damage arises directly and exclusively from the negligence or willful misconduct of the City or its Agents and not contributed to, by the acts, omissions or negligence of Licensee, its Agents or Invitees., The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages, that may arise from the City's or its, Agents' negligence. 8.2. Repairs, Ma'�ilntenance and Alterations to PoIes The City and/or the City's Public Works, Department will: (1) maintain and repair Poles as needed, in its sole judgment, for its street light operations and other municipal functions; and (2) correct any immediately hazardous, condition. If City requires the termination of electrical service to the Equipment in order to maintain or repair any Poles, the City shall inform Licensee at the telephone number provided iiin section 7.5 and the parties shall coordinate in good faith to determine suitable dates and times to complete such actions. If City requires the termination of electrical service to the Equipment in order to correct any immediately hazardous condition, Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to all Equipment. If City uses Licensee's emergency shut-off switch, City will notify Licensee at the telephone number provided in section 7.5. Except as provided in Section 26 (Termination), and excluding conditions that arise from the City's or its Agents' sole active negligence or willful misconduct, neither any City work on any Pole nor any condition on any Pole will: (1) entitle Licensee to any damages'; (2) excuse or reduce any obligation by Licensee to pay any License Fees or Additional Fees or perform any covenant under this Master Licensel; or (3) constitute or be construed as a constructive termination of this Master License or any Pole License. 8.3. Repairs, Maintenance and Alterations to License Areas Master License for Wireless Facilities on City Poles in the Right-of-Way 25 2020-01-28 Agenda Packet, Page 141 of 288 The City may, at any time, alter, add to, repair, remove from and/or improve the License Area in whole or in part for any operational purpose, which includes without limitation maintenance and improvements in connection with street light services and compliance with Laws; provided, however, (1) the City makes a good-faith effort to provide notice to, Licensee's On-Call Representative; (2) the, City allows Licensee)I s representative to observe the City's work; and (3) the City takes reasonable steps not to disrupt Licensee's ordinary operations on the License Area., If City requires the terming ion of electrical service to the Equipment in order to alter, add to, remove from, and/or improve the License Area, the City shall inform Licensee at the telephone number provided in section 7.5 and the parties shall coordinate in good faith to determine suitable dates and times to complete, such actions. The provisions in this Section 8.3 will not be construed to allow Licensee 51 s ordinary operations,to impede or delay the City's authority and ability to make cangel to the License Areas necessary to maintain street light services. 8.14. Emerge�ncies In emergencies, the City's work will take precedence over Licensee's operations, which includes without limitation any Equipment operated on the License Area, and the City may access the License Area in whole or in part as the City deems necessary in its sole determination and in accordance with this Section 8.4, whether the City has notified Licensee of such emergency or other exigent circumstances or not. When safe and practicable, the City will notify Licensee of any emergency or other exigent circumstances that requires the City to remove or replace any Pole and will allow Licensee to remove its Equipment before the City removes or replaces the Pole, provided, however, that the City will remove the Equipment from the Pole when in the City's sole, determination it would (1), be unsafe or not practicable to wait for Licensee to, perform the work; (2)cause significant delay; ora otherwiset reaten or compromise public safety or public services. In order to, allow City to remove Equipment under this, section, Licensee shall provide and install an emergency shut-off switch which will terminate electrical service to all Equipment. If City uses Licensee's emergency shut- offswitch,, City will notify Licensee at the telephone number provided in section 7.5. The City will remove any Equipment with reasonable care and store the Equipment for retrieval by Licensee. Licensee shall have the right to reinstall such removed Equipment or equivalent Equipment at Licensee's sole expense on the repaired or replaced Pole and in accordance with Section 7 (Equipment Installation). The City's removal of Licensee's Equipment in emergencies or other exigent circumstances will not be deemed to be a forcible or unlawful entry onto the License Area or any interference with Licensee's contractual privilege to use the License Area. 9. LICENSEFS MAINTENANCE OBLIGATIONS 9.1. Damage to Poles 9. 1.1 NoUce to the Gilty Licensee agrees to give the City notice of the need for any repair to a Pole promptly Master License for Wireless Facilities on City Poles in the Right-of-Way 26 2020-01-28 Agenda Packet, Page 142 of 288 after Licensee discovers any damage from any cause. Licensee's agreement to provide notice is not an assumption of liability for any life-threatening or hazardous conditions unless caused by the acts, omissions or negligence of Licensee or its Agents or Invitees. Failure to provide such notice will be a material default under this Master License. 9.1.2. Damage Caused by Licensee In the event that any use or maintenance by Licensee or its Agents or Invitees cause any damage to any Pole, Licensee must repair such damage within thirty (30) days, after the City provides a notice to Licensee that describes such damage. Such thirty (30) day cure period may be extended to a date certain if the City agrees the cure reasonably requires more time. In the event that Licensee falls to timely cure the damage, the City may repair the damage at Licensee 51 s expense. Licensee will reimburse the City for all costs incurred to repair such damage within ten (10) days after Licensee receives the City's demand for payment, together with copies of invoices or other evidence to document the costs incurred. .1.3. No Rigiht to Repair Absent notice from the City with a demand to, cure any damage to a Pole, Licensee is not authorized to make any repairs, to any Pole. Licensee expressly waives all rights it may have under any applicable Laws to make repairs at the City)I s expense. 9.2. Equipment Maintenance Licensee shall, at lits sole cost and expense, install, maintain and promptly repair any damage to any Equipment installed on the License Area whenever repair or maintenance imay be required, subject to the City's prior approval if required under Section 7 (Equipment Installation). Licensee is snot required to seek the City's prior approval for any Equipment repair, maintenance,, replacement or other installation on the License Area when such Equipment is shown on the Approved Plans. Licensee must obtain the City's prior written approval for any Equipment repair, maintenance, replacement or other installation that involves larger, different or additional Equipment than shown on the Approved Plans. Licensee expressly acknowledges that Section 6409(a) of the Middle Class,Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455) does not apply to this Master License or any Pole, License because the, cit is granting them in its proprietary capacity as the owner of the City Poles. Any work on Licensee's Equipment installed on Poles that is authorized or permitted under this Subsection is subject to Licensee obtaining any required Regulatory Approvals. 9.3. Graffiti Abatement Licensee's repair and maintenance obligation includes the removal of any graffiti from the License Area within seven (7) days after the City notifies Licensee in writing. 9.4. Standard of Work Master License for Wireless Facilities on City Poles in the Right-of-Way 27 2020-01-28 Agenda Packet, Page 143 of 288 For all work performed by or for Licensee under this Section 9.5, Licensee shall be: (1) at Licensee's sole cost and expense; (2) performed only qualified and trained persons and appropriately licensed contractors; (3) performed in a manner and with equipment and materials that will not interfere,with or impair the City's operations; and (4) compliant with all applicable Laws. 9.5. Inspections At least once in every License Year, Licensee shall perform an inspection of all Equipment. Upon the City's written request, Licensee shall furnish, within thirty (30 days,, a written report to the City on the, condition of such Equipment that includes, without limitation, any identified concerns and corrective action taken or planned to be taken. In the event that Licensee's inspection reveals any maintenance concerns in connection with any Pole or any other City Property, Licensee shall promptly notify the city. 110. LIENS Licensee shall keep the License Area free and clear from any and all liens in connection with any work performed, material furnished or obligations incurred by or for Licensee. Licensee shall inform each and every contractor and material supplier that provides any work, service, equipment or material to, Licensee in any way connected with Licensee's use of the License Area that the License Area is public property and is not subject to mechanics' liens or stop notices for Equipment or other materials or services provided for Licensee's, Equipment. If Licensee does not bond over or otherwise cause the release of lien of a mechanic's lien or stop notice by any contractor, service provider or equipment or material supplier purporting to attach to the License Area or other City Property within thirty (30) days after receipt of written notice or discovery of the lien, the City will have the right, but not the obligation, to cause the same to be released by any means it deems proper, including payment of the Claim giving rise to such lien. Licensee must reimburse the City for all expenses it incurs in connection with any such lien (including reasonable attorneys' fees) within thirty (30) days following receipt of the City's demand together with copies of invoices or other evidence to document the costs incurred. Licensee shall give the City at least ten (10) days' prior notice of commencement of any construction or installation on any part of the License Area except for minor and routine repair and maintenance of Licensee I s Equipment. Licensee shall not create, permit, or suffer any other encumbrances affecting any portion of the License,Area. 11. 11. UTILITIES, Licensee shall be responsible to secure its own utility services for its Permitted Use and shall not be permitted to use, or submeter from any electrical service provided to the City on any Pole. The City may, in its sole and absolute discretion,,, permit License to connect to or submeter from any electrical service provided to the City on any Pole not subject to a flat rate from the City's electrical service provider. Licensee shall timely pay when due all charges for all utilities furnished to its Equipment. Master License for Wireless Facilities on City Poles in the Right-of-Way 28 2020-01-28 Agenda Packet, Page 144 of 288 12. 12. TAXES AND ASSESSMENTS 12.1. Possessory Interest Taxes Licensee understands and acknowledges that this Master License, may create a possessory interest subject to, taxation and that Licensee will be required to pay any such possessory interest taxes., Licensee, further understands and acknowledges that any sublicense or assignment permitted under this Master Agreement and any exercised options to renew or extend this Master License may constitute a change in ownership for taxation purposes and therefore resultin a revaluation for any possessory interest created under this Master License. 12.2. Licensee's fax ClligaUons Licensee agrees to pay when due and prior to delinquency any and all taxes, assessments, charges, excises and exactions whatsoever, including without limitation any possessory interest taxes, that arise from or in connection with Licensee's use within the License Area or Licen�see's Equipment that may be imposed on Licensee under Law. Licensee shall not allow or suffer any lien for any taxes assessments, charges, excises or exactions whatsoever to be imposed on the License Area or Licensee's Equipment. In the event that the City receives any tax or assessment notices on or in connection with the License Area or Licensee's, Equipment, the City shall promptly (but in no event later than thirty (30) calendar days after receipt) forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount attributable to Licensee)I s Equipment. 113. COMPLIANCE WITH LAWS 13.1. Compliance with Current and Future Laws Licensee shall install, operate, and maintain the Equipment, and shall perform all work in connection with such installation, operation and maintenance, iiin strict compliance with all applicable Laws and all conditions in any Regulatory Approvals issued in connection with the Equipment or its installation and operation on any Pole. The parties agree that Licensee 51 s obligation to comply with all Laws is, a material part of the bargained-for consideration under this Master License,, irrespective of the degree to which such compliance may interfere with Licensee's use or enjoyment of the License Area, the likelihood that the parties contemplated the particular Law involved and whether the Law involved is related to Licensee's particular use of the License Area. �No occurrence or situation arising during the Term arising under any current or future Law,y whether foreseen or unforeseen and however extraordinary, will irelieve Licensee from its obligations under this Master License or give Licensee any right to terminate this Master License or any Pole License in whole or in part or to otherwise seek redress against the City. 13.1.1. FCC 20,18 Order Master License for Wireless Facilities on City Poles in the Right-of-Way 29 2020-01-28 Agenda Packet, Page 145 of 288 In the event the Federal Communications Commission's Declaratory Ruling and Third Report and Order, FCC 18-133, Released September 27, 2018 ("FCC 2018 Order"), is reversed in a final and unappealable order of the FCC or a court of competent jurisdiction ("Reversal Decision"'), and no legal or regulatory requirement exists that would constrain or otherwise limit the, price, that Licensor may charge, , the annual License Fee shall be One Thousand F'ive Hundred and No/100 Dollars ($1,500.00) (`a lternate License Fee"), subject to the Annual License Fee Adjustments identified in Section 4.1.4 . The Alternate License Fee shall apply as, of the License Fee due after the date the Reversal Decision is issued or the Reversal Decision is, effective. 13.1.,2., Additional Changes in Laws Either Party may, upon thirty(30)days'written notice, request that the terms of tis Master License which are affected by any New Law (defined below in this Section 13.1 .2) be renegotiated to conform to the New Law on a going forward basis for all existing and new Equipment, unless the New Law requires retroactive application. In the event that the Parties are unable to agree upon such new rates, terms, or conditions within ninety (90) days after such notice, then the parties may elect to attend mediation to resolve the new rates, terms, or conditions. If a mediation is agreed to, the mediation shall be conducted before a single mediator to be agreed upon by the Parties. If the Parties cannot agree on the mediator, each Party shall select a mediator and such mediators shall together unanimously select a neutral mediator who, will conduct the mediation. Except as provided above, all terms in the existing Master License shall remain in effect while the parties are negotiating and mediating such new rates, terms, or conditions. As used herein, "New Law)' means, any legislative, regulatory, judicial, or other action affecting the rights or obligations of the Parties, or establishing rates, terms, or conditions for the construction, operation, maintenance, repair or replacement of Equipment on public infrastructure or in the right-of-way, that differ, in any material respect from the rates, terms, or conditions of this Master License (other than a Reversal Decision as defined in Section 13.11.1). 113.2. Licensee's Personnel 13.2.1. Personnel Training and Certificaltion Licensee shall ensure that all persons who install,, operate or maintain the Equipment are appropriately trained and licensed by the California State Contractors Licensing Board as required under applicable CPUC rules and regulations. Licensee shall ensure that such persons are trained in and observe all safety requirements established by the City, the CPUC and the California Division of Occupational Safety and Health, Department of Industrial Relations, which includes without limitation site orientation, tag- out and lock-out de-energization rules, ladder and lift restrictions and track and street right-of-way safety requirements. 13.2.2. Licensee's Ind ernnificaUon 'for Personnel InJurmies Licensee acknowledges that (1) the City has delegated to Licensee, control over the, License Area at any time in which Licensee or its Agents are installing, operating or Master License for Wireless Facilities on City Poles in the Right-of-Way 30, 2020-01-28 Agenda Packet, Page 146 of 288 maintaining the Equipment; and (2) the City is not a co-employer of any employee of Licensee or any employee of Licensee"s Agents, and the City shall not be liable for any Claim by Licensee,51 s or its Agent's employe,e(s). Licensee agrees to fully indemnify, defend and hold the City harmless in the same manner as provided in Section 18 (Licensee's Indemnification Obligations) against any Claim by any employee of Licensee or its Agents that arises in connection with Licensee's or its Agents' access, uses or other activities on or about the License Area. 13.3. Compliance with CPU�C GO 95 Licensee shall conduct all activities, on the License Area in accordance with CPUC General Order 95 and the rules and other requirements enacted by the CPUC under that General Order, as applicable and as amended. 13.14. Compliance with Bufld'iing and Electric Codes Licensee shall conduct all activities, on the License Area in accordance with the requirements of all applicable codes and regulations related to build�ing and construction safety, which includes without limitation the California Building Code, the California Electric Code, National Electric Safety Code IEEE C2 (the "NESC") and any applcable local building electrical code, as those codes exist now or may be amended in the future. To the extent that CPUC General Order 95 does not address cellular telephone antenna installations on Poles carrying electrical lines, Licensee shall apply applicable provisions of the NE,SC, with particular attention to paragraphs, 22,4, 235C, 235F7 2381 239 and 239H and sections 22, 41 and 44. Where any conflict exists between the California Building Code, the NESC, the California Electric Code, any local code and CPUC General Order 128, the more stringent requirements will apply, as determined by the City. 13-5. Compliance with RF Exposure Regu1atilons Licensee's obligation to comply with all Laws includes all Laws related to maximum permissible exposure to RF or EIVIF emissions on or about the License Area, which includes all applicable FCC standards, whether such RF or EI IF emissions or exposure results from Licensee 51 s Equipment alone or from the cumulative effect of Licensee's Equipment added to all other sources on or near the License Area. Licensee must provide to the City an RF Compliance Report for each proposed Pole on which the Licensee desires to install or operate its Equipment. If not provided earlier, Licensee must submit the RF Compliance Report to the City with the applicable Pole License Application. 14. DAMAGE OR DESTRUCT10N 14.1. City's Rights After Damage or Destruction In the event the, License Area in whole or in part becomes damaged due to any cause, the City (1)will have no obligation whatsoever to repair or replace the damaged License Area; and (2) may, in the City's sole and absolute discretion, elect to take any of the Master License for Wireless Facilities on City Poles in the Right-of-Way 31 2020-01-28 Agenda Packet, Page 147 of 288 following actions,: 14.2., Election to Repair or Replace Damaged Poe, Within thirty (301) days after the date, on which the City discovers damage, or destruction of a Pole licensed to Licensee, the City will give Licensee notice of the City's decision whether to repair or replace,the,damaged Pole and its good faith estimate of the amount of time the will need to, complete the work. If' the City cannot complete the work within thirty (30) days after the date that the City specifies in its notice, or if the City elects not to, do, the work, then Licensee will have the right to terminate the affected Pole License on thirty (30) days' written notice to the City. 14.1.1. Election to Remove Damaged Pole If the City elects to remove, rather than repair or replace, a damaged Pole licensed to Licensee, then the applicable Pole License will automatically terminate on the last day of the month in which the removal occurs. 14.1.2. Election to Remove Equ'ipment from Damaged Pole If the acts of third parties or an act of nature or other force majeure circumstance outside the control of Licensee or its Agents or Invitees destroys or damages any Pole to such an extent that, yin the City's reasonable determination, the Equipment on the Pole cannot be operated, the City may decide to terminate the affected Pole License on thirty (30) days' written notice to Licensee and require Licensee to remove the Equipment from the damaged Pole before the termination date specified in the City 51 s, notice. 114.2. Licensee's R115ghts upon Terminnation After the City terminates a Pole License pursuant to Section 14.1 (City's Rights After Damage or Destruction), the City will: (1), refund any pre-paid License Fee in connection with the terminated Pole License on a pro-rata basis determined by the number of months left in the current License Year at the time such termination occurs, subject to the Minimum'Term as defined in Section 3.2 (Pole License Term) in this Master License; and (2) prioritize Licensee's Pole License Application for one replacement Pole. 14.3. Waiver of Statutory Rigihts The parties understand, acknowledge and agree that this Master License fully governs their rights and obligations in the event that any licensed Poles become, damaged or destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases the provisions in California Civil Code, §§ 1932(2) and 1933(4) or any similar Laws. 15. CONDEMNATION 15.1. Permanent Takings Master License for Wireless Facilities on City Poles in the Right-of-Way 32 2020-01-28 Agenda Packet, Page 148 of 288 In the event that any entity with the power to condemn permanently takes, any License Area in whole or in part, or in the event that the City transfers any License Area in whole or in part to such entity in lieu of eminent domain, the following provisions will apply: 15.1.1. Termination Any affected Pole License will automatically terminate as to the part taken or transferred on the date the permanent taking or transfer occurs, and the License Fee under the affected Pole License will be ratably reduced to account for the reduction in License Area. 15.1.2. Award The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking. Licensee will have no Claim against the City for the value of any unexpired Term of any Pole License or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee's loss or damage to Licensee's Equipment. 15.1-3. No Statutory Right to Terminate The parties understand, acknowledge and agree that this Section 15.1 (Permanent Takings) is intended to fully govern the parties' Frights and obligations in the event of a permanent taking. Licensee and the City each hereby waives and releases any right to terminate this Master License in whole or in part under California Code of Civil Procedure §§ 1265-120 and 1265-130 and under any similar Laws to the extent applicable to this Master License. 15.2. Temporary Takings Any takings that affects any License Area in whole or in part for less, than ninety (90) days will have ono effect on the affected Pole License, except that Licensee will be entitled to a pro-rata abatement in the applicable License Fee to the extent that such temporary taking materially impairs Licensee's use of the License Area. Furthermore, in the event that the City receives, an award, iif any, in connection with such temporary taking, Licensee will receive the portion from the award that represents compensation for the use or occupancy of the License Area during the Term but not to exceed the License Fees and Additional Fees payable by Licensee for the period of the, taking, and the City will retain the balance of the award. 16. ASSIGNMENT AND OTHER TRANSFERS 16-1. General Restir"Iction Except as specifically provided in Section 16.3 (Permitted Assignments), Licensee shall not directly or indirectly assign its interests or rights, whether in whole or in part, in Master License for Wireless Facilities on City Poles in the Right-of-Way 33 2020-01-28 Agenda Packet, Page 149 of 288 connection with this Master License, any Pole, License or the License Area without the City's prior written consent. The City shall not unreasonably withhold its consent to any proposed Assignment; provided, however, that the parties acknowledge that the City may reasonably withhold its consent to any proposed Assignment at any time in which any monetary or other material default by Licensee under this Master License remains, uncured. 116.2. Proposed Assignment Procedures 16.2.1. Proposed Assignment Notice In the event that Licensee desires to Assign its interests or rights, whether in whole or in part,1 in connection with this Master License, any Pole License or the License Area,1 Licensee shall first send written notice (the "Proposed Assiignment Notice") to the City, which states in detail the proposed terms and conditions for the Assignment and complete information,, which includes without limitation financial statements,, business track records, references and other information about the proposed assignee (the "Proposed Assliogn�ee") that the City reasonably requires to fully evaluate Licensee Y S request and render an informed decision. In the event that Licensee does snot provide all the such information simultaneously with the Proposed Assignment Notice, the Proposed Assignment Notice shall not be deemed effective until Licensee delivers all such information as the City may reasonably require. 16.2.2. ClIfty Response The City shall approve or disapprove any request for consent to an Assignment within thirty(30)days after the City receives a complete Proposed Assignment Notice, or thirty (30) days after the deemed-effective date if Licensee delivers an incomplete Proposed Assignment Notice as described in Section 16.2.1 (Proposed Assignment Notice) (in either case, the "'Assignment Response Period"). If the City fails to respond within the Assignment Response Period, the request for consent will be deemed disapproved. If the City delivers to Licensee written consent to the proposed Assignment, then Licensee shall have one hundred eighty (1 80) days from such written consent to complete the Assignment. The City's consent will be deemed revoked if Licensee fails to complete the proposed Assignment within the one hundred eighty (1 80) day period; provided, however, that the one hundred eighty (1 801) day period may be extended to a date certain in a written agreement, which the City shall not unreasonably refuse. 16.3. Permitted Assignments 16.3-1. Defin"Ition The City agrees that Licensee will be permitted to enter into an Assignment of this Master License and Pole Licenses issued under it (a "Permitted Assignment"), without the City's prior consent but with notice to the City as provided below, to: (i) Licensee's parent; (ii) Licensee's subsidary; (iii) an entity that acquires all or substantially all of Licensee's assets in the market in which the License Area is located as the market is defined by the, FCC under an order or directive of the FCC; (iv) an entity that acquires Master License for Wireless Facilities on City Poles in the Right-of-Way 34 2020-01-28 Agenda Packet, Page 150 of 288 Licensee by a change of stock ownership or partnership interest; or (v) an entity Controlled by Licensee or that, with Licensee, is under the Common Control of a third party. 16.3.2. Condit'ions A Permitted Assignment is subject to all the following conditions: (a) the Assignee uses the License Area only for the Permitted Use and holds all Regulatory Approvals necessary to lawfully install, operate, and maintain Equipment on the License Area; (b) Licensee provides the, City with notice thirty (30) days before the effective date of Permitted Assignment, stating the contact information for the proposed Assignee and providing financial information establishing that the proposed Assignee has the capital and fiscal qualifications greater than or equal to Licensele's; and (c) Licensee is in good standing under this Master License. 116.4. Effect of Assignment No Assignment by Licensee, consent to Assignment by the City, or Permitted Assignment under Section 16.3 (Permitted Assignments) will relieve Licensee of any obligation on its part under this Master License, unless expressly provided in a writing signed by the City. Any Assignment that is not in compliance with this Article will be void and be a material d�efau�lt by Licensee under this, Master License without a requirement for notice and a right to cure. The City I s acceptance of any License Fee, Additional Fee, or other payments from a proposed Assignee will not be deemed to be the City's consent to such Assignment, recognition of any Assignee, or waiver of any failure of Licensee or other transferor to comply with this Section 16. 116-5. Assumption by Transferee Each Assignee shall assume all obligations of Licensee under this Master License and each assigined Pole License and will be and remain liable jointly and severally with Licensee for all obligations to be performed by Licensee. No Assignment will be binding on the City unless Licensee or the Assignee delivers to the City evidence satisfactory to, the City that the Assignee has obtained all Regulatory Approvals required to operate as a wireless telecommunications service provider on the assigined License Area,, a copy of the Assignment agreement (or other document reasonably satisfactory to the City in the event of a Permitted Assignment under Section 16.3 (Permitted Assignments)), and an instrument in recordable form that contains a covenant of assumption by such Assignee satisfactory in substance and form to the City, consistent with the requirements of this Article. However, the failure or refusal of an Assignee to execute such instrument of assumption will snot release such Assignee from its liability as set forth in this Section. Except for a Permitted Assignment as provided in Section 16.3 (Permitted Assignments), Licensee shall reimburse the City on demand for any reasonable costs that the, City incurs in connection with any proposed Assignment, including the costs of investigating the acceptability of the proposed Assignee and legal costs incurred in connection with considering any requested consent. The City agrees that its right to reimbursement under this Section during the Term will be limited to Two, Thousand Dollars ($,2,01001.00)for each request. Master License for Wireless Facilities on City Poles in the Right-of-Way 35 2020-01-28 Agenda Packet, Page 151 of 288 16.6 Licensee's Customers Licensee may provide capacity to Licensee's customers using, or permit such customers to use, the Equipment installed by Licensee without the City's consent required in this Section provided that (1) Licensee remains solely responsible for such Equipment and (2) such use by Licensee or Licensee's customers doles not involve any physical changes to the Equipment other than changes permitted in writing by the City., In any other case, Licensee may provide capacity to Licensee's customers using, or permit such customers to use, the Equipment installed by Licensee, upon prior written notice to the City that (a) identifies the customer who will be using the Equipment and the location(s) where such use will occur; and (b) includes the appropriate annual fee for the additional carrier as specified in Schedule A-4, prorated to account for any partial year. Thereafter, Licensee shall pay the additional carrier fee each year in the same manner as the License Fee so long as the additional carrier continues to use the Equipment. Notwithstanding anything in this Master License to the contraryy, Licensee shall not be required to pay any additional fee to allow Licensee's customers to use the wirelin�e portions of the Equipment for data transport, backhaul or similar services. 117. DEFAULT 17.1. Events of Default by Licensee Any of the following will constitute an event of default by Licensee under this Master License and any Pole Licenses issued under it: (1) Licensee fails to pay any sums due to, the City within ten (10) days after written notice from the City; (2) Licensee fails to perform or comply with any other obligation or representation imade under this Master License, if the failure continues for thirty (30) days after the date of written notice from the City, or, if such default is snot capable of cure within the thirty (30) day period, Licensee fails to promptly undertake action to cure such default within such thirty (30)d,ay period and thereafter fails to use its best efforts to complete such cure within sixty (60) days after the City's, notice; (3) Licensee removes its Equipment or abandons the License Area for a continuous period of more than sixty (60) days, such that the License Area is longer being used for the Permitted Use; or (3) any of the following occurs: (i) the appointment of a receiver due to Licensee's insolvency to take possession of all or substantially all of the assets of Licensee, (iii) an assignment by Licensee for the benefit of creditors; or(iii) any action taken by or against Licensee under any insolvency, bankruptcy, reorganization, moratorium, or other debtor relief Laws, if any such receiver, assignment, or action is not released, discharged, dismissed, or vacated within sixty (60) days. 17.2. City's Remedies In addition to all other Frights and remedies available to the City at law or in equity, the City will have the following remedies following the occurrence of an event of default by Licensee,. Master License for Wireless Facilities on City Poles in the Right-of-Way 36 2020-01-28 Agenda Packet, Page 152 of 288 17.2.1. License Continuation Without prejudice to its right to other remedies, the City may continue this Master License and applicable Pole Licenses in effect, with the right to enforce all of its rights, and remedies, including the right to payment of License Fees,1 Additional Fees, and other charges as they become due. 17.2.2. Pole License Termination If a default specific to one or more Pole, Licenses is not cured by Licensee within the applicable cure period, if any, specified in Section 17.1 (Events of Default by Licensee), the City may term�inate, each Pole License in defau�lt. 17.2.3. Master License Termination If Licensee's default is of such a serious nature in the City's reasonable determination that the default materially affects the purposes of this Master License, the City may terminate this Master License in whole or in part. Termination of this Master License in whole will terminate all Pole Licenses issued under it automatically and without the need for any further action by the City. In either case, the City will deliver written notice to Licensee providing thirty (30) days' notice of termination and specify whether the termination affects the entire Master License or only certain Pole Licenses in the notice. The City will specify the amount of time Licensee will have to remove its Equipment from any affected City Pole, which will be at least thirty (3,0) days after the date of the City's notice for up to fifty percent (50%) of licensed City Poles and an additional thirty (30) days for more than fifty-one percent (51%) of licensed City Poles. If Licensee does not remove its, Equipment within the specified period, the City will be entitled to remove Licensee's Equipment from the City Pole. The City will have the right to make any terminated portion of the License Area available for license to other parties as of the effective date of the termination, even if Licensee's Equipment is still on the Pole. 17.2.4. Default Fees Without limiting the City's other rights and remedies under this Master License, the City may require Licensee to pay Additional Fees for the City's, administrative cost in providing notice or performing inspections for the events described below (each, a "Default Fee") by giving notice of the City's demand that Licensee cure the default and specifying the cure period. The Default Fee for the initial notice from the City will be due and payable to the City ten (10) days after delivery of notice to Licensee. In addition, if Licensee fails to cure the condition within the cure period set forth in the initial notice, and the City then delivers to Licensee a follow-up notice requesting compliance, then the Default Fee for the follow-up notice will be due and payable to the City ten (1 0)days after delivery of the follow-up notice to Licensee. Default Fees will apply to any of the following events: (1) Licensee constructs or installs any alteration or improvement without the City's prior approval if required by Section 6 (Pole Licenses), Section 7 (Equipment Installation), or Section 7.3.1 (Alterations to City's Property) of this Master License; (2) Licensee fails to cure damage required by Section 9 (Licensee's Maintenance Obligations) on a timely basis; (3) Licensee fails to secure �required Master License for Wireless Facilities on City Poles in the Right-of-Way 37 2020-01-28 Agenda Packet Page 153 of 288 permits before accessing the License Area or following the plan approval proced�u�res if required by Section 7 (Equipment Installation); or (4) Licensee fails to provide evidence of the required bonds and insurance coverage described in Section 19 (Insurance) on a timely basis. 117.3. Licensee's Remedies Licensee's sole remedy for the City's breach or threatened breach of this Master License or any Pole, License issued under it will be an action for damages) subject to Section 20 (Limitations on City's Liability). 117.4. Cumulative Rights and Remedies All rights and remedies under this Master License are cumulative, except as otherwise provided. 18. LICENSEE'S INDEMNIFICATION OBLIGATIONS To the maximum extent permitted by applicable Laws, Licensee, for itself and its successors and assigns, shall indemnify, defend,, protect and hold the City, its Agents, Invitees and their respective heirs,, legal representatives, successors and assigns (the "Indemniified Partl'es"), harmless from and against any and all liabilities, losses,, costs, claims,judgements, settlements, damages, liens, fines, penalties and expenses, whether direct or indirect, incurred in connection with or arising in whole or in part from: (1) death or personal injury to any person or property damage or other loss that occurred on or about the License Area or arises in connection with Licensee's or its Agents' or Invitees' authorized or unauthorized uses on or about the License Area; (2) any failure or refusal by Licensee to observe or perform any term, covenant or condition in this Master License to, be observed or performed on Licensee's part; (3), Licensee's or its Agents'' or Invitees' uses or occupancy, or manner of use or occupancy, of the License Area; (4) any exposure to RF emissions, or EMFs from Licensee's Equipment or uses on or about the License Area; (5) the License Area condition or any occurrence on or about the License Area attributable to the events described In clauses (1), (2), (3) or(4,) in this, Section 18; or (6) any act, omission or negligence of Licensee, its Agents or Invitees in, on or about the License Area; all whether any negligence may be attributed to the Indemnified Parties or not and all whether liability without fault is imposed or sougiht to be imposed on the Indemnified Parties, but except to the extent that such Claim(s) arise from the Indemnified Parties' willful misconduct or sole active negligence. Licensee's obligations under this Section 18 includes, without limitation, reasonable fees, costs and expenses for attorneys, consultants and experts, and the City's costs to investigate any Claim. Licensee specifically acknowledges and agrees that it has an immediate, and independent obligation to defend the Indemnified Parties from any Claim that actually or potentially falls within this Section 18, even when the allegations in such Claim are groundless, fraudulent or false, and which obligation arises at the time the Indemnified Parties tender such Claim to Licensee and continues at all times until such Claim's final resolution. Licensee's obligations under this Section 18 will survive the expiration or termination of this Master License. Master License for Wireless Facilities on City Poles in the Right-of-Way 38 2020-01-28 Agenda Packet, Page 154 of 288 19. INSURANCE 19.1. Licensee's Insurance As a condition to issuance of any Pole License, Licensee must provide proof of compliance with the insurance requirements in this Section except to the extent the City's Risk Manager agrees otherwise,. 19.1.1. Required Coverages Licensee shall procure and keep in effect at all times during the Term, at Licensee's cost, insurance in the following amounts and coverages-. (1) Commercial General Liability insurance (including premises operations; explosion,I ion, collapse and underground hazard- broad form property damage- products/completed operations,* contractual liability meeting the indemnification obligations herein; independent contractors; personal injury) with limits of at least $2 million combined single limit for each occurrence; (2) Worker's Compensation Insurance per California statutory limits with Employer's Liability Limits not less than $1 million each accident or disease; (3) Commercial Automobile Liability Insurance with limit not less, than $2 million each occurrence combined single limit for bodily injury and property damage including owned and non-own�ed and hired vehicles. The required limits may be met by a combination of primary and excess or umbrella insurance. 1 .1.2. Required Endorsements, Commercial General Liability Insurance and Commercial Automotive Liability Insurance policies, must contain the following endorsements: (1) name the City, its officers, agents, employees and volunteers as additional insureds; (2) that such policies are primary insurance to any other insurance available to the additional insureds with respect to any Claims that arise in connection with this Master License; (3)that such insurance applied separately to each insured against whom a Claim is made or brought, except with respect to the limits; (4) that such policies provide for the severability of interests and that an act or omission of one of the named insureds that would void or otherwise reduce coverage shall not void or otherwise reduce coverage as to any other named insured,; and (5) that such policies shall afford coverage for all Claims based on acts omissions, injury or damage that occurred or arose or the onset occurred or arose) in whole or in part during the policy period. Additional Insured Endorsement shall snot exclude products/completed operations. 19.1-3. Cancellation Notices All insurance policies required to be maintained by Licensee under this Master License shall be endorsed to provide written notice of cancellation by the, insurer for any reason, other than non-payment of premium to the City. In the event that Licensee receives a notice of intent to cancel or notice of cancellation for non-payment or reduction of any coverage required under this Master License, Licensee shall forward such notice to the Master License for Wireless Facilities on City Poles in the Right-of-Way 39 2020-01-28 Agenda Packet, Page 155 of 288 City within two business days and promptly take action to prevent cancellation, reinstate cancelled coverage or obtain coverage from a different insurer qualified under Section 19.1.7., 19.1.4. Ciairns-Made Policies In the event that any required insurance under this Master License is, provided under a claims-made form, Licensee shall continuously maintain such coverage throughout the Term and, without lapse, fort re,e years after this, Master License expires or terminates, to, the effect that, should any event during the Term give rise to a Claim brought after this Master License expires or terminates,, such Claims,will be covered under Licensee"s claims-made policies. 19.1.5. General Aggregate Limit The general aggregate limit for any required insurance under this Master License must be double the per-occurrence or Claims limits specified in Section 19.1 when coverage include a general annual aggregate limit or provides that Claims investigation or legal defense costs will be included in such generalannual aggregate limit. 19.1.6. Certificates On or before the Effective Date, Licensee shall deliver to the City all insurance certificates and additional insured endorsements from Licensee's insurance providers in a form reasonably satisfactory to the City that evidences all the required coverages under this Master License. In addition, Licensee shall promptly deliver to the City all certificates and endorsements required herein after Licensee receives a request from the City. Upon request, Licensee shall make copies of complete policies available for review at the Licensee's place of business. 1 9.1.7. Insurer Qualifications Licensee's insurance providers, must be licensed to do business in California and must meet or exceed an A.M. Best's Key Rating A-X or its equivalent. 1 9.1.8. Effective Dates The City shall not authorize Licensee to install any Equipment on any Pole until and unless all insurance coverages required to be carried by Licensee under this Master License have been obtained. Licensee shall ensure that all insurance coverages required to be carried by Licensee under this Master License remain in effect at all time until all Equipment has been removed from the License, Area. The requirements in this Section 19.1-8, (Effective Dates) all survive the expiration or termination of this Master License. 19 1Licensee's Self-insurance Afternaltive Master License for Wireless Facilities on City Poles in the Right-of-Way 40, 2020-01-28 Agenda Packet, Page 156 of 288 Licensee shall not be permitted to meet its insurance obligations under this Master License through self-'insurance without prior written consent from the City, which the City may withhold in its sole discretion for any or no reason. In the event that the City consents to allow Licensee to self-insure as an alternative insurance program, such consent will not be, deemed an amendment or implied waiver to any other requirement in this Master License. Any amendment to any insurance requirement must be in a written agreement. 19.1.10. No Limitation on Indemnification Obligations Licensee's insurance obligations under this Section 191n no way relieves or decreases Licensee's liability under Section 18 (Licensee)Is Indemnification Obligations) or any other provision in this Master License. 1 .1.11. Right to Terminate The City may elect, in its sole and absolute discretion, to terminate this Master License on written notice to Licensee if Licensee allows any required insurance coverage to lapse and does not reinstate the lapsed insurance coverage within three days after Licensee receives such written notice. 119.2. City's Insurance Licensee acknowledges that the City self-insures against casualty, property damage and public liability risks. The City agrees to maintain an adequate program of self- insurance for public liability risks during the Term and will not be required to carry any third party insurance with respect to the License Area or otherwise. 119-3. Subrogation Waiver The City and Licensee each hereby waives any right of recovery against the other party for any loss or damage sustained by such other party with respect to the License Area or any portion thereof or the contents of the same or any operation therein, whether or not such loss is caused by the fault or negligence of such other party, to the extent such loss or damage is covered by insurance obtained by the waiving party under this Master License or is actually covered by insurance obtained by the waiving party. Each waiving party agrees to cause its insurers to issue appropriate waiver of subrogiation rights endorsements to all policies relating to the License Area, but the failure to obtain any such endorsement will not affect the waivers in this Section. 19-4. Contractors' Bonds and Insurance Licensee shall require its contractors that install, maintain, repair, replace or otherwise perform any work on or about the License Area: (1) to provide bonds to guarantee the performance of the work and the payment of subcontractors and suppliers for any installation of Equipment, and (2) to have and maintain insurance of the same coverage and amounts as required of Licensee. 20. LIMITATIONS ON THE CITY'S LIABILITY Master License for Wireless Facilities on City Poles in the Right-of-Way 41 2020-01-28 Agenda Packet, Page 157 of 288 20.1. General Limitations on the City's Liability The City is not responsible or liable to Licensee for, and Licensee hereby waives all Claims against the City and its Agents and releases the City and its Agents from, all Claims from any cause (except to the extent caused by the sole active negligence or willful misconduct of the City and its Agents), including acts or omissions of persons using the sidewalor street adjoining or adjacent to or connected with the License Area; utility interruption; theft; burst, stopped or leaking water, gas, sewer or steam pipes; or gas, fire, oi , or electricity in, flood, or vehicle collision on or about the License Area or other City Property. 201-2. Consequential Damages Licensee expressly acknowledges and agrees, that the License Fees and Additional Fees payable under this Master License do not take into account any potential liability of the City for consequential or incidental damages., The City would not be willing to enter into this Master License or issue any Pole Licenses in the absence of a complete waiver of liability, to the fullest extent permitted by Law, for consequential or incidental damages, due to the acts or omissions of the City or its Agents, and Licensee expressly assumes the risk with respect thereto. Accordingly, without limiting any Indemnification obligations of Licensee or other waivers, contained in this Master License and as a material part of the consideration for this Master License, Licensee fully releases, waives and discharges forever any and all Claims against the City for consequential and incidental damages arising out of this Master License or any Pole License,, including lost profits arising from the disruption to Equipment, any interference with uses conducted by Licensee under this Master License and Pole Licenses, regardless of the cause, and whether or not due to, the active or passive negligence or willful misconduct of the City or its Agents, and covenants not to sue for such damages the City, and the City's other departments,, and all City agencies, officers, directors and employees, and all persons acting by,, through or under each of them. Without limiting any Indemnification obligations of Licensee or other waivers contalned in this Master License, in no event shall Licensee be liable to the City for any special, consequential or indirect damages. 20.3. No Relocation Assistance This Master License creates no right in Licensee to receive any relocation assistance or payment for any reason under the California Relocation Assistance Law (Cal. Gov. Code §§ 7260 et seq.}, the Uniform Relocation Assistance, and Real Property Acquisition Policies Act (42 U.S.C. §§4601 et seq.) or similar Law upon any termination of occupancy except as provided in Section 15 (Condemnation). To the extent that any relocation law may apply, Licensee waives, releases and irelinqushes forever any and all Claims that it may have against the City for any compensation from the City except as specifically provided in this Master License upon termination of its occupancy of all or any part of the License Area. Master License for Wireless Facilities on City Poles in the Right-of-Way 42 2020-01-28 Agenda Packet, Page 158 of 288 20.4. Non-Liability for City Officials, Employees and Agents No elective or appointive, board, agency, member, officer, employee or other Agent of the City will be personally liable to Licensee, its successors and assigns, in the event of any default or breach by the City or for any amount which may become due to Licensee,1 its successors and assigns, or for any obligation of the City under this Master License. 20.5. Licensee's Waiver Licensee acknowledges the City's rights under this Section and waives any Claims arising from the exercise of their rights. In connection with the preceding sentence and releases and waivers under Section 8.1 (City's Access to License Areas), Section 9-1-3 (No Right to Repair), Section 13.1 (Compliance with Current and Future Laws), Section 14.1.1 (Election to Repair or Replace Damaged Polle),, Section 15.1.3 (No, Statutory Right to Terminate), Section 19.3 (Subrogation Waiver), Section 20.1 (General Limitations on City's Liability), Section 20.2 (Consequential Damages), Section 20-3 (No Relocation Assistance), Section 23.3 (Application) and any other waiver by Licensee under this Master License,1 Licensee acknowledges that it is fam� ar with section 1542 of the California Civil Code, which reads: A GENERAL RELEASE DOES, NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTINGTHE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Licensee realizes and acknowledges that the waivers and releases contained in this Master License include all known and unknown, disclosed and undisclosed, and anticipated and unanticipated Claims. Licensee affirms that it has agreed to enter into this Master License in light of this realization and, being fully aware of this situation, it nevertheless, intends to waive the benefit of California Civil Code section 1542 and any similar Law. The releases and waivers, contained in this, Master License will survive its expiration or earlier termination. 21. RECORDS 21.1. Accounting Records Licensee shall maintain throughout the Term and for at least three (3) years after this Master License expires or terminates the following records in either physical format at Licensee's place of business within San Diego County or in an electronic format at Licensee's discretion: (1) site identification and location for all Poles under active, Pole Licenses; (2) the amount and payment date for all License Fees paid to the City pursuant to this Master License; (3) all Regulatory Approvals issued in connection with the Equipment on Poles; and (4) all correspondence, with the City in connection with any matter covered under this Master License for Wireless Facilities on City Poles in the Right-of-Way 43 2020-01-28 Agenda Packet Page 159 of 288 Master License. Notwithstanding the foregoing,, Licensee's duty to retain the records described in Section 21.1(4) above shall not extend beyond the times set forth in Licensee's internal document retention policies unless otherwise required by law or regulation. The City, or its designee, will have the right to inspect and audit Licensee"s records at Licensee's place of business during regular business hours on ten (10) days,' notice to Licensee. 211.2. Estoppel Certificates Licensee, at any time and from time-to-time on not less than thirty (30) days' written notice from the City, shall execute, acknowledge and deliver to the City or its designee, a certificate of Licensee, stating: (a) that Licensee has accepted the, License Area or, if Licensee has, not done so, that Licensee has not accepted all or any part of the License Area and specifying the applicable portions of the License Area and reasons for non- acceptance); (b) the Commencement Dates of any Pole Licenses,then in effect; (c)the Effective Date and Expiration Date of this Master License; (d) that this Master License and Pole Licenses are unmodified and in full force and effect or, if modified, the manner in which they are modified (e), whether any defenses then exist against the enforcement of any of Licensee's obligations under this Master License (and if so, specifying the same); (f) whether any of the City's obligations under this Master License are outstanding (and if so, identifying any City obligations that Licensee believes that the City has failed to meet); (g) the date, if any, to which the License Fees and Additional Fees have been paid; and (h) any other information that may be reasonably req�u�ired by any such persons. 22. RUES AND REGULATIONS At all times throughout the Term, Licensee shall faithfully comply with any and all reasonable rules, regulations and instructions, that the City may from time-to-time establish and/or amend with respect to the License Area. 23. PERFORMANCE BOND 22.1. Amount At the time Licensee tenders to the City the first Acknowledgement Letter, Licensee must also tender to the City for deposit a sum equal to Four Thousand and 001100 Dor llars ($4,0! 0.00) (the "Performance Bond"') to secure Licensee's faithful performance of all terms,,, covenants and conditions in this Master License and any Pole License. 22.2. Further Deposits In the event that the City applies or uses the Performance Bond in whole or in part to cure any default by Licensee under this Master License or any Pole License, Licensee shall replenish the Performance Bond in the amount and on the date specified in a Master License for Wireless Facilities on City Poles in the Right-of-Way 44 2020-01-28 Agenda Packet, Page 160 of 288 written notice to Licensee. The City may, in the City's reasonable judgment, require Licensee to increase the Performance Bond amount from time-to-time when the City determines, that Licensee's past acts or omissions in connection with the License Area warrants additional security. 22.3. 23.,3. Application Licensee agrees that the City may use the in whole or in part to remedy any damage to,the License Area caused by Licensee, its Agents or I nvitees or any failure by Licensee to, perform any term, covenant or condition in this Master License or any Pole License (including without limitation any failure to pay any License Fee or other sums, due under this Master License or any Pole License either before or after any default). In the, event that the City uses the in whole or in part, the City will not be deemed to have waived any rights under this Master License, or legal or equitable rights whatsoever. Licensee expressly waives any rights, it may have under California Civil Code section 1950.7 or any similar Law and agrees that the City may retain from the any portion reasonably necessary to compensate the City for any foreseeable or unforeseeable loss or damage caused by Licensee 51 s, its Agents' or Invitee's, acts or omissions. The City's obligations with respect to the shall be in the nature of a debtor, and the City shall not be deemed to hold the in trust for any reason. The City may (but shall not be obligated to) keep the separate from general funds. Licensee shall not be entitled to any interest on the . 23. SURRENDER OF LICENSE AREA 23.11. Swrender �No later than thirty(30) days after the Expiration Date or other termination of this Master License or any Pole License, Licensee shall peaceably remove its Equipment from the applicable portion of the License Area and surrender iit to the City in good order and condition, normal wear and tear excepted, free of debris and hazards, and free and clear of all liens and encumbrances. Immediately before the Expiration Date or other termination of this Master License, Licensee shall remove all of Licensee's Equipment and repair any damage resulting from the removal. Licensee's obligations under this Section 24.1 will survive the Expiration Date or other termination of this Master License. 23.2. Abandonment At its option, the City may deem any items of Licensee's Equipment that remain on a City Pole or otherwise on the License Area or other City Property more than thirty (3,0) days after the Expiration Date of this Master License to be abandoned and in such case the City may dispose of the abandoned Equipment in any lawful manner after expiration of a sixty (60) day period initiated by the City's notice to Licensee to remove the Equipment. Licensee agrees that California Civil Code sections 1980 et seq. and similar provisions of the Civil Code addressing abandoned property by residential or commercial tenants do not apply to any abandoned Equipment. Master License for Wireless Facilities on City Poles in the Right-of-Way 45 2020-01-28 Agenda Packet, Page 161 of 288 23.3. Holding Over Any holding over after the Expiration Date with the express consent of the City will be construed to automatically extend the Term of this Master License for a period of one License Year at a License Fee equal to one hundred fifty percent (150%) of the License Fee in effect immediately before the Expiration Date, and the Master License otherwise will be on its express terms and conditions. Any holding over without the City's consent will be a default by Licensee and entitle the City to exercise any or all of its remedies,, even if the City elects to accept one or more payments of License Fees, Additional Fees or other amounts payable to the City from Licensee after the Expiration Date. 24. HAZARDOUS MATERIALS 24.11. Hazardous Materials lion License Area Licensee covenants and agrees that neither Licensee nor any of its Agents or Invitees shall cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed of or Released in, on, under or about the License Area or any other part of City Property, or transported to or from any City Property in violation of Environmental Laws, except that Licensee may use small quantities of Hazardous Materials as needed for routine operation, cleaning and maintenance of Licensees Equipment that are customarily used for routine operation, cleaning and maintenance of such equipment and so long as all such Hazardous Materials are contained, handled and used in compliance with Environmental Laws,. Licensee shall immediately notify the City if and when Licensee learns or has reason to believe any Release of Hazardous Material has occurred iiin, on, under or about the License Area or other City Property. 24.2. Licensee's Environmental Indemnity If Licensee breaches any of its obligations contained iin this, Section, or if any act, omission, or negligence of Licensee or any of its Agents or Invitees results in any contamination of the License Area or other City Property, or in a Release of Hazardous Material from, on, about, in or beneath any part of the License Area or other City Property, or the violation of any Environmental Law, then Licensee, on behalf of itself and its successors and assigns,, shall indemnify, defend and hold harmless, the City, including its Agents, and their respective successors and assigns from and against any and all Claims (including damages for decrease in value of the License Area or other City Property, the loss or restriction of the use of usable space in the License Area or other City Property and sums paid in settlement of Claims, attorneys' fees,,, consultants' fees, and experts' fees and related costs) arising during or after the Term of this Master License relating to such Release or violation of Environmental Laws; provided, however, Licensee shall not be liable for any Claims to the extent such Release was caused by the sole active negligence or willful misconduct of the City or its Agents. Licensee's Indemnification obligation includes costs incurred in connection with any activities required to Investigate and Remediate any Hazardous Material brought onto the License Area or other City Property by Licensee or any of its Agents or Invitees, and to restore the License Area or other City Property to its condition prior to Licensee's introduction of such Hazardous Material or to correct any violation of Environmental Master License for Wireless Facilities on City Poles in the Right-of-Way 46 2020-01-28 Agenda Packet, Page 162 of 288 Laws. Licensee specifically acknowledges and agrees, that it has an immediate, and independent obligation to defend the City and the other Indemnified Parties from any Claim that actually or potentially falls within this Indemnity provision even if the allegations supporting the Claim are or may be groundless, fraudulent, or false, which obligation arises at the,time,such Claim is tendered to Licensee, by the Indemnified Party and continues until the Claim is finally resolved. Without limiting the foregoing, if Licensee or any of its Agents or Invitees, causes the Release, of any Hazardous Material on, about, in, or beneath the License Area or other City Property, then in any such event Licensee shall, immediately, at no expense to any Indemnified Party, take any and all necessary actions to return the License Area or other City Property, as applicable, to, the condition existing prior to the Release, of any such Hazardous Materials on the, License Area or other City Property or otherwise abate the Release in accordance with all Environmental Laws, except to the extent such Release was caused by the sole active negligence or willful misconduct of the City or its, Agents. Licensee shall afford the City a full opportunity to participate in any discussions with Regulatory Agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree or other compromise or proceeding involving Hazardous Material. 25. TERVINATION 25.1. Termination for Failure to Obtain Regulatory Approvals In the event that Licensee cannot obtain all Regulatory Approvals required for any Pods License after two (2) years from the subject Pole License effective date, then either the City or Licensee may terminate that Pole License on sixty (60) days' notice to the other party delivered within ten (10) days after second anniversary of that Pole License's effective date. The parties agree that the Commencement Date will be deemed to have not occurred for any Pole License terminated under this section, and Licensee will have no obligation to pay the applicable License Fee for that Pole License. 25.2. Licensee's Termination Rights 25.2.1. Master License Termination Rights Licensee may, in Licensee's sole discretion, elect not to extend this Master License at the end of the initial ten (10) year term or any subsequent extension terms with at least one (1) year's written notice to the City at any time after the Effective Date. Licensee may not terminate this Master License, during the initial ten (10) year term except as expressly provided in this Master License. 25.2.2. Pole License Terrnination Rights Licensee may, in Licensee's sole discretion, terminate any Pole License on ninety (90) days' written notice, to the City at any time, after twelve (1 2) months from the subject Pole License Commencement Date so ongi as Licensee is snot in default with respect to the subject Pole License. 25.2-3. Termination Rights after Pole Replacement Master License for Wireless Facilities on City Poles in the Right-of-Way 47 2020-01-28 Agenda Packet, Page 163 of 288 In the event that the City exercises its absolute right to replace any Pole, the City shall make a reasonable effort to provide Licensee with at least sixty (60) days' written notice. The City's failure to provide at least sixty (60) days' notice prior to any Pole replacement shall not affect the City)I s rights under this Master License. Within ninety (90) days after Licensee receives notice from the City, Licensee may elect to either (1) install Licensee's Equipment on the replacement Pole, at Licensee)I s sole cost and expense or (2) terminate the applicable, Pole License as to the replacement Pole. 25.3. City's Absolute Right to Terminate Pole Licenses, The City has the absolute right to terminate any or all Pole Licenses on thirty (30) days' written notice to Licensee when the City determines, in the City's reasonable, determination, that Licensee's continued use of the License Area adversely affects or threatens, public health and safety, constitutes a nuisance, interferes with the City's municipal functions or requires the City to maintain a Pole no longer necessary for the City's purposes,. 25.14. Licensee's Rights after Termination In the event that the City terminates any Pole License for reasons unrelated to Licensee's failure to perform its obligations under this Master License, the City shall refund any pre-paid Licensee Fee on a pro-rata basis. In addition, the City shall prioritize Licensee's Pole License Application for any Pole License to replace the terminated Pole License� provided, however, that (1) the City shall prioritize only as many Pole License Applications as Pole Licenses terminated by the City and (2) the City's prioritization will not affect Licensee's obligations under this Master Agreement. 26. INTERFERENCE 26-11. Licensee's ObligaUon Not to Cause Interference Licensee will not operate or imaintain its Equipment in a manner that interferes with or impairs other communication (radio, telephone and other transmission or reception) or computer equipment lawfully used by any person, including the City or any of its Agents. Such interference will be an event of default under this Master License by Licensee, and upon written notice from the City, Licensee shall be responsible for eliminating such interference promptly and at no cost to the City. Licensee will be required red to use its best efforts to remedy and cure such interference with or impairment of City operations. If Licensee does not cure the default promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the City will have the right to bring an action against Licensee to enjoin such interference or to terminate all Pole Licenses where the Equipment is causing interference or impairment,, at the City's election. 26.2. Impaoirment, Caused by Change in City Use If any change in the nature of the City's use of the License Area during the Term results Master License for Wireless Facilities on City Poles in the Right-of-Way 48 2020-01-28 Agenda Packet, Page 164 of 288 in measurable material adverse impairment to Licensee's normal operation of its Equipment making it necessary to alter the Equipment to mitigate the adverse effect, Licensee shall notify the City and provide evidence of the claimed impairment. Upon receipt of such notice, the City will have the right to make its own reasonable determination and, if it agrees with Licensee, investigate whether it can reasonably and economically mitigate that interference. The City will provide notice to, Licensee of the City's determination. If the City determines in its sole discretion that itigation is feasible and can be achieved foir a reasonable cost in the City's reasonabile judgment, the City's notice will specify when the City will mitigate the adverse effect., The City's mitigation will effect a cure, and the City will not be liable to Licensee in any other way or be required to take any other measures with respect to the Equipment. If the City finds Kiln its sole, reasonable determination that mitigation is not feasible or cannot be achieved for a reasonable cost in the City's, reasonable judgment, Licensee may elect either to: (1) terminate the Pole License as to the affected City Pole and receive a ratable reduction in the License Fee; or (21) take steps itself at its own cost to mitigate the adverse effect and continue to operate the Equipment on the City Pole, and receive from the City a waiver of the License Fee for the first six (6) months of the following, License Year under the affected Pole License to offset the cost of mitigation. Licensee agrees that the City's temporary and partial abatement or waiver of the License Fee under this Section 27.,2 will be the only compensation due to Licensee for costs incurred or otherwise arising from the adverse effect as liquidated damages fully compensating Licensee for all Claims that may arise or be related to the adverse effects. Under no circumstances may the City be required to alter its operations at the identified City Pole or provide a replacement City Pole to Licensee. 26.3. lmpalirmelnt Caused by C'I'ty Access Licensee agrees that it will not be entitled to any abatement of License Fees if the City exercises its rights of access under Section 8.1 (City Access to License Area) unless the City's activities cause Licensee to be unable to operate Equipment on the License Area for its permitted use fora period of more than ten (10) days, in which case, subject to, proof, License Fees will be abated ratably for the entire period that Licensee is unable to, operate any Equipment on any affected City Pole. 27. MISCELLANEOUS PROVISIONS 27.1. Notices Except as may be specifically provided otherwise in this Master License, all notices, demands or other correspondence required to be given under this Master License must written and delivered through (1) an established Inational courier service that maintains delivery records and confirmations; (2) hand delivery; or (3) certified or registered U.S. Mail with prepaid postage and return receipt requested, and addressed as follows-. Master License for Wireless Facilities on City Poles in the Right-of-Way 49 2020-01-28 Agenda Packet, Page 165 of 288 TO CITY: Department of Economic Development Attn: Rick Ryals 2,76 Fourth Avenue Chula Vista, CA 91910 Telephone: (619) 691-5118 Email: rryals@chulavistaca.gov with a copy to: City Attorney 276 Fourth Avenue Chula Vista, CA 91910, Telephone: (6191) 6911-5037 Facsimile: (61 9) 4091-5823 Email-. c�ityattorney@cl.chula-vista.ca.us TO LICENSEE: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration 575 Morosgo Drive NE Atlanta,, GA 30324 With a copy to: New Cingular Wireless PCS, LLC Attn.-, AT&T Legal Department— Network Operations, 208 S. Akard Street Dallas, Texas 75202-4206 All notices under this Master License will be deemed to have been delivered: (i) five days after deposit if delivered by first class mail, (ii) two days after deposit if delivered by certified mail; (iii)the date delivery is made by personal delivery or overnight delivery; or (iv the date an attempt to make delivery fails because a party has failed to provide notice of a change of address or refuses to accept delivery. Telephone, facsimile and email information are provided for convenience and for couriers who may require such information, and any notice given solely through electronic means will not be deemed to be effective notice. Any copies required to be given constitute an administrative step and not actual notice. The parties may change the notice addresses above from time-to- time through written notice to the addresses above or the then-current notice address. 27.2. Waiver; No [mplied Waivers No failure by either party to insist upon the strict performance of any obligation of the other under this Master License or to exercise any aright, power or remedy arising out of a breach thereof, irrespective of the length of time for which such failure continues, will Master License for Wireless Facilities on City Poles in the Right-of-Way 50, 2020-01-28 Agenda Packet, Page 166 of 288 constitute a waiver of such breaco acceptance by the, City or any its Agent of full or partial payment of License Fees or Additional Fees during the continuance of any such breach will constitute, a waiver of such breach or of the, City's right to demand strict compliance with such term, covenant or condition, or operate as a waiver of any requirement of this Master License. No express waiver by either party of any default or the performance of any provision hereof will affect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. One or more waivers of a default or the performance of any provision hereof by either party will not be deemed to be a waiver of a subsequent default or performance. The City's consent given in any instance under the terms of this Master License will not relieve Licensee of any obligation to secure the City's conse�nt in any other or future instance under the terms of this Master License. 27.3. Amendments No part of this Master License (including all Pole Licenses) may be changed, waived, discharged or terminated orally, nor may any breach thereof be waived, altered or modified, except by a written instrument signed by both parties. 27.4. Interpretation The following rules of interpretation apply to this Master License. 27.4.1. General Whenever required by the context, the singular includes the plural and vice vers, 7a- the masculine gender includes the feminine or neuter genders and vice versa; and defined terms encompass all correlating forms of the terms, (e.g., the definition of "indemnlfy applies, to "indemnity," "indemnification," etc.). 27.4.2. Multi-party License In the event that the City provides consent, which the City may withhold for any or no reason, to enter into this Master License with amore than one Licensee, the obligations and liabilities under this Master License imposed on Licensee will be joint and several amongi them. 27.4-3. Captions The captions preceding the sections of this Master License and in the table of contents have been inserted for convenience of reference and such captions in no way define or limit the scope or intent of any provision of this Master License. 27.4.4. city Actions All approvals, consents or other determinations permitted or required by the City under this Master License will be made by or through the Public Works Director/City Engineer Master License for Wireless Facilities on City Poles in the Right-of-Way 51 2020-01-28 Agenda Packet, Page 167 of 288 or s or her designee, unless otherwise provided in this Master License or by the City Charter, Municipal Code or any City ordinance. 27.4.5. Words of Inclusion The use of the term `including," "such as," or words of similar import when following any general or specific term, statement or matter may not be construed to limit the term, statement or matter to the, stated terms, statements or matters, whether or not language of noin-I imitation, such as, "including, but not limited to" and "Including without limitation" are used. Rather, the, stated term, statement or matter will be, interpreted to refer to all other items or matters that could reasonably fall within the broadest scope of the term, statement or matter. 27.4.6. Laws References to all "Laws," including specific statutes, relating to the rights and obligations of either party mean the Laws in effect on the Effective Date and as they are amended, replaced, supplemented, clarified, corrected or superseded at any time while any obligations under this Master License or any Pole License are outstanding, whether or not foreseen or contemplated by the parties. 27-5. Successors and Asswigria The terms, covenants and conditions contained in this Master License bind and inure to, the benefit of the City and Licensee and,, except as otherwise provided herein, their successors and assigns. 27.6. Brokers Neither party has had any contact or dealings regarding the license of the License Area, or any communication in connection therewith, through any licensed areal estate broker or other person who could claim a right to a commission or finder's fee in connection with the license contemplated herein ("Broker"), whose commission, if any is due, is to be paid pursuant to a separate written agreement between such Broker and the party through which such Broker contracted. In the event that any Broker perfects a claim for a commission or finder's fee based upon any such contact,, dealings or communication, Licensee shall indemnify the City from all Claims brought by the Broker. This Section will survive expiration or earlier termination of this Master License. 27.7. Severablility If any provision of this Master License or the application thereof to any person, entity or circumstance is invalid or unenforceable, the, remainder of this Master License, or the, application of such provision to persons, entities or circumstances other than those as to which it is invalid or unenforceable, will not be affected thereby, and each provision of this Master License will be valid and be enforced to the full extent permitted by Law, except to the extent that enforcement of this Master License, without the invalidated Master License for Wireless Facilities on City Poles in the Right-of-Way 52 2020-01-28 Agenda Packet, Page 168 of 288 provision would be, unreasonable or inequitable under all the circumstance's or would frustrate a fundamental purpose of this Master License. 27.8. Governing Law; Venue This Master License, must be construed and enforced in accordance with the laws of the State of California and the City Charter, without regard tote principles of conflicts of law. This Master License is, made,, entered and will be performed in the City of Chula Vista, County of San Diego, State of California. Any action concerning this Master License must be brought and heard in Superior Court for the County of San Diego or in the United States District Court for the Southern District of California. 27.9. Time for Performance Provisions in this, Master License relating to number of days mean calendar days, unless otherwise specified. "Business day" means a day other than a Saturday, Sunday or a bank or City holiday. If the last day of any period to give notice, reply to a notice, or to, undertake any other action occurs on a day that is not a business day, then the last day for undertaking the action or giving or replying to the notice will be the next succeeding business day. Time is of the essence with respect to, all provisions of this Master License in which a definite time for performance is specified. 27.10. Survival Expiration or earlier termination of this Master License will not affect the right of either party to enforce any and all Indemnities and representations and warranties, given or made to the other party under this Master License, or any provision of this Master License that expressly survives termination. 27.11. Recording Licensee agrees not to record this Master License, any Pole License or any memorandum or short form of any of them in the Official Records of the County of San Diego. 27.112. Counterparts This Master License imay be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will be one and the same, instrument. 27.13. Approval Authority Each person signing this Master License and any Pole License on behalf of Licensee warrants and represents thato (i) he or she has the full right, power and capacity to act on behalf of Licensee and has the authority to bind Licensee to the performance of its obligations under those agreements without the subsequent approval or consent of any Master License for Wireless Facilities on City Poles in the Right-of-Way 53 2020-01-28 Agenda Packet, Page 169 of 288 other person or entity; (ii) Licensee is a duly authorized and existing entity; (iii) Licensee is qualified to do business in California; and (iv) Licensee has full right and authority to enter into this Master License and Pole Lice,nses., Upon the City's request, Licensee shall provide the City with evidence reasonabily satisfactory to the City confirming the representations and warranties above. [END OF MASTER LICENSE — SIGNATURES APPEAR ON NEXT PAGE] Master License for Wireless Facilities on City Poles in the Right-of-Way 54 2020-01-28 Agenda Packet, Page 170 of 288 The City and Licensee executed this Master License as of the date last written below: THE CITY: LICENSEE: City of Chula Vista, New Cingu�lar Wireless PCS, LL,C, a California municipal corporation a Delaware limited liability company By: By: Mary Cali las Salas Its: Mayor Its: Date: Date: APPROVED AS TO FORM: By: Glen R. Googiins City Attorney Date: APPROVED BY CITY COUNCIL RESOLUTION No. 2017- 217 ATTEST: By: Kerry K. Bigelow City Clerk Date: [END OF S1GNATURE — EXHIBITS AND SCHEDULES APPEAR ON NEXT' PAGE] Master License for Wireless Facilities on City Poles in the Right-of-Way 55 2020-01-28 Agenda Packet Page 171 of 288 EXHIBIT A FORM OF POLE, LICENSE AGREEMENT MLA NO. [INSERT] POLE LICENSE NO. [INSERT NUMBER IN CONSECUTIVE ORDER] Pursuant to that certain Master License between the City of Chula Vista, a California chartered municipal corporation (the "C'Ity") and ("Licensee"'), Licensee submits,to the City two partially executed counterparts of this Pole License, together with all the materials listed below, as its, Pole License Application in 1 %.0 accordance with Section 6 under the Master License: 1. Exhibit A-ly which designates all Pole Locations that Licensee seeks to be included in the License Area under this Pole License; 2. Exhibit A-2, which includes complete, detailed and final plans and specifications for all Licensee's Equipment to be installed in the License Area, subject to Regulatory Approvals-, 3., an Pole License Processing Fee equal to [$1,000 multiplied by the number of pole locations]-, 4. an RF Compliance Report, if snot previously provided; Licensee acknowledges that: (1) this Pole License will not be effective until the City returns a fully executed copy to, Licensee; (2)the City may require Licensee to supplement the Administrative Fee on conditions specified in Section 4.2 under the Master License, (3) Licensee will not have the irigiht to access or install Equipment on the License Area until after Licensee has: (a) submitted a complete Acknowledgment Letter to the City with all information and funds required,1 which includes the applicable License Fee specified in Schedule A-4; (b,) submitted insurance information to the City as specified in Exhibit A-3; and (c) the City has provided notice to proceed by returning to Licensee a countersigned copy of the Acknowledgment Letter. This Pole License is, executed and effective on the last date written below and, upon full execution will be the City's authorization for the City to begin its review of the Pole Locations and plans and specifications proposed in this Pole License application. [Signatures begin on next page] 2020-01-28 Agenda Packet Page 172 of 288 THE CITY: LICENSEE: City of Chula Vista, a California municipal corporation By: : Its: Its: Cate: Cate: 2020-01-28 Agenda Packet, Page 1.73 of 28 EXHIBIT A-1 POLE LOCATIONS / LICENSE AREA IVILA No. / Pole License No. [Licensee to list all proposed Pole Locations requested in this Pole License Application] 2020-01-28 Agenda Packet Page 174 of 288 EXHIBIT A-2 LICENSEE'S PLANS AND SPECIFICATIONS MLA No. / Pole License No. [Licensee to attach all plans and specifications for all Equipment proposed to be installed at all proposed ole Locations,] 2020-01-28 Agenda Packet Page 175 of 288 EXHIBIT A-3 FORM OF ACKNOWLEDGEMENT LETTER [Licensee to complete and submit with Pole License Application or upon obtaining all Regulatory Approvals] [insert date] [insert addressee information] RE: MLA No. Pole License No. Dear City Manager: This letter will confirm the following-. (1) that Licensee has obtained all the Regulatory Approvals required for the Permitted Use under this Pole License, and (2) the Commencement Date of this Pole License is [insert date], which is the first day of the month after Licensee obtained all Regulatory Approvals. This letter also confirms that Licensee has submitted all required insurance and bond information to the City. A check for the full Performance Bond (if not already provided) and the License Fee for the first License Year of this Pole License is enclosed herewith. Please acknowledge the city's receipt of this letter and the items listed below,,, and issue the City's approval for Licensee to begin installation of Equipment on the License Area by signing and returning a copy of this letter. Sincerely, [insert name] [insert title [Intentionally deleted] [Acknowledgement signature on next page] 2020-01-28 Agenda Packet Page 176 of 288 Acknowledgment By signing below, the City acknowledges receipt of this letter and the, enclosures listed below. Based upon receipt of the same, the City issues a notice to Licensee to proceed with installation of the approved Equipment in strict accordance the Pole License and the Master License as of the date below. City of Chula Vista, a California municipal corporation By: Its: Date. Enc. Executed Pole License Approved WTF Permit All other Regulatory Approvals Insurance certificates Contractor's bonds First License Year's License Fee 2020-01-28 Agenda Packet, Page 177 of 288 SCHEDULE A-4 ANNUAL, LICENSE FEE AND DEFAULT FEE SCHEDULE Pole License No Per Pole Fee Year 1 $270.00 2 $278.10 3 $286.44 4 $295.04 $303.89 $313.00 7 $322.39 $332.07 $342.03 10 $352.29 DEFAULT FEE SCHEDULE VIOLATION INITIAL NOTICE EACH FOLLOW-UP NOTICE unauthorized installations $500 $500 failure to make required $300 $350 repairs access violations $300 $350 insurance violations $300 $350 2020-01-28 Agenda Packet Page 1.78 of 28 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 2 B,2020 File IIS: 2 -0033 TITS RESOLUTION of THE CITY COUNCIL OF THE CITY OFF CHULA VISTA APPROVING AN AMENDMENT TO'THE AGREEMENT WITH HILL COMPANIES FOR SERVICES RELATED To CANNABIS BUSINESS APPLICATIONS AND APPROPRIATING$100,000,FROM THE GENERAL,FUND,To BE OFFSET BY APPLICATION FEES RECOMMENDEDT Council adopt the resolution. SUMMARY In March 2019, the Chula Vista City Council approved the agreement with HdL for commercial cannabis application review services in an amount not to exceed $539,500. This resolution is to reflect the performance of the following services by HdL Companies: provisional background checks, administrative appeal proceeding participation,and reassessment of applicant scores when appropriate. This will bring the total not to exceed contract value to $639,500 ENVIRONMENTAL REVIEW The Director ofl3e elopment Services has reviewed the proposed activity for compliance with the California Environmental Quality pct CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CE S. Guidelines because it will not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus,no environmental review is required. BOARD/COMMISSION/COMMITTEE RECOMMENDATION Not applicable DISCUSSION The.Adult Use of Marijuana.Act (AVMA), adopted by the voters of the State of California in November 2016, decriminalized ion.-medicinal cannabis and established a regulatory system for non-medicinal cannabis businesses in California. The Medicinal and adult-Else Cannabis Regulation and Safety .Act MAUCRSA),. enacted by the California Legislature in June 2017, establish a comprehensive set of laws regulating both individual and commercial medicinal and non-medicinal cannabis activity throughout the State of California. Under California law,local jurisdictions are authorized to either permit or prohibit the operation of cannabis businesses within their boundaries. 1 . 0 0 1 P � 1 2020-01-28 Agenda Packet, Page 179 of 28 On March 6,2018,the Chula Vista City Council approved adoption of'an ordinance permitting,licensing,and regulating cannabis businesses in the City of Chula Vista. Chula Vista Municipal Code Chapter 5.19 details the licensing,operating,and compliance regulations and guidelines for those businesses. As the City of Chula Vista moves forward to permit,license,and fully regulate commercial cannabis activities within the City,it is seeking to retain HdL Companies for assistance in this process. HdL Companies has over 30 years of experience providing revenue enhancement and consulting services to local governments in California. In addition, they have provided consulting and management services to numerous government agencies in the cannabis application review, ranking and scoring, and applicant interview processes. The City has sought and continues to seek provision of services from Ind L Companies, including completion of background checks, participation in administrative appeal proceedings, and reassessment of applicant scores when appropriate. The agreement with HdL Companies encompasses the following tasks 1-5 outlined in original agreement and 6-8 added with amendment; 1. Application Reviews and Initial Rankings; 2. Preparation and Interview Panel; 3. Preparation of Final Report; 4. Provide Subject Matter Expertise&Technical Support; 5. Contingency for Additional Reviews and Interviews; 6. Conduct Provisional Background Checks 7. Participate in administrative appeal proceedings 8. Reassess erroneous applicant scores as determined by the City Manager The proposed services are broken down into specific line items in the cost table below. �'Task Description Deliverables Estimated Cost I Provide review,scoring and merit- Review and score 136, $2,500 per applicant based ranking for all commercial applications. cannabis business applications. 2 Design and prepare interview Prepare to interview up to $1,000 per applicant process,provide support for 6,0 applicants. interview panel,and conduct applicant interviews. (2 Consultant staff members) 3 Compile all scores and prepare final To inform the final $2,000 report to the City. determination of which applicants shall be granted I ermits. 4 Provide up to 40 hours of subject $10,000 matter expertise and technical assistance,to be used as needed. 5 Provide a contingency for up to 15 Priced as above per additional application reviews and applicant identified in licant interviews, if needed. Task I and Task 2 P 2 2020-01-28 Agenda Packet, Page 18,0 0f 288 $300 6 Conduct provisional background Prepare provisional per individual reviews of individuals associated background review report with cannabis business applications. for each individual. 7 Participate in administrative appeal Testify at hearings or in $150/hr,up to a proceedings involving appeal of writing about score being maximum of$300 per cannabis business application scores. appealed. appeal For appeal hearings,testify by phone, video,or in person,at City's discretion,in response to all issues raised on appeal,of which Consultant has relevant knowledge,. For appeals in writing only,testify by written declaration in response to all issues raised on appeal,of which Consultant has relevant knowledge,. 8 When the City Manager determines a Prepare short report with $150 per appeal score is erroneous,evaluate the City application reassessment Manager's determination and findings in response to City reassess the application.Determine Manager's determination whether restore is appropriate and,if and,if appropriate, restore appropriate,restore. of application. Delegating of Authority to the Cit v Manager A final detailed scope of work and the terms of agreement are identified in the attached amendment. Accordingly, this item also requests that CityCouncil authorize and direct the City Manager to execute amendment with the terms presented as approved by the City Attorney. DECISION-MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and consequently, the real property holdings of the City Council members do not create a disqualifying real property-related financial conflict of interest under the Political Reform Act(Cat.Govt Code§87100,et seq. . Staff is not independently aware and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT-YEAR FISCAL IMPACT The cannabis application fees paid by prospective applicants will be utilized to pay for the application review services provided by HdL Companies. Such fees should be adequate to offset the contract costs. Therefore, there is no anticipated fiscal impact to the General Fund. ONGOING FISCAL IMPACT There is no ongoing fiscal impact ATTACHMENTS First Amendment P 3 2020-01-28 Agenda Packet, Page 18,1 of 288 Staff Contact.-David B'ilby, Director of FinancelTreasurer, Finance Department P 4 2020-01-28 Agenda Packet, Page 18,2 of 288 RESOLUTION O. RESOLUTION OF THE CITY COUNCIL OF TIME CITY OF CI-ULA VISTA APPROVING AN AMENDMENT NT O THE AGREEMENT WITH HDL COMPANIES S FOR SERVICES RELATED TO CANNABIS BUSINESS APPLICATIONS AND APPROPRIATING $100,000, FROM TIME GENERAL FUND, TO BE OFFSET BY APPLICATION FEES WHEREAS, the City previously entered into an. Agreement with Hinderliter, de Llamas and Associates "Consultant") to provide cannabis management services (the "Agreement"'); and WHEREAS, City and. Consultant desire to amend the Agreement to include performance of the following services: conduct background checks of individuals, participate in administrative appeal proceedings, reassess Applicant scores when appropriate, and upon. reassessment, prepare a short report with Consultant's findings and an application rescore when. applicable; and WHEREAS, the maximum amount to be paid to the Consultant for services performed through.December 31, 2020 shall not exceed $639,500 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it approves the First Amendment to the Agreement with FIdL Companies to conduct provisional background checks, administrative appeal proceedings, and reassessment of applicant scores as requested by the City Manager, between the City and. Hinderliter, de Llamas and Associates, in the form presented, with such minor modifications as may be required or approved by the Cite Attorney, a copy of which shall be Dept on file in the Office of the Citi Clerk, and authorizes and directs the Mayor or City Manager to execute same.. Presented by Approved as to fora b David Bilby, MSBA, CPFO Olen R. Googins Director of Finance/Treasurer City attorney C:\Usersllegistar\AppData\Local\Ternp\B+CL Technologies leasyPDF 81(�,B+CLC67400 C 51 ,'IBCL( 7 OD5C35.doc 2020-01-28 Agenda Packet, Page 183 of 288 �FIRSTAMENDMENT to Agreement between the City of Chula Vista and Hinderliter, de Llamas and Associates For Cannabis Management Services� This FIRST' AMENDMENT "Amendment" is entered into effective as of January 28, 2020 ("Effective Date") by and between the City of Chula Vista ("City") and Hinderliter, de Llamas and Associates, a California corporation, ("Consultant") with reference to the following facts: RECITALS WHEREAS, City and Consultant previously entered into an agreement entitled, "City of Chula Vista Consultant Services Agreement with Hinderliter,de Llamas,and Associates to Provide Cannabis Management Services" (the "Original Agreement" , effective April 1, 2019; and WHEREAS, City and Consultant desire to amend the Original Agreement to reflect perfon-nance of the services described below, and to increase the maximum compensation amount. NOW, THEREFORE, in consideration of the above recitals and the mutual obligations of the parties set forth herein,. City and Consultant agree as follows: 1. The Original Agreement is hereby amended as reflected in Exhibit A tothis First Amendment, entitled "Amended and Restated Scope of Work and Payment Ten-ns," which is attached and incorporated into this First Amendment by this reference. 2. Except as expressly provided in this First Amendment, all other terms and conditions of the Original Agreement shall remain in full force and effect. 3. Each party represents that it has full right, power and authority to enter into, and perform its obligations under,this FIDS T`Amendment,without the need for any further action under its governing instruments, and that the individual executing this First Amendment on behalf of the party has the party's authority to do so. City of Chula Vista Amendment to Agreement No.: 19029-Al Consultant Name:Hinderliter,de Llamas and Associates Rev,8/23/16 2020-01-28 Agenda Packet, Page 18,4 of 288 SIGNATURE PAGE TO FIRST AMENDMENT TO CITY OF CHULA VISTA CONSULTANT SERVICES AGREEMENT WITH I-II NDERLITER, DE LLAMAS AND ASSOCIATES 'TO PROVIDE CANNABIS MANAGEMENT SERVICES HINDERLITER, DE LLAMAS AND CITY OF CI- ULA VISTA ASSOCIATES BY: BY: ANDY NICKERSON GARY HALBERT PRESIDENT CITY MANAGER ATTEST BY: KERRY K. BIGELOW, MMC CITY CLERK APPROVED AS TO FORM BY: GLEN R. GOOGINS CITY ATTORNEY City of Chula Vista Amendment to Agreement No.: 19029-Al Consultant Name:Hinderliter,de Llamas and Associates Rev,8/23/16 2020-01-28 Agenda Packet, Page 18,5 of 288 EXHIBIT A TO FIRST AMENDMENT AMENDED AND RESTATED SCOPE OF WORK AND PAYMENT TERMS 1. Contact People for Contract Administration and Legal Notice A. City Contract Administration: Victor De La Cruz 276 Fourth Avenue, Chula Vista, CA 919 10 619-409-5959 vdelacruzC&chulavistaca.gov For Legal Notice Copy to: City of Chula Vista City Attorney 276 Fourth Avenue, Chula Vista, CA 91910 619-691-5037 CityAttorneygchulavistaca.us� B. Contractor/Service Provider Contract Administration: HINDS: ITER, DE LLAMAS AND ASSOCIATES ,Peggy Fickett 120 S. State College Blvd., Ste. 200 Brea, CA 92821 714-879-5000 pfickettghdl companies.com For Legal Notice Copy to: Peggy Fickett 120 S. State College Blvd., Ste. 200 Brea, CA 92821 714-879-5000 pfickettghdlcompanies.com 2. Required Services A. General Description: For cannabis management services, Consultant will review and score cannabis business applications, conduct applicant interviews, and compile a final report, with scores and merit- based ranking to inform the final selection process. Consultant will also conduct background checks, participate in administrative appeal proceedings, reassess Applicant scores when the City Manager determines reassessment is necessary and, upon reassessment, prepare a short report with Consultant's findings and an application rescore when applicable. City of Chula Vista Amendment to Agreement No.: 19029-Al Consultant Name:Hinderliter,de Llamas and Associates Rev,8/23/16 2020-01-28 Agenda Packet, Page 18,6 of 288 Detailed Description: Task Description Deliverables Completion :late 1 Provide review, scoring and nmerit- Review and score 1.36 May 15, 201' based ranking for all commercial applications. cannabis business applications. 2 design and prepare interview Prepare to interview up to July 1 201 process,provide support for 60 applicants. interview panel, and conduct applicant interviews. 2 Consultant staff members) 3 Compile all scores and prepare final. To inform the final. July 1, 201 report to the City.. determination of which. applicants shall be granted. permits. Provide up to 40 hours of subject As needed. matter expertise and technical. assistance, to be used as needed. 5 Provide a contingency for up to 15 As needed. additional application reviews and applicant interviews, if needed. Conduct provisional background Prepare provisional All provisional reviews of individuals associated background review report background reviews with cannabis business applications. for each individual. to be completed by December 31, 2019. 7 Participate in administrative appeal Testify at hearings or in As needed. proceedings involving appeal of writing about score being cannabis business application appealed. scores, when participation is requested by the City Manager. For appeal hearings, testify by phone, video, or in person, at City's discretion, in response to all issues raised on appeal, of which Consultant has relevant knowledge. For appeals in writing only, testify by written declaration in response to all issues raised on appeal, of which Consultant has relevant knowledge. When the City Manager determines Prepare short report with As needed. a score is erroneous, evaluate the application reassessment City 'Tanager's determination and findings in response to reassess the application. Determine City.Manager's whether rescore is appropriate and., determination if appropriate, rescore. City of Chula Vista Amendment to Agreement No.: 19029-Al ConsultantName:Hinderliter,de Llamas and.Associates Rev,8/23/16 2020-01-28 Agenda Packet Page 1.87 of 288 and, if appropriate, rescore of application. 3. erns: In accordance with Section 1.10 of this Agreement, the term of this Agreement shall be in A r l 1, 2014 and end on December 31, 2020 for completion of all Required Services. . Compensation: A. Farm of Compensation Fred Fee Paid Increments. For the performance of each phase or portion of the Required services, as identified in section 2. ., above, Citi shall pay the fixed fee associated with each deliverable, in the amounts set forth below: Task No. Deliverable Amount 1 per applicant Per applicant $11000 Final report $21000 4 40 hours of subject matter 250/hour, up to a maximum of expertise and technical assistance $10,000 5 Up to additional 15 applications As above per applicant identified in Task 1 and Task.2 o per individual $300 Per appeal $150/hr, up to a maximum of $300 per appeal 8 Per appeal 150 B. Reimbursement of Costs: F None, the compensation includes all costs Notwithstanding the foregoing, the maximum amount to be paid to the Consultant for services performed.through December 31, 2020; shall not exceed$639,50P. 5. Special Provisions: Norse City of Chula Vista Amendment to Agreement No.: 19029-Al ConsultantName:Hinderliter,de Llamas and.Associates Rev,8/23/16 2020-01-28 Agenda Packet Page 1.88 of 288 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 2 B,2020 File ID: 19-0475 ,TITS RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DIRECTING THIS CITY MANAGER 'To ENLACE IN ALL NECESSARY ADMINISTRATIVE ACTIONS To IMPLEMENT FIRE DEPART ENT-BASED EMERGENCY MEDICAL TRANSPORT SERVICES, To BEGIN NEGOTIATIONS FOR CONTRACTUAL SERVICE WITH THE CITY of IMPERIAL BEACH AND THE BONITA SUNNYSIDE FIRE PROTECTION DISTRICT, AND TO BRING BACK FOR CITY COUNCIL CONSIDERATION AND APPROVAL ANY REQUIRED COUNCIL LEVEL IMPLEMENTING ACTIONS RECOMMENDED171 Council adopt the resolution. SUMMARY Since 1979 the City of Chula.Vista, City of Imperial Beach, and the Bonita.Sunnyside Fire Protection District (previously known as the Chula Vista Exclusive operating Area or Eos), :have contracted with providers of emergency ambulance transportation to deliver patients from the emergency scene to local hospitals for definitive care. These agencies entered into a renegotiated agreement with American Medical Response (AMR) on October 1, 2018 to provide emergency ambulance transportation services for a period of three years, with a termination date of September 30, 2021. The City Council approved this contract with the. understanding that staff would return for, approval of an independent consultant contract whose scope of work would provide sufficient information concerning EMS transport systema valuation, optimization, and design. The consultant's independent report would also validate or not validate the Fire Department's own internal study and report on transport system valuation and system design. The findings of the consultant's report are attached to this staff report. As a result of the independent study conducted by AP Triton., the Fire Department's internal study which assesses the feasibility of Fire Department based emergency medical transport services,has been validated. The approval to provide ambulance transport will improve service by adding more ambulance units hours to the system thereby reducing response times in the east,decrease the costs of transport bills, reduce base rate cost fluctuation., allow for internal administrative control of the transport system., allow for unified dispatch of first responder and transport resources,and provide for more timely and cost effective resolution of transport system issues.Approval to provide ambulance transport will also enable the eligibility for and collection of federal reimbursements of approximately $3.5 million. Its anticipated that the system will 1 . 0 0 1 P IiI 1 2020-01-28 Agenda Packet, Page 1.89 of 288 provide positive net revenue that will be reinvested towards the EMS system currently being funded by the, general fund,and for implementation of system improvements. ENVIRONMENTAL REVIEW The Director of Development Services has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEA Guidelines because the proposal consists of a governmental plan of action related to the,City's preparedness in the event of a natural or manmade disaster and which will not result in direct or indirect significant physical impacts on the environment. 'Therefore, pursuant to Section 15060 (c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. BOARD/COMIMISSION/COMMITTEE RECOMMENDATION Not Applicable. DISCUSSION The City of Chula Vista entered into a renegotiated agreement with American Medical Response (AMR) on October 1, 2018,to provide emergency ambulance transportation services for a period of three years,with a termination date of September 30, 2021. Prior to the renegotiated agreement with AMR, ambulance base rate costs per transport were $2,6,65. Within the renegotiated contract terms, three compounding 10% increases were requested by AMRthe first of which became effective October 1, 2018. The second 10% increase to the base rate took effect in October of 2019, and the third 10% increase will become effective in October 2020. The increases will raise the base rate costs to $3,881 per transport. The current contract contains a termination for convenience clause which requires a 180-day minimum notice. The Fire Department has reviewed major areas of its service delivery. With continuous support by City Council, major operational components have undergone or are in the process of undergoing substantial improvements. Within the past several years, the Fire Department has evaluated its Emergency Medical Services (EMS) transport system. The EMS transport system in Chula Vista has remained relatively unchanged for almost 40 years. In 2013, the implementation of First Responder Advanced Life Support (FRALS) was introduced. In 2015, two years ahead of schedule, the Fire Department finalized its FRALS program which is the inclusion of one firefighter/paramedic on every fire apparatus within Chula Vista.'The FRALS program does not impact the General Fund and is funded through transportation user,fees (algia base rate) which were increased through negotiations prior to FRALS implementation. During this negotiation between the City and AMR, a service level reduction was permitted by enabling a two-minute increase to transport ambulance arrival times. In addition,the FRALS,program enabled AMR to reduce EOA ambulance staffing levels from two paramedics,to one paramedic and one EMT.Today,,the addition of FRALS continues, to provide advanced level of care to patients in the field prior to the arrival of the transport ambulance. Subsequent to the approval of the renegotiated contract with AMR, the Fire Department has reviewed all components of its emergency medical services system to include patient delivery to the appropriate medical facility via ALS ambulance transport. In its review, Fire Department staff found that many of the challenges experienced by the FRALS first responder system, such as increasing call volume and static number of P 2 2020-01-28 Agenda Packet, Page 190 of 288 resources,are,also present in the ALS ambulance transport system.The review illustrated clearly to the Fire Department the following areas where improvement is needed: • Responding ambulance units need to be stationed within the City • Obtain access to$1.2 million currently available via Federal reimbursements (QAF', GEMT) • Obtain access to$3.5 million Federal reimbursements available in 2021 (IGT) • Increase ambulance unit hours to meet projected demand • Reduce ambulance response times in the entire system but particularly in east Chula Vista (Districts 1 and 3) • Provide internal ability to manage ambulance resources • Reduce base rate costs and minimize rate fluctuations • Provide greater efficiency for dispatching ambulance units • Overall control of the transport system • Unified use of radio communications and information technology • Unified medical direction and continuity of patient care The current system design makes it difficult to implement improvements since the Fire Department is engaged in a contractual relationship in which the contractor controls the operational and financial components. Currently, any desired system improvements are subject to negotiations including potential increases in the allowable base rate charge. Under the current method of'ambulance transport,the expense to achieve many of the improvements listed above could potentially increase base rate costs by several thousand dollars per transport. Resea.rch.&Assessmetit Over the last three years, the Fire Department developed an internal review analyzing the potential transition of EMS transport from private contract to provision of services within the Chula Vista Fire Department. The review includes a thorough internal assessment by numerous City staff into the proposed system's valuation, regulatory issues, current deficiencies, and viable future improvements. Internal City staff from all affected departments are confident that the creation of a Fire Department based EMS ambulance transport system is a worthy recommendation that makes economic and service improvement sense for the citizens of Chula Vista and other contracted agencies. In addition, the internal review and recommendations have been reviewed by two outside fire and EMS service professionals. These professionals have extensive experience in developing and managing fire department-based EMS transport. Additionally, the City contracted with AP Triton, Inc.to conduct an independent external assessment of the current system's valuation, design, strengths and weaknesses with a focus on future opportunities. AP Triton's report addresses current national and statewide issues related to EMS transport with details on system valuation,funding opportunities,payer mixes,legalities,resource deployment,system unit hours and utilization. The external assessment and recommendations provided by AP Triton further validate the internal report and recommendations which include: V Reduce base rate cost and minimize fluctuations One paramedic and one EMT'per ambulance (non safety/non sworn) P 3 2020-01-28 Agenda Packet, Page 191 of 288 v' Increased daily ambulance unit hours v' Obtain access to$15 million dollars of Federal reimbursements through IGT (AB-1705) v' Ambulance units positioned within system fire stations-minimal responses from outside the transport system Improved ambulance response times in the entire system but particularly east Chula Vista (Districts, 1 and 3) v' Unified management of all EMS resources v' Single dispatch point for ambulance units v' Overall control of the transport system v' Unified use of radio communications and information technology V" Continuity of patient care FINANCIAL SUMMARY One of the focuses of the study conducted by AP Triton was to establish the annual anticipated revenue from emergency medical transports in the three jurisdictions (Bonita, Imperial Beach, and Chula Vista) that comprise our contracting partnership.The projected net value of transports allows the administrator of the EMS system to match resources to needs. The value of the 17,000 plus transports from the partnership are estimated currently at $12.3, million dollars, with a potential value of up to $15 million., With a single base rate throughout the system and continued annual growth in transport volume, it is projected that a city provided service will meet or exceed the net revenues of the current system. In addition, current and future supplemental federal reimbursement will increase the net revenue for Medicaid insured patients. Currently two programs exist that increase the Medicaid reimbursement for medical transport services,Ground Emergency Medical Transport(GEMT)and Quality Assurance Fee(QAF). GEMT is available to public providers of EMS transport to offset traditionally low reimbursement rates that may not cover the cost of providing service. QAF is a program available to all providers of EMS transport, with providers paying a per transport fee on all transports to increase the reimbursement for Medicaid transports. The next program to be enacted is the Intergovernmental Transfer (IG'T] program. IGT will reimburse at a higher rate on Medicaid than seen in GEMT/QAF,,thru a series of matching contributions.The current estimate is that the G E MT/QAF program would generate approximately$1.2 million dollars,at which time the IGT program would launch in July 2021 with an estimated increase of net revenue to $15 million dollars. City staff have validated that projected operational expenses would be met or exceeded by the projected revenue as outlined in the AP Triton report.The Finance and Human Resources departments have developed total position costs for all personnel related to a City provided service,with Finance reviewing all associated costs compared to the net revenue. AP Triton's report and recommendations are included as attachment#1. The City has the authority to provide emergency medical transport services itself under applicable state and local law including California Health&Safety Code Sections 1797.201 and 1797.224,the City Charter[Section 200],and Chula Vista Municipal Code Section 5.10.310. P 4 2020-01-28 Agenda Packet, Page 192 of 288 CONCLUSION The Fire Department has reviewed major areas of its service delivery through the creation of a draft analysis report providing the full details related to providing EMS transport through the Chula Vista Fire Department. AP 'Triton has concluded an independent external assessment of the current system's valuation, design, strengths and weaknesses with a focus on future opportunities.AP Triton's report addresses current national and statewide issues related to EMS transport with details on system valuation,funding opportunities,payer mixes, legalities, resource deployment, system unit hours and utilization. The external assessment and recommendations provided by AP Triton further validate the internal report and recommendations to provide EMS ambulance transport. The approval to provide ambulance transport through agreements with the Imperial Beach Fire Department and the Bonita Sunnyside Fire Protection District will improve service by adding more ambulance units/hours to the system thereby reducing response times in the east, decrease transport bills, reduce volatility in the base rate cost,allow for unified management of the entire EMS system,improved dispatching of ambulance units and provide the opportunity for more timely and cost effective resolution of transport system issues. Approval to provide ambulance transport will also enable the eligibility for and collection of federal reimbursements of approximately$3.5 million. Its anticipated that the system will provide positive net revenue that will be reinvested towards the EMS system currently being funded by the general fund,and for implementation of',system improvements. With City Council approval of the resolution, the City Manager will notify the Local Emergency Medical Services Agency (LEMSA) under the County of San Diego, of the transition of the Emergency Medical Transport Services to the City of Chula Vista Fire Department. Staff will continue working on the final system design, calculate the patient transport charge and negotiate with the City of Imperial Beach and Bonita Fire Protection District. Staff will return to the City Council for consideration of these items as well as requests for budget amendments, authorization of additional positions, procurement of goods and services which include contract billing and collection services as well as ambulances and EMS equipment. DECISION-MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500-,foot rule found in California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. CURREN"'I",-YEAR FISCAL IMPACT There are no General fund costs associated with this action. Staff will return to Council for approval of any future associated costs. ONGOING FISCAL IMPACT No projected negative impact to the general fund.With the estimates of current net revenue,all operational costs would be paid for from transport revenue. This includes a reduction in general fund expenditures for contract dispatch services with a value of $1,24,6,840 in FY22. With the addition of supplemental federal reimbursement under the IGT program there is the potential to offset other current and eligible EMS related general fund expenditures. P 5 2020-01-28 Agenda Packet, Page 193 of 288 AT rACHMEN rs Attachment#1 EMS System Valuation and Optimization Study P �3ge 6 2020-01-28 Agenda Packet, Page 194 of 288 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DIRECTING THE CITY 'TANAGER. To ENGAGE IN ALL NECESSARY ADMINISTRATIVE ACTIONS TO IMPLEMENT FIR DEPARTMENT-BASED EMERGENCY MEDICAL TRANSPORT SERVICES, To BEGIN NEGOTIATIONS FOR CONTRACTUAL SERVICE WITH TIME CITY of I1'4'TPERIAL BEACH ANIS TIME BONITA SUNNYSIDE FIRE PROTECTION DISTRICT, AND TO BRING BACK FOR CITY COUNCIL CONSIDERATION AND APPROVAL ANY REQUIRED COUNCIL LEVEL IMPLEMENTING ACTIONS WHEREAS, since 1979 the City of Chula Vista, City of Imperial Beach, and the Bonita Sunnyside Fire protection District(previously known as the Chula Vista Exclusive Operating Area or OA),have contracted with providers of emergency ambulance transportation to deliver patients from the emergency scene to local hospitals for definitive care; and WHEREAS, these agencies entered into a renegotiated agreement with.American Medical Response AMR on October 1 2018 to provide emergency ambulance transportation services for a period of three years, with a termination date of September 30, 2021- and WHEREAS, the City Council approved the emergency ambulance transportation services contract with the understanding that staff would return for approval of an independent consultant contract whose scope of work would provide information concerning cern.ing EM transport system valuation and optimization; and WHEREAS,, the consultant's independent report would also validate or not validate the Fire Department's own internal,l review on transport system valuation and design; and WI EREA. , the independent der t study conducted by AP Triton validates the Fire Department's internal review, andassesses the feasibility of Fire Department based emergency medical transport services; and. WHEREAS, Fire Department based ambulance transport is projected to improve service by,among other things, adding more ambulance unit hours to the system,thereby reducing response times and creating better systems balance reducing the base rate and minimizing rate fluctuations, allowing for full administrative control of the transport system, allowing for unified dispatch of units, andprovide for more timely and cost effective resolution. of transport systems issues, and. WHEREAS, Fire Department based ambulance transport will enable the eligibility for and collection of federal.reimbursements an overall projection of significant net revenues to be available for under the .Public Provider Intergovernmental Transfer programs (IGT), with reinvestment into a system reserve fund and system improvements; and 2020-01-28 Agenda Packet, Page 195 of 28 WHEREASI City staff have validated that operational expenses are projected to be met or exceeded by the projected revenue as outlined in the AP Triton report. The Finance and Human Resources departments have developed total estimated position costs for all personnel related to a City provided service, with Finance reviewing all associated costs compared to the net revenue; and WHEREAS, with the estimates of current net revenue, all operational costs are projected to be paid solely from transport revenues with no negative impact to the general fund; and WHEREAS, through contractual agreements the City intends to continue to provide emergency medical transport services to the City of Imperial Beach and the Bonita Sunnyside Fire Protection District. WHEREAS, the City has, the authority to provide emergency medical transport services, itself under applicable state and local law including California Health & Safety Code Sections 1797.201 and 1.797.2241 the City Charter [Section 200], and Chula Vista Municipal Code Section 5.10.310. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it directs, the City Manager to engage in all necessary administrative actions to implement Fire Department based emergency medical transport services, to begin negotiations for contractual services to the City of Imperial each and the Bonita Sunnyside Fire Protection District and to bring back for City Council consideration and approval any and all necessary Council level implementing actions. Presented by Approved as to form by Jim Geering Glen R. Goo, ins, Fire Chief City Attorney 2020-01-28 Agenda Packet, Page 196 of 288 ITEM #8 THE ATTACHMENT FOR THIS ITEM WILL BE UPLOADED WHEN AVAILABLE 2020-01-28.4gcnA.i Packet Page 197 of 288 zmr, ..' l IN III til v r :a C1TY' C,0UNC'1LSTIA, ""EMENT CITY, OF CHUIAVISTA r l 1 January 2 B,Z0 2 0 File ID: 19-0506 TITLE A. RESOLUTION of THE CITY" COUNCIL OF THE CITY OF CH LA TSTA ADOPTING SHE PROJECT REPORT" FOR THE, PALOMAR STREET RAIL-GRADE SEPARATION CIP STM03 1 PROJECT, AND TRANSFERRING $100,000 IN TRANSNET APPROPRIATIONS FROM CIP TRF0397 TO CIP ST 03+ 1 (4/5 VOTE REQUIRED) B. RESOLUTION of THE CITY COUNCIL of THE CITY of CH LA VISTA APPROVING AN MOU WITH SANDAG FOR THE DESIGN PHASE of'THE PALOMAR STREET RAIL-GRADE SEPARATION PROJECT C. RESOLUTION of THE CITY COUNCIL OF THE, CITY of CHULA VISTA APPROVING REIMBURSEMENT AGREEMENT WITH BODEGA LATI A CORPORATION D/B/A EL SUPER FOR PUBLIC SEWER INFRASTRUCTURE THROUGH THE PALOMAR GATEWAY SHOPPING CENTER Council adopt the resolutions. SUMMARY On June 19, 2012, per Council Resolution # 2012-118, the City of Chula Vista entered a Memoranda of Understanding (MOU) with SANDAG for the purpose of' preparing an environmental document that will consider project alternatives for grade-separating the Blue Line Light Rail Trolley/freight rail crossing at Palomar Street. The Project Report is now completed and proposed for adoption. .A SANDAG :MOU for the. design phase and a developer agreement for relocating a pubilic severer is also part of tonight's actions. ENVIRONMENTAL REVIEW The Director, of Development Services has reviewed the proposed project for compliance with.. the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Statutory Exemption pursuant to State CEQA Guidelines Section 2101801.13 Railroad Grade Separation Projects and a Categorical Exemption pursuant to State CEQA Guidelines Section 15301 Class 1 (existing Facilities), Section 1.5302 Class 2 (Replacement or Reconstruction.), Section 1.5303 class 3 (New Construction or Conversion of Small Structures), and Section 15,304 Class 4 ( livor .Alterations to Land) because the purpose of the proposed project is to improve safety, as it will remove the existing at-grade conflict between vehicular traffic and rail traffic. In addition,the proposed project would reduce the congestion and inconvenience caused by this existing at-grade facility. The Land Use and Transportation Element of the 1 . 0 0 1 PIiI1 2020-01-28 Agenda Packet, Page 198 of 28 City's General Plan identifies the need to grade separate the road/rail at-grade crossings within the western part of the City,and this project is consistent with that goal., The State (California Department of 'Transportation) has determined that the proposed project has no significant impacts on the,environmental as defined by National Environmental Policy Act(NEPA)l,and that there are no unusually circumstances as described in 23 CFR 771.117(b). As such, the project is categorically excluded from the requirements to prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under the National Environmental Policy Act. The State has been assigned,and hereby certifies that it has carried out the responsibility to make this determination pursuant to Chapter 3 of Title 23, United States Code, Section 326 and a Memorandum of Understanding dated May 31, 2016, executed between the F'HWA and the State. The State has determined that the project is a Categorical Exclusion under: 23 CFR 771.117(c): activity(c)(1). BOARD/COMMISSION/COMMI"T'TEE RECOMMENDATION Not applicable. DISCUSSION The initial phase of'work provided a study for the area along Interstate-5 and bounded by State Route-54 to Main Street in Chula Vista. That document, the Interstate-5 South Multi-modal Corridor Study by AECOM Engineers dated December 2010,prioritized all transportation improvements needed within the study area and was used as a technical document to the SANDAG 2050 Regional Transportation Plan (2050 RTP). The highest priority projects for Chula Vista were to provide a rail-grade separation for the local streets at E Street, H Street and at Palomar Street. These improvements would provide better near-term traffic improvements than any improvements across or within the Interstate-5 corridor. Below is a link to the document: htt.p:�//,www.sand,a2.or,g,/u,p,loads/p,rl,o,j,e,ct,i,d/p,roj' ctid 387 12472-p f On June 19, 20,12, per Council Resolution # 2012-118 (Attachment # 1), the City of Chula Vista entered a Memoranda of Understanding (MOU) with SANDAG for the purpose of preparing the environmental review with technical studies that will consider project alternatives for grade-separating the Blue Line Light Rail Trolley crossing at Palomar Street. The Palomar Street rail-grade crossing is identified as the highest need location within San Diego County(Attachment# 2). The preliminary studies and environmental phase were conducted by SANDAG and funded using the City's allocation of local TransNet funds and the balance from Federal TCSP & Federal SAFETEA-LU Funds,. The Capital Improvement Project (CIP) included the Light Rail Grade Separation Environmental Review Studies at Palomar Street (CIP## STM0361/SANDAG MPO ID# CHV30). Chula Vista provided full funding for these preliminary studies. The project report is now completed and is proposed for adoption (Attachment # 3). A and copy of this report with appendices is available for review at the City' Clerk's office. An electronic copy is also located on the C'ity's website at: https://www.chuIavist c -gov/de pa rt�m e nts/e ngi nee ri ng/proiects/2020-ploma r-street-gra de-sepa ration P : ge 2 2020-01-28 Agenda Packet, Page 199 of 288 The project team (Chula Vista, SANDAG and the railroad consultant (HNTB) staff) evaluated several design alternatives. The alternatives considered were a raised railroad track, a lowered the roadway and a "no build". The project team also met and conferred with SDMTS railroad staff since the light rail trolley and freight rail operators utilize this rail corridor. Each alternative considered the feasibility for all users of this crossing, including bicyclists, freight rail, light rail trolley, pedestrians, and vehicular traffic. The preferred project alternative,, will keep the railroad tracks and Industrial Blvd at their current grade elevation and lower Palomar Street to pass under the railroad corridor and Industrial Blvd. This alternative will construct a railroad/pedestrian bridge and roadway/sidewalk bridge. The intersection of Palomar Street and Industrial Blvd will be eliminated (Attachment#4). Palomar Gateway Shopping Center-Public Sewer Relocation As, the rail grade separation environmental phase was progressing, the applicant for the 4.76-acre vacant parcel at the southwest corner of Palomar Street/Industrial Blvd submitted plans for a neighborhood shopping center. The developer of the shopping center worked closely with project team coordinating their design and building setbacks to complement the grade separations and facilitate construction of each project independently. This added some delay and expense in the approval process for both projects, but the overall result helps mitigate some of the anticipated construction impacts and costs. The parties collaborated on the public sewer main currently located on Palomar Street along the frontage of the proposed Palomar Gateway Shopping Center. This sewer main must be relocated through the shopping center parking lot since Palomar Street will be lowered rendering the current gravity sewer system useless. 'This public sewer main serves parcels on Palomar Street, Trenton Avenue and Walnut Avenue between Interstate-5 and Industrial Blvd. A public sewer reimbursement agreement that will compensate the shopping center developer for the expenses incurred in relocating the public sewer has been prepared (Attachment# 5). The sewer relocation will be done concurrently with the shopping center construction since the shopping center's private sewer system will tie into the relocated public sewer. The total costs for eligible reimbursement expenses from the Sewer Service Revenue Fund (414) are subject to approval by the City Engineer and are estimated at less than$1,50,000. The Planning Commission, at the meeting held on November 13, 2019, approved the Design Review Permit for the Palomar Gateway Shopping Center. The conditions of'approval included providing a public sewer easement through their parking lot as well as an Irrevocable Offer of Dedication along the Palomar Street frontage to accommodate the ultimate design for the roadway underpass. %-.R SANDAG IOU for Design Phase On September 27, 2019 & October 25, 2019, the SANDAG Board of Directors approved creating a new project"SAN261 - Palomar Street Rail Grade Separation" (SANDAG CIP # 1210091) and amended the 2018 Regional Transportation Improvement Program by adopting Board Resolution RTC- 2020-03 advancing $5M for design phase funding. Beginning this fiscal year, the design phase is expected to last several years. The MOU in tonight's agenda packet confirms SANDAG as the lead Agency for the design phase and provides reimbursement to the City for all City staff time during the phase (Attachment#6). P 3 2020-01-28 Agenda Packet, Page 200 of 288 Construction funding, estimated at over $40 M, will be identified as the design phase nears completion., Based on this schedule,the construction phase could begin by 2023 and be completed by FY25/26. DECISION-MAKER C"ONFLICT Staff has reviewed the property holdings of the City Council members and has found no property holdings within 1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this item does not present a disqualifying real property-related financial conflict of interest under California Code of Regulations Title 2, section 18702.2(a)(7) or (8),for purposes of the Political Reform Act(Cat. Gov't Code§87100,et seq. . Staff is not independently aware and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision-maker conflict of interest in this matter. CURRENT-YEAR FISCAL IMPACI 11 CIP STM0361 is funded with Federal funds and a 20% minimum match requirement provided by local TransNet funds. Funding to close out the CIP requires $100,000 in which sufficient funds are available to transfer from CIP TRF0397. During the Design Phase,SANDAG will reimburse city staff time per the MOU,using a deposit account. The developer of the Palomar Gateway Shopping Center will be reimbursed from the Sewer Service Revenue Fund (414) for eligible costs for relocating the public sewer per the Public Sewer Reimbursement Agreement. ONWING FISCAL IMPACT Upon completion of the project,the improvements will require routine maintenance. ATTACHMENTS 1. Resolution 2012-118 -June 19, 2013 2. Revised Draft Rail Grade Separations Project Rankings -June13, 2014 3. Proj ect Report-Jan.17, 2 0 2 0 4. Palomar St. Grade Separation Overall Project Layout-Oct. 25, 2019 5. Public Sewer Reimbursement Agreement 6. Design Phase MMU with SANDAG (sANDAG ID - 1210091) Staff Contact:Francisco X Rivera, Principal Civil Engineer, Engineering and Capital Projects Department P 4 2020-01-28 Agenda Packet, Page 201 of 288 MEMORANDUM OF UNDERSTANDING BETWEEN SAN DIEGO ASSOCIATION OF GOVERNMENTS AND THE CITY OF CHULA VISTA REGARDING PALOMAR STREET RAIL GRADE SEPARATION FINAL DESIGN PHASE SANDAL PROJECT NUMBER: 1210091 RTIP NUMBER: SAN261 This Memorandum of Understanding ("IVIOU") is made and entered into effective as of this day of 1 20201 by and between the San Diego Association of Governments ("SANDAG") and the City of Chula Vista ("Chula Vista")for the purpose of working cooperatively on the Palomar Street Rail Grade Separation Project Design Phase ("Project" or "Design Phase,"). Individually, SANDAL and Chula Vista may be referred to as "Party" and collectively as"Parties." RECITALS The folllowing recitals are a substantive part of this MOU: WHEREAS, on October 25, 2019, the SANDAL Board of Directors adopted Regional Transportation Commission Regional Transportation Commission (RTC) Resolution No. RTC-2020-03, approving Amendment No. 8 to the 2018 Regional Transportation Improvement Program;and WHEREAS, Resolution No. RTC-2020-03 included a revised project schedule for the Palomar Street Rail Grade Separation Project(SANJDAG ID#12100191 & MPO ID:SAN261)to FY20, FY21 & FY22 based on completion of the environmental document phase in FY20;and WHEREAS, the Palomar Street Rail Grade Separation project is expected to reduce delays attributed to traffic congestion,increase the capacity of the Trolley, and improve mobility,goods movement,and safety;and WHEREAS, SANDAL will be the lead agency and administer the design phase in cooperation with Chula Vista;and WHEREAS, SANT AG intends to utilize its on-call engineering services consultants to complete the design phase as described in this MOU; and WHEREAS, the Parties wish to memoriallize their agreement in this MCU to carry out the purposes set forth above; AGREEMENT NOW THEREFORE, in consideration of the mutual promises set forth herein,the parties agree as follows: A. Scope of Project. Completion of 1000 design, plans, specifications and estimates to, advertise for construction phase,which shall include: 1. Identification of critical design elements that would impact construction costs. 1 2020-01-28 Agenda Packet, Page 202 of 288 2. Provision of scope of work for subsequent,associated design/construction projects. 3. Review of invoices for accuracy., B. Project Costs., Project Costs shall include all expenses incurred for the Design Phase, including consultant costs, Chula Vista staff time (at the fully burdened hourly rates approved Iby the Chula Vista City Council) and expenses, claims/ litigation,or other liability, unless such costs result from the sole negligence of either Party, its officers,employees,agents, and consultants. Project Costs shall in no event exceed $5,,000,000 in total. C. SANDAG Obligations. 1. Lead Agency. SANDAG shall act as the lead agency and administer the Project in cooperation with Chula Vista. 2. Use of SANDAG Consultants. SANDAG shall use one or more of its existing on-call engineering consultants to perform work on the Palomar Street Rail Grade Project Design Phase. 3. Breakdown of Project Costs: SANDAG shall expend funds only in the manner and amounts identified below: a. An amount not to exceed $4,700,000 for consultant services, including SANDAG administrative costs from funds authorized in the RTIP. b. An, amount not to exceed $300,000 for Chula Vista staff time (at the fully burdened hourly rates approved by the Chula Vista City Council) and expenses from the TransNet-MC funds in SANDAG project # 1210091 (SAN261). SANDAG shall have no obligation to reimburse Chula Vista from any other fund or fundling source. 4. Insufficient Funds. In the event the Project Costs identified above are insufficient to complete the Scope of Project identified herein, SANDAG shall have no responsibility to move forward until the parties are able to identify sufficient funds to complete the work. C. Chula Vista Obligations. 1. Staff. Chula Vista shall provide staff support and cooperation on the Palomar Street Rail Grade Separation, Project Design Phase, including, but not limited to, any staff support, or cooperation needed to defend any claims or litigation that may arise on the Design Phase. a�. Invoicing. Chula Vista shall invoice SANDAG no more than once per month. b. Failure to Reimburse. Chula Vista may terminate work on the Design Phase if it is not reimbursed for Project Costs by SANDAG within 30 days of submitting an invoice., Should Chula Vista elect to terminate this MCU, SANDAG will remain obligated to reimburse Chula Vista for staff time (at the fully burdened hourly rates approve by the Chula Vista City Council) and expenses actually incurred pursuant to this MCU. D. Records. During the term of this MOU, the Parties shall be responsible for the storage and maintenance of their respective electronic data collected for use on the Design Phase. The Parties shall provide a secure site to allow access to this data to selected staff, who shall be designated by the respective Party. All work 2 2020-01-28 Agenda Packet, Page 203 of 288 products resulting from this MOU and consultant deliverables shall be the joint property of Chula Vista and SANDAG. E. Mutual Indemnity. 1. Neither Chula Vista nor any officer thereof is,responsible for any damage or liability occurring by reason of anything done or omitted to be done by SANDAG under or in connection with any► work, authority, or jurisdiction delegated to SANDAG under this MU. It is understood and agreed that, pursuant to Government Code Section 895.4.SANDAG shall fully defend, indemnify,and save harmless Chula Vista, all officers and employees from all claims, suits, or actions of every name, kind, and description brought for or on account of injury (as defined in Government Code Section 810.,8) occurring by reason of anything done or omitted to be done by SANDAG under or in connection with any work, authority, or jurisdiction delegated to SANDAG under this IMOU to the extent the injury is,not caused by Chula Vista., 2. Neither SANDAG nor any officer thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done Iby Chula Vista under or in connection with any work, authority,, or jurisdiction delegated to SANDAG under this MOU. It is understood and agreed that, pursuant to Government Code Section 895.4, Chula Vista shall fully defend, indemnify, and save harmless SANDAG, alll officers and employees from all claims, suits, or actions of every name, kind, and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring Iby reason of anything done or omitted to be done by Chula Vista under this MOU to the extent the injury is not caused by SANDAG. 3. Survival. The indemnification provisions of this MCU shall survive termination of the MCU. F. Notice., Any notice required or permitted under this MCU may be personally served on the other party, by the party giving notice, or may be served by certified mail, return receipt requested., to the following addresses: For SANDAG For the City of Chula Vista 401 B Street,Suite 800 Engineering Department San Diego,CA 92101 276 Fourth Avenue Attn: Omar Atayee Chula Vista,CA 91910 Attn: Frank Rivera G. General Provisions. 1. Headings. All article headings are for convenience only and shall not affect the interpretation of this MCU. 2. Gender & Number. Whenever the context requires, the use herein of(i) the neuter gender includes the masculine and the feminine genders and (ii)the singular number includes the plural number. 3. Reference to Paragraphs. Each reference in this IIVIOU to a section refers, unless otherwise stated, to a section this IVDU. 4. Incorporation of Recitals and Exhibits. All recitals herein and exhibits attached hereto are incorporated into this MCU and are made a part hereof. 3 2020-01-28 Agenda Packet, Page 204 of 288 S. Covenants and Conditions. All provisions of this MOU expressed as either covenants or conditions on the part of Chula Vista or SANDAG shall be deemed to be both covenants and conditions. 6. Integration. This MOU and any exhibits or references incorporated into this MOU fully express all understandings of the Parties concerning the matters covered in this MOU. No change, alteration,, or modification of the terms or conditions of this MOU, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless made in the form of a written change agreed to in writing by both Parties or an amendment to this MOU agreed to by both Parties. All prior negotiations and agreements are merged into this MOU. 7. Severability. In the event that any phrase, clause, paragraph, section or other portion of this MOU shall become illegal, null or void, or against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void, against public policy, or otherwise unenforceable, the remaining portions of this MOU shall not be affected and shalll remain in force and effect to the fullest extent permissible by law. 8. Drafting Ambiguities. The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this MOU, and the decision of whether or not to eek advice of counsel with respect to this MOU is a decision that is the sole responsibility of each Party.This MOU shall not be construed in favor of or against either Party by reason of the extent to which each Party Iparticipatedl in the drafting of the MOU. 9. The Parties,shalll meet and confer,in good faith for,the purpose of resolving any dispute over the terms of this MIOU. Should the parties be unable to resolve a dispute pursuant to a meet and confer process, SANDAG acknowledges and agrees to abide by the requirements of Chapter 1.34 of the Chula Vista Municipal Code. 10. No Waiver. No failure of either Party to insist upon the strict performance by the other Party of any covenant, term, or condition of this MOU, nor any failure to exercise any right or remedy consequent upon a breach of any covenant,, term, or condition of this MOU, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any default hereunder shall be implied from any omission to take any action on account of such default. The consent or approval to or of any act requiring consent or approval shall not be deemed to waive or render unnecessary future consent or approval for any subsequent similar acts. No waiver of any breach shall affect or alter this MOU, and each and every covenant, condition, and term hereof shall continue in full force and effect to any existing or subsequent breach. 11. Good Faith. The Parties promise to use their best efforts to satisfy all conditions to this MOU and to take all further steps and execute all further documents reasonably necessary to put this MOU into effect. 12. Approval., That all obligations of SANDAG under the terms of this MOU are subject to the appropriation of the required resources by SANDAG and the approval of the SANDAG Board of Directors or Transportation Committee. 13. Termination. That unless amended in writing by the Parties,, this MOU shall terminate on December 31, 2023,or on such earlier or later date as the Parties may agree to in writing. 4 2020-01-28 Agenda Packet, Page 205 of 288 14. Governing Law/Venue,. This MOU shall be interpreted in accordance with the laws of the State of California., If any action is brought to interpret or enforce any term of this MOU, the action shall be brought in a state or federal court situated in the County of San Diego,State of California. 15. Successors. All terms, conditions, and provisions hereof shall inure to and shall bind each of the Parties hereto and each of their respective heirs, executors,administrators,successors,and assigns. 16. Not Agents. For purposes of this MOU,the relationship of the Parties is that of independent entities and not as agents of each other or as joint venturers or partners.The parties shall maintain sole and exclusive control over their personnel, agents, consultants,and operations. 17. No Third Party Benefits. Nothing in the provisions of this MOU is intended to create duties or obligations to or rights in third Parties to this MOU or affect the legal liability of the Parties to this MOU to third parties. 18. Counterparts. This MOU may be executed in any number,of identical counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument when each Party has signed one such counterpart. 19. Municipal/Agency Powers. Nothing contained in this MOU shall be construed as a limitation upon the powers of Chula Vista as a chartered city of the State of California,or those of SANDAG. 20. Signing Authority. The representative for each Party signing on behalf of a corporation, partnership, joint venture or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture, or entity and agrees to hold the other Party or Parties hereto harmless if it is later determined that such authority does not exist. 21. Date of Execution. This MOU shall be deemed executed on the date on which the last Party signs this MOU. IN WITNESS WHEREOF, the Parties hereto have executed this MOU effective on the day and year first above written. SAN DIEGO ASSOCIATION OF GOVERNMENTS CITY OF CHU LA VISTA HASANIIKHRATA WILLIAM S.VALLE Executive Director Director of Engineering&Capital Projects/pity Engineer APPROVED AS TO FORM: APPROVED AS TO FORM: Office of General Counsel Glen Googins,,City Attorney 5 2020-01-28 Agenda Packet, Page 206 of 288 2020-01-28 Agenda Packet, Page 207 of 288 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL of THE CITY of C HULA VISTA ADOPTING THE PROJECT REPORT FOR THE PA OMAR STREET RAIL-GRADE SEPARATION CP ST 0361 PROJECT, AND TRANSFERRING $100,000 IN TRANSNET APPROPRIATIONS PRIATIONS F ROM CHIP TRF03 7 To CHIP ST 03 1 WHEREAS, per City Council Resolution No. 2012-11 , the City of Chula Nista entered a Memoranda of Understanding (MOU)OU) with SANDAG for the purpose of preparing an environmental document that will consider project alternatives for grade-separating the Blue Line Light Rail Trolley crossing at Palomar Street and commensurate improvements; and WHEREAS, the Palomar Street rail-grade crossing is identified as the highest need location within San Diego County; and WHEREAS, the City of Chula Vista provided full funding for the MOO as it related to the preliminary studies along the Interstate-5 corridor including the rail corridor.; and WHEREAS, several design alternatives were evaluated by the project turn of the City of Chula Vista, SA TAG, and the railroad consultant, FI TB; and WHEREAS,, the preferred project alternative, will keep the railroad tracks and Industrial Blvd at their current grade elevation and lower Palomar Street to pass under the railroad corridor and Industrial Blvd. This alternative will construct a railroad/pedestrian bridge and roadway/sidewalk bridge; and WHEREAS, the project report has been completed and presented for adoption. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it adopts the project report for the Palomar Street Rail-Grade Separation CHIP STM03 1 Project. BE IT FURTHER RESOLVED by the City Council of the Coity of Chula Vista that it appropriates $100,000 in Trans et appropriations from CHIP TRF03 7 to STM03 1. Presented by C:\Users\legistar\AppData\Local\Tei-np\BCL Technologies leasyPDF 81(�,B+CLC6ECODBO28I :'�BCL( FCOD) 028,d c 2020-01-28 Agenda Packet, Page 208 of 28 Resolution No. Page 2 Approved as to form by William S. Valle! Director of Engineering & Capital Projects Glen R. Googins City Attorney 2020-01-28 Agenda Packet Page 209 of 288 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN MOU WITH SANDAG FOR THE DESIGN PHASE OF THE PALOMAR STREET RAIL-GRADE SEPARATION PROJECT WHEREAS, per City Council Resolution No. 2012-118, the City of Chula Vista entered a Memoranda of Understanding (MOU) with SAI` DAG for the purpose of preparing an environmental document that will consider project alternatives for grade-separating the Blue Line Light Rail Trolley crossing at Palomar Street and commensurate improvements; and WHEREAS, the Palomar Street rail-grade crossing is identified as the highest need location within San Diego County; and WHEREAS, the project report and environmental review with technical studies have been completed and presented for adoption by City Council on January 28, 2020; and WHEREAS, on September 27, 2019 and October 25, 2019, the SANDAG Board of Directors approved creating a new project, SANDS AG CIP # 1210091, "SA N261 - Palomar Street Rail Grade Separation", and amended the 2018 Regional Transportation Improvement Program by adopting Board Resolution RTC- 2020-03 advancing $5M for design phase funding; and WHEREAS, beginning this fiscal year, the design phase is expected to last several years; and WHEREAS, the MOU in tonight's agenda packet confirms SANDAG as the lead Agency for the design phase and provides reimbursement to the City for all City staff time during the phase; and WHEREAS, Construction funding, estimated at over $40 million dollars, will be identified as the design phase nears completion. Based on this schedule, the construction phase could begin by 2023 and be completed by FY25/26. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it approves the Memorandum of Understanding Between San Diego Association of Governments and the City of Chula Vista Regarding Palomar Street Rail, Grade Separation Final Design Phase, in the form presented, with such modifications as may be required or approved by the City Attorney, and authorizes and directs the City Manager or designee to execute the same, a copy of which shall be kept on file in the Office of the City Clerk. Presented by C:\Users\legistar\AppData\Local\Tei-np\BCL Technologies\easyPD F 8\((�,BCLC6�,A40DFD38\ �BCL((�,A40DFD38.doc 2020-01-28 Agenda Packet, Page 210 of 288 Resolution No. Page 2 Approved as to form by William S. Valle! Director of Engineering & Capital Projects Glen R. Googins City Attorney 2020-01-28 Agenda Packet Page 211 of 288 RESOLUTION No. RESOLUTION OF THE CITY COUNCIL OF THE CITY CSI CHULA VISTA APPROVING A REIMBURSEMENT NT GREET` ENT WITH BODEGA LATINA CORPORATION,TION, :DBA, EL SUPER FOR PUBLIC SEWED INFRASTRUCTURE STRUCTI.RE THROUGH THE PALOMAR GATEWAY SHOPPING ENTER WHEREAS, per City Council Resolution No. 2012-118, the City of Chula Vista entered a Memoranda of Understanding (MOU) with SANDAG for the purpose of preparing an environmental document that will consider project alternatives for grade-separating the :Blue Line Light Rail Trolley crossing at Palomar Street and commensurate improvements; and WHEREAS, the project report has have been completed and presented for adoption by City Council on January 28, 20�2O�; and WHEREAS,, several design alternatives were evaluated by the project team of Chula 'Nista, SANDAO, and the railroad consultant II TBand. WHEREAS, the preferred project alternative, will keep the railroad tracks and. Industrial. Blvd at their current grade elevation and lower Palomar Street to pass under the railroad corridor and. Industrial. Blvd. This alternative will construct a railroad/pedestrian bridge and. roadway/sidewalk bridge- and. WHEREAS, as the rail grade separation project report was progressing, the applicant for the 4.76-acre vacant parcel at the southwest comer of Palomar Street/Industrial Blvd submitted plans for a neighborhood shopping center; and WHEREAS, the developer of the shopping center worked closely with project team coordinating their design and building setbacks to complement the grade separations and facilitate construction of each project independently; and WHEREAS, the developer and project team collaborated on the public sewer main currently located on Palomar Street along the frontage of the proposed Palomar Gateway Shopping Center. This sewer main must be relocated through the sopping center parking lot since Palomar Street will be lowered rendering the current gravity sewer system useless; and WHEREAS, a public sewer reimbursement agreement that will compensate the shopping center developer for the expenses incurred in relocating the public sewer has been prepared; and. WHEREAS, the total costs for eligible reimbursement expenses from the Sewer Service Revenue Fund 1. ) are subject to approval by the City Engineer and are estimated at less than. $150,000; and. C:\Users\legistar\AppData\Local\Tei-np\BCL Technologies leasyPDF 8\@/B+CL@40DB7FD\@c)/BCL(e�a 40DB7FD,doc 2020-01-28 Agenda Packet, Page 212 o 28 Resolution No. Page 2 WHEREAS, the Planning Commission, at the meeting held on November 13, 2019, approved the Design Review Permit for the Palomar Gateway Shopping Center. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it approves the City of Chula Vista Reimbursement Agreement with Bodega Latina Corporation d/b/a El Super to Construct Public Sewer Improvements, in the form presented, with such modifications as may be required or approved by the City Attorney, and authorizes and directs the City Manager or designee to execute the same, a copy of which shall be kept on file in the Office of the City Clerk. Presented by Approved as, to form by William S. Valle Glen R. Googins Director of Engineering & City Attorney Capital Projects 2020-01-28 Agenda Packet, Page 213 of 288 RESOLUTION INTO. 2012-118 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HULA VISTA ENTERING INTO THREE MEMORANDA OF UNDERSTANDING AGREEMENTS WITH THE SAN DIEGO ASSOCIATION OF GOVERNMENTS RELATED TO IMPROVEMENTS TO THE BLUE ITE LIGHT RAIL AND FREIGHT RAIL CORRIDOR, AUTHORIZfNG THE CITY ATTORNEY TO MAKE SUCH NON-SUBSTANTIVE CHANGES DEEMED NECESSARY FOR THE BENEFIT OF THE CITY, AND AUTHORIZING THE DIRECTOR OF PUBLIC WORDS TO EXECUTE THE AGREEMENTS WHEREAS, the City desires to word with SANDAL in order to make rail corridor improvements through Chula Vista; and WHEREAS, the City and SANDAL each have projects in the Regional Transportation Improvement Program (RTIP) related to making these rail corridor improvements; and WHEREAS, the projects lie entirely within the jurisdiction of the City of Chula vista, but technical assistance on a regional level is required of SANDAG for improvements within and adjacent to the rail corridor; and WHEREA in order to determine ultimate light rail trolley improvements and made at- rade rail crossing improvements through Chula vista, it is necessary to enter into three Memoranda of Understandings (MOUs) with SANDAL to define funding, cost sharing and roles between the City, SANDAL, and ANDA 's consultant team; and WHEREAS, the initial MOU will be for the purposes of preparing an environmental document that will consider project alternatives for grade-separating the Blue Line Light Rail Trolley crossing at Falennar Street and commensurate station improvements (STM-361); axed WHEREAS,, the second MOU will be for the purpose of constructing ultimate rail crossing improvements and roadway improvements at Industrial Blvd. and the intersections with Moss St. and Naples St. (TF-383); and WHEREAS, the third MOU will be for the purpose of constructing ultimate rail crossing improvements and roadway improvements at Industrial Blvd. and the intersection with Anita St. (TF-319); and WHEREAS, in order for the City to utilize the Federal funds for this study, the consultant selection process must be approved by Caltrans; and 2020-01-28 Agenda Packet Page 214 of 288 Resolution No. 2012-118 Page No. WHEREAS, on September 17, 2008, Caltrans" District Local Assistance Engineering (DLAE) staff determined that a AFETEA-LU (Safe, Accountable Flexible, Efficient, Transportation Equity Act: A Legacy for Users) fund co-sponsor change was needed by the City of Chula Vista in order to utilize the SANDAG On-Call consultant list; and WHEREAS, SANDAG has confirmed that all procedures for selecting the consultant have followed Caltrans Chapter 10 of the "Local Assistance Procedures Manual"', LFP 06-02; and WHEREAS, approving these I1 OUs expedites the consultant selection process by at least six-months; and WHEREAS, the Federal reimbursement fund requires a minimum of 0% local snatching funds and the City has identified TransNet funds for the match; and WHEREAS, once Federal authorization to proceed is given, City staff will begin to seek reimbursement on expenses through Caltrans via the Federal fund reimbursement procedures; and WHEREAS, each of the three MOU's defines City, SANDAG, and consultant costs; and WHEREAS, in July 2012, the SANDAL Transportation Committee will also approve entering into three MOT's with the City of Chula Vista. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby agree to enter into three Memoranda of Understandings with the San Diego Association of Govenunents related to improvements to the Blue Line Dight Rail and Freight Rail corridor and authorizes the ity Attorney to snare such non substantive changes deemed necessary for the benefit of the City and authorizes the Director of Public Works to execute the agreements. Presented by Approved as to form by 'chard A. Ho nsen R. ogins Director of Pubtic Works Cit orney 2020-01-28 Agenda Packet Page 215 of 288 Resolution No. 2012-11 Page No. 3 PASSED,, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 19th play of June 2012 by the following vote: AYES: ouncilmembers: Aguilar, Bensoussan, Castaneda, Ramirez and Cox NAYS: ouncilmembers: None ABSENT: Count ilmembers: None Cheryl o , M or ATTEST: Donna. R. Norris, CMC, City Clerk STATE OF CALIFORNIA COUNTY OF SAN DIEGO � CITY OF CHULA VISTA 1, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2012-119 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 19th day of Jure 2012. Executed this 19th day of June 2012. Donna R. NorTis, CMC City Clerk 2020-01-28 Agenda Packet Page 216 of 288 Table M.12 0 Rail Grade Separation Prqject Rankings, Unconstrained Average Trains Total Regional Rail Name City Cost ($2014) Daily Per Score Plan Designation (millions) 'Traffic Day Rank Palomar St Chula Vista $41 4,4,,364 206 62.63 1 Light Rail Broadway/ Lemon $82 40,403 144 60.19 2 Light Rail Lemon Grove Ave Grove Ash, St San, Diego $103 30,575 195 59-81 3 Light Rail H St Chula Vista $41 41,861 206 59.63 4 Light Rail Washiinigton, St San, Diego $41 30,345 195 58-81 5 Light Rail E St Chula Vista $41 39,783 206 58.63 6 Light Rail Broadway San, Diego $113 27,845 150 55-81 7 Light Rail Taylor St San Diego $113 42,670 195 55.81 7 Light/Heavy Rail Euclid Ave San, Diego $41 37,000 144 50-81 9 Light Rail 28th St San Diego $41 33,225 206 49.81 10 Light Rail 32nd St San, Diego $41 32,470 206 46-81 11 Light Rail Civic Center Dr Vista $41 34,916 68 44.44 12 Light Rail Auto Parkway and Escondido $36 27,623 68 42.13 13 Light Rail Mission, Ave Sorrento Valley Blvd San Diego $134 37,990 51 40.81 14 Heavy Rail Allison Ave/university La Mesa $103 24,700 144 40.50 15 Light Rail Ave North Dr Vista $31 8,793 68 39.94 16 Light Rail Vista Village Dr/Main, St Vista $62 24,927 68 39.44 17 Light Rail Severin Dr La Mesa $41 8,311 288 37.94 18 Light Rail El Camino Real Oceanside $41 38,000 68 36.06 19 Light Rail Grand Ave/ Carlsbad $113 21,113 51 35.00 20 Heavy Rail Carlsbad Village Dr Melrose Dr Vista $41 25,921 68 31.94 21 Light Rail Mar Vista Dr Vista $31 9,665 68 29.94 22 Light Rail Los Angeles Dr Vista $31 4,291 68 29.94 22 Light Rail Guajome St Vista $31 4,152 68 26.94 24 Light Rail Leucadia Blvd Encinitas $93 34,000 51 18.50 25 Heavy Rail 2020-01-28 Agenda Packet, Page 217 of 288 Tamarack Ave Carlsbad $93 10,568 51 18.00 26 Heavy Rail Cannon Road Carlsbad $93 6,416 51 12.00 27 Heavy Rail *Downtown heavy rail trench in San Diego (Washington,Laurel,(Hawthorn,Ash and Broadway Streets) excluded from rankings due to construction feasibility issues. 2020-01-28 Agenda Packet, Page 218 of 288 i o/ s / / t / i r w n i /� i ��,,,., � %,,; w,,,,.,, -,,,,, r/ u; NE w r .,� u I wV�r'o;, �„io.,✓�.�r�rrly/l,�//l!/ r�,�/, ��,,, ,�,G,,,,,:.,, `;?'�IJI�,,,"n�.., �� /�� S :. WALK ISE Ex Prepared for. IIANDAG San Diego As ociation of Govern monis 401 Street Suite Boo San Diego, CA 92101 am CIn OF CHULAVISTA City of Chula Vista 276 Fourth Avenue Chula vista, CA 91910 :4 N'T B HNTB Corporation 401 B ,Street, Suite 5,101 San Diego, CA 92101 Page 219 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect iii [ llI-y 1`7 2020 ject �Repc)��t ja��tu& I This Project Report has been prepared under the direction of the following registered civil engineer. The registered civil engineer attests to the technical information contained herein and the engineering data upon wh�ich recommendations, conclusion and decisions are based. VI 0, o 1/17/2020 Patrick L. Somerville Date RCE NO.C56141 L'xp.12/31/2020 Registered Civil Engineer V, C'MIL OF 2020-01-28 Agenda Packet, Page 220 of 288 Palomar SWee't Grade Sepazratlon Pro�'ect P�oject Report January '17, 2020 .................... ....... Concurrence 2 SAND,AG. ...................... ....................................................................................................... Ornar Ataye Date Senior En�gineer City of Chula Vista-., 00 F17 7 Francisco X Rivera ate Prin�c�ipal Civil Engineer 2020-01-28 Agenda Packet, Page 221 of 288 TNI a l iii n iii ° i-° t Grade 1 iii oJect jec�tIIII � �i iii°i u �y 17 2020 T A 0 bm"L E 4 0h F C"0'N T E�N T S 1. INTRODUCTION..............................................................................................."I 1.1. Project H tory...................... .....................................................1 2. RECOMMENDATION........................................................................................4 3. BACKGROUND ................................................................................................4 3.1. Existing Facility......................................................................................4 3.2. Community Interaction...........................................................................7 4. PURPOSE AN N D ..................................................................................... 5. PROJECT DESCRIPTION ................................................................................ . ALTERNATIVES.............................................................................................11 5.1. Roadway .................. .............................11 5.2. Rail......................................................................................................1 ' 5.3. Trolley Station .....................................................................................1 5.4. Active Transportation...........................................................................1 g 5.5 Construction Staging . ...........20 5.5 Drainage.................. ..............................22 5.7. Utilities.................................................................................................27 6.8. Structures............................................................................................3o 5.9. Project Landscape &Aesthetics ..........................................................32 5.10. Dight-cf- ( y .................. ....................... 3 5 7. ENVIRONMENTAL ......................................................................................... . PERMITTING & AGREEMENTS 318 . FUNDING, PROGRAMMING ANLL ESTIMATE............................................... 10. DELIVERY SCHEDULE..................................................................................3 11. PROJECT PERSONNEL................................................................................4 LIST OF FIGURES Figure 1. Regional Vicinity Map app............................................ .2 Figure 2. Project Location Map....................................................................... Figure 3. Adjacent. Land Use..........................................................................+ Figure 4. overall Project Layout....................................................................10 Figure 5. Palomar Gateway Center Site Flan ...............................................1 Figure 5. Secant File Wall Construction In-Progress and Completed ...........32 Figure 7. Palomar Street Before & After.......................................................33 Figure 8. Industrial Boulevard Before & After ...............................................34 �i 2020-01-28 Agenda Packet Page 222 of 28 !"Ialoiii nair Sti-eet Giii 1 iii Oject iiilljaiii iu&�y 17 2020 ject [ e �Rpc)��t LIST F TABLES Table 1. Summary of Community Table 2. Design Exception ..............................................16 Table 3. Construction Staging Activities. .......................................................21 Table 4. Existing and Proposed Drainage Table 5. Pump Station Design .........................................26 Table 6. Right-of-way Parcel Impacts...........................................................35 Table 7. List of Permits & Agreements .........................................................3 Table 8. Project Program m i ................................................39 Table 9. Project Milestone Schedule ............................................................3g APPDICES (Extemal link to documents on City of Chula Vista website) Appendix A: Project Study Report (PS,R)Addendurn Appendix Preliminary Geometric Drawi Appendix C: Rail Corridor Modification Exhibits Appendix D: Drainage Exhibits Appendix E: UtiftyExhibits Appendix F: Structures Advance Planninq Study Appendix G: PreliminarLand scap Concept Pl�a. Appendix H: Rigiht- f-Way Impact Map Appendix 1: Traffic 'tud Appendix J: Parking Memorandum Appendix K: Prel�imin�ary Project Cost Estimate Appendix L: Statutory Exemption (CEQA) / Categorical Exclusion (NEPA) H 2020-01-28 Agenda Packet, Page 223 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect iiilljaiii iu&�y 17 2020 ject [ e �Rpc)��t 1. INTRODUCTION The San Diego Association of Governments (SAN AG and the City of Chula Vista (City),, in coordination with the Federal Highway Administration (FHWA , are proposing to grade separate the existing Palomar Street/Metropolitan Transit System (MTS) Light Rail Transit (LIST) and San Diego &Arizona Eastern (SDA ) freight railway at-grade railroad crossing in the City of Chula Vista, San Diego County. The project site is principally along Palomar Street between Interstate 5 (1-5) and a point approximately 1,200 feet east of Industrial Boulevard, and along Industrial Boulevard and�/oir the adjacent L,RT/SD&AE rail right-of-way between Main Street at the south and the 1-5 on and off ramps north of Moss Street at the north, as shown in Figures 1 and 2. The project site is located on the Imperial each U.S. Geological Survey (USGS) 7.5 minute topographic quadrangle. 1.1. Project History In August 2012, SANDAL in cooperation with the City, approved a Project Study Report (PSR)for the Chuila Vista Ligiht Rail Corridor Improvements. The PSR provided the analysis of alternatives to grade separate the three at-grade rail crossings within the City of Chula Vista: E Street, H Street and Palomar Street., While the PSR addressed all three at-grade crossings, the Palomar Street grade crossing improvements have independent utility from the other grade crossing improvements, allowing it to be constructed and function independent from the other projects. Following the completion of the PSR, SANDAG in cooperation with MTs, implemented a $50 million rail corridor improvement project, referred to as the South Line Rail Freight Capacity Project. Construction of this project was completed in 20,16 and increased the freight rail capacity through this corridor, a vital connection between the San Ysidro, and downtown San Diego rail yards. The implementation of the South Line Rail Freight Capacity Project led to the need to re-evaluate the viable, and rejected, alternatives identified in the PSR. In October 2018, a Project Study Report Addendum was approved, recommending that a roadway underpass, identified as Alternative P5, be advanced as the viable build alternative for the Palomar Street grade separation.A copy of the Project Study Report Addendum is included in Appendix A. This Project Report provides the engineering evaluation and technical analysis for the build alternative and supports the environmental clearance for the California Environmental Quality Act (CEQA and National Environmental Policy Act (NEPA)'. 2020-01-28 Agenda Packet, Page 224 of 288 !`Ialoi,�nair Sti�-eet Grade 1 1 Oject jja��iu&��( 17 2020 jec�t [�Repc)��t L. Presia AM, 21 �0-j'Ohm :n n, 411, OF M, 4ljJ1 "Ov/ P dilis e, "Hills fil M, i(h 111411211 "k.......... 0 'AF C111ty L I n c o 1:n, Aic !4SW & 10'q 31 wbW, Pill dof, A, AN, Chula V1,111sta A All jifl j Q1 CIN It JIM C J3 park. 1� fi US IN MEN I M, C i I M, ,er ri 11 P Y IN ffil N tO� ............ q's vtrl 0 0 J, ............... ............... AN ............... ............... ...................................................... mliSms L",/, I S 1/,T,lTt/i(P,,J1)j,,4 fl,1) I......................................................................... Figure 1.Regional Vicinity Map 2 2020-01-28 Agenda Packet, Page 225 of 288 !`Ialoiii,Inaiii r Stieet Giii 1 iii Oject III iu&y 1`7 2020 plJae 11 'w J, O'C',JIM Am JI� ui'/221,, g gg 199), II Oil a L 00, N,lf" IS, rr er ryryrrpp 7 01 NINEIII 101I lip ff 111110 2 if ,C tc,0 TJI a zIrI Jra L7.If O)ml �' y rN//j 'i r j !V" Iii r,,.., '�1�I�( Is ......... WIN ...........///,. If //l day ............. ............. .......... ....... 7 J3 All Pr AA I Af fl r #11/l 111,1 IIF D61-0th llk�f f I I IN m 31 ; rf If A RI, 'Mr) umul�WW40 Tf If if Iul all u016 ............. I..........................(/� ............, .........("', 1v 116 1114 ma It �( Ir lwu I'M 04/ 611'".M.) 0(!V St M#r`,J,4'n Avej) Yf 100 II 1111111 � IIIIIIIIIIIIIIIIIIIII to IIIIIIIIIIIIIIIII :rll Fact Cha, 0 Is s Ave N cwtli l hIrt roca 01 Figure 2.Project Location Map 3 2020-01-28 Agenda Packet, Page 226 of 288 TNI aloiii nair Sti-eet Giii 1 iii oJect iiilljaiii iu&�y 17 2020 ject [ e �Rpc)��t 2. RECOMMENDATION It is recommended that the Palomar Street Grade Separation Project (Project) be approved using the build alternative and that the Project proceed to the design phase. Concurrence was achieved on the Project through consultation with the City, SANDAG and MTS with respect to the recommended Project, consideration of their views, addressing their concerns and that they are in general accord with the Project as presented and the, benefits to be achieved by its execution. The City and SANDAG entered into a Memorandurn of Understand ngi OU) in 2012, for the preparation of the Project Report and the completion of environmental clearance,for compliance with both CA and NEPA. To enter the design phase, a new MOU will be required between the City and SANDAG, with SANDAG continuing as the Lead Agency., 3. BACKGROUND The Project is included in the 2016 cost-constrained Regional Transportation Improvement Program (RTI P) as project CHV30. SANDAG identified Palomar Street as the highest ranked at-grade crossing in need of a grade separation based upon the peak-hour vehicular traffic, total number of trains, blocking delays, pedestrian and bicycle safety and accident history. The Project is in the City of Chula Vista, San Diego County, California, along the rail corridor east of Interstate 5 Freeway (11- 5). The purpose of the proposed project is to remove the existing at-grade crossing of vehicular, pedestrian and bicycle traffic and the rail traffic. The Land Use and Transportation Element of the City's General Plan identifies the need to grade separate the road/rail at-grade crossings within the western part of the City, thus this project is consistent with that goal. 11. Existing Facillfty Through the project area, the existing Palomar Street consists of an east/ est divided six-lane arterial higihway (three lanes in each direction) that crosses the existing MTS Rail Corridor tracks at- grade with an existing Average Daily Traffic (ADT') of nearly 45,0100, vehicles. Palomar Street intersects with Industrial Boulevard approximately 50 feet west of the rail crossing, at a signalized intersection. Industrial Boulevard is a local collector with one lane in each direction and connects with Ada Street by a roundabout approximately mately 650 feet south of Palomar street. Trenton Avenue connects with westbound Palomar Street approximately 400 feet west of the rail crossing. A signalized intersection exists approximately 600 feet east of the rail crossi�ngi at the driveway entrances to the Palomar Trolley Center and Hometown Square retail centers. 4 2020-01-28 Agenda Packet, Page 227 of 288 TNI aloiii nair Sti-eet Gr iii 1 iii oJect iiilljaiii tu&1y 1`7 2020 ject [ e �Rpc)��t Rail] Corridor Currently, MTS operates the Blue Line LRT with more than 200 trains dalily crossing Palomar Street at this location on weekdays, and an additional two freight trains at night when the, LRT is not running. The Blue Line has the highest ridership in the San Diego Region. Headways, are 7.,5 minutes peak hour and 15 minutes off peak. Ridership is expected to continue to increase which will lead to reduced headways as well as extended peak hours. This will lead to increased vehicular delays on Palomar Street. Regionally, to provide moire transit service there is a planned Purple Line LRT that will potentially use this MTS rail corridor through Palomar Street. There is no funding yet identified for the Purple Line LRT. SD AE, owned by MTS and operated by San Diego and Imperial Valley Railroad (SDIV , currently operates two trains in the early morning hours when the LRT is not operating. Freight trains run from the San Ysidro rail yard to the downtown San Diego rail yard as well as services numerous customers through the corridor on spur tracks. The capacity improvements, implemented allow for two track operation through this corridor and an expansion of an additional two trains, for a total of four trains, during the operational window. Upon Project completion, two tracks must be maintained that meet freight rail design requirements. The at-grade crossing is identified by the Federal Railroad Administration's (FRA►) as crossing number DOT 6,62038Y and the California Public Utilities Commission (CPUC) identification is SD - 1153, located at Milepost 9.70. Actilve Tiiraii iirtatiiia oiin There are siginificant pedestrian volumes,within the Project limits. The Blue Line Trolley Station is, in the southeast quadrant of Palomar Street and the rail crossing. Site observations and traffic intersection counts indicate a higih volume of pedestrians crossing Palomar Street at the Industrial Boulevard and Palomar Trolley Center intersections, in part due to the Blue Line Trolley Station and the County Health Services facility that is located on Oxford Street. Both Palomar Street and Industrial Boulevard have Class 11 on-street bike lanes throughout the limits of the Project. �L.and Use The land use adjacent to Palomar Street includes the following and is shown in Figure 3 on the foillowing page. Northwest Quadrant: Single-family and multi-family residential housing units. To the north of the residential neighborhood is a large SDG&E overhead electrical transmission corridor which also crosses Palomar Street, west of the MTS Rail Corridor. 2020-01-28 Agenda Packet, Page 228 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect iiilljaiii iu&�y 17 2020 ject [ e �Rpc)��t Northeast Quadrant: Commercial/Retail with three shopping centers, the, Palomar Center, sun/Moon Plaza and Hometown Square. MTS owns a parcel that includes a connector road between Oxford Street and Palomar Street along with a stormwater retention basin.Along the north side of Oxford Street is the County Health & Human Services Agency, located at 690 Oxford Street at the west and of Oxford Street. Southeast Quadrant: The MTS Blue Line Trolley Station is located immediately adjacent to the rail crossing. The Palomar Trolley Center is, a commercial/retail center that is also used for vehicular and bus access to the Trolley Station. Southwest Quadrant: On November 13, 2019, the Planning Commission approved the Palomar Gateway Shopping Center, 58,000 square foot commercial retail shopping center consisting of a grocery market and three commercial/restaurant building pads on a 476-acre parcel that pis currently vacant. Parking will be provided for 233 vehicles. Commercial plazas and pedestrian pathways are proposed throughout the center to encourage pedestrian activity and interconnection to the trolley to the east. Construction anticipated to commence in 2020. The shopping center will include a driveway and a traffic signal at the Trenton Avenue intersection. Palomar Gateway District Specific Plan (PGDSP): The PGDSP, which encompasses the project site, was adopted by the City Council of the City of Chula Vista on August 13, 2013 th�ru Ordinance No. 2013-3274. R-1101-015 prepared for the PGDSP was certified by City Council of the City of RON) toi Figure 3.Adjacent .and Use 2020-01-28 Agenda Packet, Page 229 of 288 !`Ialoi,naiii St�reet Giii 1 iii oJect iii [ lliu&�� 17 2020 ject �Repc)��t ja�� ( I Chula Vista on August 6, 2013 thru Resolution No. 2013-160. The Specific Plan is an overlay to the City's General Plan Element that alows for increased density of land use along with a reduction in parking needs due to the available of transit alternatives. With the densification, it is anticipated that an increase of vehicular, pedestrian and bicycle traffic will occur within the Project limits. 3.2. Community Interaction The project alternatives were presentedin the following public forums. All City Council and Commission meetings provided public notification. The community open house included notifications via mailers, door hangiers,, and the City website.All meetings provided opportunity for community input and feedback and are summarized in Table 1 below. Table 1. Summary of Community Interaction Date Meeting November 5, 20,14 City of Chula Vista, Safety Commission A PowerPoint presentation was made to the Safety Commission., Commissioners provided comments and staff responded to their questions. The roadway underpass was received favorably by the Commission. November 12, 20,14 Community Open House Dispilay boards were pirovi,ded for PSR Alternatives. Project staff were located at each board to answer questions from the community. The Ipublic was encouraged to pilace post-it notes with comments or questions on each board as well as submit a comment card. A PowerPoint presentation was made, and public questions were addressed. The meeting was well attended by the community and over 30 comments and/or questions were received. The community expressed concerns over the PSR alternatives that raised or lowered the tracks related to the visual impact, inconvenient access,to the station, graffiti, transients and that the station was currently being reconstructed. The roadway underpass was well received for its overall aesthetics, improved pled estria n/b icycle facilities and ease of station access. Concerns included maintaining driveways and the Trenton extension over the vacant parcel. December 16, 2014 City of Chula Vista, City Council A PowerPoint presentation was made to City Council. Comments were received, and staff responded to questions. City Council direction was to advance the roadway underpass,further lin the project development process. February 5, 2015 City of Chula Vista, City Council Transportation Workshop Display boards were set up for the community to review, comment and ask questions ahead of the Transportation Workshop. A PowerPoint presentation was made to City Council, providing a project update and reaffirming the decision to proceed with the roadway underpass. 7' 2020-01-28 Agenda Packet, Page 230 of 288 TNI aloiii nair Sti-eet Giii 1 iii oJect iiilljaiii iu&�y 17 2020 ject [ e �Rpc)��t 4. PURPOSE AND NEED Currently, more than 200 trains cross Palomar Street at this location on weekdays (including two freight trains). The purpose of the proposed project is to remove the existing at-grade conflict between vehicular, pedestrian and bicycle traffic and rail traffic. The Project will reduce delay and provide a significant safety improvement. The Land Use, and Transportation Element of the City's General Plan identifies the need to grade separate the road/rail at-grade crossings within the western part of the City, thus this project is consistent with that goal. 5. PROJECT DESCRIPTION A grade separation is proposed to eliminate the MTS Blue Line LRT and SD AE freight rail (MTS Rail Corridor) at-grade crossing of Palomar Street, in the City of Chula Vista, San Diego County, California. Through the project area, the existing Palomar Street consists of an east/west divided six-lane roadway (three lanes in each direction) that crosses the existing MTS rail corridor at-grade. To the west of the at-grade crossing, Palomar Street intersects with Industrial Boulevard, approximately 50 feet west of the rail crossing. Trenton Avenue connects with westbound Palomar Street approximately 4010 feet west of the rail crossing. Industrial Boulevard connects with Ada Street by a roundabout approximately 650 feet south of Palomar Street. The proposed project would lower the six-lane Palomar Street under the existing MTS Rail Corridor and Industrial Boulevard, creating a Broadway underpass.A new two-lane bridge for Industrial Boulevard and a double track rail bridge for the MTS rail corridor would be constructed over the lowered Palomar Street. The bridges would be approximately 200 feet in length with a minimum 16.5-foot clearance to Palomar Street. The roadway for Palomar Street would consist of 6-lane roadway (six vehicular lanes with 7-foot shoulder/bike lanes and 8-foot sidewalks in each direction), and with a 14-foot maximum width raised median or 10-foot left turn lane with 4-foot raised median. The roadway improvements on Palomar Street would extend approximately 660 feet west and 620 feet east of MTS grail corridor railroad tracks with a total length of approximately 1300 feet. The total length of improvements on Industrial Boulevard would extend approximately 300 feet north and 320 south of Palomar Street, with a total length of approximately 700 feet. Industrial Boulevard would be constructed with one 11-foot lane, 5-foot bike, lane, and 6-foot sidewalk in each direction. The bridge would have a 10-foot striped median which tapers to double stripe north of the Industrial Boulevard Undercrossing. The improvements on Trenton Avenue would be constructed to a point approximately 150 feet north 8 2020-01-28 Agenda Packet, Page 231 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect iii [ lliu&�y 17 2020 ject �Repc)��t ja�� I of Palomar Street. The grade of the, intersection of Palomar Street and Trenton Avenue would be lowered to match the new Palomar Street grade., The cul-de-sac on Oxford Street would be reconfigured into a roundabout, and the connection to Palomar Street would be widened and realigned and intersect Palomar Street near the existing retail shopping entrance. The retail shopping parking lot would be redesigned to accommodate, this realigned connection from Oxford Street to Palomar Street. On-street parking would be added to the Oxford Street connector to offset the loss of parkigi spaces due the reconfigured parking lot. Roadway striping would also be included along Palomar Street, Naples, Street/Industrial Boulevard, and Moss, Street/Industrial Boulevard. Minor widening would also occur along the eastside of Industrial Boulevard north of Moss Street. To address the significant pedestrian volumes, stairways are provided to connect the sidewalks along Palomar Street to the Trolley Station and the Oxford Street connector. The proposed railroad bridge has additional width to accommodate an approximately 9-foot wide, barrier-separated pedestrian crossing to facilitate north/south pedestrian movement without having to cross Palomar Street intersection at grade. The sidewalks and roadway would be separated by landscaping and retaining walls to maintain Americans with Disabilities Act (ACOA) accepted maximum grades. A pedestrian activated signal would be installed on Industrial Boulevard to provide a connection to/from the Trolley Station. The traffic signed-controlled intersection on Palomar Street and the driveway entrances to the Palomar Trolley Center and Hometown Square would be reconstructed and lowered to meet the proposed grade. The eastbound left turn lane on Palomar Street at this intersection would be extended to approximately 220 feet to accommodate the turning movement demand. The MTS and SD AE railroad tracks will also require a crossover track located immediately north of Palomar Street within the railroad right of way to facilitate rail operations during construction. Associated rail signaling and overhead contact wire modifications will be required. An overview plan of the Project is included in Figure 4. 91 2020-01-28 Agenda Packet, Page 232 of 288 aiu yet Grade Sgawi n III°,i jest e w R.,. 17,2020 (i I / in fM` , , I I t r � r I uu 4 i. r 1 r / , I , r N / W / I I I a 1 I / a � i I r „r ! I Y „ r ISI r / � I i ull� .ISh I l l r , ii i liil II I r .. r/., ... ,, ✓ +�I tl ail r � r / /// �I, Nu i i;, �..i/v r r,- r/,,,, ,,;,'.;, IY� r,;'t I r/ yl',� ✓, f 'l IP 1� � �9r'�r. ,fl�� ((�// I.r , i / /r !�1 I I' i ! r N / rr t r uuuuu r, u u u tl I N. r i m i I I, I I , /f 1 r r / r 4� I r / / , r r s„- , r' i ( „ i f �r��©', ,,,,,-i,, ,, ;, ,. Irk i. ,,y WY i ✓r ,':/ //,I„��rr/iii/�%%"',. I I,. r l / r l r r R r r / / / I VI� � n it f� �I G; 4� M g, / II II" wV' . / l r r/ I � ' s u r. 4 "� '�/✓ r f%G'�. J y r / (��r/ /r r/ �r /l % ,r ///., /, ;/ f�i`��I� '`' ��/ 6r;,, I /r r r �r r / r I r r/ / r / I, r r / I .r ! r r i r, / t, / r / r r / ! / r r / r I r I f J r / I / r N / IP I J1 r / r 1 i / r / I , Ir / 1 1 / r / / / d A �V 1 1 r r r r _ r I l _ w / I r SII , 1 I� r err/ JI 1 rre, /r �a r/ / r rI / / / � I V lil II' i I I 1.. Y i r r , „ F / ,r I I 1 i It I, r. i I Iu I I III � Y r r I r l Y / I °I I r / r y / / Y 1 / . 1 / r k / r, / / r l c , Iw � N. I r, I ✓, �„'IG rl >l�i ,; ;,r�, ,, ,' r r int , !!f' ( f ,t r' `, %nP al' i cr i.,,. �, r-/�/,- ',. %�' '., ,,, ;r'✓-,� / ,..;, !n. ,iii-J/-% / i S,l. / / va,, r� J/ / r i 'l I r, r 1 , rr ,,a, i I,,,,� rr, !Ji r �J)r V>, !( r ��f�� .,. � ��// �� ✓i, � yi,� ,r„/,/„�� 1�P� lrr;� r,./� ��/l�/,�� Figura 4.Overall Project Layout 10 2020-01-28 Agenda Packet Page 233 of 288 TNI aloiii nair Sti-eet Gr iii 1 iii Oject 6. ALTERNATIVES There are only two alternatives for the Project: A No-Build Alternative and one Build Alternative. No-Build Alternative The No-Build Alternative would leave this section of Palomar Street in its present condition. This alternative would not address congestion issues within the Project limits and would not be consistent with the Land Use and Transportation Element of the City's General Plan. Thus, the No- Buiild Alternative is not the preferred alternative for programming. Buiild Alternative — Roadway Underpass The Build Alternative includes lowering the six-lane Palomar Street under the existing MTS LRT and SD&AE railroad tracks and Industrial Boulevard.A new two-lane bridge for Industrial Boulevard and a double track rail bridge would be constructed over the lowered Palomar Street. Road improvements would be implemented on Palomar Street and Industrial Boulevard to accommodate changed configuration. This alternative would not add capacity to the existing facility. 6.1. Roadway Palomar Street is a divided six-lane major arterial higihway that is identified as a gateway entrance to the City of Chula Vista from the 1-5 freeway., The intent of the project is to maintain the current roadway configuration of six lanes as well as the on-street Class 11 bike lanes., The City also maintains the goal of establishing Palomar Street as a gateway with enhanced landscaping opportunities, with an open feel to the greatest extent possible by avoiding tall walls at the end of the travel way or sidewalk. Proposed Project geometric plans are included in Appendix B. 11oiiriilzoiintall Geoirnetrics The existing street section curb-to-curb width is g3-feet west of Industrial Boulevard and 90-feet east of the MTS rail corridor. The proposed section curb-to-curb width is 97-feet, comprised of 7- foot Class 11 buffered bike lanes, 11-foot No. 2 & 3 lanes, 12-foot No. 1 lanes, and a 15-foot median that provides an 11-foot left turn lane adjacent to a 4-foot raised island. Numerous options were explored related to the horizontal alignment for Palomar Street with offsets to,the north or south in an effort to minimize overall impacts. It was determined that southerly curb line would be held west of Industrial Boulevard, with a 4,-foot widening occurring to the north. East of the MTS rail corridor, the widening is split with 2-feet on the south, and 5-feet to the, north. As Palomar Street goes under the two bridges,, pit pis advantageous to narrow the raised median as this will reduce the overall bridge length and lead to cost savings. The median island width below 2020-01-28 Agenda Packet, Page 234 of 288 TNI aloiii nair Sti-eet Giii 1 iii Oject the bridges is 10-feet which will provide a minimum 2-feet clearance to the bridge columns. Roadway tapers are provided on the approach and exit to address, the change in width and to provide a tangent under the bridges. PaOkways With the City's desire to provide an open feel, coupled with the proposed street grades, the, sidewalks located on each side of Palomar Street have been set back 4 feet to provide a twofold benefit. First is the ability to include low level landscaping at the street edge. Second is to improve the pedestrian experience through the corridor by providing a flatter grade,1 where feasible, with both a horizontal and vertical offset to the vehicles. The elevated sidewalk will be supported on a concrete retaining wall that will include architectural treatments. A handrailing will also be provided. Behind the sidewalk is an 8-foot landscape buffer that will be sloped to the upper retaining walls. This landscape buffer will allow for the installation of shrubs and trees to screen the taller walls. Overall, this tiered approach will provide a more open feel for the Broadway users while providing the opportunity for landscaping in support of the goal to, establish a gateway entrance along Palomar Street. Ox,fourd Corinec'tour Currently there is a two-lane paved access road from the end of the cul-de-sac on Oxford Street that connects to Palomar Street in a right in/right out configuration. This access is located on an MTS owned parcel. The Project will acquire this, MT'S owned parcel and convert this, access to a city street. Improvements include: 0 The cul-de-sac on Oxford Street will be converted to a roundabout 0 Diagonal parking will be provided to offset the loss of on-site parking on the commercial parcels and Trolley Station 0 Pervious paving will be used for new parking to, limit the impact to stormwater 0 Two driveways will be provided to the commercial centers 0 Sidewalks will be provided on both sides of the connector 0 Access will be provided to the MTS corridor as well as the new storm drain pump station 0 The geolmetrics at the connection to Palomar Street include small horizontal curves that may limit the ability for larger trucks to navigate. Restrictions on truck size may be required. 12 2020-01-28 Agenda Packet, Page 235 of 288 TNI aloiii nair Sti-eet Giii 1 iii oJect industrial Boulevard Early Project alternatives included a two-lane, connector road between Palomar Street and Industrial Boulevard to replace the existing at-grade intersection. The connector road utilized the vacant parcel in the southwest quadrant of the intersection. Once a development was brought forth for this vacant parcel, additional analyses evaluated numerous alternatives for connectivity between the two, streets. Alternatives included lowering of Industrial Boulevard which was determined to be too impactful to the adjoining parcels. As determined in the traffic analysis,1 included in Appendix 11, the connection between the two streets could be eliminated. Minimal impact was identified, requiring minor widenings along Industrial Boulevard and improvements at the 1-5 northbound ramps north of Moss Street. The improvements on Industrial Boulevard will include the continuation of the street section adjacent to the Trolley Station across the proposed Industrial Boulevard bridge with a section that includes one lane in each direction, Class 11 striped bike lanes and sidewalks. The section will transition to join the existing widened section north of Palomar Street. Vertical Alignrnerit Alternatives for the roadway profile were evaluated in order to minimize the overall construction and right-of-way impacts. The depth of the Palomar Street profile is governed by ma,i�ntaining 1 -feet 6- inch clearance from the roadway to the MTS rail corridor and Industrial Boulevard bridges. The crest vertical curves are designed to meet Caltrans, and AASHTO standards. The sag vertical curve is utilizing the AASHTO 'well lit' criteria that uses stopping sight distance, not headlight distance that is in the Caltrans standards,. With a posted speed of 35 mph, the design speed is established at 40 mph. Maximum desired grades for urban highways is 6%. Utilizing this criterion, the roadway profile was established. The resulting profile yielded unfavorable depths at Trenton Avenue, the Trolley Station driveway and the Palomar Trolley Center driveway. This would lead to additional private parcel impacts and additional challenges for construction staging of the intersection construction. Various alternatives were evaluated and, to effectively join ex�ist�ingi conditions at the,Trenton Avenue and Palomar Trolley Center intersections, the design speed was reduced to 35 mph and the maximum grades increased to 7%. 13 2020-01-28 Agenda Packet, Page 236 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect Palomar Gateway Ceiinuter Developmein't During the development of the Project Deport, the Palomar Gateway Center development, located on the vacant 4,.76 acre parcel at the southwest corner of Palomar Street and Industrial Boulevard, was brought forth, as shown in Figure 6. Extensive coordination with the developer was required to ensure that the projects were compatible, particularly that the grade separation was constructible with little to no impact to the proposed development. Concurrence was reached with the developer on the configuration of the frontage along Palomar Street and Industrial Boulevard. The City of Chula Vista Planning Commission approved the Design Review Permit DR1 8-0001 on November 13, 2019 which included conditions related to offer of dedication for necessary permanent and temporary easements for street, sidewalk and sewer improvements required for the grade separation. One remaining coordination item with the developer is the proposed stoirmwater treatment feature between Buildings 2 and 3 that remained in conflict with the proposed sidewalk and multi-use trail along the Palomar Street frontage. Through the plan check process, the City will ensure that the stormwater feature is located as such to eliminate any conflict with the grade separation. FAT UM E 17 72 11 'AFN 117-072-136 7", OUIN(43,N), 7" 77 2, FI0%!,QM r. of i uw V it Mr. ./ ,;iii '/ � i.�// f. !/'"' //,/;. ;i ✓ E H ✓ 'o, gr L4r I'm 111111 tr Ef M AIM C2-�I-'77 7,1:7 CM9 WN 622-020-73 Q2 04 W 7 -4 Rtip gxrI. Iwx J+W% Figure 5.Palomar GaIteway Center Site Plan HOLM, Coirnmercilal Parcei Impac,ts, The Project will have impacts to a varying degree on the adjacent commercial parcels, east of the MTS rail corridor, described as follows: Palomar Trolley Center: The main entrance to this center is at a signalized intersection with 14 2020-01-28 Agenda Packet, Page 237 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect Palomar Street. The entrance to the center is City owned right-of-way. The intersection will require reconstruction with a minor grade differential of up to 1.5 feet, thus requiring a portion of the main entrance to be reconstructed to meet these new grades. To facilitate pedestrian access to the station during construction, a sidewalk will be constructed along the west side of the main entrance, adjacent to Starbucks. This area is currently landscaped., Starbucks has an entrance to their parking lot from the Trolley Station. Due to the grade change of the Trolley Station driveway, this entrance will be reconstructed further south and will align with the internal drive aisles. There is no loss of parking. Right-of-way requirements are minimal on the parcel, limited to sliver acquisition for sidewalk, walls,, and temporary construction easements,. Palomar Center& Sun/Moon Plaza: These two centers share reciprocal access through a driveway on Palomar Street. This driveway is right in/right out only. With the proposed Oxford Connector, the driveway will be relocated, and the parking lots preconfigured to minimize loss of parking. An additional driveway will be provided from the Oxford Connector. There is a net loss of four parking stalls within these parcels. On-street parking will be provided on the Oxford Connector to offset the loss of on-site parking. Storm drain construction is also required across these parcels. This work can be specified to be constructed outside of normal business hours to minimize impact on the shopping center. This construction involves trenching that can be plated at the end of the construction day and open for use for the shopping center. Dight-of-way requirements are required in fee or roadway easements for the Oxford Connector across these two parcels along with temporary construction easements for the reconfiguration of the on-site parkingi. The parkiiingi lot reconfiguration will be phased to minimize the amount of parking lost at any one time as well as avoiding on-site construction during the holiday season. Hometown Square: Primary access to this center pis a driveway at a signalized intersection, opposite of the Palomar Trolley Center. This intersection will be reconstructed as part of the Project and lowered up to 1.5 feet.. "his will require the reconstruction of the driveway to lower it to grade. Alternative access points exist for ingress/egress during this construction. Storm drain construction is also required through this parcel. Similar to the Palomar Center and Sun/Moon Plaza, this work can be specified to be constructed outside of normal business hours to minimize impact on the shopping center and will be, open for use for the shopping center during operating hours. 15 2020-01-28 Agenda Packet, Page 238 of 288 !`Ialoi,naiii r Sbreet Giii 1 iii oJect Right-olf-way requirements are a sliver acquisition for sidewalk and driveway purposes, easement for the storm drain and temporary construction easement., Desilgin Excelptiouns Through the development of the geometrics for the project, there are several design standards that were not met in an effort to reduce the overall project impacts. Requested exceptions to these standards are summarized in Table 2 below. Table Z. Des'9 n Exception Table Na. Item Standard Proposed Existing 11 Design Speed 40mph 35mph 40mph Discussion: Palomar Street is currently posted 5mph, the assumed 85th percentile speed. Common practice is to establish the design speed 5mph over posted speed, or 40mph. It was determined that a reduction in the design speed resulted in a smaller project footprint and significantly minimiedl the grade differential at the intersections at Trenton Avenue and Palomar Trolley Center. Uipon project completion, a speed survey would be performed to determine the 85th percentile speed to establish the posted speed limit post-project. 2 Maximum Grade 6% 7% <1% Discussion: To minimize the project footprint, reduce project costs and improve the join conditions at intersections and driveways, the roadway profile was optimized through numerous iterations. IIt was determined that for IPallomar Street, the optimal profile grade was 7%. The length of 7% tangent grade is 150 feet on the west and 220 feet on the east side. These grades are not considered a sustained grade and it lis not anticipated to have an impact on the operations. 3 Lane Width 12 feet 11 feet 11 feet Discussion: To minimize the project footprint and reduce right-of-way impacts, the eastbound and westbound No. 2 & 3 lanes are established at 11 feet in width. This matches existing condition. The No. 1 lane is proposed at 12 feet yin width as it is adjacent to a praised curb for the median island. The No. 3 lane is adjacent to the 2-foot striped buffer for the Class 11 bike lane. 4 AD,A compliance— Longitudinal Grades 5% 7% N/A Discussion: The proposed roadway grade for Palomar Street is 7%. For considerable portions of the street, an elevated sidewalk is being provided that will maintain longitudinal grades on the sidewalk less than 5%. Due to the Oxford Connector and the driveway to the Trolley Station, sidewalk grades will have to follow the street grade between Stations 105+00 and 106+25 and will exceed 5% grades. Per Caltrans Design Information Bulletin 82-06 which provides guidance for"Pedestrian Accessibility Guidelines for Highway Projects 91, that for pedestrian access routes that are contained within a street right-of-way,, the route shall not exceed the general grade established for the adjacent street or highway. This section applies to this short segment of Palomar Street where the sidewalk lis adjacent to the street. 16 2020-01-28 Agenda Packet, Page 239 of 288 !"Ialoiii nair Sti-eet Giii 1 iii Oject 6.2. Ra'�i I The ITS owned rail corridor includes two mainline tracks that cross Palomar Street. Immediately north of Palomar Street is a right-hand turnout to a siding track that extends to L Street. The Trolley Station is located south of Palomar Street. To maintain a two-track rail operation during construction, temporary rail shoofly tracks would have to be constructed. With the proximity of the,Trolley Station, this would require the construction of a temporary platforms as well as utilizing Industrial Boulevard for the shoofly tracks. An alternative to the construction of shoofly tracks is to stage the bridge construction, reducing operations to a single-track during construction. This would be accomplished by building the rail bridge in quadrants. In discussions with IVITS, it is allowable to reduce the operation at the Trolley Station to a single- track during construction of the new rail bridge. However, the extent of a s,ingle-track operation has to be minimized to maintain the headways along the corridor. In order to do so, a new double crossover track is proposed to be installed north of Palomar Street. This will allow the single-track operation on either main line track during construction. Signaling The double crossover track would be integrated into the existing S48 Interlocking. At the S48 Interlocking, the signal work will consist of the removal of the s4 cantilever signal, insulated joints and impedance bonds at STA 529+50, the installation of the double crossover with four M23A power switch machines and the installation of a new signal cantilever, insulated joints and impedance bonds for S4 RA and S48RB signals at STA 525+76. Intermediate signal S984 at STA 539+60 and S916 at STA 5014+12 will be removed from service. The new switches, and signals will be controlled out of the existing S962RC and S984RC enclosures. Software modifications to the S7 and wiring changes may be required at approximately 8 rail cases. Oveirlhead Contact Sys"Wim There are several impacts to the existing OCS of poles, electrical supply and contact wires. These include: • The installation of the double crossover track will require a modification to the system to provide OCS througih the crossover. This will require additional poles and anchorage. • OCS poles iin direct conflict with the proposed project that will require relocation or reconfiguration. 17' 2020-01-28 Agenda Packet, Page 240 of 288 TNI aloiii nair Sti-eet Giii 1 iii oJect • To facilitate, staging and provide clearance,for the contractor's equipment for bridge construction, conversion from center OCS poles feeding both tracks to outside OCS poles feeding each track separately will provide the necessary flexibility to address the staging needs. • Potentially, additional sectional ization of the system may be required to facilitate the construction and staging. This would allow one system for one track to be shut down during construction activities when a track is out of service. 63. Trolley Station The Trolley Station will remain open throughout the Project construction. Pedestrian access from Palomar Street and Industrial Street will be provided at all times. Temporary closures of the driveway are required, and vehicles will be detoured to, use the signalized intersection at the Palomar Trolley Station entrance. The Project will require the construction of retaining walls along the frontage of the Trolley Station as well as lowering of the driveway to meet the new Palomar Street grade. The lowering of'the driveway will require a minor reconfiguration of the parking lot and a minimal loss of parking, as noted in the Parking Memorandum included in Appendix J. The bus, aisle will be reconstructed to join the lowered driveway grade. There is no loss of utility for the bus, aisle. Walkways adjacent to the bus aisle and adjacent to the platform will be reconstructed as necessary to, meet the Project grades as well as provide connection to the following new facilities: • An 8-foot walkway will be provi I ded on the new IVITS rail bridge to provide direct connection to and from the north side of Palomar Street and the Oxford Connector. This alleviates pedestrians from haviingi to cross Palomar Street at an at-grade signalized intersection. • A stairwell will be provided that will connect the platform to the elevated sidewalk along Palomar Street. An ADA compliant path of travel is provided through the use of the sidewalk connection at the Trolley Station driveway. 18 2020-01-28 Agenda Packet, Page 241 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect 6.4. Active T�ranspotat ion Currently, both Palomar Street and Industrial Boulevard have concrete sidewalks and striped on street Class 11 bike lane facilities. The Project will incorporate these facilities. Additionally, the project will include the following features: • As Palomar Street and Industrial Boulevard will be grade separated at the completion of the Project, an 8,-foot multi-use trail will be provided between Trenton Avenue and Industrial Boulevard on the south side of Palomar Street. This will restore connectivity between Palomar Street and Industrial Boulevard for pedestrians and bicyclists. As this is a multi-use path,ADA compliance is provided with a maximum grade of 5%.Additionally, 2-foot clear zones are provided on either side for a total width of 12-feet. • The Class 11 bike lanes on Palomar Street will be reconfigu�red with 5-foot bike lanes along with a 2-foot striped buffer to the vehicular lanes. • A HAWK signal will be installed for pedestrians and bicyclists to cross Industrial Boulevard immediately south of the new bridge and will provide connections for the Class 11 bike lanes, the new multi-use path and the Trolley Station. • Sidewalks along Palomar Street will be elevated that will provide both horizontal and vertical separation from the vehicular traffic as well as lowering the grades for pedestrians. • An 8-foot walkway will be provi I ded on the new MTS rail bridge to provide direct connection to and from the north side of Palomar Street and the Oxford Connector. This alleviates pedestrians from haviingi to cross Palomar Street at an at-grade signalized intersection. • Stairwells are provided on each side of Palomar Street, east of the MTS rail bridge, to provide connectivity between the elevated sidewalk and the walkway on the new IVITS, rail bridge. • Sidewalks along the Oxford Connector to provide an improved path of travel between Palomar Street and Oxford Street. 19, 2020-01-28 Agenda Packet, Page 242 of 288 !"Ialoiii nair Sti-eet Giii 1 iii Oject 6.5. Const�ruction Staging The construction of an underpass is a significant undertaking that can impact the local community and commuters. With over 45,000 daily vehicles on Palomar Street and over 200 daily trains, the potential for disruption must be minimized through the construction staging of the Project. Key factors in the development of the conceptual construction staging scenario include: 0 Maintain a minimum of four lanes of traffic on Palomar Street without constructing a bypass road that would sig n ificantly Impact right-of-way. 0 Through meetings witT'S, the, corridor may be reduced to a single track for limited windows of time to facilitate bridge construction without having to construct a rail shoofly that would require a temporary station. 0 Select construction methods that accelerate construction while minimizing the right-of-way impacts such as top/down methodology. 0 Maintain access to the greatest extent feasible to the adjoining parcels. 0 Maintain access to the Trolley Station for pedestrians. To specifically address the maintenance of vehicular and rail traffic, the basic premise of the staging is to build the MTS rail bridge in four quadrants, starting with the north half in Stage 1. Four lanes of vehicular traffic would be shifted to the south utilizing temporary pavement, TCEs, and temporary at-grade crossing modifications. In Stage 2 vehicular traffic would be shifted onto the completed north half of Palomar Street, snow grade separated from the MTS rail. As additional temporary pavement width is required to imaintain four lanes of traffic, final curb and gutter, sidewalk, and lower retaining walls on the north half of Palomar Street would be completed in the final stage. Stage 2 would complete the south half the MTS rail bridge and lower the south side of Palomar Street to its final grade. Stage 3 would complete the Industrial Boulevard bridge as,well as the remaining ancillary improvements,. Table 3 provides more details of the construction activities and grail and traffic configuration for each stage and is shown in Appendix A. 20 2020-01-28 Agenda Packet, Page 243 of 288 !"Ialoi,naiii St�reet Giii 1 iii Oject Table 3. Construction Staging Activities Stage 1 Stage 2 Stage 3 (12 Months) (12 months) (6 months) Construction Activities Construction Activities Construction Activities • Storm drain improvements * Continue storm drain pump * Lower retaining walls • Storm drain pump station station o Raised median island • Sewer llift station o Continue sewer lift station o Industrial Blvd superstructure • NE & NW quadrants of MTS o SW &SE quadrants of MTS o Industrial Blvd improvements rail bridge rail bridge o HAWK signal • North abutment for Industrial o South abutment for Industrial o Planting and irrigation Blvd bridge Blvd bridge * Final striping configuration • North retaining walls o South retaining walls upon completion • North half of Palomar Street o South half of Palomar Street • Oxford Connector o Trolley Station Driveway • Trenton Avenue o Palomar Gateway Center • Install rail crossover track and driveway signal improvements o Traffic signal modification Rail Rail Rail • Single track operation on M2 * Single track operation on ML1 • Two track operation (Southbound) during NE (Northbound) during SW quadrant bridge construction quadrant bridge construction • Single track operation on ML1 * Single track operation on ML2 (Northbound) during NW (Southbound) during SE quadrant bridge construction quadrant bridge construction Traffic Vehicular Traffic Vehicular Traffic • Four lanes on Palomar Street • Four lanes on Palomar Street o Four lanes on Palomar Street, shifted southerly, utilize TCE shifted inortherly under two on each side of the as necessary completed north half of MTS lowered Palomar Street • Provide barrier separated 6- rail bridge, utilize temporary * Access to/from Industrial Blvd foot pedestrian walkway on Ipavliingi as necessary is closed south side, utilize TCE as • Provide barrier separated 6- * Trolley Station driveway is necessary foot pedestrian walkway on open • Temporary at-grade crossing north side, utilize temporary modifications Ipavliingi as necessary • Access to/from Industrial Blvd * Access to/from Industrial Blvd to the south is open lis closed • Industrial Blvd to the north is * Trolley Station driveway is closed closed • Trolley Station driveway lis open 21 2020-01-28 Agenda Packet, Page 244 of 288 TNI aloiii nair Sti-eet Giii 1 iii oJect 6.6. Drainage Surface runoff within the project area is collected and conveyed in roadways and culverts westerly to the San Diego Bay. The area north of Palomar Street and Industrial Boulevard generally flows northerly toward Trenton, enue and then westerly to the San Diego Bay. The remaining project area generally drains to the south. Runoff is collected in a series of culverts that cross the MTS right-of-way, then flows northerly connecting with flows from the northerly project area before discharging to the bay. There are two existing storm drain systems that are within the project limits: • System 1: 48-inch RCP that crosses Palomar Street at the driveway to the Trolley Station. This system flows southerly and discharges into the earthen channel between Ada Street and Dorothy Street. • System 2: 24-inch RCP at the Palomar Street and Trenton Avenue intersection. This system flows to the north on Trenton Avenue and continues through the SDG&E parcel. The grade separation project will lower Palomar Street and create a sump condition at the low point below Industrial Boulevard. The goal of'the project will be to reduce the drainage area tributary to the sump condition in order to minimize the size the storm drain pump station that is required. Based on the City of Chula Vista 2004 Drainage Master Drainage Plan, System 1 will need to be upgraded to adequately convey runoff. Existing storm drains at Trenton Avenue to,the west and Oxford Street to the east will be reconfigured to maintain existing gravity flow and limit the flow area 'tributary to the sump in Palomar Street to, a total of 3.3 acres. The project will construct a storm drain pump station at the low point to collect and convey the peak 501-year storm event away from the low point to maintain a flood-free roadway. Roadway runoff will be pumped to an expanded detention basin between Industrial Boulevard and Oxford Street along the Oxford Connector. Flow rates will be controlled at the outlet of the detention basin to maintain peak flows less than or equal to the existing condition. Approximately 0.3 acres of Palomar Street within the northerly sub-basin will be redirected to the southerly sub-basin. A new storm will be constructed westerly across the MTS rigiht-of-way at the northerly extension of Oxford Street to, collect and convey 0.3 acres of tributary flow area from the southerly basin to balance the total areas of both sub-basins. A conceptual hydrology and hydraulics assessment was completed to identify drainage constraints and quantify improvements needed in support of the Project. Drainage flow patterns, outflows, capacities and deficiencies of the existing system were identified based on existing as-built 22 2020-01-28 Agenda Packet, Page 245 of 288 TNI aloiii nair Sti-eet Giii 1 iii Oject information,, the City's drainage master plan,, and/or record data from the City, County and Caltrans. Preliminary pump station sizing is provided, along with preliminary alignments and pipe sizes for new and realigned systems. Existing and Proposed Drainage Basin Maps are included to show limits of the project sub basins and existing and proposed drainage facilities are outlined on the Proposed Drainage Basin Map. Both existing and proposed conditions are shown on the Existing and Proposed Storm Drain exhibit that are included in Appendix D. M�ethodology and Calculations The City of Chula Vista 2004 Drainage Master Plan was completed in February of 2005 to assess capacities and deficiencies in the existing system and recommended improvements. Analysis of the drainage master plan was based on the rational method in accordance with the San Diego, County Drainage Design Manual. The design storm is defined as the 50-year, 6-hour storm event. The results of the drainage master plan were used as the basis of this preliminary assessment. The existing condition peak flow rates,for each of the sub-basins was estimated based on the peak flow rates defined for each of the overall basins. The proposed project wiadd landscaping and bio-filtration resulting in a slightly lower coefficient of runoff compared to the existing condition. The proposed improvements will modify the sub-basin configuration; however, the time of concentration within the sub-basins,will be similar to the existing condition. For purposes of assessing overall impacts resulting from the proposed project, the same methodology is used for proposed conditions peak flow rates. Existing Coiinditioiins The project site is located in the City of Chula Vista within the Southwest Basin 1, Preferred Alternative Hydrology, 50 Year event shown in the City of Chula Vista 2004 Drainage Master Plan. The project site contributes to four (4) sub-basins within Southwest Basin 1. The sub-basins are designated as Basins A, B, C and D as shown on the Existing Basin Map, in Appendix D and described below. Basin A: 72.4 acres generally flows northerly and westerly. Surface and gutter flows are collected yin inlets at Palomar Street and Trenton Avenue. The existing storm drain flows northerly and outlets to an open channel,just east of Interstate 5 where it crosses under the freeway through a closed storm drain and discharges to another open channel, which eventually drains to the San Diego Bay. Basin B: 35.5 acres of fully developed commercial/industrial land generally flow southerly. Surface flows are collected in a series of inlets, and small storm drains. The exist�i�ngi smaller underground storm drain systems drain to a 48,-inch RCP system that crosses under Palomar Street and outlets 23 2020-01-28 Agenda Packet, Page 246 of 288 TNI aloiii nair Sti-eet Giii 1 iii oJect to, a 60-inch CMP culvert (see node 10150 on the Existing Basin Map). Portions of the 48-inch storm drain are undersized. Basin C: 8.,0 acres of commercial development and public streets flow westerly and northerly. The surface and gutter flow along Oxford Street drains to, an inlet at the west end of the cul-de-sac which than drains Minto a detention basin (see node 70010 on the Existing Basin Map). Basin D: 4.7 acres of commercial and rail development flow southerly. This area includes portions of Palomar Street and the MTS parking lot. Surface and gutter flows are collected in a storm drain inlet. Drainage and stormwater management improvements were completed as part of the Blue Line Trolley project in 2017 and are considered adequate for treatingi and conveingi runoff. The existing 48-inch north-south drainage system east of'the trolley parking lot pis undersized for the existing flows. 'The existing storm drain system south of the project site is not defined and will need further analysis. Overall, the project area drains to the San Diego Bay. The point of confluence of the project area sub-basins is an open channel west of Interstate 5, designated as node 10390 on the Existing Basin Map., The peak 50-year flow rate at the confluence is 629 GFS. Rndiitiions The project will lower Palomar Street below I ndus,trial Boulevard, creatingi a sump condition at the low point in Palomar Street.Approximately 0.3 acres of existing Basin A will be redirected to the low point in Palomar Street. In order to maintain the overall sub-basin areas, Basins A and C will be reconfigured to redirect 0.3 acres, of Oxford Street to the west. Basin E has been added to define the area tributary to the low point of Palomar Street. The proposed drainage basins are described below: Basin A: Approximately 0.3, acres of existing Basin A will be redirected to the low point in Palomar Street. The proposed Basin A will be reconfigured to include the north half of Oxford Street in order to, maintain the overall basin area of 72.7 acres.A new 18-inch storm drain system will be constructed from the westerly end of the Oxford Street cul-de-sac to the existing storm drain system at the northerly end of Trenton Avenue. The peak flow tributary to the existing storm drain will remain the same. Based on the City of Chula Vista 2004 Drainage Master Plan and record plans, the existing storm is adequate for the existing and proposed flows. Basin B:A total of 34.9 acres will remain as gravity flow to the, south. The majority of the drainage basin will remain in its existing developed condition. Parking lots and access roads within the westerly portion of the basin will be reconfigured as shown on the project site, plan with added 24 2020-01-28 Agenda Packet, Page 247 of 288 TNI aloiii nair Sti-eet Giii 1 iii Oject landscaped areas. The overall runoff coefficient will remain the same or slightly lower than existingi. A new 60-inch diameter storm drain will be constructed to the east to, replace the existing storm drain that is impacted by the lowered Palomar Street profile., The new storm drain is sized in accordance,with the drainage master plan and will connect to the existing 60-inch CMP storm drain at the south end of the MTS parking lot. Basin C: A total of 6.0 acres will remain as gravity flow to the west. The existing commercial development and Oxford Street to the east will remain the same as existing. New parking areas will be paved using pervious pavement. The overall runoff coefficient will remain the same as existing. Basin D: A total of 4.0 acres will remain as gravity flow to the south. A portion of the MTS parking lot and Starbucks parkingi lot will be reconstructed. The overall impervious surfaces will decrease Tightly compared to the existing condition,. The overall drainage patterns and time of concentration within the basin will be similar to the existing condition. The recently constructed storm water treatment and drainage improvements in the MTS parking lot are adequate to serve the minor reconfigurations. The existing 48-inch storm drain east of the MTS parking lot will be upsized to a 601-inch system to convey runoff from Basins B and C to the north, as well as runoff from the easterly portion of Basin D. Basin E: A total area of 3.3 acres will be redirected to the sump in Palomar Street created by the lowered roadway profile. All the flow in Basin E will be pumped out of the "Low Point" to an expanded detention basin as shown on the Proposed Basin Map. The pump station will be designed to convey the peak 50-year flow from Basin E. Flows from the detention basin will be discharged to,the gravity storm drain. The outlet structure from the detention basin will be designed to, limit flows to less than or equal to the existing flows. The overall tributary area from the Southwest Basin 1 at the outlet to the open channel Node 103,90 as shown on the Proposed Basin Map will remain the same as the existing conditions. Callculations TabIe 4 below summarizes the existing and proposed drainage conditions,. Table 4. Existing and Proposed Drainage Basins �Basiin �Existing Q-50 Proposed Q-50 Area (ac) (Cfs) Area (ac) (Cfs) A 72.4 433.0 72.4 433-0 B 35.5, 212.0 34.9 209.0 25 2020-01-28 Agenda Packet, Page 248 of 288 !"Ialoi,naiii r Sti-eet Giii 1 iii Oject C 8.0 47.9 6.0 35.6 D, 4.7 28.1 4.0 23.7 E - - 3.3 19.7 Total 120.6 721.0 120.6 7'2 1.0 The storm drain pump station will be designed to accommodate the peak 50-year flow at the, low point in Palomar Street. The peak flow at the low point of the roadway will occur ahead of the peak flow within the overall basin. The peak flow is estimated to occur at a Time of Concentration of approximately 5 minutes equivalent to a 50-year intensity of 6,.,3 inches per hour. Table 5 provides the peak design flow for the pump station. Table 5. Pump Station Design Flow Basin Area (ac) C I In hr 0 50 (cfs) 0 50 (gpm) E 3.3 0.95 6.3 19.75 8,865 Based on preliminary assessments, the overall tributary area from the proposed conditions will remain the same as the existing conditions. Storm drain improvements will be added to allow for the reconfiguration of Basin A to maintain the same tributary area for the existing and proposed conditions. The development type will remain the same. Landscaping and bio-filtration systems will be added, which will slightly decrease the overall impervious areas in the developed condition; therefore, no increase in the total volume of runoff pis anticipated as a result of development. The flow types, and flow patterns within Basins A, B, C and D will remain similar to ex�ist�ingi conditions. No localized changes in the peak rates of runoff or contribution to the overall basin peak rates of runoff are anticipated,. Flow to the low point in Basin will be pumped to an expanded detention basin north of Palomar Street. The pump station will be designed to convey the higher short-term peak rate of runoff that would occur at the low point to maintain a flood-free roadway condition. The volume of the expanded detention basin and the outlet structure will be designed to maintain a similar contributory flow to the overall Southwest Basin 1. The final design phase of the project will include a detailed hydrology and hydraulic analysis to confirm the results of the City of Chula Vista 2004 Drainage Master Plan and further define the drainage design details of the project consistent with the conclusions for this preliminary assessment. 26 2020-01-28 Agenda Packet, Page 249 of 288 !"Ialoiii nair Sti-eet Gr iii 1 iii Oject 6.7. Utilities A composite existing utility plan was developed to show underground and overhead facilities, based on information received from the City and parent utility companies. The composite existing utility plan and proposed relocation plans are included in Appendix E. Impacts to these utilities, are identified below, and a conceptual relocation plan is discussed. Gas Thereis an existing 2-inch gas main that runs east and west on the south side, of Palomar Street, between Walnut Avenue and Industrial Boulevard., This gas main will be relocated to the north side of Palomar Street with connections to Walnut Avenue and Trenton Avenue as a result of the grade separation. The connection to Industrial Boulevard will be completed through the aey between Palomar Street and Industrial Boulevard. Local gas service lines will be placed on the south side of Palomar Street as needed, to serve properties,fronting Palomar Street. There is an existing 2-inch gas line that runs north and south on Industrial Boulevard. This gas line will be reconstructed across Palomar Street within the Industrial Boulevard bridge. El�ectri'ic and Comm ui n ication Existing overhead electric transmission mains cross Industrial Boulevard and Palomar Street from northwest to southeast. There are three separate electric transmission lines crossing Palomar Street, with multiple conductors on each. The southern transmission line is 69 kV on wooden pylons. The middle transmission line is 130 kV on tubular steel poles. The northern transmission line is 230 kV on lattice towers. The existing transmission lines will be protected in place. Existing underground electric and communication fines run east and west on Palomar Street and are located on the south side of the street. Underground service connections to adjacent streets including Walnut Avenue, Trenton Avenue and Industrial Boulevard extend beyond the limits of the intersections and connect to existing overhead systems. Electric and communication systems on Palomar Street will be reconstructed on the north side of Palomar Street as, part of the first phase of construction. Underground service will be extended to the end of the new surface improvements on Walnut Avenue and Trenton Avenue with connections to nearest pole beyond the new improvements. Underground electric and communication connections between Palomar Street and Industrial Boulevard will be constructed in the alley with connections to Industrial Boulevard completed north of Palomar Street, as shown the on the proposed utilities exhibit. Electric and communication lines across Palomar Street will be placed within the Industrial Boulevard bridge,. 27' 2020-01-28 Agenda Packet, Page 250 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect A second corridor for dry utilities will be, maintained for future service connections on the south side of Palomar Street in the second phase of construction. During construction, temporary gas, eectric and communication service will be provided as required for continuous service. Wa"Wr Water services are provided by the Sweetwater Authority. Water mains, serving the area include the following: 0 10-inch AC on the north side of Palomar Street 0 16-inch PVC near the center median of Industrial Boulevard 0 8-inch AC on the east side of Industrial Boulevard between Palomar Street and Oxford Street 0 8-inch AC on Trenton Avenue north of Palomar Street The 1 0-inch main on Palomar Street is cross connected with the 16-inch and 8-inch mains on Industrial Boulevard. The main provides service connections for the residential and commercial properties fronting on Palomar Street, including a 1 0-inch private fire service and four public mains serving the adjacent commercial properties, between Palomar Street and Broadway. The 8-inch main on Industrial Boulevard provides private service and fire connections north of Palomar Street. The lowering of Palomar Street along with the construction of the new roadway and railway bridge will impact the existing water mains. Temporary connections and highlining may be required to maintain service during construction. Temporary shut downs will be subject to review and approval by the Sweetwater Authority. All new main construction will be PVC. The preliminary relocation plan is shown on the proposed conditions exhibit and described below. • The existing 1 0-inch main on Palomar Street will be lowered to match the new grade and may be shifted approximately 10 feet tothe north. • A new main will be constructed in the alley between Trenton Avenue and Industrial Boulevard to complete cross connections with the existing 16-inch and 8-inch mains on Industrial Boulevard. • Abandon a portion of the existing 8-inch main south of the last private service lateral. • The 16-inch main within the work on Industrial Boulevard will be reconstructed. 28 2020-01-28 Agenda Packet, Page 251 of 288 !"Ialoiii nair Sti-eet Giii 1 iii oJect • The portion of the main over Palomar Street will be constructed in the, Industrial Boulevard bridge. • A new main will be constructedin the development site south of Palomar Street and connect to the existing 16-inch main on Industrial Boulevard. Modeling of the water system will be completed in the final design phase to confirm that replacing existing mains in kind is adequate. An increase in pipe, size for the Palomar Street segment or increasing the pipes size for the 8-inch connection on Oxford Street may be considered. Sewer The City owns and maintains the sewer mains, serving the area, include the following: 0 8-inch VCP along the median of Palomar Street 0 15-inch PVC near center median of Industrial Boulevard along the project limits 0 15-inch VCP on the east side of Industrial Boulevard 0 8-inch VCP on Trenton Avenue north of Palomar Street The 8-inch main on Palomar Street is connected with the 15-inch PVC and 15-inch VCP mains on Industrial Boulevard. The main provides service connections for the residential and commercial properties fronting on Palomar Street. The lowering of Palomar Street along with the construction of the new roadway and railway bridge will impact the existing sewer mains, during construction. The two 15-inch mains in Industrial Boulevard flow from north to south and will be severed due to the lowering of Palomar Street. The preliminary relocation plan is shown on the proposed conditions exhibit and described below. • A 1 0-inch main will be constructed in the development site south of Palomar Street and connect to the existing 15-inch main on Industrial Boulevard. • A portion of the existing 8-inch main along the median of Palomar Street will be removed or abandoned. • A proposed 15-foot sewer easement is to be giranted by the developer to the City of Chula Vista. 0 Based on discussions with the City, sewer siphons are not allowed, therefore the two 15- inch mains in Industrial Boulevard will require the construction of a lift station to, collect the flow and discharge via a force main across the Industrial Boulevard bridge. 29, 2020-01-28 Agenda Packet, Page 252 of 288 !"Ialoiii nair Sti-eet Gr iii 1 iii Oject The proposed sewer lift station is to be located on northwest corner of Palomar Street and Industrial Boulevard on a parcel that would be acquired for the project. The preliminary lift station layout is shown on the proposed conditions exhibit and described below. 0 1 01-foolt by 1 0-foot sump at the pump station with 4 x 45 HP Pumps. Two pumps, will handle max flow and the other two pumps are for redundancy. 0 Depth of pump station will be approximately 27 feet (top elevation 52 feet, bottom of elevation 25 feet). 0 A 21-inch main will be constructed on the north side of the proposed pump station to collect the flows from the existing 15-inch mains on Industrial Boulevard north of Palomar Street. 0 An 8-inch force main will be constructed on the south of the proposed pump station and transition into gravity flow 21-inch main and connect to the exist 15-inch main on Industrial Boulevard south of Palomar Street. 0 A portion of the existing 15-inch main on the east side of Industrial Boulevard will be abandoned. 6.8. Structures, The Project will requiire the construction of two bridges and retaining walls to address the change in grade when Palomar Street is lowered. An Advanced Planning Study (APS) has been developed for the two, bridges, one for the two LRT'tracks and one for vehicular traffic on Industrial Boulevard, and is included in Appendix F. This section provides a summary of the structures. With the physical constraints along the Palomar Street corridor and the need to maintain two lanes in each direction open due to the traffic volumes, all structures, are utilizing a top-down construction methodology. This facilitates construction within tight confines, eliminating the need for deep excavations that require temporary shoring, that expands the project footprint. Pal=ar Stirnderpass (MTS Rail BrIdge) A two-span structure will be constructed to carry the two mainline rail tracks over Palomar Street. The bridge will be a steel deck plate with steel W40 girders. This is a common rail structure that affords a reduced structure, depth from top of rail to the soffit of the bridge, yielding benefits for the vertical clearance and Palomar Street roadway profile. The bridge will be built in quadrants, starting with the northeast, northwest, southwest and finishing with the southeast. One rail track will always be in operation. 5-foot diameter cast-in-drilled-hole (CIDH piling will be utilized for the center bent. The abutments will include, 36-inch secant pile 30 2020-01-28 Agenda Packet, Page 253 of 288 !"Ialoiii nair Sti-eet Gr iii 1 iii Oject foundation.All piling will be constructed adjacent to live rail traffic. An 8-foot wide pedestrian pathway is included on the east side of the bridge. This will allow pedestrians to cross over Palomar Street connecting to and from the Trolley Station. Concrete fascia panels will be utilized to allow for aesthetic treatment along the face of the bridge. Palornar Street UndercrossiHng (1ndus"tr'la! Strridge) The bridge types being considered for the Industrial Boulevard vehicular bridge is, a single-span structure that uses precast CA wide flange girders with a 5-foot 1 0-inch structure depth. The foundations, are similar to the rail bridge,1 with 36-inch secant piling abutments to facilitate top-down construction. Being a single span, a center bent is not required. Two other bridge types were considered: • A two-span structure using a precast concrete 1-girders with a structure depth of 4-foot 3- inch. This structure would have a center bent using 4-foot diameter columns. While providing a smaller structure depth, this has no bearing on the clearances below the bridge as the IVITS rail bridge is the contributing factor on the Palomar Street roadway profile. To maintain a positive profile grade on Industrial Boulevard and eliminate a low point occurring on the bridge, this bridge would be built higher than necessary yielding excess vertical clearance to Palomar Street. • A single-span cast-in-place concrete structure with a depth of 5-feet 1 0-inches. This, structure type is typically the most cost effective. However, due to the construction staging sequencing, vehicular traffic will be operating on the lowered Palomar Street. Two options are available to address this. First is the use of fals,ework for the construction of the superstructure. Factoring in depth of the fals,ework and temporary clearances to the roadway, this would affect the finish grade of Industrial Boulevard. The second option would be to cast the superstructure high, then lower upon completion to its final location. Both options carry construction cost implications,that offset the initial cost benefit,. The single-span precast concrete structure provides the optimum solution for Industrial Boulevard. Retal*lniii ng Walls To minimize right-of-way impacts, the outer retaining wall will be a secant pile wall, installed for top- down construction. This wall will have heights up to 16-fee,t and it is expected to have 48-inch diameter piling at the taller heights or where rail loading is encountered. The secant pile wall will have a concrete fascia constructed that will allow for aesthetic treatments. Figure 6 shows an 31 2020-01-28 Agenda Packet, Page 254 of 288 p)JIM TNI aloi,�nair Stit-eet Grade 1 1 Oject example secant pile wall duri�ngi and after construction. The elevated sidewalk along Palomar Street will be a standard Caltrans Type, I cantilever retaining wall, with heigihts up to 8-feet. Thus is a common, cost efficient wall type for this purpose. SI F'I rY vA IE Figure 6. Secant Pile Wall Construction In-Progress and Completed 6.9. Project Landscape & Aesthetics Conceptual plant palette image boards for the underpass alternative have been developed and are included in Appendix G. The landscape concept is based upon the City of Chula Vista landscape and water usage guidelines for developments. The proposed palette will incorporate trees, shrubs, groundcolver and vines to provide unity and consistency through the Project corridor and acknowledge that Palomar Street is a gateway entrance to the City from the 1-5 freeway. The Project will have significant vertical elements as pit relates to the bridges, and retaining walls along Palomar street. The two bridges will include concrete fascia panels that provide an opportunity for aesthetic enhancements through the use of patterns and formliner treatments. The concrete retaining walls, with heights up to 16 feet, will also include patterns and formliner 'treatments. Vines will also be located adjacent to the retaining walls to help deter graffiti. Railings or fencingi along the bridges and retaining walls may also include decorative patterning depending on the final selection of materials. Figures 7 and 8 depict the existing condition and after Project renderings for both Palomar Street and Industrial Boulevard. The final aesthetic plan will be developed during the final design phase of the project. 32 2020-01-28 Agenda Packet, Page 255 of 288 TNI a l iii n iii ° i-° t Grade 1 iii Oject ® r /'r ✓^3 iiiiiiiiiiiiiiiiiiiiiii/ii % !//%/moi r r 1 tri �o r� r L m r „f orf, i Jai I U „C m;. �� n Vit.. r� r 11; J � ours. imiuuum 0°�'ull�4,;�,fi� �'q!ka��I�I%III��I�IIII�I�I�I(IIJIIi�II(��ryJl�l�l�l��i�l,, Figure 7. Palomar Street Before&After 33 2020-01-28 Agenda Packet, Page 256 of 28 1" a l iii n iii ° i-° t Grade 1 iii Oject r / t 9 l l / / r r ,r r / r ii / r , / r / f . r r / / r r / r / ///// / Y N ail � ilii r , �., ;.—..,r✓ 771 -„ w wlr r 1, i .w, l v o 0 ,.,' 1 1; �i�'�w«a� I „; 'r`"''.�" i �. _ vrv�n � I � n>^&' �. ,��✓ .��r �✓" �,w..'a.,'�a�� "�. P r '� 'vu! � ✓ �,f f 1�Iii "� -. l" � J rv�' �'� tw. r rl r.. .�, ,,-.. 1, ,,✓ ,,,;�r ,Fir 1. =,r i „"",,, rr �9>, � r,i 1 ��,ir� a„""✓ �,,i x �"am �, �,r Wr r ..,, ;,!u,f�I ,mill NI f,%/" ,,," �,. a, ;,, ✓. ,! a. mw r :�,i, r„ �' � � '�Y�rl��i�l'�G"1�. i"y;,,°, �,,,_ (�, �� u,.aN�N w IL"Jm, � r;; rf �''rl�''�i„/,� ��u i �;rl f 1 a r�, �<r✓.,r� � i; 1� `r waiVav,v i.r,N "fir,^^ya-, ,., .' t � '>I h r'�?� ,., � ,�r„�,.",,, �� , �{ ',;.,✓wi 1°i�,✓//(.� rs'j" � Nro�alwl� �✓, � � �; �r" ,,,.„ / err r.. /y U � r � ,�r�j ��Y� � %�I�iiii t✓ I� ((r r:i /r /�lr f'�iri� �i' � r rr l'r"'I °" ✓"", r � //f/�/�/�/��'7; e r <<'/ ., dim'�N'"�'i"m"I� m r � l urkY n�a ;✓ �,�„ ,i t rh✓` of i �A ,�,",;��l�L,wmm�A�,n,:�r i ;;,, ','�//////� t � �.:.; �%;,.� '� a .,,.r'cl r,i f✓'r r o✓j„✓w��W!�'�'I.��IVI� �% ^�l A r�vwr rr✓ ��, '„�rf ?, a � If��r/✓��✓U U+t�0r� w l�mr"�%/�/��'rr✓frr��rs/rfi',' ' h��o Y�� w N✓�,°✓��f!ro��,,�1 V li�� UN.. �«�. ,.9', ,.n)��',",V� �hr;+'J @��Y��,aa✓arYrr G:„�{a"�ry+4r��r., .. i r rri 11 , / / f f/ rr r / i / / r, / i / _ a � moi / / / r/r iii /%%%////„ �, ^� -��•"". , l✓ „„ i N r n n u� �Y w ' rrtMru��rtrmrmrtr!W�WNrm�moJ r of ou!r 1 e` I �uum WlIIIIIWWu�N w�mno�wioimmum r / J" r Figure 8.Industrial Boulevard Before&After 34 2020-01-28 Agenda Packet Page 257 of 28 !"Ialoi,naiii r Sbreet Giii 1 iii Oject 6.10.Right-cif-Way A preliminary Right-of-Way Impact Map, was prepared that depicts fee acquisition, easements, and temporary construction easements. See Appendix H for the Parcel Impacts Exhibit. Each parcel was identified utilizing Assessor Parcel Numbers, (APN and quantified noting square footage of acquisition, business or residential impact, and any specific impact such as loss of parking or access. Full takes were acquired for permanent use of facilities, such as the sewer pump station which will be located northwest of Industrial Boulevard and Palomar Street. Partial takes were acquired for additional grading and access, of utilities, along with the reconfiguration of the roadway. Temporary Construction Easements (TCE) were acquired to accommodate construction of the double track and reconstruction of facilities, as well as utility easements.An additional 5-foot TCE was acquired in some areas for the reconstruction of frontage improvements. Table 6 below summarizes the parcel impacts. Table 6. Right-of-way Parcel Impacts Parcel No. AM Land Use 'Type of Impact Need/Comments 1 617-071-10 Residential TCE Driveway reconstruction 2 617-071-09 Residential TCE Partially constructed residence Roadway Easement 3 617-072-05 Residential TCE Frontage improvements 4 617-072-13 Residential TCE Street improvements and grading Roadway Easement activities 5 617-072-12 SDG&E TCE Provide new alley access from Roadway Easement Industrial Blvd 6 617-072-08 Residential Full Acquisition Widening impacts, location of sewer lift station 7 618-200-27 SDG&E TCE Relocation of storm drain systems Drainage Easement 8 618-200-42 MTS TCE Relocation of storm drain systems Drainage Easement 9 618-280-31 MTS Full Acquisition Acquisition for City right-of-way for the Oxford Connector, pump station, and retention basin 10 618-280-35 Commercial TCE Reconfig u ration of parking lot for Roadway Easement Oxford Connector Utility Easement 11 618-280-36 Commercial TCF: Reconfiguration of parking lot for Roadway Easement Oxford Connector and frontage Utility Easement improvements along Palomar Street 12 618-280-33 Commercial TCE Driveway and frontage improvements Roadway Easement along Palomar Street Utility Easement 35 2020-01-28 Agenda Packet, Page 258 of 288 !"Ialoi,nair Sti-eet Giii 1 iii Oject 13 622-020-68 Commercial TCE Excluded as Project needs will be Roadway Easement addressed in the development Utility Easement agreement 14 622-081-,29 MTS TCE Frontage improvements along Roadway Easement Palomar Street, construction of rail track, s gnal ngi and OCS systems. 15 622-081-28 MTS TCE Frontage Improvements along Roadway Easement Palomar Street, grading and reconstruction of Trolley Station improvements and parking lot 16 622-081-27 MTS TCE Frontage Improvements along Roadway Easement Palomar Street, gradings and reconstruction of Trolley Station improvements and parking lot 17 622-031-05, Commercial TCE Frontage Improvements along Roadway Easement Palomar Street, relocation of driveway access to Starbucks, construction of sidewalk 18 618-280-30 MTS TCE Frontage improvements along Roadway Easement Palomar Street, construction of rail track, sginaingi and OCS systems. 19 618-280-34 Commercial Drainage Easement Relocation of storm drain systems 36 2020-01-28 Agenda Packet, Page 259 of 288 !"Ialoiii naiii r Sti-eet Giii 1 iii Oject 7. ENVIRON ENTAL The Project will conform with the following State and Federal environmental requirements: Califormia Environmental Quality Act Pursuant to section 21080.13 of the California Environmental Quality Act (CEQA), the state legislature has determined that railroad grade separations shall be statutorily exempt from CEQA documentation and public disclosure requirements. Accordingly, a more formal CEA environmental document is not required for this project. The City of Chula Vista is the lead agency for CEQA and will fide a Notice of Exemption. l4a"Hoinal Enviironirnental Policy Act Due to the use of Federal SAFETE,A-LU funding for the current phase of the Project, the Project must conform to the National Environmental Policy Act (NEPA) requirements. Caltrans, as assigned by FHWA, is the Lead Agency under NEPA for this project. As the Project has a single build alternative and determined to pose no significant impacts on the environment, the Project qualified as a Categorical Exclusion under 23 CFR 771.117(c ; activity (c)(1). The following technical studies have been prepared in support of'the categorical Exclusion and have been provided under separate cover. 0 Natural Environment/ Minimal Impact 0 Noise Study Memorandum 0 Cultural Resources Study/Section 106 Consultation 9 Community Impact Assessment 9 Storm Water Data Memorandum 9 Initial Site Assessment/Rrelim i nary Site Investigations 0 Visual Impact Assessment 0 Reloication Impact Memorandum 37' 2020-01-28 Agenda Packet, Page 260 of 288 !"Ialoi,naiii r Sbreet Giii 1 iii oJect 8. PERMITTING & AGREEMENTS It is anticipated that the following permits and agreements will be required as shown in Table 7 below. Table 7. List,of Permits&Agreements Agency Item Stat us/Tim�Ingi California Public Utilities, General Order 88-B Grade A G088-B will be required for both the Commission (CPUC) Crossingi Modification temporary modifications to the at-grade (GCS -B) crossing during construction and for the elimination of the at-grade crossing upon completion of the Project.Application will be submitted during the final design phase. San Diego Regional General Order No R9-2013- Preparation of a Stormwater Quality Water Quality Control 001 and amended by R9- Management Plan will be prepared during the Board 2015-0001 and R9-2015- final design phase to address MS4 Permit 0100 (MS4 Permit) requirements for treatment of runoff. Contractor will prepare a Stormwater Pollution Prevention Plan (SWPPP) prior to commencement of construction. Metropolitan Transit Construction and A three-way C&M agreement will be prepared System (MTS) Maintenance of Way with MTS, SAN DAG and the City for the Agreement (C&M) construction, ownership and maintenance of the proposed grade separation facilities within the MTS right-of-way. C&M must be completed prior to the approval of the CPUC 0088-B. SANDAG and City of Memorandum of An MOU, or amendment to an existing MOU, Chula Vista Understanding (MOU) will be required between SANDAG (as the Lead Agency)and the City for each phase of the project. City of Chula Vista Encroachment Permit The Contractor will be required to apply for a construction encroachment permit for temporary access onto public rights-of-way prior to the start of construction. 38 2020-01-28 Agenda Packet, Page 261 of 288 !"Ialoi,naiii r St�reet Gr iii 1 iii oJect 9. FUNDING, PROGRAMMING AND ESTIMATE The SANDAG 2050 RTP allocated funding for Blue Line rail grade separation projects. A rougih order of maginitude project cost estimate has been prepared, included in Appendix K. The estimate is inclusive of construction and right-of-way costs with contingency,1 in 2020 dollars with no escalation. Programming is shown in Table 8 below, contingent upon the funding availability. Table 8. Project Programming Fiscal Year Estimate($1 1000, 100) Current Pr'1or Component Estimate 18/1 9 19/20 20/21 21/22 22/23 23/24 24/25 25/26 Total PA/ED $0.7 $1.2 $1.2 PS&E $5,.0 $0.7 $2.15 $2.15 $5.0 l W $22.0 $11.0 $11.0 $22.0 Const mt $5 $1 ,.0 $7.0 $7.0 $1.0 5.0 Mg Const $45,.0 $23.01 $23.01 $9.0 $55.0 Total $78.2 $1.2 $0.7 $2.15 $13.15 $11.0 $30.0 $30.0 $10.0 $98.2 . CEL ERY SCHEDULE 'Table 9 lists the projected milestones for the proposed Project and assumes the availability of funding for each activity. Table 9. Project Milestone Schedule Project Milestone TentatWe Wilestone Date Project Report/Environmental Clearance January 2020 Begin PS&E July 2020 Begin Right-of-way Acquisition July 20,21 PS&E Completion June 2022 Right-of-Way Certification December 2022 Advertise for Construction January 2023 Award Construction Contract June 2023 Begin Construction July 2023 End Construction December 2025 Open to the Public FY 25/26 Project Closeout June 2026 39, 2020-01-28 Agenda Packet, Page 262 of 288 !"Ialoiii nair Sti�-eet Giii 1 iii oJect 11. PROJECT PERS EI SAN AG Omar Atayee................................. .............................................................(6 1 ) 699-6923 Project Manager Timothy Pesce ................................................................................................(61 9) 6919-73,41 Environmental City of Chula Vista FrankRivera ...................................................................................................(61 9) 691-5045 Principal Civil Engiineer/Project Manager Caltrans Kevin Hovey................................. ....................................(6 19) 606-3108 Local Assistance/Environ mental Metropolitan 'Transit System (MTS) Fred Byle ................................. ............(6 19) 595-4937' Superintendent of Wayside Maintenance Consultant Team Patrick Somerville ................................. ...........................(714)460-1611 Project Manager— HNTB Patricia ................................(6 19) 684-6562 Deputy Project Manager— HNTB Olga Reyes.....................................................................................................(619) 684-6587' Project Engineer/Civil Lead — HNTB, Patrick Pence..................................................................................................(714) 460-1652 Structures Lead — HNTB Christopher Hahn............................................................................................(619) 684-6576 Drainage Lead — HNTB Graham Christie..............................................................................................(213) 337-2190 Rail Lead — HNTB Brian Calvert...................................................................................................(949) 333-6618 Environmental Manager— 1CF Youji Yasui .....................................................................................................(949) 333-6617 Environmental Lead — ICF 40 2020-01-28 Agenda Packet, Page 263 of 288 oc ------------------------------------- .............. .................. .................. Palomar Street Grade Separation 11 CITY OF CHULAVISTA Overall Pro 2020-01-28 A nda Packet Page 264 of "TB �eqt Layout 10/25/2019 CITY OF CHULA VISTA REIMBURSEMENT AGREEMENT WITH BODEGA LATINCORPORATION D/B/A EL SUPER TO CONSTRUCT PUBLIC SEWER IMPROVEMENTS This REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of this day of 120 (the "Ef Date"ate") by and among the City of Chula Vista, a _ chartered municipal corporation ("City") and BODEGA ATINA CORPORATION D/B/A EL SUPER, a California Corporation ("D'eveloper") (collectively, the "Parties" and, individually, a "Party") with reference to the following Recitals: RECITALS, A. WHEREAS, the proposed development of a neighborhood retail and shopping center requires the construction of new sewer facilities to serve the development and there is a planned regional transportation project to grade-separate the rail corridor at the intersection of Palomar Street and Industrial Blvd necessitating the relocation of an existing public sewer system and B. WHEREAS,, the planned development can be served by a relocated public sewer facility through the proposed parking lot (the "Project Improvements" or"Project"), to be funded by the Sewer Income Fund; and C. WHEREAS, the Sewer Income Fund may be used only for the acquisition, construction,,reconstruction,maintenance and operation of sanitation or sewerage facilities; except that such fund may be used in the discretion of the City Council for, pursuant to a written contract, the reimbursement of subdividers as required by Sections, 66486 and 66487 of the Government Code or, pursuant to a written contract, to reimburse any person who has, constructed sewer facilities to the extent, as determined by the City Council, that such sewer facilities have benefited other properties, or to reimburse the City for any expenses incurred in connection with the construction and installation of any sewer facility, including but not limited to the cost of engineering work and all costs in connection with the acquisition of rights-of-way; and D. WHEREAS, an eligible use of the Sewer income Fund may be used only for the acquisition, construction, reconstruction, maintenance and operation of sanitation or sewerage facilities; except that such fund may be used in the discretion of the City Council for, pursuant to a written contract, the reimbursement of subdividers as required by Sections 66486 and 66487 of the Government Code or, pursuant to a written contract, to reimburse any person who has constructed sewer facilities to the extent, as determined by the City Council, that such sewer facilities have benefited other properties, or to reimburse the City for any expenses incurred in connection.with the construction and installation of any sewer facility, including but not limited to the cost of engineering work and all costs in connection with the acquisition of rights-of-way; and I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 2020-01-28 Agenda Packet, Page 265 of 288 E. WHEREAS, the Project Improvements are eligible for reimbursement from the Sewer Income Fund; and F. WHEREAS, the City has sufficient funds in the Sewer Income Fund to reimburse Developer for the design and construction of the Project Improvements; and G. WHEREAS, Developer desires to enter into this Agreement with the City, so that it may obtain reimbursement for the eligible costs of designing and constructing the Project Improvements. AGREEMENT NOW THEREFORE,, in consideration of the above Recitals, the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, City and Developer agree as follows: ARTICLE 1, DEFINITIONS In this Agreement, unless the context otherwise requires, the following terms and phrases shall have the following meanings: 1.1. Acceptance. "Acceptance" means Project Improvement acceptance pursuant to standard City practices. 1.2. Myreement. "Agreement"means this Reimbursement Agreement between the City and the Developer. The term"Agreement"shall include any amendment to the Agreement properly approved and executed pursuant to the terms of this Agreement. 1.3. Approved Drawings and Specifications. "Approved Drawings and Specifications" means the drawings and specifications for the Project Improvements as approved and permitted by the City. 1.4. C . "'CEQA"means the California Environmental Quality Act. 1.5. x. "City" means the City of Chula Vista. Unless, specifically provided otherwise, whenever this Agreement requires an action or approval by City, that action or approval shall be performed by the City representative designated by the Agreement. 1.6. City............Ceuncil. "City Council"means the governing body of the City. 1.7. City...........Manager. "City Manager" means the City Manager of City or his or her designee. 1.8. City's Project Administration Costs. "City's Project Administration Costs" means the charges that the City incurs to: (i) review and approve the plans and specifications for the I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 2 2020-01-28 Agenda Packet, Page 266 of 288 Project Improvements and(1i) inspect the Project Improvements during construction, until completion and Acceptance of the Project Improvements. 1.9. Contract Documents. "Contract Documents" includes, but is not limited to: the Subcontract(s), Subcontract(s)Exhibits and Addenda,Notice Inviting Bids, Instructions to Bidders,,Bid(including documentation accompanying Bid and any post-bid documentation submitted prior to Notice of Award), the Bonds, the general conditions,permits from other agencies, the Special Provisions, the Plans, Standard Plans, Standard Specifications, Reference Specifications, the Approved Drawings and Specifications, and all modifications issued after the execution of the Subcontract(s). 1.10. Cutoff Date. "Cutoff Date"means one (1) year from the date of Acceptance of the Project Improvements. 1.11. Defective Work. "Defective Work" means all work, material, or equipment that is unsatisfactory, faulty, incomplete, or does not substantially conform to the Approved Drawings and Specifications. 1.12. Director of Development Services. "Director of Development Services" means the Director of Development Services of City or his or her designee. 1.13. Estimated Cost. "Estimated Cost" means, the total cost of the Project Improvements, as estimated by preliminary engineering studies to total $150,000 estimated cost, as shown in Exhibit B, attached hereto. As Estimated Cost is not initially the result of competitive bids for the actual design and construction, it is subject to change during the competitive bid process as well as during the design and construction phases, subject to approval of the Parties. 1.14. Gree book. "Greenbook"means the 2012 edition of the Standard Sp�ecifications for Public Works Construction. 1.15. Hazardous Materials. "Hazardous Materials" means hazardous waste or hazardous substances as defined in any federal, state, or local statue, ordinance, rule, or regulation applicable to the Property,including,without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42) United States Code sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 united States Code sections 6901-6992k), the Carpenter Presley-Tanner Hazardous Substance Account Act(Health and Safety Code sections 25300-25395.15),and the Hazardous Waste Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous Materials" shall also include asbestos or asbestos containing materials, radon gas, and petroleum or petroleum fractions, whether or not defined as hazardous waste or hazardous substance in any such statute, ordinance, rule, or regulation. I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 3, 2020-01-28 Agenda Packet, Page 267 of 288 1.1 . Holiday. "Holiday" means the City-observed holidays listed below (if any holiday listed falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If the holiday should fall on a Sunday, then the Sunday and the following Monday are bath legal holidays): Holiday Observed On New Year's Day January I Partin Luther King, Jr. Day Third Monday in January Caesar Chavez Day March 31 Memorial Day Last Monday in May Independence Davy July 4 Labor Day First Monday in September Veteran's Day November I I. Thanksgiving Day Fourth. Thursday in November Thanksgiving Daffy Friday Friday after Thanksgiving Christmas Day December 25 1.1 . Maximum Reimbursement Amount. "Maximum Reimbursement Amount" means the lesser of the Estimated Cost, as may be amended from time to time, or the amount calculated during the Final Accounting. 1.18. Milestones. "Milestones" means the dates shown on the Project Schedule by which Developer shall complete major tasks either during design or construction of the Project Improvements. 1.19. NEPA. "NEPA"means the National Environmental Policy Act. 1,20. Non-Reimbursable Costs. "Non-Reimbursable Costs" means casts that shall not be eligible for reimbursement under this Agreement, including: Less During Delivery, Costs Incurred Due to Negligence, or Unapproved roved Costs, as furter defined in Section 9.1.5.2. 1.21. Payment Date. "Payment Date" means twenty (20) business days following the date of which Developer submits a complete Reimbursement Request (as reasonably determined by the Director of Development Services). 1.22. Pro`ect Im rovements. "Project Improvements" or "Prof ect" has the meaning given to such term in.the recitals. 1.23. Reimbursement Re uest. "Reimbursement Request" means a reimbursement request package submitted to the City containing the items listed in Section 9.1..3.1.. 1..24. Sewer Income Fund Eligible x eases. "Sewer Income .Fund Eligible Expenses" means costs that the City shall reimburse Developer from the Sever Income Fund for work. identified in Approved Drawings and. Specifications, not to exceed the Estimated Costs. I. City of Chula vista Agreement No.: BODED"A LATINA CORPORATION D/B/A EL SUPER. 4 2020-01-28 Agenda Packet Page 268 of 28 1.25. Reimbursable Costs. "Reimbursable Costs" means costs of the Project Improvements that have been expended and approved by the City through approval procedures described in the Agreement. 1.26. Standard Specifications. "Standard Specifications" means the Greenbook, the local standard special provisions referenced in the Approved Drawings and Specifications, and any amendments thereto. 1.27. Subcontractor. "Subcontractor"means a party or parties under contract with Developer to perform the work or provide supplies for the Project Improvements. 1.28. Working Day(s). "Working Day(s)" means Monday through Friday, excluding Holidays. ARTICLE 11, SUBJECT OF THE AGREEMENT - GENERALLY The above-listed Recitals are true and correct and are hereby incorporated by this reference. All attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference. 2.1. Project Improvements. Except as expressly provided in this Agreement, Developer shall cause the design and construction of the Project Improvements in accordance with Approved Drawings and Specifications. 2.2. Complete and Functional unctional Improvements. Developer shall provide complete and functional Project Improvements meeting all City standards and the standards identified herein. 2.3. Maintain Until Acceptance.. Following the completion of the Project Improvements, Developer shall maintain the Project Improvements until as, Acceptance of the Project Improvements by City. 2.4. City Payment. City shall reimburse Developer, subject to the terms and conditions herein, for the Sewer Income Fund Eligible Expenses of design and construction of the Project Improvements. City acknowledges and agrees that all of the Estimated Costs identified in Exhibit B are Sewer Income Fund Eligible Expenses. ARTICLE 111. DURATION OFAGREEMENT 3.1. Term of Agreement. This Agreement shall be effective on the Effective Date following City Council approval by Resolution, and the term shall extend until such time as all executory terms have been completed or it is early terminated according to the termination provisions herein. ARTICLE IV. PROJECT COSTS I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 5 2020-01-28 Agenda Packet, Page 269 of 288 4.1. Estimated Cost. The Estimated Cost of the Project Improvements is One hundred fifty thousand dollars ($150,000), as shown in Exhibit B, attached hereto. 4.2. Adjustment to Estimated Cost. Estimated Cost is subject to change by the methods identified below and those established elsewhere in this Agreement. 4.2.1. Revisions to the Estimated Cost. In the event that the City Manager reviews the Project Improvements and determines that the cost of design and construction will exceed the then current Estimated Cost, the Estimated Cost shall be increased to reflect the revised estimate. 4.2.2. Adjustments Based on Other Cost Increases. The Estimated Cost may be increased due to: (i) acts of God, acts of any governmental authority, the elements, war, litigation, shortages of material, labor strikes, inflation, later commonly accepted or adopted higher standards and specifications of construction, concealed or unknown conditions encountered in the completion of the Project Improvements, or other cause beyond Developer's control; (ii) actual bids received being greater 1 9 than estimated; or (iii) other factors not the result of unreasonable conduct by Developer. The Estimated Cost may be increased by the amount of such increases, subject to approval by the City Manager. 4.2.3. Failure to Obtain Approval of Increase. In any case where City Manager approval is required for an increase in the Estimated Cost and such approval is not obtained, Developer shall have no obligation to incur costs in excess of the Estimated Cost. In such case, the Project Improvements shall be revised through deductive changes approved by the City Manager, such that the Project Improvements, as revised, can be completed for the Estimated Cost. 4.3. Notification of Increased Costs. If, at any time, Developer anticipates that the amount expended on the Project Improvements will exceed the Estimated Cost, Developer shall, immediately, not more than ten (10) Working Days from becoming aware of the potential increase, notify the City in writing. This written notification shall include an itemized cost estimate and a list of recommended revisions (e.g., deductive changes) which Developer believes will bring the construction cost to within the Estimated Costs. The City may either: (i) approve an increase in Estimated Cost; or (ii) delineate a project which may be constructed for the Estimated Cost; or(iii) any combination. of(i) and (ii). ARTICLE V. PROJECT SCHEDULE 5.1. Project Schedule. Developer shall perform and complete the work for the Project Improvements by July 1, 2021. I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 6, 2020-01-28 Agenda Packet, Page 270 of 288 .2. Milestones. Developer shall complete and obtain City Acceptance of the Project Improvements prior to issuance of the first occupancy permit for the Palomar Gateway Shopping Center. . . Unavoidable Delay. Each Darty shall be entitled to an extension of the date of any performance required of such Darty under this Agreement if the failure of the Darty to duly perform was because of a cause beyond the Party's reasonable control. ARTICLE VI. COMPETITIVE BIDDING AI''rTD EQUAL OPPORTUNITY .1. Conmpliance. Developer shall bid and award contracts to complete Project Improvements in accordance with all applicable public contract laws,rules, and regulations, including but not limited to those set forth in the City of Chula Vista Charter and Municipal Code, including CVMC §2.56.160(H). 6.1.1. P oqf of Advertising. Developer shall provide the City with proof that it solicited competitive bids in accordance with CVMC §2.56.16 )�(c). 6.1.2. Prevailing Wage. Developer shall advertise the Project Improvements as requiring the payment of Prevailing Wage and include all provisions in the advertisement as required by the California Department of Industrial Relations. . . Bid Opening and Award. of Contract. Developer shall provide City with a copy of the tabulation of competitive bid results. Contracts for the construction of Project Improvements shall be awarded by Developer pursuant to CVMC §2.56.160(H)(2)(d)�. In the event that the best qualified contractor's bid, combined with a reasonable amount for contingencies, exceeds the Estimated Cost, the increase in the costs must be approved by City Manager pursuant to Section 4.2.3 prior to awarding the contract. In the event the City Manager does not approve the increased cost, this Agreement, at the City's option, may be terminated, or Pro j ect Improvements may be rebid and/or redesigned. In the event that time Agreement is terminated, the design costs will be reimbursed to Developer from the Sewer Income Fund. City shall reimburse :Developer with cash reimbursement for the Reimbursable Costs related to engineering and design expended by Developer prior to termination ation ofthis Agreement pursuant to Article XVI.. Developer shall provide City with copies of all. executed contracts. .3. Equal Em to meat Oaportu.nities and E ual � ortunit Contracting 6.3.1. Equal Employment Opportunity Nondiscrimination. Developer shall not discriminate against any employee or applicant for employment on any basis prohibited by law. Developer shall provide equal. opportunity in all employment practices. Developer shall instruct its consultants, subcon:sultants, prime I City of Chula'data Agreement No.: BODED"A LATINA CORPORATION D/B/A EL SUPER. 7 2020-01-28 Agenda Packet Page 271 of 28 contractors, and their subcontractors, to comply with this program. Nothing in this section shall be interpreted to hold Developer or a prime contractor liable for any discriminatory practice of its subcontractors or any other party. 6.3.2. Equal Employment Opportunity Certification. Bidders shall submit signed Equal Employment Opportunity Certifications with their bid packages. 6.3.3. Equal Opportunity Contracting Nondiscrimination. Developer shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors, or suppliers. Developer shall provide equal opportunity for subcontractors to participate in subcontracting opportunities. Developer understands and agrees that violation of this Subsection shall be considered a material breach of this Agreement and may result in contract termination, debarment, or other sanctions. The language in this Subsection shall be inserted in contracts between Developer and any subcontractors, vendors, or suppliers. ARTICLE VII. DESIGN AND CONSTRUCTION STANDARDS 7.1. Standard of Care. Developer agrees that the services provided as part of this Agreement shall be performed in accordance with the standards customarily adhered to by experienced and competent professional architectural, engineering, landscape architecture, and construction firms using the degree of care and skill ordinarily exercised by reputable professionals practicing in the same field of service in the State of California. 7.2. Com fiance with all Laws. Developer shall comply and ensure compliance by any of its contractors, subcontractors, employees, and agents with all laws, including but not limited to: 7.2.1. All local, City, County, State, and Federal laws,, codes and regulations, ordinances and policies, including, but not limited to, Development Services Department permits, hazardous material permits, site safety, state and local Building Codes, stormwater regulations, etc. 7.3,. Com,pIiance with Design..........and Construction Standards. Developer shall com ly and ensure ...................... p compliance by any of its contractors, subcontractors, employees, and agents with the most current editions of Design and Construction Standards. 7.3.1. Standard Specifications. Developer shall comply and ensure compliance by any of its contractors, subcontractors, employees, and agents with the most current editions of the following reference specifications when designing and constructing the Project Improvements, including- I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 8 2020-01-28 Agenda Packet, Page 272 of 288 7.3.1.1. The Greenbook, including the Regional and any local Supplement Amendments. 7.3.2. City Standards. Developer's professional services shall be provided in conformance with the professional standards of practice established by City. This includes amendments and revisions of these standards as adopted by City. The professional standards of practice established by City include, but are not limited to, the following: 7.3.2.1. The Standard Specifications and the Approved Drawings and Specifications. 7.4. Changes to Standards. Developer shall be responsible for complying with all amendments or updates to standards and knowledge of all amendments or updates to standards,whether local, state, or federal,will be imputed to Developer to the extent allowed by law;provided, however, that all costs of compliance with the changed or updated standards shall be [Sewer Income] Fund Eligible Expenses and the Estimated Cost shall be increased to reflect such increased costs of compliance with such changes. 7.5. City Approval Not a Waiver of Obligations. Where approval by the City, the City Manager,or other representatives of City is required,it is understood to be general approval only and does not relieve Developer of responsibility for complying with all applicable laws,codes,and good consulting,design,or construction practices and is not an assumption of liability by the City. Nor shall City, through approval, become an insurer or surety of work associated with the approvals. ARTICLE VIII. CONSTRUCTION 8.1. Site Safety, ecurityand Com- Bance. Developer shall be responsible for site safety, security, and compliance with all related laws and regulations. 8.1.1. Persons. Developer shall be fully responsible for the safety and security of its officers, agents, and employees authorized by Developer to access the Project site. 8.1.2. Other. Developer is responsible for Project site,materials, equipment, and all other incidentals until. the completed Project has been. accepted by the City pursuant to Article X. 8.1.3. Environment. Developer shall comply with all environmental laws and regulations, including the Clean Air Act of 1970,the Clean Water Act,Executive Order number 11738, and the Stormwater Management and Discharge Control Ordinance No. 0- 17988 and any and all Best Management Practice (BMP) guidelines and pollution elimination requirements as may be established by an enforcement official. I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 9 2020-01-28 Agenda Packet, Page 273 of 288 Furthermore, Developer shall prepare and incorporate into the Construction Drawings a Stormwater Pollution Prevention Plan(SWPPP) to be implemented by Developer during Project construction and maintenance. Where applicable, the SWPPP shall comply with both the California Regional Water Quality Control Board Statewide General Construction Storm Water permit and National Pollution Discharge Elimination System permit requirements and shall be in conformance with the City of Chula Vista BMP Design Manual and CVMC Chapter 14.20. 8.2. Access to Project Site. City officers, agents, and employees with Project related business shall have the right to enter the Project site at any time for Project related purposes. 8.3. Public Right-of-Way. All work, including materials testing, special testing, and surveying to be conducted in the Public right-of-way shall be coordinated with the City. 8.3.1. Follow all Laws, Rules, and Regulations. Developer agrees to follow all City standards and regulations while working in the Public right-of-way, including, but not limited to, utilizing proper traffic control and obtaining necessary permits. 8.4. Traffic Control. Developer shall comply with all traffic control requirements for Project, including, if applicable, all traffic control plans and/or notes. 8.5. Maintenance. Developer shall maintain and be responsible for the Project Improvements and the Project site until, Acceptance, including ongoing erosion prevention measures. Upon Acceptance of the Project, City shall be responsible for maintenance of the Project Improvements. ARTICLE IX., REIMBURSEMENT/PAYMENT OF COSTS AND EXPENSES 9.1. Pa me of Costs Associated with Project 'x.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for Project shall not exceed the Maximum Reimbursement Amount. Neither Developer nor Subcontractor shall be entitled to payment in excess of the Maximum Reimbursement Amount. 9.1.1.1. Reductions to the Maximum Reimbursement Amount. City's Project Administration Costs included in the E'stimated Cost as shown in Exhibit B that are not charged to Developer shall be deducted from the Maximum Reimbursement Amount. Any anticipated increase in the total City's Project Administration Costs identified in Exhibit B shall be handled in accordance with Section 4.2. 1 City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 10 2020-01-28 Agenda Packet, Page 274 of 288 9.1.2. Funds f6r Payment of'Cost slExpenses. The source of funds for the payment of costs/expenses associated with Project shall be limited to those listed below. No other City fund, or monies held by, owed to, or in trust for the City, shall be used by the City or sought to be collected by Developer, its employees, agents, contractors, or subcontractors other than those identified in Section 9.1.2.1. 9.1.x,.1. Funds for Project. Funds for payment of costs/expenses for Project shall be limited to the Sewer Income Fund and may be used only for the acquisition, construction, reconstruction, maintenance and operation of sanitation or sewerage facilities; except that such fund may be used in the discretion of the City Council for, pursuant to a written contract, the reimbursement of subdividers as required by Sections 66486 and 66487 of the Government Code or, pursuant to a written contract,, to reimburse any person who has constructed sewer facilities to the extent, as determined by the City Council, that such sewer facilities have benefited other properties, or to reimburse the City for any expenses incurred in connection with the construction and installation of any sewer facility, including but not limited to the cost of engineering work and all costs in connection with the acquisition of rights-of-way. 9.1.3. Prerequisites to Payment. 9.1.3.1. Reimbursement Request. Prior to reimbursement of any expenses, Developer shall provide the City with a Reimbursement Request containing the following: a. Invoices. Developer shall provide the Director of Development Services all invoices for costs/expenses associated with Project, not previously paid by the City, immediately upon receipt thereof. b. Proof of Payment. Developer shall provide the Director of Development Services with proof of payment of all invoices submitted. C. Lien Releases/Stop Notices. Developer shall provide the Director of Development Services with lien/stop notice releases associated with all work performed or supplies provided in a form satisfactory to the City Attorney. d. Certification of Payment. Developer shall provide the Director of Development Services with a written certification that all trades and soft costs for which they are seeking reimbursement have been paid. I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 2020-01-28 Agenda Packet, Page 275 of 288 e. Acknowledgement of Subcontractors. Developer shall provide the Director of Development Services with a letter from each film (e.g. civil, survey, and geotechnical) acknowledging that eligible soft costs included in the relevant invoices have been paid. f. Time sheets. Developer shall provide the p p hector of Development Services with time sheets from the construction manager to justify the project management costs. g. Graphics. Developer shall provide the Director of Development Services with a graphic depicting the areas within the Project for which the Reimbursement Request is being submitted. . Other Documents. Developer shall provide the Director o Development Services with any other documents that may be needed to evaluate the eligibility of the expense as determined necessary by the Director of Development Services in his/her sole discretion. City shall not have an obligation to make payment to Developer unless and until Developer provides the Director of Development Services with a Reimbursement Request containing all of the above and such Reimbursement Request is approved by the (Director of Development Services as provided below. 9.1.3.2. Inspection. The Project shall be subject to City inspection as provided in section -11 of the Greenboo . Developer shall ensure that all persons and entitles providing work or services for the Project comply with the inspection requirements provided in section.2-11 of the Gree book. 9.1.3.3. City approval. The Director of(Development Services shall review each Reimbursement t equest and the supporting documentation. If the Director of Development Services finds that any such payment request is incomplete, improper, or otherwise not suitable for reimbursement, the Director of Development Services shall inform Developer in writing within fifteen 1 ) business days after receipt thereof, the reasons for his finding. Developer shall have the right to respond to this finding by submitting further documentation after receipt of said findings. The Director of Development Services shall review any further documentation received from Developer in support of the payment request and it fon-n, Developer of his approval.or denial of the payment request within ten 0.0) business days after receipt of the supplemental documentation. I City of Chula vista Agreement No.: BODED"A LATINA CORPORATION D/B/A EL SUPER. 12 2020-01-28 Agenda Packet Page 276 of 28 9.1.4. Time ofPayment. City shall reimburse Developer for the approved costs associated with each Reimbursement Request by the Payment Date. If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next business day. 9'.1.4.1. Additional Costs. Any costs that may accrue, such as interest on late payments to Developer's contractors, subcontractors, or suppliers, shall not be the obligation of the City if the City has not received a complete Reimbursement Request. Such additional charges shall be the obligation of the Developer and not eligible for reimbursement. 9.1.5. Reimbursement Amount per Reimbursement Request. The City shall pay Developer approved amounts in the Reimbursement Request, less any Non-Reimbursable Costs and Contested Charges on or before the Payment Date. 9.1.5.1. Withholding. Subcontracts for the Project may provide for withholding from each payment to the 'Subcontractor until Acceptance of the work by the City. Except as otherwise provided in this Agreement or at law, the City shall not withhold any additional amounts from the Reimbursement Requests submitted by Developer, beyond the actual Subcontractor withholding amount. a. Payment and Invoicing for Withholding. Developer shall not pay the Subcontractors the amounts withheld until (1) forty-five (4 5) calendar days from recordation of the Notice of Completion,and(2) confirmation has been submitted to the Director of Development Services by Developer that no Stop Notices or Mechanic's Liens have been filed and not released and the following work has been completed.- i. All Project improvements have been installed. ii. As-builts have been submitted to the City. iii. Form PWE 106 is completed. iv. The final punch list is complete. Where a stop Notice or Mechanic's Lien has been filed following the recordation of the Notice of Completion, Developer shall continue to withhold the amount in controversy until a fully executed release of Sto*-% F Notice or Mechanic's Lien or a bond releasing the Stop Notice or Mechanic's Lien. has been filed and a conformed copy delivered to the City. I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 13, 2020-01-28 Agenda Packet, Page 277 of 288 9.1.5.2. Non-Reimbursable Costs. The following costs shall not be eligible for reimbursement under this Agreement. a. Loss During Delivery. Developer shall assign risk of loss related to the delivery of project supplies,materials, and equipment to shipper as FOB Destination. Any loss incurred prior to delivery shall not be a reimbursable expense. b. Costs Incurred Due to Negligence. Developer shall not be entitled to payment for any cost or expenditures incurred due to negligent acts, omissions, or willful misconduct of Developer or the Subcontractor,or any of their respective contractors, subcontractors, employees, or agents. C. Unapproved Costs. Developer shall not be entitled to reimbursement for any cost or expenditure that has not been approved by the City in the manner required by this Agreement. 9.1.:x.3. Contested Charges. In the event that the City contests any charge on an invoice received ("Contested Charge"), the City shall provide Developer a written statement of the Contested Charges, the reason that the charges are contested, and a proposed resolution. a. Appeal to City Manager. Developer may appeal the City's determination that certain costs are not reimbursable. The appeal must be received prior to the Payment Date for the Reimbursement Request in which the Contested Charges are contained. During the appeal period, and as long as the charges remain disputed, Developer shall proceed with the work, and the City shall compensate Developer for the undisputed amounts. If, following the appeal, the City Manager determines that any previously unpaid amounts are eligible for reimbursement, such amounts shall be included in the next payment to Developer. 9.1.6. Cutofffor Submission of'Inv,oices. Developer shall submit its final Reimbursement Request not later than the Cutoff Date. Any Reimbursement Requests submitted after the Cutoff Date shall not be reviewed or included in Reimbursable Cost. The final payment by the City for the Project will be made only after Developer has submitted all documentation reasonably necessary to substantiate the cost of construction and completing the Improvements associated with,that phase,lien free, in accordance with the Plans. Final inspection and sign-off by the City's inspectors I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 14 2020-01-28 Agenda Packet, Page 278 of 288 with associated mechanic's lien releases or bonds releasing contested liens) shall be sufficient evidence of the lien free completion of the Improvements. 9'.1.7. Final Accounting. Following completion of the Project, Developer shall submit a final accounting to the City in order to determine the cost of design, engineering, construction, and related work thereto to complete the Improvements. Developer shall also submit all supporting information reasonably necessary to document expenditures on the Improvements, including specific details on the costs and work attributable to the Improvements, including third-party invoices, billings, and receipts for construction surveying, soil testing, blue printing, actual construction costs,, and similar expenses. 9.1.7.1. True-up Payments. Following a Final Accounting, the City shall determine whether the actual payments made to Developer equal the audited approved expenditures. In the event that the amount of the approved expenditures exceeds the amount of the actual payments, the City shall make a true-up payment to Developer for the difference; however, in no event shall the true-up payment cause the total amount paid per phase to exceed the Maximum Reimbursement Amount. If the Final Accounting shows that the amount of actual payments to Developer exceeds the amount of the approved expenditures, Developer shall remit or cause the remittance of the difference to the City within twenty (20) business days of a notice of deficiency. ARTICLE X. PROJECT ACCEPTANCE AND FINAL COMPLETION 10.1. No Waiver. Developer shall perform and complete the work in strict accordance with the Contract Documents, as reasonably determined by the City Engineer and the Director of Development Services. Neither recommendation of any progress payment or acceptance of work, nor any payment by City to Developer under this Agreement, nor any use or occupancy of the Improvements or any part thereof by the City, nor any act of acceptance by the City, nor any failure to act, nor any review of a shop drawing or sample submittal, will constitute an acceptance of work, which is not substantially in accordance with the Contract Documents. ARTICLE XI. WARRANTIES 1.1..1. Enforcement of Warranties. Developer shall enforce for the City's benefit all warranties provided in the Contract Documents and any other implicit or explicit warranties or guarantees required or implied by law. I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 15 2020-01-28 Agenda Packet, Page 279 of 288 1. Materials and Workmanship. Developer shall guarantee, and shall require its Subcontractor(s) and agents to guarantee, all work on the Project against defective workmanship and materials furnished by Developer for a period of one (1) year from the date of Acceptance. 11.1.2. 1' ew Materials and Equipment. Developer shall warrant and guarantee, and shall require its Subcontractor(s) and agents to warrant and guarantee to City that all materials and equipment incorporated into the Project are new unless otherwise specified. 11.1.3. Design, Construction, and Other Defects. Developer shall warrant and guarantee, and shall require its Subcontractor(s) and agents to warrant and guarantee to City that all work is, in accordance with the Contract Documents and is not defective in any way in design, construction, or otherwise. 11.2. Term of Warranties. Unless otherwise specified or provided by law, warranties shall extend for a term of one (1) year from the date of Acceptance. ARTICLE XII. DEFECTIVE WORK 12.1. Correction, Removal, or Replacement. If, within the designated warranty period, or such additional period as may be required by law or regulation, the City determines the Project contains defective work("Defective Work"), Developer shall promptly and in accordance with the City's written instructions and within the reasonable time limits stated therein, either correct repair, or replace the Defective Work, or if it has been rej ected by City, remove it from the site and replace it with non-defective and conforming work. 12.2. .................to Correct. If circumstances warrant, including but not limited to an emergency or Developer's failure to adhere to Section 12.1, City may correct,, remove, or replace the Defective Work. In such circumstances, Developer or its contractors or subcontractors, as applicable, shall not recover costs associated with the Defective Work. 12.3. Non-Reimbursable Costs. All costs incurred by Developer or Developer's agents to remedy defects are Non-Reimbursable Costs. If the City has already reimbursed Developer or Developer's contractors or subcontractors for the defective work, City is entitled to an appropriate decrease in Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against Developer's bond, if Developer or Developer's contractors or subcontractors, as applicable, have been paid in full, until the defects are remedied. 12.4. Extension of Warr . When Defective Work, or damage therefrom, has been corrected, removed, or replaced during the warranty period, the one (1) year, or relevant warranty period, will be extended for an additional time period equal to that of the initial. warranty I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 16, 2020-01-28 Agenda Packet, Page 28,0 of 288 period, from the date of the satisfactory completion of the correction, removal, or replacement. 12.5. No Limitation on Other Remedies. Exercise of the remedies for defects pursuant to this Article shall not limit the remedies City may pursue under this Agreement or law. 12.6. Disputes. if Developer and City are unable to reach agreement on disputed work, City may direct Developer to proceed with the work and compensate Developer for undisputed amounts. Payment of disputed amounts shall be as later determined in accordance with 9.1.5.2(c). Developer shall maintain and keep all records relating to disputed work for a period of three (3) years in accordance with Article XVII. ARTICLE XIII. SECURITY FOR CONSTRUCTION 13.1. Bond. The Contract Documents shall require the contractor or Subcontractor to provide a payment bond and a performance bond for the construction of the Project. The City shall be named as a co-obligee of the bonds. The bonds shall be maintained until such time as the Project is complete and Accepted by the City. 13.2. Insolvency or anlfrutcy. If the surety on the above-mentioned bond is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located, Developer shall within five (5)business days,thereafter substitute or require the substitution of another bond and surety, acceptable to the City. 13,.3. Calling he Bond. Developer acknowledges and agrees that if Developer's construction of the Improvements has not been commenced, has not been completed in accordance with the Project Schedule, has not been performed in accordance with the Approved Drawings and Specifications, or if the Developer has failed to cure any defects within the time specified with a Notice of Defect, the City may use the security referenced in 13.1 above to complete the Improvements. This remedy is not a limitation on remedies of the City and is in addition to any other remedy that the City may have at law or in equity. ARTICLE XIV. INDEMNITY AND DUTY TO DEFEND 1 .1. Defense, Indemnity, and Hold Harmless. 14.1.1. General Requirement. Developer shall defend, indemnify, protect, and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action,costs, expenses, liability, loss, damage or injury, in law or equity, to property, including takings claims, or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Developer, its I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 17 2020-01-28 Agenda Packet, Page 28,1 of 288 officials, officers, contractors, Subcontractor(s), agents, or employees arising out of or in connection with the Project or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence, active negligence or willful misconduct of the City, its officers, or employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers,or employees which may be in combination with the active or passive negligent acts or omissions of Developer, its officials, officers, contractors, Subcontractor(s), agents, or employees. 14.1.1.1. Damage to Downstream or Adjacent Properties. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of and to the extent of negligence by Developer, its officials, officers, contractors, Subcontractor(s), agents, or employees in the construction of the Improvements in accordance with the Contract Documents as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of and to the extent of negligence by Developer, its officials, officers, contractors, Subcontractor(s), agents, or employees in the construction of the Improvements in accordance with the Contract Documents. 14.1.2. Hazardous Materials. Indemnification for Hazardous Materials. Developer agrees to defend, indemnify, and hold harmless, the City, its agents, officers, and employees from and against any and all costs, damages, claims, and liabilities, including reasonable attorney fees, foreseeable or unforeseeable, directly or indirectly, arising from or related to the release of Hazardous Materials by Developer, its officials, officers, Subcontractor(s), contractors, agents, or employees in association with the construction,maintenance, or repair of the Project, or any act taken or omission under the Agreement. Developer expressly preserves its rights against other parties and does not release or waive its rights to contribution against any other party. 14.1.2.1. Hazardous Materials. Hazardous waste or hazardous substance as defined in any federal, state, or local statute, ordinance, rule, or regulation applicable to the Property, including, without limitation the Comprehensive Environmental Response, Compensation, and Liability I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 18 2020-01-28 Agenda Packet, Page 28,2 of 288 Act of 1980, as amended (Title 42 of United States Code sections 690 1- 6992k 01- 2k), the Carpenter Presley-Tanner hazardous Substance Account Act (Health and Safety Code sections 25300-25395.15), and the Hazardous Waste Control law Health and Safety Code sections 25100-25250.25). "Hazardous Materials" shall also include asbestos or asbestos containing materials, radon gas, and petroleum fractions, whether or not defined as hazardous waste or hazardous substance in any such statute, ordinance, rule, or regulation. 14.1.3. Illegal Discharge to Storm rains. Developer shall defend,indemnify,protect, and hold harmless City, its agents, officers, and employees, from and against all claims asserted, or liability established for damages or injuries to any person or property resulting from a discharge to public storm drains in violation of applicable laves to the extent arising out of the construction of the Improvements (an "Illegal Discharge") caused by any action or failure of Developer, its officials, officers,. contractors, Subcontractor(s), agents, or employees = to take reasonable measures to prevent an Illegal. Discharge. Developer shall also be responsible for payment of any fines or penalties assessed against City for an Illegal.Discharge. Developer's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of City, its agents or employees. 14.1.4. Costs of Dgpnse and. war . Included in the obligations in sections 14.1.1 through 14.1.4 above is Developer's obligation to defend, at Developer's own cost, expense and risk, any and all suits, actions, or other legal proceedings that may be brought or instituted against the City, its directors, officials, officers, employees, agents, and/or volunteers, subject to the limitations in sections 14.1..1 and 14.1.2. Developer shall pay and satisfy any judgement, award, or decree that may be rendered against City or its directors, officials, officers, employees, agents, acid/or volunteers, for any and all related legal, expense and costs incurred by each of them to the extent of Developer's actual determined negligence, subject to the limitations in Sections 14.1.1 and 14.1.2. The City may, in their sole and absolute discretion, participate in the defense of any and all suits, actions, or other legal proceedings that may be brought or instituted against the City, its directors,officials,officers, employees,agents, and./or volunteers, but the Developer shall have no obligation to reimburse the City for any costs of defense incurred by the City, including, without limitation, reimbursement for attorneys' fees,experts' fees and other costs. The City's participation shall not relieve the Developer of any of its obligations under this Article XIV. 1 City of Chula vista Agreement No.: BODED"A LATINA CORPORATION D/B/A EL SUPER 19 2020-01-28 Agenda Packet Page 283 of 288 14.1.5. Insurance Proceeds. Developer's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 14.1.6. No Use of Security. The security identified in Article XIII shall not be used to satisfy the obligations of Developer under this Article XIV. 14.1.7. Declarations. Developer's obligations under Article XIV shall not be limited by any prior or subsequent declaration by Developer. 14.1.8. Enforcement of' Costs. Developer agrees to pay any and all costs, including attorneys' fees, City incurs enforcing the indemnity and defense provisions set forth in Article XIV. 14.1.9. Survival. Developer's obligations under Article XIV shall survive the expiration and/or termination of this Agreement. ARTICLE XV. RECORDS AND AUDITS 1 .2. Retention of Records. Developer shall maintain data and records related to this Agreement for a period of not less than three (3) years following receipt of final payment under this Agreement. 14.3. Audit of Records. At any time during normal business hours and as often as the City deems necessary, Developer and any or all of Developer's contractors, and subcontractors shall make available to the City for examination at reasonable locations within the City/County of San Diego all of the data and records with respect to all matters covered by this Agreement. Developer and all contractors and subcontractors will permit the City to make audits of all invoices, materials, payrolls, records of personnel, and other data and media relating to all matters covered by this Agreement. If records are not made available within the City/County of San Diego, then Developer shall pay all the City's travel related costs to audit the records associated with this Agreement at the location where the records are maintained. Such costs will not be Reimbursable Costs. 14.3.1. Costs. Developer and Developer's agents shall allow City to audit and examine books, records, documents, and any and all evidence and accounting procedures and practices that City determines are necessary to discover and verify all costs of whatever nature, which are claimed to have been incurred, anticipated to be incurred, or for which a claim for additional compensation or for Extra Work have been. submitted under this Agreement. ARTICLE XV1. MISCELLANEOUS PROVISIONS I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 20 2020-01-28 Agenda Packet, Page 28,4 of 288 15.1 W Notices. All notices and demands given pursuant to this Agreement shall be written. They shall be deemed served i immediately, upon personal delivery, (ii) the next business day, if sent prepaid by recognized overnight service such as FedEx for delivery the next business day; or (iii) 3business days after deposit in the United Mates mail, certified or registered mall, return receipt requested, first-class postage prepaid. Until notice of a change of address is properly given, notice shall be given: If to City: City of Chula Nista Attn: City Manager 276 Fourth Avenue Chula Vista, California 9191 With a copy to office of the City Attorney Attn: City Attorney 276 Fourth Avenue Chula Vista, California 91910 If to Developer: BODEGA LATINA CORPORATION D/B/A EL SUPER Attn: Ahbie Behar CILIA,N.V., A Netherlands Antilles Corporation Street Address 1 10145 Via De La Amistad Street Address 2 Suite#B 1. City, State, Zip San Diego, C.A. 92054 With a copy to: Name ZAAP, Inc. Attn: Luis Delgado & John Ziebarth Street Address 12900 Fourth Avenue Street Address 2 Suite # 20 City, State, .dip Sari Diego, C.A. 92103 15.2. Ca tions. Captions in this Agreement are inserted for convenience of reference. They do not define, describe or limit any term of this Agreement. 15.3. -n.tire Agreement. This Agreement embodies the entire agreement and understanding between the Parties regarding the subject matter hereof. No prior or contemporaneous oral or written representations, agreements, understandings and/or statements regarding its subject matter shall have any farce or effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. However, all previous written agreements, remain in. full force and effect except to the extent they conflict with this Agreement. I City of Chula Vista Agreement No.: BODED"A LATINA CORPORATION D/B/A EL SUPER. 21 2020-01-28 Agenda Packet Page 285 of 288 1 .4. Severability. If any provision of this Agreement or its particular application is held invalid. or unenforceable, the remaining provisions of this Agreement, and their application, shall remain in full force and effect, unless a party's consideration materially fails as a result. 15.5. Recordation. The Coity may record this Agreement in the Office of the County Recorder of San Diego County, California. 15.6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney drafted this Agreement. It shall be conclusively presumed that all parties participated equally in drafting this Agreement.. 15.7. Authority. Each party warrants and represents that it has legal authority and capacity to enter into this Agreement, and that it has taken all necessary action to authorize its entry into this Agreement. Each individual signing this Agreement on /behalf of an entity warrants that his/her principal has duly authorized him/her to sign. this Agreement on its behalf so as to bind his/her principal. 15.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or In part,except y written instrument duly executed an acknowledged y t e Partiesrt�es hereto, their successors or assigns. 15.9. Governing Lave and Venue. This Agreement shall be governed by and construed in. accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in Say Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement shall be the City of Say Diego. 15.10. Administrative Claims. Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in. Chapter 1.34 of the CVMC, as same may from time to time be amended the provisions of which are incorporated by this reference as if fully set forth herein), and such policies and procedures used by City in the implementation of same. 15.11. Non-liab lit of Cit Officials and Em to ees. No member, official, employee or consultant of the City shall be personally liable to Developer in the event of any default or breach by City, or for any amount which may become due to Developer, or on any obligations under the terms of this agreement.. 15.12. Counte parts. This Agreement may be executed in any number of counterparts, each of which shall be the original and all of which shall constitute one and the same document. 1 City of Chula Vista Agreement No.: BODED"A LATINA CORPORATION D/B/A EL SUPER. 22 2020-01-28 Agenda Packet Page 286 of 288 [Enol of page. Signature page follows this page.] I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 23, 2020-01-28 Agenda Packet, Page 28,7 of 288 IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and year first set forth above. C1'TY DEVELOPER CITY OF CHULA VISTA, a California BODEGA LATINA CORPORATION D/B/A charter city and municipal corporation EL SUPER, a California Corporation By: By: Gary Halbert, City Manager ATTEST: By: Kerry Bigelow, City Clerk APPROVED AS TO FORM.- By: Glen R. Googins, City Attorney Signatories to provide signature authority for signatory. I City of Chula Vista Agreement No.: BODEG"A LATINA CORPORATION D/B/A EL SUPER 24 2020-01-28 Agenda Packet, Page 28,8 of 288