HomeMy WebLinkAbout2024/02/26 Post Agenda Packet Special
Date:Monday, February 26, 2024, 5:00 p.m.
Location:Council Chambers, 276 Fourth Avenue, Chula Vista, CA
SPECIAL CITY COUNCIL MEETING
Notice is hereby given that the Mayor of the City of Chula Vista has called and will convene a special meeting
of the City Council at the time and location stated on this agenda.
_______________________________________________________________________________________
In-Person Public Comments: Submit a request to speak to City Clerk staff at the meeting.
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bubble icon. Select the item and click "Leave Comment." eComments are accepted until comments on the
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Watch Live or Recorded (English and Spanish): Visit chulavistaca.gov/councilmeetings, Click "ES" at the
bottom to switch to Spanish. Closed captioning is available in both languages.
Accessibility: In compliance with the American Disabilities Act, if you need special assistance to participate in
this meeting, please contact the City Clerk’s Office at cityclerk@chulavistaca.gov or (619) 691-5041. Providing
at least 48 hours' notice will help ensure that reasonable arrangements can be made.
Gov. Code § 84308: Parties to any proceeding involving a license, permit, or other entitlement for use pending
before the City Council must disclose any campaign contribution over $250 (aggregated) within the preceding
12 months made by the party, their agent, and those required to be aggregated with their contributions under
Gov. Code § 82015.5. The disclosure must include the amount contributed and the name(s) of the
contributor(s). "G.C. § 84308: Yes" on this agenda indicates that the item is subject to these regulations.
Full Agenda Packet: The full agenda packet, including staff reports, draft resolutions and ordinances, and
other backup materials, is available at chulavistaca.gov/councilmeetings or the City Clerk's Office.
Pages
1.CALL TO ORDER
2.ROLL CALL
3.PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE
4.CONSENT CALENDAR (Items 4.1 through 4.4)
Consent calendar items are considered together and acted upon by one motion. There is
no separate discussion of these items unless a member of the City Council or staff
removes the item from the Consent Calendar.
RECOMMENDED ACTION:
City Council approve the recommended action on the below consent calendar items.
4.1 Waive Reading of Text of Resolutions and Ordinances
RECOMMENDED ACTION:
Approve a motion to read only the title and waive the reading of the text of all
resolutions and ordinances at this meeting.
4.2 Tenant Protection Ordinance: Adopt an Ordinance to Update the Chula Vista
Residential Tenant Protection Ordinance, CVMC Chapter 9.65, to Remain
Consistent with Recently Adopted California Senate Bill 567
6
Report Number: 24-0044
Location: No specific geographic location
Department: Housing and Homeless Services
G.C. § 84308: No
Environmental Notice: The activity is not a “Project” as defined under Section
15378 of the California Environmental Quality Act (“CEQA”) State Guidelines;
therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental
review is required.
RECOMMENDED ACTION:
Adopt an ordinance amending Chapter 9.65 of the Chula Vista Municipal Code
entitled “Residential Tenant Protections” (Second Reading and Adoption)
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting Page 2 of 177
4.3 Reimbursement Agreement: Approve the First Amendment to the Reimbursement
Agreement with RIDA Chula Vista, LLC to Recognize Approved Change Orders,
Add Construction of the G Street Sewer Pump Station Overflow Tank, and
Appropriate Funds Accordingly
48
Report Number: 23-0273
Location: 1001 H Street
Department: City Manager, Development Services, and Engineering & Capital
Projects
G.C. § 84308: Yes
Environmental Notice: The Project qualifies for a Class 3 Categorical Exemption
pursuant to Section 15303 (New Construction or Conversion of Small Structures)
of the California Environmental Quality Act State Guidelines.
RECOMMENDED ACTION:
Adopt a resolution approving the First Amendment to Reimbursement Agreement
with RIDA Chula Vista, LLC to Construct Specified Bayfront Sewer Improvements
to recognize various administratively approved change orders, add construction
of the G Street Sewer Pump Station Overflow Tank, and amending the fiscal year
2023-24 Capital Improvement Projects program budget (SWR0321). (4/5 Vote
Required)
4.4 Lease Agreement: Approve a Lease Agreement with GGP-Otay Ranch, L.P. for
Tenant Space at Otay Ranch Town Center for the Otay Ranch Branch Library
95
Report Number: 24-0068
Location: Otay Ranch Town Center 2015 Birch Rd. Suite 1103
Department: Community Services – Library
G.C. § 84308: Yes
Environmental Notice: The Project qualifies for a Categorical Exemption pursuant
to the California Environmental Quality Act State Guidelines Section 15301 Class
1 (Existing Facilities).
RECOMMENDED ACTION:
Adopt a resolution approving a lease agreement with GGP-Otay Ranch, L.P. for
the Otay Ranch Branch Library.
5.ACTION ITEMS
City of Chula Vista - City Council
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5.1 City Council Vacancy: Declaring a Vacancy for the District 4 City Councilmember
Seat, Declaring an Intention to Use Good Faith, Best Efforts to Appoint a Person
to Fill the Seat, and Providing Direction to Staff on the Appointment Process
148
Report Number: 24-0078
Location: No specific geographic location
Department: City Clerk & City Attorney
G.C. § 84308: No
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:
Adopt a resolution to declare a vacancy for the District 4 City Councilmember
Seat and to declare an intention to use good faith, best efforts to appoint a person
to fill the vacant seat within 45 days, and discuss and provide direction to staff
regarding the appointment process.
6.CITY MANAGER’S REPORTS
7.MAYOR’S REPORTS
8.COUNCILMEMBERS’ COMMENTS
9.CITY CLERK'S REPORTS
10.CITY ATTORNEY'S REPORTS
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February 26, 2024 Post Agenda - Special Meeting Page 4 of 177
11.ADJOURNMENT
to the regular City Council meeting on March 19, 2024, at 5:00 p.m. in the Council
Chambers.
Materials provided to the City Council related to an open-session item on this agenda are
available for public review. Please contact the City Clerk at cityclerk@chulavistaca.gov
or (619) 691-5041.
Sign up at www.chulavistaca.gov to receive email notifications when City Council
agendas are published online.
NOTICE OF REVIEW AND PENDING APPROVAL OF FINAL MAP
In accordance with California Government Code Section 66458(d), notice is hereby given
that the City Engineer has reviewed and, immediately following this City Council of
February 27, 2024, will approve the following final map:
Chula Vista TM22-0001, Chula Vista Center Mixed Use 565 Broadway
Final Map (PRJ23001)
Specifically, the City Engineer has caused the map to be examined and has made the
following findings:
(1) The map substantially conforms to the approved tentative map(s), and any approved
alterations thereof and any conditions of approval imposed with said tentative map(s).
(2) The map complies with the provisions of the Subdivision Map Act and any local
ordinances applicable at the time of approval of the tentative map.
(3) The map is technically correct.
Said map will be finalized and recorded, unless an interested party files a valid appeal of
the City Engineer's action to City Council no later than 2:00 p.m., 10 calendar days from
the date of this City Council meeting. A valid appeal must identify the improper/incorrect
finding and the basis for such conclusion.
If you have questions about the map approval findings or need additional information
about the map or your appeal rights, please feel free to contact Jaime Campos, Principal
Civil Engineer at (619) 409-5483, or at JCampos@chulavistaca.gov.
City of Chula Vista - City Council
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v . 0 03 P a g e | 1
February 26, 2024
ITEM TITLE
Tenant Protection Ordinance: Adopt an Ordinance to Update the Chula Vista Residential Tenant Protection
Ordinance, CVMC Chapter 9.65, to Remain Consistent with Recently Adopted California Senate Bill 567
Location: No specific geographic location
Department: Housing and Homeless Services
G.C. § 84308: No
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
Adopt an ordinance amending Chapter 9.65 of the Chula Vista Municipal Code entitled “Residential Tenant
Protections.” (Second Reading and Adoption)
Summary
This ordinance was placed on first reading on February 20, 2024. The original staff report can be accessed at
the following link: https://pub-chulavista.escribemeetings.com/filestream.ashx?DocumentId=38695
Please note, the original staff report may include information beyond the scope of the ordinance proposed
for adoption with this action.
For questions, please contact the staff indicated in the original staff report or cityclerk@chulavistaca.gov.
Page 6 of 177
City of Chula Vista - City Council
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Second Reading and Adoption
ORDINANCE NO.
ORDINANCE OF THE CITY OF CHULA VISTA AMENDING
CHAPTER 9.65 OF THE CHULA VISTA MUNICIPAL CODE
TO ADD RESIDENTIAL TENANT PROTECTION
PROVISIONS
WHEREAS, the State of California has recognized the impact of evictions on individuals and
established the State Tenant Protection Act of 2019 (AB 1482; Civil Code section 1946.2); and
WHEREAS, the State Tenant Protection Act authorizes local jurisdictions to adopt requirements for
just cause termination of a residential tenancy that are more protective than the provisions in the State Tenant
Protection Act of 2019; and
WHEREAS, on October 25, 2022 the Chula Vista City Council added Chapter 9.65,
“Residential Tenant Protections”, to the Chula Vista Municipal Code with the intent to address
threats to the public health, safety, and welfare of the residents of Chula Vista, to ensure that
residents continue to have stable housing, and to protect residents from avoidable homelessness;
and
WHEREAS, Chapter 9.65 adopted requirements for just cause termination of a residential
Tenancy that are more protective than the provisions in the State Tenant Protection Act of 2019,
and provides additional tenant protections that became effective on March 1, 2023 in the City of
Chula Vista; and
WHEREAS, on September 30, 2023 California Senate Bill 567 (SB567), Termination of
tenancy: no-fault just causes: gross rental rate increases, was adopted, amending AB1482; and
WHEREAS, SB567 amends Civil Code section 1946.2 to add additional requirements
related to the termination of tenancies for certain no-fault bases, which exceed the current
regulations contained in CVMC Chapter 9.65; and
WHEREAS, SB567 further expands penalties and local enforcement power with regard to
the law’s provisions; and
WHEREAS, in order to stay consistent with new state law provisions, Chapter 9.65 must
be updated prior to April 1, 2024, the effective date of SB567.
NOW THEREFORE the City Council of the City of Chula Vista does ordain as follows:
Section I. The City Council of the City of Chula Vista finds as follows:
1. The just cause for termination of a residential tenancy under this local ordinance is
consistent with the State of California’s Tenant Protection Act of 2019.
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2. This local ordinance further limits the reasons for termination of a residential tenancy,
provides for higher relocation assistance amounts, and provides additional tenant
protections that are not prohibited by any other provision of law.
3. This local ordinance is more protective than the provisions of the State of California’s
Tenant Protection Act of 2019.
Section II. Chapter 9.65 of the Chula Vista Municipal Code is amended as follows:
Chapter 9.65
RESIDENTIAL TENANT PROTECTION ORDINANCE
Sections:
9.65.010 Title and Purpose.
9.65.020 Promulgation of Administrative Regulations.
9.65.030 Definitions.
9.65.040 Residential Tenancies Not Subject to This Chapter.
9.65.050 Harassment and Retaliation Against Tenant Prohibited.
9.65.060 Just Cause Required for Termination of Tenancy.
9.65.070 Requirements Upon Termination of Tenancy.
9.65.080 Enforcement and Remedies.
9.65.090 Sunset Clause.
9.65.010 Title and Purpose.
A. Title. This chapter shall be known as the Chula Vista Residential Tenant Protection Ordinance and may
be referred to herein as the Residential Tenant Protection Ordinance.
B. Purpose. Subject to the provisions of applicable law, the purpose of the Residential Tenant Protection
Ordinance is to require Just Cause for termination of residential tenancies consistent with Civil Code section
1946.2, to further limit the reasons for termination of a residential tenancy, to require greater tenant relocation
assistance in specified circumstances, and to provide additional tenant protections. Nothing in this chapter
shall be construed as to prevent the lawful eviction of a tenant by appropriate legal means.
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9.65.020 Promulgation of Administrative Regulations.
The City Manager is authorized to establish, consistent with the terms of this chapter, Administrative
Regulations necessary to carry out the purposes of this chapter. Administrative Regulations shall be
published on the City’s website, and maintained and available to the public in the Office of the City
Clerk. Administrative Regulations promulgated by the City Manager shall become effective and
enforceable under the terms of this chapter thirty (30) days after the date of publication on the City’s
website.
9.65.030 Definitions.
When used in this chapter, the following words and phrases shall have the meanings ascribed to them
below. Words and phrases not specifically defined below shall have the meanings ascribed to them
elsewhere in this Code, or shall otherwise be defined by common usage. For definitions of nouns, the
singular shall also include the plural; for definitions of verbs, all verb conjugations shall be included. Any
reference to State laws, including references to any California statutes or regulations, is deemed to include
any successor or amended version of the referenced statute or regulations promulgated thereunder
consistent with the terms of this Chapter.
“Administrative Regulations” means regulations that implement this chapter authorized by the City
Manager pursuant to section 9.65.020.
“Bad Faith” or “in Bad Faith” means with the intent to vex, annoy, harass, coerce, defraud, provoke or
injure another person. This includes the intent of an Owner to induce a Tenant to vacate a Residential Rental
Unit through unlawful conduct.
“City” means the City of Chula Vista.
“City Attorney” means the City Attorney of the City of Chula Vista, or their designee.
“City Manager” means the City Manager of the City of Chula Vista, or their designee.
“County” means the County of San Diego.
"Disabled" means an individual with a disability, as defined in California Government Code section
12955.3.
"Elderly" means an individual sixty-two (62) years old or older.
“Enforcement Officer” means the Director of Development Services, a Code Enforcement Manager, any
Code Enforcement Officer, the Building Official, any sworn Officer of the Police Department, the Fire
Chief, the Fire Marshal, or any other City department head (to the extent responsible for enforcing
provisions of this code), their respective designees, or any other City employee designated by the City
Manager to enforce this chapter.
“Family Member” means the spouse, domestic partner, children, grandchildren, parents or grandparents of
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the residential unit Owner.
“Housing Service" means services provided by the Owner to the Tenant in connection with the use and
occupancy of a Residential Rental Unit, either pursuant to contract or as required by law, including repairs,
maintenance, and painting; providing light, heat, hot and cold water; window shades and screens; storage;
kitchen, bath, and laundry facilities and privileges; janitor services; pest control; elevator service; access to
exterior doors, entry systems, and gates; utility charges that are paid by the Owner; refuse removal;
furnishings; parking; the right to have a specified number of occupants, and any other benefit, privilege, or
facility connected with the use or occupancy of any Residential Rental Unit. Housing Services also includes
the proportionate part of services provided to common facilities of the building in which the Residential
Rental Unit is located.
“Occupant Owner” means any of the following:
1. An owner who is a natural person that has at least a 25 percent recorded ownership interest in the
property.
2. An owner who is a natural person who has any recorded ownership interest in the property if 100
percent of the recorded ownership interest is divided among owners who are related to each other
as Family Members.
3. An owner who is a natural person whose recorded interest in the property is owned through a
limited liability company or partnership.
For purposes of the “Occupant Owner” definition, a “natural person” includes any of the following: (a) a
natural person who is a settlor or beneficiary of a family trust; or (b) if the property is owned by a limited
liability company or partnership, a natural person with a 25 percent ownership interest in the property. A
“family trust” means a revocable living trust or irrevocable trust in which the settlors and beneficiaries of
the trust are persons who are related to each other as Family Members. A “beneficial owner” means a
natural person or family trust for whom, directly or indirectly and through any contractual
arrangement, understanding, relationship, or otherwise, and any of the following applies: (a) the
natural person exercises substantial control over a partnership or limited liability company; (b) the
natural person owns 25 percent or more of the equity interest of a partnership or limited liability
company; (c) the natural person receives substantial economic benefits from the assets of a
partnership.
“Owner” (including the term “Landlord”) means any Person, acting as principal or through an agent, having
the right to offer a Residential Rental Unit for rent. As the context may require, “Owner” shall also include
a predecessor in interest to the Owner.
“Person” means any individual, firm, partnership, joint venture, association, social club, fraternal
organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or
any other group or combination acting as a unit.
“Residential Rental Complex” means one or more buildings, located on a single lot, contiguous lots, or lots
separated only by a street or alley, containing three or more Residential Rental Units rented or owned by
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the same Owner.
“Residential Rental Unit” means any dwelling or unit that is intended for human habitation, including any
dwelling or unit in a mobilehome park that is not a Mobilehome Residency Law (“MRL”) Tenancy defined
by Civil Code section 798.12 (or a tenancy governed by the MRL).
“State” means the State of California.
“Substantial Remodel” means improvements to a Residential Rental Unit meeting all of the following
criteria:
1. Any structural, electrical, plumbing, or mechanical system is being replaced or substantially
modified; and
2. The cost of the improvements (excluding insurance proceeds, land costs, and
architectural/engineering fees) is equal to or greater than $40 per square foot of the Residential
Rental Unit; and
3. A permit is required from a governmental agency, or the abatement of hazardous materials,
including lead-based paint, mold, or asbestos is required in accordance with applicable federal,
State, County, or City laws and cannot be reasonably accomplished in a safe manner with the
Tenant in place; and
4. It is necessary for the Residential Rental Unit to be vacant for more than sixty (60) days in order to
complete the improvements.
Cosmetic improvements alone, including, but not limited to, painting, decorating, flooring replacement,
counter replacement, and minor repairs, or other work that can be performed safely without having the
Residential Rental Unit vacated, do not constitute a Substantial Remodel.
“Tenancy” means the lawful occupation of a Residential Rental Unit and includes a lease or sublease.
“Tenant” means a tenant, subtenant, lessee, sublessee, resident manager, or any other individual entitled by
written or oral agreement to the use or occupancy of any Residential Rental Unit.
9.65.040 Residential Tenancies Not Subject to this Chapter.
This chapter shall not apply to the following types of residential tenancies or circumstances:
A. Single-family Owner-occupied residences, including a mobilehome, in which the Owner-occupant
rents or leases no more than two units or bedrooms, including, but not limited to, an accessory dwelling
unit or a junior accessory dwelling unit.
B. A property containing two separate dwelling units within a single structure in which the Owner
occupied one of the units as the Owner’s principal place of residence at the beginning of the Tenancy, so
long as the Owner continues in occupancy, and neither unit is an accessory dwelling unit or a junior
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accessory dwelling unit.
C. A Residential Rental Unit that is alienable separate from the title to any other dwelling unit, provided
that both of the following apply:
1. The Owner is not any of the following:
a. A real estate investment trust, as defined in section 856 of the Internal Revenue Code.
b. A corporation.
c. A limited liability company in which at least one member is a corporation.
d. Management of a mobilehome park, as defined in section 798.2 of the Civil Code.
2. The Tenants have been provided written notice that the Residential Rental Unit is exempt from this
section using the following statement:
“This property is not subject to the rent limits imposed by section 1947.12 of the Civil Code and is
not subject to Just Cause requirements of section 1946.2 of the Civil Code and Chapter 9.65 of the
Chula Vista Municipal Code. This property meets the requirements of sections 1947.12(d)(5) and
1946.2(e)(8) of the Civil Code and section 9.65.040(C) of the Chula Vista Municipal Code, and
the Owner is not any of the following: (1) a real estate investment trust, as defined in Section 856
of the Internal Revenue Code; (2) a corporation; or (3) a limited liability company in which at least
one member is a corporation.”
For a Tenancy existing before March 1, 2023, the notice required above may, but is not required
to, be provided in the rental agreement. For a Tenancy commenced or renewed on or after March
1, 2023, the notice required above shall be provided in the rental agreement. Addition of a provision
containing the notice required above to any new or renewed rental agreement or fixed-term lease
constitutes a similar provision for the purposes of section 9.65.060(B)(5).
D. A homeowner in a mobilehome, as defined in Civil Code section 798.9 or a tenancy as defined in Civil
Code section 798.12. This chapter shall also not apply to a non-owner Tenant of a mobilehome. Instead,
a non-owner Tenant of a mobilehome shall retain the rights stated in the State Tenant Protection Act.
E. Transient and tourist hotel occupancy as defined in Civil Code section 1940(b).
F. Any residential occupancy by reason of concession, permit, right of access, license or other agreement
for a period for 30 consecutive calendar days or less, counting portions of calendar days as full days,
including Short-Term Rental occupancies as defined in Chula Vista Municipal Code Chapter 5.68.
G. Housing accommodations in a nonprofit hospital, religious facility, extended care facility, licensed
residential care facility for the elderly as defined in Health and Safety Code section 1569.2, or an adult
residential facility as defined in Chapter 6 of Division 6 of Title 22 of the Manual of Policies and Procedures
published by the State Department of Social Services.
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H. Residential Property or Dormitories owned by the City, an institution of higher education, or a
kindergarten and grades 1 to 12, inclusive.
I. Housing accommodations in which the tenant shares a bathroom or kitchen facilities with the Owner
who maintains their principal residence at the Residential Rental Unit.
J. Housing restricted by deed, regulatory restriction contained in an agreement with a government agency,
or other recorded document as affordable housing for individuals and families of very low, low, or moderate
income as defined in Health and Safety Code section 50093, or subject to an agreement that provides
housing subsidies for affordable housing for individuals and families of very low, low, or moderate income
as defined in Health and Safety Code section 50093 or comparable federal statutes. This exclusion shall not
apply to a Tenant with a Section 8 Housing Choice Voucher and such Tenancies shall be governed by this
chapter.
9.65.050 Harassment and Retaliation Against Tenant Prohibited.
A. No Owner or such Owner's agent, contractor, subcontractor, or employee, alone or in concert with
another, shall do any of the following in Bad Faith to a Tenant or with respect to a Residential Rental Unit,
as applicable:
1. Interrupt, terminate, or fail to provide Housing Services required by contract or by law, including
federal, State, County, or City laws;
2. Fail to perform repairs and maintenance required by contract or by law, including federal, State,
County, or City laws;
3. Fail to exercise commercially reasonable efforts and diligence to commence and complete repairs
or maintenance;
4. Abuse the Owner's right of lawful access into a Residential Rental Unit. This includes entries for
“inspections” that are not related to necessary repairs or services; entries excessive in number;
entries that improperly target certain Tenants or are used to collect evidence against the occupant
or otherwise beyond the scope of an otherwise lawful entry;
5. Abuse the Tenant with words which are offensive and inherently likely to provoke an immediate
violent reaction;
6. Influence or attempt to influence a Tenant to vacate a rental housing unit through fraud, intimidation
or coercion;
7. Threaten the Tenant, by word or gesture, with physical harm;
8. Violate any law that prohibits discrimination based on race, gender, sexual preference, sexual
orientation, ethnic background, nationality, religion, age, parenthood, marriage, pregnancy,
disability, AIDS, occupancy by a minor child, or any other protected classification;
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9. Take action to terminate any Tenancy including service of notice to quit or other eviction notice or
bring any action to recover possession of a Residential Rental Unit based upon facts that the Owner
has no reasonable cause to believe to be true or upon a legal theory that is untenable under the facts
known to the Owner. No Owner shall be liable under this section for bringing an action to recover
possession unless or until the Tenant has obtained a favorable termination of that action. This
subsection shall not apply to any attorney who in good faith initiates legal proceedings against a
Tenant on behalf of an Owner to recover possession of a Residential Rental Unit;
10. Interfere with a Tenant's right to quiet use and enjoyment of a Residential Rental Unit as that right
is defined by State law;
11. Refuse to accept or acknowledge receipt of a Tenant's lawful rent payment, excluding
circumstances where an unlawful detainer or other civil action is pending that could be impacted
by acceptance of rent;
12. Interfere with a Tenant's right to privacy. This includes entering or photographing portions of a
Residential Rental Unit that are beyond the scope of a lawful entry or inspection.
B. No Owner shall retaliate against a Tenant because of the Tenant's exercise of rights under this chapter.
A court may consider the protections afforded by this chapter in evaluating a claim of retaliation.
C. This section shall not apply to Mobilehome Residency Law (“MRL”) Tenancies under Civil Code
section 798.12 or mobilehome Tenants because the provisions of section 1940.2 of the Civil Code and
Division 2, Part 2, Chapter 2.5 of the Civil Code apply to such Tenancies.
9.65.060 Just Cause Required for Termination of Tenancy.
A. Prohibition. No Owner of a Residential Rental Unit shall terminate a Tenancy without Just Cause. A
Just Cause basis for Termination of Tenancy includes both “At Fault Just Cause” and “No-Fault Just
Cause” circumstances as described below.
B. At Fault Just Cause. At Fault Just Cause means any of the following:
1. Default in payment of rent.
2. A breach of material term of the lease, as described in paragraph (3) of section 1161 of the Code of
Civil Procedure, including, but not limited to, violation of a provision of the lease after being issued
a written notice to correct the violation.
3. Maintaining, committing, or permitting the maintenance or commission of a nuisance as described
in paragraph (4) of section 1161 of the Code of Civil Procedure.
4. Committing waste as described in paragraph (4) of section 1161 of the Code of Civil Procedure.
5. The Tenant had a written lease that terminated on or after the effective date of this chapter, and
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after a written request or demand from the Owner, the Tenant has refused to execute a written
extension or renewal of the lease for an additional term of similar duration with similar provisions,
provided that those terms do not violate this section or any other provision of law. Addition of a
provision allowing the Owner to terminate the Tenancy to allow for occupancy by the Owner or
Owner’s Family Member as described in section 9.65.060(C)(1), below, shall constitute a “similar
provision” for the purposes of this subsection.
6. Criminal activity by the Tenant at the Residential Rental Unit, including any common areas, or any
criminal activity or criminal threat, as defined in subdivision (a) of Section 422 of the Penal Code,
on or off the property where the Residential Rental Unit is located, that is directed at any Owner,
any agent of the Owner, or any other Tenant of the Residential Rental Unit or of the property where
the Residential Rental Unit is located.
7. Assigning or subletting the premises in violation of the Tenant’s lease, as described in paragraph
(4) of section 1161 of the Code of Civil Procedure.
8. The Tenant’s refusal to allow the Owner to enter the Residential Rental Unit as authorized by
sections 1101.5 and 1954 of the Code of Civil Procedure, and sections 13113.7 and 17926.1 of the
Health and Safety Code.
9. Using the premises for an unlawful purpose as described in paragraph (4) of section 1161 of the
Code of Civil Procedure. A Tenant shall not be considered to have used the premises for an
unlawful purpose solely on the basis of the fact that the Owner’s Residential Rental Unit is
unpermitted, illegal, or otherwise unauthorized under applicable laws.
10. The employee, agent, or licensee’s failure to vacate after their termination as an employee, agent,
or a licensee as described in paragraph (1) of section 1161 of the Code of Civil Procedure.
11. When the Tenant fails to deliver possession of the Residential Rental Unit after providing the
Owner written notice as provide in section 1946 of the Civil Code of the Tenant’s intention to
terminate the hiring of the real property or makes a written offer to surrender that is accepted in
writing by the Owner but fails to deliver possession at the time specified in that written notice as
described in paragraph (5) of section 1161 of the Code of Civil Procedure.
C. No-Fault Just Cause. No-Fault Just Cause means any of the following:
1. Intent to Occupy by Occupant Owner or Family Member. The Tenancy is terminated on the
basis that the Occupant Owner or an Occupant Owner’s Family Member will occupy the
Residential Rental Unit within 90 days after the Tenant vacates and will continuously occupy the
Residential Rental Unit for a minimum of 12 continuous months thereafter as their primary
residence. For leases entered into on or after July 1, 2020, Intent to Occupy by Occupant Owner or
Family Member shall only be a No-Fault Just Cause basis for termination if the Tenant agrees, in
writing, to the termination, or if a provision of the lease allows the owner to terminate the lease if
an Occupant Owner or an Occupant Owner’s Family Member unilaterally decides to occupy the
residential real property.
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2. Compliance with Government or Court Order. The Tenancy is terminated on the basis of the
Owner’s compliance with any of the following:
a. An order issued by a government agency or court relating to habitability that necessitates
vacating the Residential Rental Unit; or
b. An order issued by a government agency or court to vacate the Residential Rental Unit; or
c. A local ordinance that necessitates vacating the Residential Rental Unit.
If it is determined by any government agency or court that the Tenant is at fault for the condition
or conditions triggering the order or need to vacate under this subsection, the Tenant shall not be
entitled to relocation assistance as set forth in this Chapter.
3. Withdrawal From the Rental Market. The Tenancy is terminated on the basis of the Owner’s
decision to withdraw the Residential Rental Unit from the rental market.
4. Substantial Remodel or Complete Demolition. The Tenancy is terminated because of the
Owner’s decision to Substantially Remodel or completely demolish a Residential Rental Unit. The
Owner may not require the Tenant to vacate the Residential Rental Unit on any days where a
Tenant could continue living in the Residential Rental Unit without violating health, safety, and
habitability codes and law.
D. Notice to Tenant of Tenant Protection Provisions Required. An Owner of a Residential Rental
Unit subject to this chapter shall provide written notice in no less than 12-point type to the Tenant as follows:
“California law limits the amount your rent can be increased. See Civil Code section 1947.12 for more
information. Local law also provides an Owner must provide a statement of cause in any notice to terminate
a Tenancy. In some circumstances, Tenants who are elderly (62 years or older) or disabled may be entitled
to additional Tenant protections. See Chula Vista Municipal Code chapter 9.65 for more information.”
For a Tenancy in a Residential Rental Unit subject to this Chapter existing before the effective date of this
Chapter, the notice required above shall be provided to the Tenant directly or as an addendum to the lease
or rental agreement no later than March 1, 2023. For a Tenancy in a Residential Rental Unit subject to this
Chapter commenced or renewed on or after March 1, 2023, the notice required above shall be included as
an addendum to the lease or rental agreement, or as a written notice signed by the Tenant, with a copy
provided to the Tenant.
The provision of this notice shall be subject to Civil Code section 1632.
E. Reporting Requirements. Owners and Tenants shall provide City with information regarding
termination of Tenancies at such time(s) and with such details as shall be required by City in the attendant
Administrative Regulations.
9.65.070 Requirements Upon Termination of a Tenancy.
A. Requirements Upon Termination of a Tenancy for At Fault Just Cause. Before an Owner of a
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Residential Rental Unit issues a notice to terminate a Tenancy for At Fault Just Cause that is a curable lease
violation, the Owner shall first give written notice of the violation to the Tenant including a description of
the violation (or violations) and an opportunity to cure the violation pursuant to paragraph (3) of section
1161 of the Code of Civil Procedure. If the violation is not cured within the time period set forth in the
notice, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the
Tenancy.
B. Requirements Upon Termination of a Tenancy for No-Fault Just Cause. Upon termination of a
Tenancy for No-Fault Just Cause, an Owner of a Residential Rental Unit shall provide notice and relocation
assistance as follows:
1. Tenancy in Unit in a Residential Rental Complex. When an Owner terminates a Tenancy of a
Residential Rental Unit in a Residential Rental Complex for No-Fault Just Cause, the Owner shall
provide notice and relocation assistance to the Tenant as follows:
a. Notice to Tenant Required. The Owner shall give written notice to the Tenant at least 30 or
60 days prior to the proposed date of termination as required by Civil Code section 1946.1, in
no less than 12-point font of:
i. Notice of Basis for No-Fault Just Cause Termination. The Owner’s decision to
terminate the Tenancy and a description of the basis for said termination.
ii. Notice of Right to Relocation Assistance. The Tenant’s right to relocation assistance or
rent waiver pursuant to this section. If the Owner elects to waive the Tenant’s rent, the
notice shall state the amount of rent waived and that no rent is due for the final
corresponding months of the Tenancy. Any relocation assistance payment shall be
provided by the Owner to the Tenant within fifteen (15) calendar days of service of the
notice; and
iii. Notice of Right to Receive Future Offer. The Tenant’s right to receive an offer to renew
the Tenancy in the event that the Residential Rental Unit is offered again for rent or lease
for residential purposes within two (2) years of the date the Residential Rental Unit was
withdrawn from the rental market, and that to exercise such right, the Tenant: (a) must
notify the Owner in writing within thirty (30) days of the termination notice of such desire
to consider an offer to renew the Tenancy in the event that the Residential Rental Unit is
offered again for rent or lease for residential purposes; (b) furnish the Owner with an
address or email address to which that offer is to be directed; (c) and advise the Owner at
any time of a change of address to which an offer is to be directed.
iv. Notice of Intended Occupant. If the Tenancy is being terminated on the basis of an
Occupant Owner or Occupant Owner’s Family Member move in under section
9.65.060(C)(1), above, the written notice must identify the name or names and relationship
to the Occupant Owner of the intended occupant. The written notice shall additionally
include notification that the Tenant may request proof that the intended occupant is an
Occupant Owner or related to the Occupant Owner. The proof shall be provided upon
request and may include an operating agreement and other non-public documents.
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v. Notice of Substantial Remodel or Demolition. If the Tenancy is being terminated on the
basis of a Substantial Remodel or Complete Demolition under 9.65.060(C)(4), above, the
following statement must be included in the written notice:
“If the substantial remodel of your unit or demolition of the property as described in this notice
of termination is not commenced or completed, the owner must offer you the opportunity to re-
rent your unit with a rental agreement containing the same terms as your most recent rental
agreement with the owner at the rental rate that was in effect at the time you vacated. You must
notify the owner within thirty (30) days of receipt of the offer to re-rent of your acceptance or
rejection of the offer, and, if accepted, you must reoccupy the unit within thirty (30) days of
notifying the owner of your acceptance of the offer.”
The written notice shall additionally contain a description of the Substantial Remodel to be
completed, the approximate expected duration of the Substantial Remodel, or if the property is
to be completely demolished, the expected date by which the property will be demolished,
together with one of the following:
(a) A copy of the permit or permits required to undertake the Substantial Remodel or
demolition; or
(b) If the Substantial Remodel is due to abatement of hazardous materials and does not
require any permit, a copy of the signed contract with the contractor hired by the owner
to complete the Substantial Remodel, that reasonably details the work that will be
undertaken to abate the hazardous materials.
The written notice shall additionally indicate that if the Tenant is interested in reoccupying the
Residential Rental Unit following the Substantial Remodel, the Tenant shall inform the Owner
of the Tenant’s interest in reoccupying the Residential Rental Unit following the Substantial
Remodel and provide to the Owner the Tenant’s address, telephone number, and email address.
b. Notice to City Required. The Owner shall provide written notice to the City of the No-Fault
Just Cause Termination of Tenancy no later than three business days after the date the Owner
provides the required notice to the Tenant. Such notice to City shall be provided on a form
approved by City for such purpose and in the manner specified in the attendant Administrative
Regulations. The City shall acknowledge receipt of the Owner’s notice to City within three
business days of City’s receipt of such notice.
c. Relocation Assistance Required. The Owner shall, regardless of the Tenant’s income or
length of Tenancy, at the Owner’s option, do one of the following to assist the Tenant to
relocate:
i. Provide a direct payment to the Tenant in an amount equal to the greater of: two (2) months
of the U.S. Department of Housing and Urban Development’s Small Area Fair Market
Rents Amount for the zip code in which the Residential Rental Unit is located when the
Owner issued the notice to terminate the Tenancy, or two (2) months of actual then in effect
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contract rent under Tenant’s lease. If the Tenant is Elderly or Disabled, then the direct
payment shall be in an amount equal to the greater of: three (3) months of the U.S.
Department of Housing and Urban Development’s Small Area Fair Market Rents Amount
for the zip code in which the Residential Rental Unit is located when the Owner issued the
notice to terminate the Tenancy, or three (3) months of actual contract rent; or
ii. Waive in writing and not collect the payment by Tenant of then due or future rent otherwise
due under the lease in an amount equivalent to the direct payment described in (i), above.
2. Tenancy in Unit Not in a Residential Rental Complex. When an Owner terminates a Tenancy
of a Residential Rental Unit that is not in a Residential Rental Complex for No-Fault Just Cause,
the Owner shall provide notice and relocation assistance to the Tenant as follows:
a. Notice to Tenant Required. The Owner shall give written notice to the Tenant at least 30 or
60 days prior to the proposed date of termination as required by Civil Code section 1946.1, in
no less than 12-point font of:
i. Notice of Basis for No-Fault Just Cause Termination. The Owner’s decision to
terminate the Tenancy and a description of the basis for said termination.
ii. Notice of Right to Relocation Assistance. The Tenant’s right to relocation assistance or
rent waiver pursuant to this section. If the Owner elects to waive the Tenant’s rent, the
notice shall state the amount of rent waived and that no rent is due for the final
corresponding months of the Tenancy. Any relocation assistance payment shall be
provided by the Owner to the Tenant within fifteen (15) calendar days of service of the
notice; and
iii. Notice of Intended Occupant. If the Tenancy is being terminated on the basis of an
Occupant Owner or Occupant Owner’s Family Member move in under section
9.65.060(C)(1), above, the written notice must identify the name or names and relationship
to the Occupant Owner of the intended occupant. The written notice shall additionally
include notification that the Tenant may request proof that the intended occupant is an
Occupant Owner or related to the Occupant Owner. The proof shall be provided upon
request and may include an operating agreement and other non-public documents.
iv. Notice of Substantial Remodel or Demolition. If the Tenancy is being terminated on the
basis of a Substantial Remodel or Complete Demolition under 9.65.060(C)(4), above, the
following statement must be included in the written notice:
“If the substantial remodel of your unit or demolition of the property as described in this
notice of termination is not commenced or completed, the owner must offer you the
opportunity to re-rent your unit with a rental agreement containing the same terms as your
most recent rental agreement with the owner at the rental rate that was in effect at the time
you vacated. You must notify the owner within thirty (30) days of receipt of the offer to re-
rent of your acceptance or rejection of the offer, and, if accepted, you must reoccupy the
unit within thirty (30) days of notifying the owner of your acceptance of the offer.”
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The written notice shall additionally contain a description of the Substantial Remodel to be
completed, the approximate expected duration of the Substantial Remodel, or if the
property is to be completely demolished, the expected date by which the property will be
demolished, together with one of the following:
(a) A copy of the permit or permits required to undertake the Substantial Remodel or
demolition; or
(b) If the Substantial Remodel is due to abatement of hazardous materials and does not
require any permit, a copy of the signed contract with the contractor hired by the owner
to complete the Substantial Remodel, that reasonably details the work that will be
undertaken to abate the hazardous materials.
The written notice shall additionally indicate that if the Tenant is interested in reoccupying
the Residential Rental Unit following the Substantial Remodel, the Tenant shall inform the
Owner of the Tenant’s interest in reoccupying the Residential Rental Unit following the
Substantial Remodel and provide to the Owner the Tenant’s address, telephone number,
and email address.
b. Notice to City Required. The Owner shall provide written notice to the City of the No-Fault
Just Cause Termination of Tenancy no later than three business (3) days after the date the
Owner provides the required notice to the Tenant. Such notice to City shall be provided on a
form approved by City for such purpose and in the manner specified in the attendant
Administrative Regulations. The City shall acknowledge receipt of the Owner’s notice to City
within three (3) business days of City’s receipt of such notice.
c. Relocation Assistance Required. The Owner shall, regardless of the Tenant’s income or
length of Tenancy, at the Owner’s option, do one of the following to assist the Tenant to
relocate:
i. Provide a direct payment to the Tenant in an amount equal to one (1) month of actual then
in effect contract rent under Tenant’s lease; or
ii. Waive in writing and not collect the payment by Tenant of then due or future rent otherwise
due under the lease in an amount equivalent to the direct payment described in (i), above.
C. Additional Requirements Upon Termination of a Tenancy for No-Fault Just Cause. Upon
termination of a Tenancy for No-Fault Just Cause, the following additional provisions shall also apply:
1. When more than one Tenant occupies a rental unit and the Owner opts to provide direct payment
of relocation assistance to the Tenants, the Owner may make a single direct payment to all Tenants
named on the rental agreement.
2. The relocation assistance or rent waiver required by this section shall be in addition to the return of
any deposit or security amounts owed to the Tenant.
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3. Any relocation assistance or rent waiver to which a Tenant may be entitled to under this section
shall be in addition to and shall not be credited against any other relocation assistance required by
any other law.
4. If the Tenant fails to vacate after the expiration of the notice to terminate the Tenancy, the actual
amount of any relocation assistance or rent waiver provided pursuant to this section may be
recoverable by Owner as damages in an action to recover possession.
5. If the Tenancy is being terminated on the basis of an Occupant Owner or Occupant Owner’s Family
Member move in under section 9.65.060(C)(1) and the intended occupant fails to move into the
Residential Rental Unit within 90 days after the Tenant vacates, or fails to occupy the Residential
Rental Unit as their primary residence for at least 12 consecutive months, the Owner shall offer the
unit to the Tenant who vacated it at the same rent and lease terms in effect at the time the Tenant
vacated and shall reimburse the Tenant for reasonable moving expenses incurred in excess of any
relocation assistance that was paid to the Tenant in connection with the written notice. If the
intended occupant moves into the unit within 90 days after the tenant vacates, but dies before
having occupied the unit as a primary residence for 12 months, this will not be considered a failure
to comply with this section or a material violation of this section by the Owner.
a. For a new tenancy commenced during the time periods described in 9.65.070(C)(5), the unit
shall be offered and rented or leased at the lawful rent in effect at the time any notice of
termination of tenancy is served.
6. If a Residential Rental Unit in a Residential Rental Complex is offered for rent or lease for
residential purposes within two (2) years of the date the Tenancy was terminated, the Owner shall
first offer the unit for rent or lease to the Tenant displaced from that unit by the No-Fault Just Cause
termination if the Tenant: (a) advised the Owner in writing within thirty (30) days of the termination
notice of the Tenant’s desire to consider an offer to renew the Tenancy; and (b) furnished the Owner
with an address or email address to which that offer is to be directed. The Owner shall have the
right to screen the Tenant using industry accepted methods and shall communicate such minimum
screening criteria in the offer for the new Tenancy, subject to the terms of any attendant
Administrative Regulations.
7. With regard to termination of a Tenancy of a Residential Rental Unit in a Residential Rental
Complex on the basis of a withdrawal of the unit from the rental market, as described in section
9.65.060(C)(3), should the property that had been taken off the market be placed on the rental
market again within two (2) years of the termination of the Tenancy, then the Owner shall be liable
to Tenant for the greater of: (i) six (6) month’s rent to the last tenant of the Residential Rental Unit
at the rental rate in place at the time the rental unit is re-rented as set forth U.S. Department of
Housing and Urban Development’s Small Area Fair Market Rents Amount for the zip code in
which the Residential Rental Unit is located; or (ii) six (6) months of actual then in effect contract
rent under the Tenant’s lease at time of termination. This section does not apply if the property is
rented to Owner’s Family Member, converted to another non-rental use, or sold or otherwise
transferred to a bona fide third-party during the two (2) year period.
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8. Among other remedies applicable to Owner’s failure to comply with the terms of this chapter, an
Owner’s failure to strictly comply with this section shall render the notice of termination void.
9.65.080 Enforcement and Remedies.
A. Guiding Principles. The City seeks to promote good relations between Owners and Tenants, and in
furtherance of such goal, provides the following guiding principles:
1. Owners and Tenants should treat each other with respect, listen to each other, and make good faith
efforts to informally resolve issues. If Owners and Tenants cannot informally resolve issues,
alternative dispute resolution and mediation programs should be voluntarily utilized.
2. If disputes are not able to be settled despite the use of dispute resolution or mediation programs, the
primary enforcement mechanism is otherwise expected to be the Private Remedies set forth in
section 9.65.080(D) below.
3. The City shall have the sole and unfettered discretion to determine if and when City will engage in
City enforcement of this chapter. Owners and Tenants are highly encouraged to independently
resolve disputes as set forth in paragraphs 1 and 2 above.
B. General Provisions.
1. The enforcement mechanisms and remedies specified in this section are cumulative and in addition
to any other enforcement mechanisms and remedies available under federal, State, County, and
City law for violation of this chapter or Code.
2. It shall be unlawful for any Person to violate any provision or fail to comply with the requirements
of this chapter. Each day that a violation continues is deemed to be a new and separate offense.
3. Any waiver of the rights under this chapter shall be void as contrary to public policy.
C. City Attorney Enforcement.
1. Alternative Remedies. The City Attorney may require Owner and Tenant to participate in
education programs related to Owner-Tenant issues, mediation, or an alternative dispute resolution
program.
2. Administrative Citations and Penalties. The City Attorney or an Enforcement Officer may issue
administrative citations or civil penalties in accordance with Chapter 1.41 of this Code for violation
of any of the provisions of this chapter. Notwithstanding the foregoing, civil penalties for violations
of section 9.65.050 may be assessed at a rate not to exceed $5,000 per violation per day. When a
violation occurs, it is not required that a warning or notice to cure must first be given before an
administrative citation or civil penalty may be issued.
3. Civil Action. The City, or the City Attorney on behalf of the People of the State of California, may
seek injunctive relief to enjoin violations of, or to compel compliance with, this chapter or seek any
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other relief or remedy available at law or equity, including the imposition of monetary civil
penalties. Civil penalties for violations of this chapter may be assessed at a rate not to exceed $5,000
per violation per day. The City may also pursue damages as set forth in section 9.65.070(C)(7).
4. Criminal Violation. An Owner who interferes or facilitates interference with a Tenant’s peaceful
enjoyment, use, possession or occupancy of a Residential Rental Unit by (a) threat, fraud,
intimidation, coercion, or duress, (b) maintenance or toleration of a public nuisance, (c) cutting off
heat, light, water, fuel, Wi-Fi, or free communication by anyone by mail, email, telephone/cell
phone, or otherwise, or (d) restricting trade (including the use of delivery services for goods or
food) or tradespersons from or to any such Tenant, shall be guilty of a misdemeanor punishable by
a fine of not more than $1,000 or imprisonment for a period of not more than six months, or by
both a fine and imprisonment. At the sole discretion of the City Attorney, such violation may, in
the alternative, be cited and prosecuted as an infraction.
5. Subpoena Authority. The City Attorney shall have the power to issue subpoenas for the
attendance of witnesses, to compel their attendance and testimony, to administer oaths and
affirmations, to take evidence, and to issue subpoenas for the production of any papers, books,
accounts, records, documents or other items that may be relevant to the City Attorney’s
investigation, enforcement action, or prosecution. The City Attorney may exercise such powers
prior to or following the commencement of any civil, criminal, or administrative action to the fullest
extent allowed by law.
D. Private Remedies.
1. Civil Action. An aggrieved Tenant may institute a civil action for injunctive relief, actual money
damages, and any other relief allowed by law, including the assessment of civil penalties in the
amount of no less than $2,000 and no more than $5,000 per violation per day. If the aggrieved
Tenant is Elderly or Disabled, additional civil penalties of up to $5,000 per violation per day may
be assessed at the discretion of the court. A Tenant may also pursue damages as set forth in section
9.65.070(C)(7).
a. An Owner who attempts to recover possession of a Residential Rental Unit in material violation
of this chapter shall be liable to the Tenant in a civil action for actual damages. Upon a showing
that the Owner has acted willfully or with oppression, fraud, or malice, an Owner shall be liable
to the Tenant in a civil action for up to three times the actual damages. An award may also be
entered for punitive damages for the benefit of the Tenant against the Owner.
2. Affirmative Defense. A violation of this chapter may be asserted as an affirmative defense in an
unlawful detainer or other civil action.
3. Attorney’s Fees. The court may award reasonable attorney’s fees and costs to a party who prevails
in any action described in paragraphs 1 and 2 above.
9.65.090 Sunset Clause.
This chapter shall remain in effect until January 1, 2030, and as of that date is repealed unless otherwise
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extended by the City Council.
Section III. 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 IV. 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 V. Effective Date
The Amendments to this Ordinance shall take effect and be in force beginning April 1,
2024.
Section VI. 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
_____________________________________ ____________________________________
Stacey Kurz Jill D.S. Maland
Director of Housing and Homeless Services Lounsbery Ferguson Altona & Peak
Acting City Attorney
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ATTACHMENT 1 – Redline Amendments to CVMC Chapter 9.65
Chapter 9.65
RESIDENTIAL TENANT PROTECTION ORDINANCE
Sections:
9.65.010 Title and Purpose.
9.65.020 Promulgation of Administrative Regulations.
9.65.030 Definitions.
9.65.040 Residential Tenancies Not Subject to This Chapter.
9.65.050 Harassment and Retaliation Against Tenant Prohibited.
9.65.060 Just Cause Required for Termination of Tenancy.
9.65.070 Requirements Upon Termination of Tenancy.
9.65.080 Enforcement and Remedies.
9.65.090 Sunset Clause.
9.65.010 Title and Purpose.
A. Title. This chapter shall be known as the Chula Vista Residential Tenant Protection Ordinance and
may be referred to herein as the Residential Tenant Protection Ordinance.
B. Purpose. Subject to the provisions of applicable law, the purpose of the Residential Tenant Protection
Ordinance is to require Just Cause for termination of residential tenancies consistent with Civil Code section
1946.2, to further limit the reasons for termination of a residential tenancy, to require greater tenant relocation
assistance in specified circumstances, and to provide additional tenant protections. Nothing in this chapter
shall be construed as to prevent the lawful eviction of a tenant by appropriate legal means.
9.65.020 Promulgation of Administrative Regulations.
The City Manager is authorized to establish, consistent with the terms of this chapter, Administrative
Regulations necessary to carry out the purposes of this chapter. Administrative Regulations shall be
published on the City’s website, and maintained and available to the public in the Office of the City
Clerk. Administrative Regulations promulgated by the City Manager shall become effective and
enforceable under the terms of this chapter thirty (30) days after the date of publication on the City’s
website.
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9.65.030 Definitions.
When used in this chapter, the following words and phrases shall have the meanings ascribed to them
below. Words and phrases not specifically defined below shall have the meanings ascribed to them
elsewhere in this Code, or shall otherwise be defined by common usage. For definitions of nouns, the
singular shall also include the plural; for definitions of verbs, all verb conjugations shall be included. Any
reference to State laws, including references to any California statutes or regulations, is deemed to include
any successor or amended version of the referenced statute or regulations promulgated thereunder
consistent with the terms of this Chapter.
“Administrative Regulations” means regulations that implement this chapter authorized by the City Manager
pursuant to Section section 9.65.020.
“Bad Faith” or “in Bad Faith” means with the intent to vex, annoy, harass, coerce, defraud, provoke or injure
another person. This includes the intent of an Owner to induce a Tenant to vacate a Residential Rental Unit
through unlawful conduct.
“City” means the City of Chula Vista.
“City Attorney” means the City Attorney of the City of Chula Vista, or their designee.
“City Manager” means the City Manager of the City of Chula Vista, or their designee.
“County” means the County of San Diego.
"Disabled" means an individual with a disability, as defined in California Government Code
Section section 12955.3.
"Elderly" means an individual sixty-two (62) years old or older.
“Enforcement Officer” means the Director of Development Services, a Code Enforcement
Manager, any Code Enforcement Officer, the Building Official, any sworn Officer of the Police
Department, the Fire Chief, the Fire Marshal, or any other City department head (to the extent
responsible for enforcing provisions of this code), their respective designees, or any other City
employee designated by the City Manager to enforce this chapter.
“Family Member” means the spouse, domestic partner, children, grandchildren, parents or
grandparents of the residential unit Owner.
“Housing Service" means services provided by the Owner to the Tenant in connection with the use
and occupancy of a Residential Rental Unit, either pursuant to contract or as required by law,
including repairs, maintenance, and painting; providing light, heat, hot and cold water; window
shades and screens; storage; kitchen, bath, and laundry facilities and privileges; janitor services;
pest control; elevator service; access to exterior doors, entry systems, and gates; utility charges
that are paid by the Owner; refuse removal; furnishings; parking; the right to have a specified
number of occupants, and any other benefit, privilege, or facility connected with the use or
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occupancy of any Residential Rental Unit. Housing Services also includes the proportionate part
of services provided to common facilities of the building in which the Residential Rental Unit is
located.
“Occupant Owner” means any of the following:
1. An owner who is a natural person that has at least a 25 percent recorded ownership interest
in the property.
2. An owner who is a natural person who has any recorded ownership interest in the property
if 100 percent of the recorded ownership interest is divided among owners who are related
to each other as Family Members.
3. An owner who is a natural person whose recorded interest in the property is owned through
a limited liability company or partnership.
For purposes of the “Occupant Owner” definition, a “natural person” includes any of the
following: (a) a natural person who is a settlor or beneficiary of a family trust; or (b) if the
property is owned by a limited liability company or partnership, a natural person with a 25
percent ownership interest in the property. A “family trust” means a revocable living trust or
irrevocable trust in which the settlors and beneficiaries of the trust are persons who are related
to each other as Family Members. A “beneficial owner” means a natural person or family trust
for whom, directly or indirectly and through any contractual arrangement, understanding,
relationship, or otherwise, and any of the following applies: (a) the natural person exercises
substantial control over a partnership or limited liability company; (b) the natural person owns
25 percent or more of the equity interest of a partnership or limited liability company; (c) the
natural person receives substantial economic benefits from the assets of a partnership.
“Owner” (including the term “Landlord”) means any Person, acting as principal or through an
agent, having the right to offer a Residential Rental Unit for rent . As the context may require,
“Owner” shall also include a predecessor in interest to the Owner.
“Person” means any individual, firm, partnership, joint venture, association, social club, fraternal
organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee,
syndicate, or any other group or combination acting as a unit.
“Residential Rental Complex” means one or more buildings, located on a single lot, contiguous
lots, or lots separated only by a street or alley, containing three or more Residential Rental Units
rented or owned by the same Owner.
“Residential Rental Unit” means any dwelling or unit that is intended for human habitation,
including any dwelling or unit in a mobilehome park that is not a Mobilehome Residency Law
(“MRL”) Tenancy defined by Civil Code Section section 798.12 (or a tenancy governed by the
MRL).
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“State” means the State of California.
“Substantial Remodel” means improvements to a Residential Rental Unit meeting all of the
following criteria:
1. Any structural, electrical, plumbing, or mechanical system is being replaced or
substantially modified; and
2. The cost of the improvements (excluding insurance proceeds, land costs, and
architectural/engineering fees) is equal to or greater than $40 per square foot of the
Residential Rental Unit; and
3. A permit is required from a governmental agency, or the abatement of hazardous materials,
including lead-based paint, mold, or asbestos is required in accordance with applicable
federal, State, County, or City laws and cannot be reasonably accomplished in a safe
manner with the Tenant in place; and
4. It is necessary for the Residential Rental Unit to be vacant for more than sixty (60) days in
order to complete the improvements.
Cosmetic improvements alone, including, but not limited to, painting, decorating, flooring
replacement, counter replacement, and minor repairs, or other work that can be performed
safely without having the Residential Rental Unit vacated, do not constitute a Substantial
Remodel.
“Tenancy” means the lawful occupation of a Residential Rental Unit and includes a lease or
sublease.
“Tenant” means a tenant, subtenant, lessee, sublessee, resident manager, or any other individual
entitled by written or oral agreement to the use or occupancy of any Residential Rental Unit.
9.65.040 Residential Tenancies Not Subject to this Chapter.
This chapter shall not apply to the following types of residential tenancies or circumstances:
A. Single-family Owner-occupied residences, including a mobilehome, in which the Owner-
occupant rents or leases no more than two units or bedrooms, including, but not limited to, an
accessory dwelling unit or a junior accessory dwelling unit.
B. A property containing two separate dwelling units within a single structure in which the Owner
occupied one of the units as the Owner’s principal place of residence at the beginning of the
Tenancy, so long as the Owner continues in occupancy, and neither unit is an accessory dwelling
unit or a junior accessory dwelling unit.
C. A Residential Rental Unit that is alienable separate from the title to any other dwelling unit,
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provided that both of the following apply:
1. The Owner is not any of the following:
a. A real estate investment trust, as defined in Section section 856 of the Internal Revenue
Code.
b. A corporation.
c. A limited liability company in which at least one member is a corporation.
d. Management of a mobilehome park, as defined in Section section 798.2 of the Civil
Code.
2. The Tenants have been provided written notice that the Residential Rental Unit is exempt
from this section using the following statement:
“This property is not subject to the rent limits imposed by Section section 1947.12 of the
Civil Code and is not subject to Just Cause requirements of Section section 1946.2 of the
Civil Code and Chapter 9.65 of the Chula Vista Municipal Code. This property meets the
requirements of sections 1947.12(d)(5) and 1946.2(e)(8) of the Civil Code and section
9.65.040(C) of the Chula Vista Municipal Code, and the Owner is not any of the following:
(1) a real estate investment trust, as defined in Section 856 of the Internal Revenue Code;
(2) a corporation; or (3) a limited liability company in which at least one member is a
corporation.”
For a Tenancy existing before March 1, 2023, the notice required above may, but is not
required to, be provided in the rental agreement. For a Tenancy commenced or renewed on
or after March 1, 2023, the notice required above shall be provided in the rental agreement.
Addition of a provision containing the notice required above to any new or renewed rental
agreement or fixed-term lease constitutes a similar provision for the purposes of section
9.65.060(B)(5).
D. A homeowner in a mobilehome, as defined in Civil Code section 798.9 or a tenancy as defined
in Civil Code section 798.12. This chapter shall also not apply to a non-owner Tenant of a
mobilehome. Instead, a non-owner Tenant of a mobilehome shall retain the rights stated in the
State Tenant Protection Act.
E. Transient and tourist hotel occupancy as defined in Civil Code section 1940(b).
F. Any residential occupancy by reason of concession, permit, right of access, license or other agreement
for a period for 30 consecutive calendar days or less, counting portions of calendar days as full days,
including Short-Term Rental occupancies as defined in Chula Vista Municipal Code Chapter 5.68.
G. Housing accommodations in a nonprofit hospital, religious facility, extended care facility,
licensed residential care facility for the elderly as defined in Health and Safety Code section
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1569.2, or an adult residential facility as defined in Chapter 6 of Division 6 of Title 22 of the
Manual of Policies and Procedures published by the State Department of Social Services.
H. Residential Property or Dormitories owned by the City, an institution of higher education, or
a kindergarten and grades 1 to 12, inclusive.
I. Housing accommodations in which the tenant shares a bathroom or kitchen facilities with the
Owner who maintains their principal residence at the Residential Rental Unit.
J. Housing restricted by deed, regulatory restriction contained in an agreement with a government
agency, or other recorded document as affordable housing for individuals and families of very low,
low, or moderate income as defined in Health and Safety Code section 50093, or subject to an
agreement that provides housing subsidies for affordable housing for individuals and families of
very low, low, or moderate income as defined in Health and Safety Code section 50093 or
comparable federal statutes. This exclusion shall not apply to a Tenant with a Section 8 Housing
Choice Voucher and such Tenancies shall be governed by this chapter.
9.65.050 Harassment and Retaliation Against Tenant Prohibited.
A. No Owner or such Owner's agent, contractor, subcontractor, or employee, alone or in concert
with another, shall do any of the following in Bad Faith to a Tenant or with respect to a Residential
Rental Unit, as applicable:
1. Interrupt, terminate, or fail to provide Housing Services required by contract or by law,
including federal, State, County, or City laws;
2. Fail to perform repairs and maintenance required by contract or by law, including federal,
State, County, or City laws;
3. Fail to exercise commercially reasonable efforts and diligence to commence and complete
repairs or maintenance;
4. Abuse the Owner's right of lawful access into a Residential Rental Unit. This includes
entries for “inspections” that are not related to necessary repairs or services; entr ies
excessive in number; entries that improperly target certain Tenants or are used to collect
evidence against the occupant or otherwise beyond the scope of an otherwise lawful entry;
5. Abuse the Tenant with words which are offensive and inherently likely to provoke an
immediate violent reaction;
6. Influence or attempt to influence a Tenant to vacate a rental housing unit through fraud,
intimidation or coercion;
7. Threaten the Tenant, by word or gesture, with physical harm;
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8. Violate any law that prohibits discrimination based on race, gender, sexual preference,
sexual orientation, ethnic background, nationality, religion, age, parenthood, marriage,
pregnancy, disability, AIDS, occupancy by a minor child, or any other protected
classification;
9. Take action to terminate any Tenancy including service of notice to quit or other eviction
notice or bring any action to recover possession of a Residential Rental Unit based upon
facts that the Owner has no reasonable cause to believe to be true or upon a legal theory
that is untenable under the facts known to the Owner. No Owner shall be liable under this
section for bringing an action to recover possession unless or until the Tenant has obtained
a favorable termination of that action. This subsection shall not apply to any attorney who
in good faith initiates legal proceedings against a Tenant on behalf of an Owner to recover
possession of a Residential Rental Unit;
10. Interfere with a Tenant's right to quiet use and enjoyment of a Residential Rental Unit as
that right is defined by State law;
11. Refuse to accept or acknowledge receipt of a Tenant's lawful rent payment, excluding
circumstances where an unlawful detainer or other civil action is pending that could be
impacted by acceptance of rent;
12. Interfere with a Tenant's right to privacy. This includes entering or photographing portions
of a Residential Rental Unit that are beyond the scope of a lawful entry or inspection.
B. No Owner shall retaliate against a Tenant because of the Tenant's exercise of rights under this
chapter. A court may consider the protections afforded by this chapter in evaluating a claim of
retaliation.
C. This section shall not apply to Mobilehome Residency Law (“MRL”) Tenancies under Civil
Code section 798.12 or mobilehome Tenants because the provisions of Section section 1940.2 of
the Civil Code and Division 2, Part 2, Chapter 2.5 of the Civil Code apply to such Tenancies.
9.65.060 Just Cause Required for Termination of Tenancy.
A. Prohibition. No Owner of a Residential Rental Unit shall terminate a Tenancy without Just
Cause. A Just Cause basis for Termination of Tenancy includes both “At Fault Just Cause” and
“No-Fault Just Cause” circumstances as described below.
B. At Fault Just Cause. At Fault Just Cause means any of the following:
1. Default in payment of rent.
2. A breach of material term of the lease, as described in paragraph (3) of Section section
1161 of the Code of Civil Procedure, including, bu t not limited to, violation of a provision
of the lease after being issued a written notice to correct the violation.
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3. Maintaining, committing, or permitting the maintenance or commission of a nuisance as
described in paragraph (4) of Section section 1161 of the Code of Civil Procedure.
4. Committing waste as described in paragraph (4) of Section section 1161 of the Code of
Civil Procedure.
5. The Tenant had a written lease that terminated on or after the effective date of this
chapter, and after a written requ est or demand from the Owner, the Tenant has refused to
execute a written extension or renewal of the lease for an additional term of similar
duration with similar provisions, provided that those terms do not violate this section or
any other provision of law. Addition of a provision allowing the Owner to terminate the
Tenancy to allow for occupancy by the Owner or Owner’s Family Member as described
in section 9.65.060(C)(1), below, shall constitute a “similar provision” for the purposes
of this subsection.
6. Criminal activity by the Tenant at the Residential Rental Unit, including any common
areas, or any criminal activity or criminal threat, as defined in subdivision (a) of Section
422 of the Penal Code, on or off the property where the Residential Rental Unit is located,
that is directed at any Owner, any agent of the Owner, or any other Tenant of the
Residential Rental Unit or of the property where the Residential Rental Unit is located.
7. Assigning or subletting the premises in violation of the Tenant’s l ease, as described in
paragraph (4) of Section section 1161 of the Code of Civil Procedure.
8. The Tenant’s refusal to allow the Owner to enter the Residential Rental Unit as
authorized by Sections sections 1101.5 and 1954 of the Code of Civil Procedure, and
Sections sections 13113.7 and 17926.1 of the Health and Safety Code.
9. Using the premises for an unlawful purpose as described in paragraph (4) of Section
section 1161 of the Code of Civil Procedure. A Tenant shall not be considered to have
used the premises for an unlawful purpose solely on the basis of the fact that the Owner’s
Residential Rental Unit is unpermitted, illegal, or otherwise unauthorized under
applicable laws.
10. The employee, agent, or licensee’s failure to vacate after their terminatio n as an
employee, agent, or a licensee as described in paragraph (1) of Section section 1161 of
the Code of Civil Procedure.
11. When the Tenant fails to deliver possession of the Residential Rental Unit after providing
the Owner written notice as provide in Section section 1946 of the Civil Code of the
Tenant’s intention to terminate the hiring of the real property or makes a written offer to
surrender that is accepted in writing by the Owner but fails to deliver possession at the
time specified in that writt en notice as described in paragraph (5) of Section section 1161
of the Code of Civil Procedure.
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C. No-Fault Just Cause. No-Fault Just Cause means any of the following:
1. Intent to Occupy by Occupant Owner or Family Member. The Tenancy is terminated
on the basis that the Occupant Owner or an Occupant Owner’s Family Member intends
towill occupy the Residential Rental Unit within 90 days after the Tenant vacates and
will continuously occupy the Residential Rental Unit for a minimum of 12 continuous
months thereafter as their primary residence. For leases entered into on or after July 1,
2020, Intent to Occupy by Occupant Owner or Family Member shall only be a No-Fault
Just Cause basis for termination if the Tenant agree s, in writing, to the termination, or if
a provision of the lease allows the owner to terminate the lease if anthe Occupant Owner
or an Occupant’s Owner’s Family Member unilaterally decides to occupy the residential
real property.
2. Compliance with Government or Court Order. The Tenancy is terminated on the basis
of the Owner’s compliance with any of the following:
a. An order issued by a government agency or court relating to habitability that
necessitates vacating the Residential Rental Unit ; or
b. An order issued by a government agency or court to vacate the Residential Rental
Unit; or
c. A local ordinance that necessitates vacating the Residential Rental Unit.
If it is determined by any government agency or court that the Tenant is at fault for the
condition or conditions triggering the order or need to vacate under this subsection, the
Tenant shall not be entitled to relocation assistance as set forth in this Chapter.
3. Withdrawal From the Rental Market. The Tenancy is terminated on the basis of the
Owner’s decision to withdraw the Residential Rental Unit from the rental market.
4. Substantial Remodel or Complete Demolition . The Tenancy is terminated because of
the Owner’s decision to Substantially Remodel or completely demolish a Residential
Rental Unit. The Owner may not require the Tenant to vacate the Residential Rental Unit
on any days where a Tenant could continue living in the Residential Rental Unit without
violating health, safety, and habitability codes and law.
D. Notice to Tenant of Tenant Protection Provisions Required. An Owner of a Residential
Rental Unit subject to this chapter shall provide written notice in no less than 12 -point type to
the Tenant as follows:
“California law limits the amount your rent can be increased. See Civil Cod e section 1947.12
for more information. Local law also provides an Owner must provide a statement of cause
in any notice to terminate a Tenancy. In some circumstances, Tenants who are elderly (62
years or older) or disabled may be entitled to additional Te nant protections. See Chula Vista
Municipal Code chapter 9.65 for more information.”
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For a Tenancy in a Residential Rental Unit subject to this Chapter existing before the effective date of
this Chapter, the notice required above shall be provided to the Tenant directly or as an addendum to the
lease or rental agreement no later than March 1, 2023. For a Tenancy in a Residential Rental Unit subject
to this Chapter commenced or renewed on or after March 1, 2023, the notice required above shall be
included as an addendum to the lease or rental agreement, or as a written notice signed by the Tenant,
with a copy provided to the Tenant.
The provision of this notice shall be subject to Civil Code section 1632.
E. Reporting Requirements. Owners and Tenants shall provide City with information regarding
termination of Tenancies at such time(s) and with such details as shall be required by City in the
attendant Administrative Regulations.
9.65.070 Requirements Upon Termination of a Tenancy.
A. Requirements Upon Termination of a Tenancy for At Fault Just Cause. Before an
Owner of a Residential Rental Unit issues a notice to terminate a Tenancy for At Fault Just Cause
that is a curable lease violation, the Owner shall first give written notice of the violation to the
Tenant including a description of the violation (or violations) and an opportunity to cure the
violation pursuant to paragraph (3) of Section section 1161 of the Code of Civil Procedure. If
the violation is not cured within the time period set forth in the notice, a three -day notice to quit
without an opportunity to cure may thereafter be served to terminate the Tenancy.
B. Requirements Upon Termination of a Tenancy for No-Fault Just Cause. Upon
termination of a Tenancy for No-Fault Just Cause, an Owner of a Residential Rental Unit shall
provide notice and relocation assistance as follows:
1. Tenancy in Unit in a Residential Rental Complex . When an Owner terminates a
Tenancy of a Residential Rental Unit in a Residential Rental Complex for No-Fault Just
Cause, the Owner shall provide notice and relocation assistance to the Tenant as follows :
a. Notice to Tenant Required . The Owner shall give written notice to the Tenant at
least 30 or 60 days prior to the proposed date of termination as re quired by Civil Code
section 1946.1, in no less than 12-point font of:
i. Notice of Basis for No-Fault Just Cause Termination. The Owner’s decision to
terminate the Tenancy and a description of the basis for said termination.
ii. Notice of Right to Relocation Assistance. The Tenant’s right to relocation
assistance or rent waiver pursuant to this section. If the Owner elects to waive the
Tenant’s rent, the notice shall state the amount of rent waived and that no rent is
due for the final corresponding months of the Tenancy. Any relocation assistance
payment shall be provided by the Owner to the Tenant within fifteen (15) calendar
days of service of the notice; and
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iii. Notice of Right to Receive Future Offer. The Tenant’s right to receive an offer to
renew the Tenancy in the event that the Residential Rental Unit is offered again for
rent or lease for residential purposes within two (2) years of the date the Residential
Rental Unit was withdrawn from the rental market, and that to exercise such right,
the Tenant: (a) must notify the Owner in writing within thirty (30) days of the
termination notice of such desire to consider an offer to renew the Tenancy in the
event that the Residential Rental Unit is offered again for rent or lease for
residential purposes; (b) furnish the Owner with an address or email address to
which that offer is to be directed; (c) and advise the Owner at any time of a change
of address to which an offer is to be directed.
iv. Notice of Intended Occupant. If the Tenancy is being terminated on the basis of
an Occupant Owner or Occupant Owner’s Family Member move in under section
9.65.060(C)(1), above, the written notice must identify the name or names and
relationship to the Occupant Owner of the intended occupant. The written notice
shall additionally include notification that the Tenant may request proof that the
intended occupant is an Occupant Owner or related to the Occupant Owner. The
proof shall be provided upon request and may include an operating agreement and
other non-public documents.
v. Notice of Substantial Remodel or Demolition. If the Tenancy is being terminated
on the basis of a Substantial Remodel or Complete Demolition under
9.65.060(C)(4), above, the following statement must be included in the written
notice:
“If the substantial remodel of your unit or demolition of the property as described
in this notice of termination is not commenced or completed, the owner must offer
you the opportunity to re-rent your unit with a rental agreement containing the
same terms as your most recen t rental agreement with the owner at the rental rate
that was in effect at the time you vacated. You must notify the owner within thirty
(30) days of receipt of the offer to re -rent of your acceptance or rejection of the
offer, and, if accepted, you must r eoccupy the unit within thirty (30) days of
notifying the owner of your acceptance of the offer.”
The written notice shall additionally contain a description of the Substantial
Remodel to be completed, the approximate expected duration of the Substantial
Remodel, or if the property is to be completely demolished, the expected date by
which the property will be demolished, together with one of the following:
(a) A copy of the permit or permits required to undertake the Substantial Remodel
or demolition; or
(b) If the Substantial Remodel is due to abatement of hazardous materials and does
not require any permit, a copy of the signed contract with the contractor hired
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by the owner to complete the Substantial Remodel, that reasonably details the
work that will be undertaken to abate the hazardous materials.
The written notice shall additionally indicate that if the Tenant is interested in
reoccupying the Residential Rental Unit following the Substantial Remodel, the
Tenant shall inform the Owner of the Tenant’s interest in reoccupying the
Residential Rental Unit following the Substantial Remodel and provide to the
Owner the Tenant’s address, telephone number, and email address.
b. Notice to City Required. The Owner shall provide written notice to the City of the No-
Fault Just Cause Termination of Tenancy no later than three business days after the
date the Owner provides the required notice to the Tenant. Such notice to City shall be
provided on a form approved by City for such purpose and in the manner specified in
the attendant Administrative Regulations. The City shall acknowledge receipt of the
Owner’s notice to City within three business days of City’s receipt of such notice.
c. Relocation Assistance Required. The Owner shall, regardless of the Tenant’s
income or length of Tenancy, at the Owner’s option, do one of the following to assist
the Tenant to relocate:
i. Provide a direct payment to the Tenant in an amount equal to the greater of: two
(2) months of the U.S. Department of Housing and Urban Development’s Small
Area Fair Market Rents Amount for the zip code in which the Residential Rental
Unit is located when the Owner issued the notice to terminate the Tenancy, or two
(2) months of actual then in effect contract rent under Tenant’s lease. If the
Tenant is Elderly or Disabled, then the direct payment shall be in an amount
equal to the greater of: three (3) months of the U.S. Department of Housing and
Urban Development’s Small Area Fair Market Rents Amount for the zip code in
which the Residential Rental Unit is located when the Owner issued the notice to
terminate the Tenancy, or three (3) months of actual contract rent; or
ii. Waive in writing and not collect the payment by Tenant of then due or future rent
otherwise due under the lease in an amount equivalent to the direct payment
described in (i), above.
2. Tenancy in Unit Not in a Residential Rental Complex. When an Owner terminates a
Tenancy of a Residential Rental Unit that is not in a Residential Rental Complex for No -
Fault Just Cause, the Owner shall provide notice and relocation assistance to the Tenant
as follows:
a. Notice to Tenant Required . The Owner shall give written notice to the Tenant at
least 30 or 60 days prior to the proposed date of termination as required by Civil Code
section 1946.1, in no less than 12-point font of:
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i. Notice of Basis for No-Fault Just Cause Termination. The Owner’s decision to
terminate the Tenancy and a description of the basis for said termination.
ii. Notice of Right to Relocation Assistance. The Tenant’s right to relocation
assistance or rent waiver pursuant to this section. If the Owner elects to waive the
Tenant’s rent, the notice shall state the amount of rent waived and that no rent is
due for the final corresponding months of the Tenancy. Any relocation assistance
payment shall be provided by the Owner to the Tenant within fifteen (15) calendar
days of service of the notice; and
iii. Notice of Intended Occupant. If the Tenancy is being terminated on the basis of
an Occupant Owner or Occupant Owner’s Family Member move in under section
9.65.060(C)(1), above, the written notice must identify the name or names and
relationship to the Occupant Owner of the intended occupant. The written notice
shall additionally include notification that the Tenant may request proof that the
intended occupant is an Occupant Owner or related to the Occupant Owner. The
proof shall be provided upon request and may include an operating agreement and
other non-public documents.
iv. Notice of Substantial Remodel or Demolition. If the Tenancy is being terminated
on the basis of a Substantial Remodel or Complete Demolition under
9.65.060(C)(4), above, the following statement must be included in the written
notice:
“If the substantial remodel of your unit or demolition of the property as described
in this notice of termination is not commenced or completed, the owner must offer
you the opportunity to re-rent your unit with a rental agreement containing the
same terms as your most recent rental agreement with the owner at the rental rate
that was in effect at the time you vacated. You must notify the owner within thirty
(30) days of receipt of the offer to re -rent of your acceptance or rejection of the
offer, and, if accepted, you must reoccupy the unit within thirty (30) days of
notifying the owner of your acceptance of the offer.”
The written notice shall additionally contain a description of the Substantial
Remodel to be completed, the approximate expected duration of the Substantial
Remodel, or if the property is to be completely demolished, the expected date by
which the property will be demolished, together with one of the following:
(a) A copy of the permit or permits required to undertake the Substantial Remodel
or demolition; or
(b) If the Substantial Remodel is due to abatement of hazardous materials and does
not require any permit, a copy of the signed contract with the contractor hired
by the owner to complete the Substantial Remodel, that reasonably details the
work that will be undertaken to abate the hazardous materials.
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The written notice shall additionally indicate that if the Tenant is interested in
reoccupying the Residential Rental Unit following the Substantial Remodel, the
Tenant shall inform the Owner of the Tenant’s interest in reoccupying the
Residential Rental Unit following the Substantial Remodel and provide to the
Owner the Tenant’s address, telephone number, and email address.
b. Notice to City Required. The Owner shall provide written notice to the City of the No-
Fault Just Cause Termination of Tenancy no later than three business (3) days after the
date the Owner provides the required notice to the Tenant. Such notice to City shall be
provided on a form approved by City for such purpose and in the manner specified in
the attendant Administrative Regulations. The City shall acknowledge receipt of the
Owner’s notice to City within three (3) business days of City’s receipt of such notice.
c. Relocation Assistance Required. The Owner shall, regardless of the Tenant’s income
or length of Tenancy, at the Owner’s option, do one of the following to assist the Tenant
to relocate:
i. Provide a direct payment to the Tenant in an amount equal to one (1) month of
actual then in effect contract rent under Tenant’s lease; or
ii. Waive in writing and not collect the payment by Tenant of then due or future rent
otherwise due under the lease in an amount equivalent to the direct payment
described in (i), above.
C. Additional Requirements Upon Termination of a Tenancy for No-Fault Just Cause.
Upon termination of a Tenancy for No -Fault Just Cause, the following additional provisions
shall also apply:
1. When more than one Tenant occupies a rental unit and the Owner opts to provide direct
payment of relocation assistance to the Tenants, the Owner may make a single direct
payment to all Tenants named on the rental agreement.
2. The relocation assistance or rent waiver required by this section shall be in addition to the
return of any deposit or security amounts owed to the Tenant.
3. Any relocation assistance or rent waiver to which a Tenant may be entitled to under this
section shall be in addition to and shall not be credited against any other relocation
assistance required by any other law.
4. If the Tenant fails to vacate after the expiration of the notice to terminate the Tenancy, the
actual amount of any relocation assistance or rent waiver provided pursuant to this section
may be recoverable by Owner as damages in an action to recover possession.
5. If the Tenancy is being terminated on the basis of an Occupant Owner or Occupant Owner’s
Family Member move in under section 9.65.060(C)(1) and the intended occupant fails to
move into the Residential Rental Unit within 90 days after the Tenant vacates, or fails to
Page 38 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
ATTACHMENT 1 – Redline Amendments to CVMC Chapter 9.65
Page 15
occupy the Residential Rental Unit as their primary residence for at least 12 consecutive
months, the Owner shall offer the unit to the Tenant who vacated it at the same rent and
lease terms in effect at the time the Tenant vacated and shall reimburse the Tenant for
reasonable moving expenses incurred in excess of any relocation assistance that was paid
to the Tenant in connection with the written notice. If the intended occupant moves into
the unit within 90 days after the tenant vacates, but dies before having occupied the unit as
a primary residence for 12 months, this will not be considered a failure to comply with this
section or a material violation of this section by the Owner.
a. For a new tenancy commenced during the time periods described in 9.65.070(C)(5),
the unit shall be offered and rented or leased at the lawful rent in effect at the time
any notice of termination of tenancy is served.
5.6.If a Residential Rental Unit in a Residential Rental Complex is offered for rent or lease for
residential purposes within two (2) years of the date the Tenancy was terminated, the
Owner shall first offer the unit for rent or lease to the Tenant displaced from that unit by
the No-Fault Just Cause termination if the Tenant: (a) advised the Owner in writing within
thirty (30) days of the termination notice of the Tenant’s desire to consider an offer to
renew the Tenancy; and (b) furnished the Owner with an address or email address to which
that offer is to be directed. The Owner shall have the right to screen the Tenant using
industry accepted methods and shall communicate such minimum screening criteria in the
offer for the new Tenancy, subject to the terms of any attendant Administrative
Regulations.
6.7.With regard to termination of a Tenancy of a Residential Rental Unit in a Residential Rental
Complex on the basis of a withdrawal of the unit from the rental market, as described in
Section section 9.65.060(C)(3), should the property that had been taken off the market be
placed on the rental market again within two (2) years of the termination of the Tenancy,
then the Owner shall be liable to Tenant for the greater of: (i) six (6) month’s rent to the
last tenant of the Residential Rental Unit at the rental rate in place at the time the rental
unit is re-rented as set forth U.S. Department of Housing and Urban Development’s Small
Area Fair Market Rents Amount for the zip code in which the Residential Rental Unit is
located; or (ii) six (6) months of actual then in effect contract rent under the Tenant’s lease
at time of termination. This section does not apply if the property is rented to Owner’s
Family Member, converted to another non-rental use, or sold or otherwise transferred to a
bona fide third-party during the two (2) year period.
7.8.Among other remedies applicable to Owner’s failure to comply with the terms of this
chapter, an Owner’s failure to strictly comply with this section shall render the notice of
termination void.
9.65.080 Enforcement and Remedies.
A. Guiding Principles. The City seeks to promote good relations between Owners and Tenants,
and in furtherance of such goal, provides the following guiding principles:
Page 39 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
ATTACHMENT 1 – Redline Amendments to CVMC Chapter 9.65
Page 16
1. Owners and Tenants should treat each other with respect, listen to each other, and make
good faith efforts to informally resolve issues. If Owners and Tenants cannot informally
resolve issues, alternative dispute resolution and mediation programs should be
voluntarily utilized.
2. If disputes are not able to be settled despite the use of dispute resolution or mediation
programs, the primary enforcement mechanism is otherwise expected to be the Private
Remedies set forth in Section section 9.65.080(D) below.
3. The City shall have the sole and unfettered discretion to determine if and when City will
engage in City enforcement of this chapter. Owners and Tenants are highly encouraged
to independently resolve disputes as set forth in paragraphs 1 and 2 above.
B. General Provisions.
1. The enforcement mechanisms and remedies specified in this section are cumulative and in
addition to any other enforcement mechanisms and remedies available under federal, State,
County, and City law for violation of this chapter or Code.
2. It shall be unlawful for any Person to violate any provision or fail to comply with the
requirements of this chapter. Each day that a violation continues is deemed to be a new and
separate offense.
3. Any waiver of the rights under this chapter shall be void as contrary to public policy.
C. City Attorney Enforcement.
1. Alternative Remedies. The City Attorney may require Owner and Tenant to participate in
education programs related to Owner-Tenant issues, mediation, or an alternative dispute
resolution program.
2. Administrative Citations and Penalties. The City Attorney or an Enforcement Officer
may issue administrative citations or civil penalties in accordance with Chapter 1.41 of this
Code for violation of any of the provisions of this chapter. Notwithstanding the foregoing,
civil penalties for violations of section 9.65.050 may be assessed at a rate not to exceed
$5,000 per violation per day.Civil penalties for violations of this chapter may be assessed at
a rate not to exceed $5,000 per violation per day. When a violation occurs, it is not required
that a warning or notice to cure must first be given before an administrative citation or civil
penalty may be issued.
3. Civil Action. The City, or the City Attorney on behalf of the People of the State of
California, may seek injunctive relief to enjoin violations of, or to compel compliance with,
this chapter or seek any other relief or remedy available at law or equity, including the
imposition of monetary civil penalties. Civil penalties for violations of this chapter may be
assessed at a rate not to exceed $5,000 per violation per day. The City may also pursue
Page 40 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
ATTACHMENT 1 – Redline Amendments to CVMC Chapter 9.65
Page 17
damages as set forth in Section section 9.65.070(C)(67).
4. Criminal Violation. An Owner who interferes or facilitates interference with a Tenant’s
peaceful enjoyment, use, possession or occupancy of a Residential Rental Unit by (a)
threat, fraud, intimidation, coercion, or duress, (b) maintenance or toleration of a public
nuisance, (c) cutting off heat, light, water, fuel, Wi-Fi, or free communication by anyone
by mail, email, telephone/cell phone, or otherwise, or (d) restricting trade (including the
use of delivery services for goods or food) or tradespersons from or to any such Tenant,
shall be guilty of a misdemeanor punishable by a fine of not m ore than $1,000 or
imprisonment for a period of not more than six months, or by both a fine and
imprisonment. At the sole discretion of the City Attorney, such violation may, in the
alternative, be cited and prosecuted as an infraction.
5. Subpoena Authority. The City Attorney shall have the power to issue subpoenas for the
attendance of witnesses, to compel their attendance and testimony, to administer oaths
and affirmations, to take evidence, and to issue subpoenas for the production of any
papers, books, accounts, records, documents or other items that may be relevant to the
City Attorney’s investigation, enforcement action, or prosecution. The City Attorney may
exercise such powers prior to or following the commencement of any civil, criminal, or
administrative action to the fullest extent allowed by law.
D. Private Remedies.
1. Civil Action. An aggrieved Tenant may institute a civil action for injunctive relief, direct
actual money damages, and any other relief allowed by law, including the assessment of
civil penalties in the amount of no less than $2,000 and no more than $5,000 per violation
per day. If the aggrieved Tenant is Elderly or Disabled, additional civil penalties of up to
$5,000 per violation per day may be assessed at the discretion of the court. A Tenant may
also pursue damages as set forth in Section section 9.65.070(C)(67).
a. An Owner who attempts to recover possession of a Residential Rental Unit in material
violation of this chapter shall be liable to the Tenant in a civil action for actual damages.
Upon a showing that the Owner has acted willfully or with oppression, fraud, or malice,
an Owner shall be liable to the Tenant in a civil action for up to three times the actual
damages. An award may also be entered for punitive damages for the benefit of the Tenant
against the Owner.
1.2. Affirmative Defense. A violation of this chapter may be asserted as an affirmative defense
in an unlawful detainer or other civil action.
2.3. Attorney’s Fees. The court may award reasonable attorney’s fees and costs to a party who
prevails in any action described in paragraphs 1 and 2 above.
9.65.090 Sunset Clause.
Page 41 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
ATTACHMENT 1 – Redline Amendments to CVMC Chapter 9.65
Page 18
This chapter shall remain in effect until January 1, 2030, and as of that date is repealed unless
otherwise extended by the City Council.
Page 42 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Written Communications - Item 7.2
ACCE - Received 2/19/2024
Page 43 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Written Communications - Item 7.2
ACCE - Received 2/19/2024
Page 44 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Written Communications - Item 7.2
ACCE - Received 2/19/2024
Page 45 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
5675 Ruffin Road, Suite 310
San Diego, CA 92123 T: 858.278.8070www.socalrha.org
February 19, 2024
Mayor McCann and City Councilmembers
276 Fourth Avenue
Chula Vista, CA 91910
RE: Item 7.2 - Tenant Protection Ordinance: Updates to the Chula Vista Residential
Tenant Protection Ordinance, CVMC Chapter 9.65, to Remain Consistent with
Recently Adopted California Senate Bill 567
Dear Mayor and Councilmembers,
On behalf of the Southern California Rental Housing Association (SCRHA) we would like to
express our support for amendments to the Chula Vista Tenant Protection Ordinance (TPO) that
will align it with changes to state law that take effect on April 1, 2024.
We appreciate the outreach and communication from city staff and the opportunity to preview
changes and submit comments. SCRHA believes in creating a thriving rental housing community
through advocacy, education, and collaboration. While SCRHA believes that there are changes
that can be made to the TPO that will improve the outcomes for all parties, those are
discussions that will necessitate a lengthier stakeholder engagement process. We remain
committed to future discussions and improvements to the TPO.
In the immediate future, SCRHA will be working to update vital forms and guidance to reflect
the changes in local law. The city’s proactive approach to the state-mandated changes gives us
time to amend forms; adding in new language, requirements, and municipal code references.
SCRHA will also host education sessions so that housing providers are aware of changes to the
law and procedures.
Again, thank you for continuing to include SCRHA in Tenant Protection Ordinance and other
important housing discussions. Please do not hesitate to contact me at mkirkland@socalrha.org
or 858.278.8070 if we can be of further assistance.
Sincerely,
Molly Kirkland
Director of Public Affairs
Written Communications - Item 7.2
Kirkland - Received 2/19/2024
Page 46 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Written Communications – Item 7.2
Wood – Received 2/20/2024
From: Melanie Woods
Sent: Tuesday, February 20, 2024 9:25 AM
To: CityClerk <CityClerk@chulavistaca.gov>
Subject: 7.2 Tenant Protection Ordinance: Updates to the Chula Vista Residential Tenant Protection
Ordinance, CVMC Chapter 9.65, to Remain Consistent with Recently Adopted California Senate Bill 567
WARNING - This email originated from outside the City of Chula Vista. Do not click any
links and do not open attachments unless you can confirm the sender.
PLEASE REPORT SUSPICIOUS EMAILS BY USING THE PHISH ALERT REPORT BUTTON or
to reportphishing@chulavistaca.gov
Honorable Mayor and City Council,
On behalf of the California Apartment Association (CAA), I would like to express my support for
the changes to the Tenant Protection Ordinance to align with state law. CAA is the nation’s
largest statewide trade group representing owners, investors, developers, managers, and
suppliers of rental apartment communities. We have over 13,00 members representing more
than 60,000 industry professionals. CAA members are invested in over 11,000 multifamily units
in the City of Chula Vista.
As you may know, the State of California has been heralded for having the “strongest tenant
protections in the nation” through the adoption of AB 1482 (Chiu) in 2019. This legislation
established a statewide, consistent standard to protect renters from excessive rent increases
and arbitrary evictions. While we may not agree with all of the policy changes to AB 1482 made
in SB 567, consistency with state law allows for better compliance and consistent
implementation across the state.
Section 9.65.080(D)(1) which mimics AB 567 penalty provision by providing that non -compliant
owners can be held liable for treble damages and punitive damages in the event the owner is
found to have acted willfully or with malice. While we do not defend th e actions of such
property owners, we would argue that the civil penalties and treble/punitive damages are
intended to serve the same purpose and conclude that the city should use choose one or the
other and not both.
We appreciate the stakeholder process and the proactive communication and transparency
from city staff. Thank you for the opportunity to submit comments prior to the finalized
ordinance changes. Stacey Kurz and her team truly go above and beyond to keep stakeholder
partners informed. We hope to continue to work together towards an ordinance that is fair for
housing providers and tenants.
Sincerely,
Melanie Woods Vice President, Local Public Affairs
California Apartment Association
CAA Services: Events and Education Insurance Tenant Screening
You don't often get email from. Learn why this is important
Page 47 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
v . 0 03 P a g e | 1
February 26, 2024
ITEM TITLE
Reimbursement Agreement: Approve the First Amendment to the Reimbursement Agreement with RIDA
Chula Vista, LLC to Recognize Approved Change Orders, Add Construction of the G Street Sewer Pump Station
Overflow Tank, and Appropriate Funds Accordingly
Report Number: 23-0273
Location: 1001 H Street
Department: City Manager, Development Services, and Engineering & Capital Projects
G.C. § 84308: Yes
Environmental Notice: The Project qualifies for a Class 3 Categorical Exemption pursuant to Section 15303
(New Construction or Conversion of Small Structures) of the California Environmental Quality Act State
Guidelines.
Recommended Action
Adopt a resolution approving the First Amendment to Reimbursement Agreement with RIDA Chula Vista,
LLC to Construct Specified Bayfront Sewer Improvements to recognize various administratively approved
change orders, add construction of the G Street Sewer Pump Station Overflow Tank, and amending the fiscal
year 2023-24 Capital Improvement Projects program budget (SWR0321). (4/5 Vote Required)
SUMMARY
On September 10, 2019, the City Council adopted Resolution 2019-170, approving a Reimbursement
Agreement between the City and RIDA Chula Vista, LLC to construct specified sewer improvements (the
“Original Agreement”) and making certain findings, waivers, approvals, and delegations of authority related
to procurement of the subject improvements. The Original Agreement was entered into on September 15,
2020. Since that time, several change orders have been administratively approved, as authorized by the
Original Agreement, however it is necessary to appropriate additional funds to cover these expenses. In
addition, the City and RIDA Chula Vista, LLC now desire to amend the Original Agreement to include
construction of an overflow tank that will serve the G Street Sewer Pump Station project and appropriate
associated funding.
Page 48 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
P a g e | 2
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 Categorical Exemption
pursuant to State CEQA Guidelines Section 15303 Class 3 (New Construction or Conversion of Small
Structures) because the proposed project would not result in a significant effect on the environment, create
a cumulative impact, or damage a scenic highway. Thus, no further environmental review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
DISCUSSION
On April 24, 2018, the City of Chula Vista and the San Diego Unified Port District approved a Disposition and
Development Agreement (“DDA”) with RIDA Chula Vista, LLC (“RIDA”) for the development of a large-scale
destination resort and convention center project on parcel H-3 of the Chula Vista Bayfront Master Plan. The
DDA obligated RIDA to design and construct certain public improvements, subject to a combination of
reimbursements and Bayfront Development Impact Fee (“BFDIF”) credits. Sewer infrastructure related
commitments by both the City and RIDA were memorialized in the Original Agreement, approved by the City
Council via Resolution 2019-170 on September 10, 2019 (Attachment 1). Table 1 below summarizes the
sewer improvement list (the “Original Improvements”) and related estimated costs as reflected in the
Original Agreement.
Table 1 – Original Agreement Improvements and Estimated Cost
Improvement Description Estimated Cost
E Street (G Street to H Street) 730,000
G Street Connection 85,000
H-3 Utility Corridor 380,000
Total 1,195,000
The Original Agreement was executed on September 15, 2020, and RIDA subsequently completed the final
design, permitting and bidding of the Original Improvements. Based on final bids, on May 10, 2022, the City
Council approved appropriating an additional $3,231,584 from the Trunk Sewer Capital Reserve Fund to
fund these improvements, bringing the total estimated cost of constructing the Original Improvements to
$4,426,584, as summarized in Table 2 below.
Table 2 – May 10, 2022 Amended Budget
Improvement Description Original
Amended Value as
of 5/10/2022
E Street (G Street to H Street ) $ 730,000 $ 1,695,826
G Street Connection $ 85,000 $ 561,871
H-3 Utility Corridor $ 380,000 $ 1,192,664
H Street (Bay Blvd to Street A) $ - $ 10,380
H Street (Marina Pkwy to E Street) $ - $ 965,843
Total $ 1,195,000 $ 4,426,584
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
P a g e | 3
Unforeseen Condition Change Orders
Since the 2022 action, RIDA has undertaken construction of the Original Improvements. In that process,
RIDA’s general contractor, Mortenson McCarthy Joint Venture (MMJV), has encountered unforeseen site
conditions that have resulted in cost increases. These cost increases have been thoroughly vetted by City
staff and consultants and determined to be appropriate project costs and eligible for reimbursement. Table
3 below summarizes the sewer related change orders. These costs have been administratively approved for
reimbursement pursuant to the terms of the Original Agreement. Staff recommends appropriating an
additional $900,000 from the Sewer Income Fund and an additional $912,055 from the Trunk Sewer Capital
Reserve Fund for this purpose.
Table 3 – Unforeseen Condition Change Orders
Unforeseen Condition Description Amount
Cleanup/Repair Bypass Pump $ 8,258
Trench Stabilization - E Street Sewer $ 122,053
Trench Stabilization - G Street Sewer $ 1,013,798
Trench Stabilization - H Street Sewer $ 112,731
Trench Stabilization - Marina Parkway Sewer $ 330,901
Time Impacts - Additional Stabilization $ 128,478
Added Gravity Feed to Park Restrooms $ 95,835
Total $ 1,812,055
Staff recommends appropriating an additional $3,000,000 from the Trunk Sewer Capital Reserve Fund for
the purpose of covering cost increases due to unforeseen conditions encountered in the construction of the
Original Agreement improvements.
G Street Sewer Pump Station
In addition to other business terms, the DDA also reflected the City’s commitment to upgrade the existing G
Street Pump Station. On October 3, 2023, the City Council adopted Resolution 2023-151, awarding a public
works contract for the construction of the “Sewer Force Main at G Street Pump Station and G Street Pump
Station Upgrade (SWR0275 and SWR0309)” projects. The construction of the G Street Pump Station upgrade
necessitates the construction of an overflow tank (the “Pump Station Overflow Tank”).
Staff recommends that the Pump Station Overflow Tank be sited on RIDA’s leasehold on the Chula Vista
Bayfront and constructed by RIDA, pursuant to the terms of the Original Agreement. This approach will result
in time and financial efficiencies, that would not be achievable if the City were to construct the improvement.
RIDA has tentatively agreed to construct the Pump Station Overflow Tank on the City’s behalf, provided the
Original Agreement can be amended to include this additional scope.
A First Amendment to the Original Agreement has been negotiated and is recommended for City Council
approval (Attachment 2). Construction of the Pump Station Overflow Tank is projected to cost $5,555,000.
Actual costs will not be known until construction is complete. Staff recommends appropriating an additional
$5,555,000 from the Trunk Sewer Capital Reserve Fund for this purpose.
Page 50 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
P a g e | 4
DECISION-MAKER CONFLICT
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 (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
Approval of this resolution amends the fiscal year 2023-24 Capital Improvements Projects program budget
(SWR0321) by appropriating $900,000 in Sewer Income Funds and Trunk Sewer Reserve Funds to fund the
approved construction changes for the Original Improvements and $9,467,055 in Trunk Sewer Reserve
Funds to fund the construction of the Pump Station Overflow Tank. There is sufficient fund balance in the
Sewer Income and Trunk Sewer Capital Reserve Funds for this appropriation. The original budget,
amendments to date, and current action are summarized in Table 3 below.
Improvement Description Original
Budget
Amended
Value
as of
5/10/2022
Change
Orders to
Date
Overflow
Tank
Amendment
Projected
Future
Change
Orders
Total Amended
Value
E Street (G Street to H Street ) $ 730,000 $ 1,695,826
$ 1,812,055
$ 3,000,000 $ 9,238,639
G Street Connection 85,000 561,871
H-3 Utility Corridor 380,000 1,192,664
H Street (Bay Blvd to Street A) 10,380
H Street (Marina Pkwy to E Street) 965,843
G Street Pump Station Overflow Tank $ 5,555,000 $ 5,555,000
Total $ 1,195,000 $ 4,426,584 $ 1,812,055 $ 5,555,000 $ 3,000,000 $ 14,793,639
Appropriations to date $ 4,426,584
Additional Appropriation Requested $ 10,367,055
Total Amended Value $ 14,793,639
ONGOING FISCAL IMPACT
Upon completion of the project, the improvements will require routine sewer facility maintenance, which
will incur additional costs to the Sewer Service Revenue Fund. These expenses will be considered in
conjunction with the regular annual budget process.
ATTACHMENTS
1. Original Agreement
2. First Amendment
Page 51 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
P a g e | 5
Staff Contact: Kara Peterson, Development Project Manager
William Valle, City Engineer/ Director of Engineering & Capital Projects
Tiffany Allen, Assistant City Manager
Page 52 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Form Rev 3/6/2023
RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE FIRST AMENDMENT TO
REIMBURSEMENT AGREEMENT WITH RIDA CHULA
VISTA, LLC TO INCLUDE THE G STREET SEWER PUMP
STATION OVERFLOW TANK AND H STREET SEWER
IMPROVEMENTS AND APPROPRIATE FUNDS TO CIP
PROJECT, SWR0321 “RIDA BAYFRONT SEWER
IMPROVEMENTS” THERFOR (4/5 VOTE REQUIRED)
WHEREAS, the City of Chula Vista (the “City”) and RIDA Chula Vista, LLC (“the
Developer”) previously entered into that certain Reimbursement Agreement to Construct Specified
Bayfront Sewer Improvements (the “Original Agreement”) on September 15, 2020; and
WHEREAS, the City and the Developer desire to amend the Original Agreement to expand
the scope of the Project Improvements (defined therein) to include the construction of in-road
sewer facilities in H Street (the “H Street Sewer Improvements”) and an overflow tank for the G
Street sewer pump station (the “Pump Station Overflow Tank”; and together with the H Street
Sewer Improvements, the “Project”); and
WHEREAS, pursuant to Chula Vista Municipal Code (“CVMC”) Section 13.14.090
(Sewer Capacity Charge), any owner or person making application for a permit to develop or
modify use of any residential, commercial, industrial or other property shall pay a sewer capacity
charge; all revenue derived from such fees shall be deposited in the “Trunk Sewer Capital Reserve”
fund; and
WHEREAS, pursuant to CVMC Chapter 3.14 (Trunk Sewer Capital Reserve Fund), all
revenues collected under CVMC Section 13.14.090 shall be deposited into the “Trunk Sewer
Capital Reserve Fund” and may be used, in the discretion of the City Council, for the planning,
design, or construction of sewage collection or treatment or water reclamation purposes or
purposes incidental to paying all or any part of the cost and expense to enlarge sewer facilities of
the City so as to enhance efficiency of utilization and/or adequacy of capacity in order to
effectively serve the needs of the City or paying all or any part of the cost and expense to plan
and/or evaluate any future proposals for area-wide sewage treatment and/or water reclamation
systems or facilities; and
WHEREAS, the Scope of Development attached to the Disposition and Development
Agreement for the Resort Hotel Convention Center Project (Chula Vista Bayfront Master Plan
Parcel H-3), effective May 7, 2018 (the “DDA”) provided that the G Street Sewer Pump Station
would be constructed by or on behalf of the City and financed by the City, which financing may
be through any financing mechanism in City’s sole and absolute discretion; and
WHEREAS, the G Street sewer pump station requires the construction of the Pump Station
Overflow Tank, which is most efficiently placed within Developer’s leasehold interest; and
Page 53 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Resolution No.
Page 2
WHEREAS, City has completed preliminary design of the Project; and
WHEREAS, in order to achieve certain financial, construction management, and schedule
efficiencies, the City and the Developer desire for the Developer to construct the Project under its
construction contract with Mortenson McCarthy Joint Venture (“MMJV”) relating to the
Developer’s Sewer Improvements (defined in the Original Agreement); and
WHEREAS, the estimated cost of constructing the Project is $5,555,000; and
WHEREAS, the construction of the Project is eligible for reimbursement from the Trunk
Sewer Capital Reserve Fund and the Sewer Income Fund; and
WHEREAS, costs for the in-road sewer improvements required at H Street, not part of the
Original Agreement are also eligible for reimbursement; and
WHEREAS, the City has sufficient funds in the Trunk Sewer Capital Reserve to reimburse
Developer for the final design and construction of the Pump Station Overflow Tank and H Street
Sewer Improvements; and
WHEREAS, the City has sufficient funds in the Sewer Income Fund and Trunk Sewer
Capital Reserve to increase the total amount of the amended value to $9,238,639; and
WHEREAS, the City and the Developer have negotiated the terms of the First Amendment
to Reimbursement Agreement to Construct Specified Bayfront Sewer Improvements Between the
City and RIDA Chula Vista, LLC, in substantially the form submitted herewith (the “First
Amendment”) to provide for the City to reimburse the Developer for eligible costs incurred by
Developer in the final design and construction of the Project; and
WHEREAS, the final design and construction of the Project shall be self-performed by
MMJV on a lump sum basis, with additional second-tier subcontracts to be awarded ancillary
scopes; and
WHEREAS, pursuant to authority granted by City Council Resolution No. 2019-170, the
City Manager’s designee has found such procurement to be in the best interest of the public and
that appropriate safeguards are in place to protect the public interest and, accordingly, the City
Manager’s designee has approved such procurement for the Project.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista,
that after consideration of CVMC Chapter 3.14 and CVMC Section 13.14.090 and the facts stated
in the Recitals above, the City Council hereby finds and determines that the construction of the
Project will provide a public benefit to other properties within the Chula Vista Bayfront Master
Plan area.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
approves the First Amendment to Reimbursement Agreement to Construct Specified Bayfront
Page 54 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Resolution No.
Page 3
Sewer Improvements between the City and RIDA Chula Vista, LLC, in substantially the form
presented, with such modifications as may be required or approved by the City Attorney, and
generally consistent with the item as presented, a copy of which shall be kept on file in the Office
of the City Clerk, and authorizes and directs the City Manager to execute and implement such First
Amendment.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it does
hereby amend the fiscal year 2023-24 Capital Improvement Projects Program budget appropriating
$900,000 in Sewer Income Funds and $9,467,055 in Trunk Sewer Reserve Funds to CIP project,
SWR0321 RIDA Bayfront Sewer Improvements to reimburse Developer for eligible costs to
complete the design and construction of the Project, pursuant to the Reimbursement Agreement
between the City and RIDA Chula Vista, LLC to Construct Specified Sewer Improvements, as
amended by the First Amendment.
Presented by Approved as to form by
Tiffany Allen Jill D.S. Maland
Assistant City Manager Lounsbery Ferguson Altona & Peak LLP
Acting City Attorney
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CITY OF CHULA VISTA
REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO CONSTRUCT SPECIFIED BAYFRONT SEWER IMPROVEMENTS
This REIMBURSEMENT AGREEMENT (“Agreement”) is entered into as of this 15th
day of September, 2020 (the “Execution Date”) by and among the City of Chula Vista, a chartered
municipal corporation (“City”) and RIDA Chula Vista, LLC, a Delaware limited liability company
(“Developer”) (collectively, the “Parties” and, individually, a “Party”), with reference to the
following Recitals:
RECITALS
A. WHEREAS, City, Developer, and the San Diego Unified Port District (“District”)
entered into a Disposition and Development Agreement for the Resort Hotel Convention Center
Project (Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 (the “DDA”); and
B. WHEREAS, the Scope of Development attached to the DDA provides that the
Developer shall in connection with the development of Developer’s Private Improvements (as
defined in the DDA) construct certain in-road sewer improvements, consisting of E Street (from
G Street to H Street), the G Street Connection, and the H-3 Utility Corridor (collectively, the
“Developer’s Sewer Improvements” or “Project”), to be funded by the City’s Sewer Facility
Contribution; and
C. WHEREAS, pursuant to Chula Vista Municipal Code (“CVMC”) Section
13.14.030(B) (Connection to Public Sewer – Fee), any person desiring to connect, directly or
indirectly, any parcel or any building thereon to any public sewer which has been constructed at
no cost to the parcel to be connected shall pay the one-time required fee for sewer connection to
the City, with all revenue derived from such fees to be deposited into the Sewer Income Fund; and
D. WHEREAS, pursuant to CVMC Chapter 3.16 (Sewer Income Fund), all revenues
collected under CVMC Section 13.14.030(B) shall be deposited into the “Sewer Income Fund”
and may be used, in the discretion of the City Council (as defined below) and 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; and
E. WHEREAS, the Developer’s Sewer 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, development and construction of the Developer’s Sewer Improvements;
and
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G. WHEREAS, Developer desires to enter into this Agreement with the City, so that
it may obtain reimbursement for the eligible costs of designing, developing and constructing
Developer’s Sewer 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 I. 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 acceptance pursuant to standard and customary
City practices immediately following Substantial Completion of the Project.
1.2. Agreement. “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 Developer’s Sewer Improvements as approved and
permitted by the City.
1.4. BMP. “BMP” has the meaning given to such term in Section 8.1.3.
1.5. Chula Vista Standard Special Provisions. “Chula Vista Special Standard Provisions”
means Section 1-2 of Part 1, Part 2, Part 3, and Part 4 of the City of Chula Vista Standard
Special Provisions.
1.6. City. “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.
1.7. City Attorney. “City Attorney” means that position established pursuant to and in
accordance with CVMC Chapter 2.11.
1.8. City Council. “City Council” means the governing body of the City.
1.9. City Engineer. “City Engineer” means that position established pursuant to and in
accordance with CVMC Chapter 2.06.
1.10. City Manager. “City Manager” means the City Manager of City or his or her designee.
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1.11. Competitive Bid or Solicitation Process. “Competitive Bid or Solicitation Process” has the
meaning given to such term in Section 6.1.
1.12. Contested Charge. “Contested Charge” has the meaning given to such term in Section
9.1.5.3.
1.13. Contract Documents. “Contract Documents” includes, but is not limited to: the prime
construction contract(s), prime construction contract(s) exhibits and addenda,
subcontract(s), subcontract(s) exhibits and addenda, and any of the following: 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 City or 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), in
each case, in connection with the Project.
1.14. Cutoff Date. “Cutoff Date” means one (1) year from the date of Acceptance of the Project.
1.15. CVMC. “CVMC” has the meaning given to such term in the Recitals.
1.16. DDA. “DDA” has the meaning given to such term in the Recitals.
1.17. DDA Close of Escrow. “DDA Close of Escrow” means Close of Escrow as such term is
defined in the DDA.
1.18. Defective Work. “Defective Work” means all work, material, or equipment that is
unsatisfactory, faulty, incomplete, or does not substantially conform to the Contract
Documents.
1.19. Design and Construction Standards. “Design and Construction Standards” means the
edition of the City-adopted Design and Construction Standards for public works projects
that is in effect when the Approved Drawings and Specifications are approved by the City
for purposes of the bids and which is available in the City’s Department of Engineering
and Capital Projects and on the City’s website.
1.20. Developer. “Developer” has the meaning given to such term in the preamble.
1.21. Developer’s Sewer Improvements. “Developer’s Sewer Improvements” has the meaning
given to such term in the Recitals.
1.22. Director of Development Services. “Director of Development Services” means the
Director of Development Services of City or his or her designee.
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1.23. District. “District” has the meaning given to such term in the Recitals.
1.24. Estimated Cost. “Estimated Cost” means the total cost of the design, development and
construction of the Developer’s Sewer Improvements, as estimated by preliminary
engineering studies to total $1,195,000, as shown in Exhibit A attached hereto. As
Estimated Cost is not initially the result of competitive bids for the actual design,
development 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.
1.25. Execution Date. “Execution Date” has the meaning given to such term in the preamble.
1.26. Final Accounting. “Final Accounting” has the meaning given to such term in Section 9.1.7.
1.27. General Contractor. “General Contractor” means a party or parties under any contract with
the Developer to perform the work or provide supplies for the Developer’s Sewer
Improvements.
1.28. Greenbook. “Greenbook” means sections 1-1 through 1-5 of Part 1, section 2-11 of Part
1, Part 2, Part 3, Part 4, and Part 5 of the 2012 edition of the Standard Specifications for
Public Works Construction.
1.29. Ground Lease. “Ground Lease” means that certain San Diego Unified Port District Lease
to RIDA Chula Vista, LLC of Property Located at Chula Vista, California to be executed
by the Developer and the District pursuant to the DDA.
1.30. 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.
1.31. 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 both
legal holidays):
Holiday Observed On
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New Year’s Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
Veteran’s Day November 11
Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25
1.32. Illegal Discharge. “Illegal Discharge” has the meaning given to such term in Section
14.1.3.
1.33. Maximum Reimbursement Amount. “Maximum Reimbursement Amount” means the
lesser of the Estimated Cost, as may be amended from time to time, or the amount of
Reimbursable Costs that is calculated during the Final Accounting (as defined below).
1.34. Non-Reimbursable Costs. “Non-Reimbursable Costs” means the following costs that shall
not be eligible for reimbursement under this Agreement: Costs Incurred Due to
Negligence, Unapproved Costs, Excess Costs, Non-Project Shared Costs, and Defective
Work Costs each as further defined in Section 9.1.5.2.
1.35. Notice of Completion. “Notice of Completion” means the standard document recorded by
the City upon completion of a public works project in accordance with City’s standard and
customary practices.
1.36. Party. “Party” has the meaning given to such term in the preamble.
1.37. Payment Date. “Payment Date” means twenty (20) days following the date on which
Developer submits a complete Reimbursement Request (as reasonably determined by the
Director of Development Services) or a Reimbursement Request that is complete with
respect to a portion of the requested reimbursement (as reasonably determined by the
Director of Development Services).
1.38. Pre-Existing Hazardous Material: “Pre-Existing Hazardous Material” means any
Hazardous Material located on or under the Project Site prior to the Execution Date,
whether known or unknown, or any Hazardous Material located outside the Project site
(including any premises owned by the City) prior to the Execution Date that migrates to
the Project site thereafter.
1.39. Project. “Project” has the meaning given to such term in the Recitals.
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1.40. Project Improvements. “Project Improvements” or “Improvements” means the
Developer’s Sewer Improvements.
1.41. Project Site. “Project Site” means the location of the Project for purposes of pre-
construction services and construction.
1.42. Reimbursable Costs. “Reimbursable Costs” means costs of the design, development and
construction (including (i) the premium cost of builder’s risk insurance, (ii) the premium
cost of liability insurance, (iii) all other approved premium insurance costs, and (iv)
builder’s risk insurance deductible, liability insurance deductible, and self-insured
retention (SIR) costs not-to-exceed $25,000 per occurrence and with an aggregate cap in
an amount approved by the City) of the Developer’s Sewer Improvements that have been
expended by Developer and approved by the City through approval procedures described
in the Agreement.
1.43. Reimbursement Request. “Reimbursement Request” means a reimbursement request
package submitted to the City containing the items listed in Section 9.1.3.1.
1.44. Sewer Facility Contribution. “Sewer Facility Contribution” means the contribution by the
City to fund specific sewer facility improvements comprising part of the RHCC Public
Improvements described in Exhibit A attached hereto and as may be more specifically
described in the Plan of Finance (as defined in the DDA).
1.45. Sewer Income Fund. “Sewer Income Fund” means the fund designated as the “sewer
income fund” with respect to the Developer’s Sewer Improvements pursuant to and in
accordance with CVMC Section 3.16.010.
1.46. Sewer Income Fund Eligible Expenses. “Sewer Income Fund Eligible Expenses” means
costs for which the City shall reimburse Developer from the Sewer Income Fund (or an
alternative source of funds identified by the City) for the design, development and
construction (including the cost of builder’s risk insurance and all other insurance costs) of
the Developer’s Sewer Improvements, not to exceed the Estimated Costs.
1.47. Sole Source Process. “Sole Source Process” has the meaning given to such term in Section
6.1.
1.48. Standard Specifications. “Standard Specifications” means the Greenbook, the local
standard special provisions referenced in the Approved Drawings and Specifications, and
any amendments thereto that are approved by the City.
1.49. Subcontractor. “Subcontractor” means a party or parties under any subcontract with the
General Contractor to perform the work or provide supplies for the Developer’s Sewer
Improvements.
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1.50. Substantial Completion. “Substantial Completion” means the stage in the progress of the
Project when the Project is sufficiently complete, in accordance with this Agreement, so
that the City can occupy or utilize the Project for its intended use.
1.51. SWPPP. “SWPPP” has the meaning given to such term in Section 8.1.3.
1.52. Working Day(s). “Working Day(s)” means Monday through Friday, excluding Holidays.
ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above-listed Recitals are true and correct and are incorporated by this reference. All
attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.
2.1. Developer’s Sewer Improvements. Except as expressly provided in this Agreement,
Developer shall cause the design and development of the Project Improvements in
accordance with the Schematic Plans (as defined in the DDA) for the development of Phase
1A Infrastructure Improvements (as defined in the DDA) that the District shall submit to
Developer pursuant to Section 4.4(b) of the DDA, and Developer shall cause the Project
Improvements to be constructed so that the Project Improvements are in accordance with
the applicable Contract Documents within the timeframe described in Section 5.1, in each
case, in accordance with all the terms and conditions of this Agreement and for the
Maximum Reimbursement Amount; provided, however, that the Developer shall have no
obligation to develop or construct any of the Project Improvements unless and until DDA
Close of Escrow occurs in accordance with the DDA.
2.2. Complete and Functional Improvements. Developer shall provide complete and functional
Developer’s Sewer Improvements that meet the Contract Documents and all other
applicable standards identified herein.
2.3. Maintain Until Acceptance. Following the completion of the Project Improvements,
Developer shall maintain the Project Improvements until the Acceptance.
2.4. City Payment. City shall reimburse Developer, in an amount not to exceed the Maximum
Reimbursement Amount and subject to the terms and conditions herein, for the Sewer
Income Fund Eligible Expenses of design, development, and construction of Developer’s
Sewer Improvements. City acknowledges and agrees that all of the Estimated Costs
identified in Exhibit A are Sewer Income Fund Eligible Expenses. The City represents and
warrants to Developer that, as of the Execution Date, the aggregate amount of funds on
deposit in the Sewer Income Fund is equal to or greater than the Maximum Reimbursement
Amount and that the City will use its reasonable efforts to manage the Sewer Income Fund
in a manner so that the aggregate amount of funds on deposit in the Sewer Income Fund
during the term of this Agreement is sufficient to pay all Reimbursable Costs in accordance
with this Agreement. To the extent that the amount of funds in the Sewer Income Fund are
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insufficient to pay all Reimbursable Costs, City shall identify alternative funds from which
to pay City’s Sewer Facility Contribution obligation pursuant to the DDA.
ARTICLE III. DURATION OF AGREEMENT
3.1. Term of Agreement. This Agreement shall become effective on the Execution Date, and
the term of this Agreement shall extend until the earlier of (i) such time as all executory
terms have been completed or (ii) earlier termination of this Agreement according to the
termination provisions herein.
ARTICLE IV. PROJECT COSTS
4.1. Estimated Cost. The Estimated Cost is one million dollars ($1,195,000), as shown in
Exhibit A 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. The City Manager or his/her designee shall review
complete sets of the drawings and specifications for the Developer’s Sewer
Improvements promptly after Developer provides them to the City. In the event
that the City Manager or designee reviews the drawings and specifications for the
Developer’s Sewer Improvements and determines that the cost of design,
development, and construction will exceed the then current Estimated Cost, the
Estimated Cost shall be increased to reflect the revised estimate in accordance with
subsection 4.2.2.
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 Developer’s Sewer
Improvements, or other cause beyond Developer’s control; (ii) actual bids received
being greater than estimated; (iii) other factors not the result of unreasonable
conduct by Developer; or (iv) the presence of any Hazardous Material on the
Project Site (as defined in the DDA). Subject to t he prior written approval by the
City Manager or his/her designee, which approval shall not be unreasonably
withheld, conditioned, or delayed, the Estimated Cost shall be increased by the
amount of the increase in the cost of the design, development, and construction of
the Developer’s Sewer Improvements that are determined by the City Manager or
his/her designee (in such person’s reasonable, good faith discretion) to be caused
by such events or circumstances.
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4.2.3. Failure to Obtain Approval of Increase. In any case where City Manager’s
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. City Manager shall not unreasonably withhold, condition or delay
its approval of any deductive change to the Project Improvements 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 definitively establishes that the
amount expended on the Project Improvements will exceed the Estimated Cost, Developer
shall promptly, and in any case not more than ten (10) Working Days after the Developer
definitively establishes the amount of the increase, notify the City thereo f 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 cost to within
the Estimated Costs. The City may either: (i) approve an increase in Estimated Cost (which
approval shall not be unreasonably withheld, conditioned, or delayed) or (ii) reasonably
delineate a project which may be constructed for the Estimated Cost; provided that such
delineation does not have a material and adverse effect on the design, development, or
construction of the Developer’s Private Improvements (as defined in the DDA) or the
Convention Center (as defined in the DDA); or (iii) any combination of (i) and (ii).
ARTICLE V. PROJECT SCHEDULE
5.1. Project Schedule. Developer shall complete the Project Improvements by sixty (60)
months and ten (10) days after the commencement date of the Ground Lease (such
deadline to be extended by one day for each day the applicable deadline is extended
pursuant to and in accordance with the Ground Lease, including pursuant to any
amendment to the Ground Lease). No delay in the completion of the Project
Improvements shall excuse any failure by Developer to timely complete the Resort Hotel
and the Convention Center (as each such term is defined in the Ground Lease) in
accordance with the Ground Lease, except as set forth in the Ground Lease.
5.2. Unavoidable Delay. Each Party shall be entitled to an extension of the date of the
performance of any obligation required of such Party under this Agreement in the same
manner and to the same extent as provided in the Ground Lease.
ARTICLE VI. COMPETITIVE BIDDING AND EQUAL OPPORTUNITY
6.1. Compliance. Developer shall bid and award contracts and subcontracts to complete Project
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) (Developer-Performed Public Works). Notwithstanding
anything to the contrary herein, the Parties agree that the Developer may (a) subject to
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CVMC §2.56.160(H)(1)(b) (Developer-Performed Public Works), award the prime
contract for the Project to the General Contractor on a sole source basis pursuant to and in
accordance with CVMC §2.56.160(H)(1)(b) (“Sole Source Process”) or, (b) subject to
CVMC §2.56.160(H) (Developer-Performed Public Works), award the prime contract for
the Project to the General Contractor by competitive bid or solicitation in accordance with
CVMC §2.56.160(H)(2)(d) (Developer-Performed Public Works) (“Competitive Bid or
Solicitation Process”). The Parties further agree that, in the case of the Sole Source
Process, the General Contractor for the Project shall award subcontracts for the P roject to
Subcontractors by competitive bid or solicitation in accordance with CVMC
§2.56.160(H)(2)(d) (Developer-Performed Public Works) (“Competitive Bid or
Solicitation Process”).
6.1.1. Proof of Advertising. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide the City with proof that the Developer or the General
Contractor, as applicable, solicited competitive bids from the General Contractor
and/or Subcontractors, as applicable, in accordance with CVMC
§2.56.160(H)(2)(c) (Developer-Performed Public Works).
6.1.2. Prevailing Wage. Developer shall advertise the Project as requiring the payment
of prevailing wage and include all provisions in the advertisement and Contract
Documents as required by the California Department of Industrial Relations.
6.2. Bid Opening and Award. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide City with a copy of the tabulation of competitive bid results with
respect to each contract and subcontract, as applicable. In the event that the best qualified
General Contractor’s bid or Subcontractor’s bid, as applicable, combined with a reasonable
amount for contingencies, exceeds the Estimated Cost, the increase in the costs may be
approved by the City Manager pursuant to Section 4.2.2 prior to awarding the prime
contract or the subcontract, as applicable. In the event the City Manager does not approve
the increased cost, this Agreement, at the City’s option but subject to the next sentence,
may be terminated upon prior written notice thereof to Developer of not less than twenty
(20) days and the Project may be rebid and/or redesigned. If the City notifies Developer
that it intends to exercise the termination option, then Developer shall have the right to pay
the amount in excess of the Estimated Cost (“Excess Cost”), in which case the City shall
no longer have the right to terminate this Agreement. Developer acknowledges and agrees
that payment of any Excess Cost shall not be a Reimbursable Cost under this Agreement.
In the event that the Agreement is terminated pursuant to this Section 6.2, the Developer’s
design, development, and/or construction costs will be reimbursed to Developer from the
Sewer Income Fund for the actual Reimbursable Costs expended by Developer prior to
termination of this Agreement. Developer shall provide City with copies of all executed
contracts awarded in accordance with this Section 6.2.
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6.3. Equal Employment Opportunities and Equal Opportunity 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, subconsultants, General
Contractor, and Subcontractors, to comply with this provision. Nothing in this
subsection 6.3.1 shall be interpreted to hold Developer liable for any discriminatory
practice of its General Contractor, Subcontractors or any other party.
6.3.2. Equal Employment Opportunity Certification. Developer shall require all bidders
to submit signed equal employment opportunity certifications, on forms approved
by the City, 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
bidders, the General Contractor, Subcontractors, vendors, or suppliers. Developer
shall provide equal opportunity for bidders, contractors, the General Contractor,
and Subcontractors to participate in contracting and subcontracting opportunities.
Developer understands and agrees that violation of this subsection 6.3.3 shall be
considered a material breach of this Agreement and may result in termination of
this Agreement, debarment, or other sanctions. The language in this subsection
6.3.3 shall be inserted in contracts between Developer, the General Contractor, any
Subcontractors, vendors, and suppliers awarded in accordance with Section 6.2.
ARTICLE VII. DESIGN AND CONSTRUCTION STANDARDS
7.1. Standard of Care. Developer agrees that it will require that the services provided as part
of this Agreement be performed in accordance with the standards customarily adhered to
by experienced and competent professional architectural, engineering, landscape
architecture, and construction firms (as applicable) using the degree of care and skill
ordinarily exercised by reputable professionals practicing in the same field of service in the
State of California.
7.1.1. Compliance with all Laws. Developer shall comply, and require compliance by
any of its General Contractor, Subcontractors, employees, and agents, with all laws,
including but not limited to all local, City, San Diego County, State of California,
and federal laws, codes and regulations, ordinances and written publicly available
policies, including, but not limited to, Development Services Department permits,
hazardous material permits, site safety, state and local building codes, stormwater
regulations, etc.
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7.2. Compliance with Design and Construction Standards. Developer shall comply, and require
compliance by any of its General Contractor, Subcontractors, employees, and agents, with
the Design and Construction Standards.
7.2.1. Standard Specifications. Developer shall comply, and require compliance by any
of its General Contractor, Subcontractors, employees, and agents, with the editions
of the following reference specifications that are in effect as of th e date of the
approval of the Approved Drawings and Specifications for purposes of the bids
when designing, developing, and constructing the Project: the Greenbook and the
regional and any local supplement amendments and the Chula Vista Standard
Special Provisions.
7.2.2. 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 the Standard
Specifications and the Approved Drawings and Specifications.
7.2.3. City Engineer Inspection. Inspections and approvals by the City Engineer in
accordance with the Standard Specifications shall not be unreasonably conditioned,
withheld or delayed.
7.3. Changes to Standards. Developer shall not be required to comply, nor to cause any of its
General Contractor, Subcontractors, employees, and agents to comply, with any design
standard or any construction standard or any amendment, update, supplement or other
modification to the Design and Construction Standards after the date of the approval of
the Approved Drawings and Specifications for purposes of the bids.
7.4. 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, except in the case of City’s express waiver of the requirement to
comply with (a) any City requirement, to the extent such requirement is waivable, or (b)
any good consulting, design, or construction practice. Nor shall City, through approval,
become an insurer or surety of work associated with the approvals.
ARTICLE VIII. CONSTRUCTION
8.1. Site Safety, Security, and Compliance. Developer shall be responsible for Project Site
safety, security, and compliance with all related laws and regulations.
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8.1.1. Persons. As between the Developer and the City, and without expanding the
Developer’s contractual obligations or duties to any person other than the City, the
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 on the Project Site 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.
Furthermore, Developer shall prepare and incorporate into the drawings and
specifications a Stormwater Pollution Prevention Plan (“SWPPP”) to be
implemented by Developer during Project construction and, until Acceptance,
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 (Storm Water Management and Discharge
Control).
8.1.4. Access to Project Site. City officers, agents, and employees that have Project-
related business shall have the right to enter the Project Site at any time for Project
related purposes; provided that such person complies with all written applicable
security and safety procedures provided by Developer to City, written instructions
given by Developer to City and oral instructions given by Developer or the General
Contractor to such person on the Project Site, and uses commercially reasonable
efforts to minimize any interference with Developer’s operation and use of the
Project Site while on the Project Site.
8.2. 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.
8.2.1. Follow all Laws, Rules, and Regulations. Developer agrees to follow all Federal
and State laws and regulations, and all written and publicly available 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.
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8.3. Traffic Control. Developer shall comply with all written traffic control requirements for
Project, including, if applicable, all traffic control plans and/or notes.
8.4. Maintenance. Developer shall maintain and be responsible for the Project and the Project
Site until Acceptance, including ongoing erosion prevention measures. Upon Acceptance,
City shall be responsible for maintenance of the Project.
ARTICLE IX. REIMBURSEMENT/PAYMENT OF COSTS AND EXPENSES
9.1. Payment of Costs Associated with Project
9.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for
Project shall not exceed the Maximum Reimbursement Amount. Neither
Developer nor the General Contractor nor any Subcontractor, nor any combination
thereof, shall be entitled to payment in excess of the Maximum Reimbursement
Amount.
9.1.2. Funds for Payment of Costs/Expenses. The source of funds for the payment of
costs/expenses associated with Project shall be limited to that listed below. No
other City funds, 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, age nts, the
General Contractor, or Subcontractors other than those identified in Section 9.1.2.1.
9.1.2.1. Funds for Project. Funds for payment of costs/expenses for Project shall
be limited to the City’s Sewer Facility Contribution.
9.1.3. Prerequisites to Payment.
9.1.3.1. Reimbursement Request. Prior to reimbursement of any costs or expenses
for the Project, 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 Reimbursable Costs associated with
Project, not previously paid by the City, within 30 days after receipt
thereof.
b. Proof of Payment. Developer shall provide the Director of
Development Services with proof of payment of all invoices for
Reimbursable Costs submitted within 30 days after such payment.
c. Lien Releases/Stop Payment Notices. Developer shall provide the
Director of Development Services with statutory lien/stop payment
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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 trade and
soft costs for which Developer is seeking reimbursement have been
paid.
e. Certification of Prevailing Wage Compliance. Developer shall
provide the Director of Development Services with a written
certification of compliance with all applicable Prevailing Wage laws
and regulations.
f. Acknowledgement of General Contractor and Subcontractors.
Developer shall provide the Director of Development Services with
a letter from each firm (e.g. civil, survey, and geotechnical)
acknowledging that eligible soft costs included in the relevant
invoices have been paid.
g. Time sheets. Developer shall provide the Director of Development
Services with time sheets from Developer’s construction manager
to justify the Project management costs.
h. 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.
i. Other Documents. Developer shall provide the Director of
Development Services with any other documents that reasonably
may be needed to evaluate the eligibility of the cost/expense as
Reimbursable Costs 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 applicable items listed
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 2-11 of the Greenbook. Developer shall ensure that all persons
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and entities providing work or services for the Project comply with the
inspection requirements provided in section 2-11 of the Greenbook.
9.1.3.3. Prevailing Wage Compliance. Developer shall ensure that all persons and
entities providing work or services for the Project comply with Prevailing
Wage requirements, as established by the California Department of
Industrial Relations, as applicable, in accordance with applicable law.
9.1.3.4. City Approval. The Director of Development Services shall review each
Reimbursement Request and the supporting documentation. If the
Director of Development Services finds that any such Reimbursement
Request is incomplete, improper, or otherwise not suitable for
reimbursement, then the Director of Development Services shall so
inform Developer in writing within fifteen (15) Working Days after
receipt thereof, of the reasons for his/her finding. If the Director of
Development does not find that any such Reimbursement Request is
incomplete, improper, or otherwise not suitable for reimbursement, then
the Director of Development Services shall so inform Developer in
writing within fifteen (15) Working Days after receipt thereof and within
that time period approve the Reimbursement Request. Developer shall
have the right to respond to such finding by submitting further
documentation requested in such finding after receipt of said finding. The
Director of Development Services shall review any further documentation
received from Developer in support of the Reimbursement Request and
inform Developer of his/her approval or denial of the Reimbursement
Request within ten (10) Working Days after receipt of such further
documentation. If the Director of Development Services determines that
the Reimbursement Request is incomplete, but that sufficient and
complete information exists with respect to a portion of the
Reimbursement Request, then the Director of Development Services may
but is not obligated to approve the Reimbursement Request with respect
to such portion of the Reimbursement Request. The City shall cause the
Director of Development Services to carry out its duties under this Section
9.1.3.3 in a reasonable and good faith manner.
9.1.4. Time of Payment. After Developer has obtained City’s approval pursuant to 9.1.3,
City shall reimburse Developer for the approved costs/expenses 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 Working Day.
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9.1.4.1. Additional Costs. Any costs that may accrue, such as interest on late
payments to Developer’s General Contractors, Subcontractors, or
suppliers as a result of the Developer’s failure to provide a complete
Reimbursement Request, shall not be the obligation of the City if the City
has not received a complete Reimbursement Request. Such additional
costs 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 (as defined below) on or before the Payment Date. If
the Payment Date falls on a weekend or holiday, the Payment Date shall be
extended to the next Working Day. Additional costs that result from the City’s
failure to make payments when required by this Agreement will be the obligation
of the City.
9.1.5.1. Withholding. The prime contract and subcontracts for the Project may
provide for withholding from each payment to the General Contractor or
the Subcontractor, as applicable, until Acceptance. 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 General Contractor or Subcontractor
withholding amount.
a. Payment and Invoicing for Withholding. Developer shall not pay
the General Contractor and the Subcontractors the amounts withheld
until (1) forty-five (45) 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
payment notices or mechanic’s liens have been filed and not
released with respect to the Project 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 PWE106 is completed.
iv. The final punch list is complete.
Where a stop payment 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 stop
payment notice or mechanic’s lien or a bond releasing the stop payment
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notice or mechanic’s lien has been filed and a conformed copy delivered
to the City. Notwithstanding anything in this Agreement to the contrary,
Developer shall not be required to withhold any funds from the General
Contractor or any Subcontractor to the extent doing so would violate any
applicable law.
9.1.5.2. Non-Reimbursable Costs. The following costs/expenses shall not be
eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled
to payment for any incremental cost or expense incurred due to
negligent acts, negligent omissions, or willful misconduct of
Developer, the General Contractor, or Subcontractors, or any of
their respective subcontractors, material suppliers, equipment
providers, employees, or agents.
b. Unapproved Costs. Developer shall not be entitled to
reimbursement for any cost or expense that has not been approved
by the City pursuant to Section 9.1.3.3.
c. Excess Costs. Developer acknowledges and agrees that any Excess
Cost (as defined in section 6.2 of this Agreement) shall not be a
Reimbursable Cost.
d. Non-Project Shared Costs. The parties acknowledge that Developer
may share certain costs (e.g. mobilization, traffic control) for the
Project with other projects contemplated under the DDA. Developer
acknowledges and agrees that any shared project costs that are not
directly attributable to or reasonably apportioned to the Project, as
reasonably determined by the City, shall not be a Reimbursable
Cost.
e. Defective Work Costs. Developer acknowledges and agrees that
defective work costs as provided in Section 12.3 of this Agreement
shall not be a Reimbursable Cost.
9.1.5.3. Contested Charges. In the event that the City contests any costs/expenses
on an invoice received (“Contested Charge”), the City shall provide
Developer a written statement of the Contested Charges, the reason why
the costs/expenses are contested, and a proposed resolution.
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a. Appeal to City Manager. Developer may appeal the City’s
determination of any Contested Charges. The appeal must be
received within 30 days after the City notifies the Developer of such
Contested Charge. During the appeal period, and as long as any
Contested Charge remains disputed, Developer shall proceed with
the Project, and the City shall compensate Developer for the
undisputed amounts. If, following the appeal, the Cit y Manager
determines that any Contested Charges are eligible for
reimbursement, such amounts shall be included in the next payment
to Developer.
9.1.6. Cutoff for Submission of Invoices. 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,
mechanic’s lien free, stop payment notice free, in accordance with the Contract
Documents. Final inspection and sign-off by the City’s inspectors with associated
mechanic’s lien and stop payment notice releases (or bonds releasing contested
mechanic’s liens or stop payment notices) shall be sufficient evidence of the
mechanic’s lien or stop payment notice free completion of the Improvements.
9.1.7. Final Accounting. Following completion of the Project, Developer shall submit a
final accounting (“Final Accounting”) to the City in order to determine the cost of
design, development, construction, and related work thereto to complete the
Improvements. Developer shall also submit all supporting information reasonably
necessary to document costs/expenses for the Improvements, including specific
details on the costs and work attributable to the Improvements, including, as
applicable, 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. Within 30 Working Days following a Final
Accounting, the City shall determine whether the actual payments made
to Developer equal the audited approved costs and expenses. In the event
that the amount of the approved costs and expenses 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 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 costs
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and expenses, Developer shall remit or cause the remittance of the
difference to the City within twenty (20) Working Days of a notice of
deficiency.
ARTICLE X. PROJECT ACCEPTANCE AND FINAL COMPLETION
10.1. No Waiver. Developer shall cause the work to be performed and completed in 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
11.1. 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.
11.1.1. Materials and Workmanship. Developer shall require the General Contractor and
Subcontractor(s) to guarantee all work on the Project against Defective Work for a
period of one (1) year from the date of Acceptance.
11.1.2. New Materials and Equipment. Developer shall require the General Contractor and
Subcontractor(s) 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 require the General
Contractor and Subcontractor(s) to warrant and guarantee to City that all work is in
accordance with the Contract Documents and is not Defective Work 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. The Developer shall require that 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, the General
Contractor or applicable Subcontractor, as applicable, shall promptly and in accordance
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with the City’s written instructions and within the reasonable time limits stated therein,
either correct, repair, or both remove and replace the Defective Work.
12.2. City’s Right to Correct. If circumstances warrant, including but not limited to an
emergency or the Developer’s failure, the General Contractor’s failure, or such
Subcontractor’s failure, as applicable, to adhere to Section 12.1, City may correct, remove,
or replace the Defective Work. In such circumstances, the Developer, the General
Contractor, and such Subcontractor(s), as applicable, shall not recover costs associated
with the Defective Work.
12.3. Non-Reimbursable Costs. Any costs incurred by Developer, the General Contractor,
Subcontractors or its agents to remedy defects are Non-Reimbursable Costs, unless the
Contract Documents require the Developer to reimburse for such costs. Notwithstanding
the foregoing, for the avoidance of doubt, the parties acknowledge and agree that the
following shall constitute Non-Reimbursable Costs: (i) costs to remedy defects due to the
negligence of the General Contractor, Subcontractors, or their agents; (ii) costs to remedy
defects due to the failure of General Contractor, Subcontractors, or their agents to comply
with the Contract Documents to the extent such costs exceed the guaranteed maximum
price contained in the Contract Documents, or (iii) costs to remedy defects where such
costs have been recovered from an alternate source (e.g. insurance or bond). If the City
has already reimbursed Developer, the General Contractor, Subcontractors or its agents, as
applicable, 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, the General Contractor, Subcontractors or agents, as
applicable, have been paid in full, until the Defective Work is remedied unless the Contract
Documents require the Developer to reimburse for such costs.
12.4. Extension of Warranty. When Defective Work, or damage therefrom, has been corrected,
repaired, replaced or removed, as applicable, during the warranty period, the one (1) year
or another relevant warranty period, as applicable, will be extended for an additional time
period equal to that of the initial warranty period, from the date of the satisfactory
completion of the correction, repair, replacement or removal, as applicable, but, in no
event, beyond one (1) year from the date of the expiration of the initial warranty period.
12.5. No Limitation on Other Remedies. Exercise of the remedies for Defective Work pursuant
to this Article XII shall not limit the remedies City may pursue under this Agreement or at
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
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9.1.5.3. Developer shall maintain and keep all records relating to disputed work for a
period of three (3) years in accordance with Article XIV.
ARTICLE XIII. SECURITY FOR CONSTRUCTION
13.1. Bond. The Contract Documents shall require the General Contractor or Subcontractors to
provide a payment bond and a performance bond, on forms acceptable to the City, for the
construction of the Project in an amount of no less than the Estimated Cost. Developer
shall cause the City to be named as a co -obligee of the payment bond and performance
bond. Developer shall deliver copies of the payment bond and performance bond to City
prior to commencement of construction for the Project. Developer shall ensure the
payment bond and performance bond are maintained until such time as the Project is
complete and Accepted by the City.
13.2. Insolvency or Bankruptcy. If the surety on any of the above-mentioned bonds 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) Working Days after the
City notifies the Developer thereof substitute or require the substitution of another bond
and surety, reasonably acceptable to the City.
13.3. Calling the Bond. Developer acknowledges and agrees that if Developer’s construction of
the Improvements has not been completed in accordance with Section 5.1, has not been
performed in accordance with the Contract Documents, or if the Developer has failed to
cure any Defective Work within the commercially reasonable time specified in a written
notice of defect, the City may use the security referenced in Section 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
14.1. Defense, Indemnity, and Hold Harmless.
14.1.1. General Requirement. (a) Developer shall defend, indemnify, protect, and hold
harmless (collectively, “Indemnify”) the City, its elected and appointed officers,
agents and employees (collectively, the “Indemnified Parties”), from and against any
and all claims, demands, causes of action, costs, expenses, liabilities, loss, damages,
and injuries (collectively, “Loss”), in law or equity, to property, including takings
claims, or persons, including wrongful death, to the extent and proportion directly or
indirectly caused by any negligent acts or negligent omissions, or negligence or
willful misconduct of Developer, its officials, officers, the General Contractor,
Subcontractor(s), agents, or employees arising out of or in connection with the
performance of the Project or this Agreement; provided, however, from and after the
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tenth (10th) anniversary of the date of Acceptance, Developer shall have no obligation
to Indemnify the Indemnified Parties for any Loss that arises out of any design or
other defect in connection with the Project.
(b) 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 officials,
officers, agents or employees.
(c) Also covered by this provision is liability arising from, connected with, caused
by, or claimed to be caused by the active or passive negligent acts or negligent
omissions of the City, its agents, officers, officials or employees which may be in
combination with, and to the extent and proportion caused by, the active or passive
negligent acts or negligent omissions of Developer or its officials, officers, the
General Contractor, 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 and
proportion caused by the negligence by Developer, its officials, officers,
the General Contractor, 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 and proportion
caused by the negligence by Developer, its officials, officers, the General
Contractor, Subcontractor(s), agents, or employees in the construction of
the Improvements in accordance with the Contract Documents.
14.1.2. Hazardous Materials. (a) 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, the General
Contractor, 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.
(b) Notwithstanding the foregoing, Developer shall have no obligation to
Indemnify any Indemnified Party for any Loss related to any Pre-Existing
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Hazardous Material except to the extent Developer, any of its officials, officers, the
General Contractor, Subcontractor(s), contractors, agents, or employees, or any
combination thereof, is negligent in releasing, allowing a release, or causing a
release of such Pre-Existing Hazardous Material. Developer expressly preserves
its rights against other parties and does not release or waive its rights to contribution
against any other party.
14.1.3. Illegal Discharge to Storm Drains. 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 laws 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, the
General Contractor, Subcontractor(s), agents, or employees to take reasonable
measures to prevent an Illegal Discharge or any Illegal Discharge by any such
persons or entities. 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 officials, officers,
agents or employees.
14.1.4. Costs of Defense and Award. Developer shall immediately accept all tenders and
defend, at Developer’s own cost, expense and risk, any and all claims, demands,
suits, actions, or other legal or administrative proceedings that may be brought or
instituted against the City, its officials, officers, employees and/or agents and that
appear to be covered by the defense obligation defined in Section 14.1.1(a),
14.1.1(c), 14.1.1.1, 14.1.2(a), or 14.1.3. Developer acknowledges and agrees that
its obligation to accept tender and defend the City, its officials, officers, employees,
and/or agents as provided in this Section 14.1.4 is absolute and not subject to any
limitations in Sections 14.1.1(b) and 14.1.2(b) of this Agreement, or elsewhere.
Developer shall pay and satisfy any judgement, award, or decree that may be
rendered against City or its officials, officers, employees and/or agents, 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 and only to the extent Section 14.1.1 or 14.1.2 requires Developer
to do so. The City may, in its reasonable 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 officials, officers, employees and/or agents, and the
Developer shall have the 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. Prior to incurring any defense costs, City agrees
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to notify Developer and offer to meet-and-confer with Developer to discuss
practicable measures to manage total defense costs. The City’s participation shall
not relieve the Developer of any of its obligations under this Article XIV.
14.1.5. Insurance Proceeds. Developer’s obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its officials, officers, employees
and/or agents.
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, that the 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. INSURANCE REQUIREMENTS
15.1. Insurance Requirements. Developer shall, and shall require its architects, engineers,
contractors, subcontractors, and other persons and entities providing services for or
performing work on the Project to purchase and maintain insurance in the same manner
and to the same extent as required by Section 4.10 of the DDA. The parties agree to meet-
and-confer to try to identify insurance coverage to cover losses to Project supplies,
materials, and equipment prior to Acceptance.
ARTICLE XVI. RECORDS AND AUDITS
16.1. 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.
16.2. Audit of Records. At any time during normal business hours and as often as the City deems
necessary, Developer, the General Contractor and any or all of Subcontractors shall make
available to the City for examination at reasonable locations within the Cit y/County of San
Diego all of the data and records with respect to all matters covered by this Agreement.
Developer, the General Contractor 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
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26 City of Chula Vista Agreement No.: 2018-075
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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.
16.1.1. 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 reasonably 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 XVII. MISCELLANEOUS PROVISIONS
17.1. 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 Working Day,
if sent prepaid by recognized overnight service such as FedEx for delivery the next
Working Day; or (iii) three (3) Working Days after deposit in the United States mail,
certified or registered mail, 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 Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Legal Department
With a copy to: Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
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17.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do
not define, describe or limit any term of this Agreement.
17.3. Entire 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 force 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.
17.4. 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.
17.5. Recordation. The City may record this Agreement in the Office of the County Recorder of
San Diego County, California.
17.6. 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.
17.7. 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.
17.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or
in part, except by written instrument duly executed and acknowledged by the Parties hereto,
their successors or assigns.
17.9. Governing Law 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 San 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 San Diego.
17.10. Administrative Claims. 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.
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17.11. Non-liability of City Officials and Employees. 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.
17.12. Counterparts. 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.
17.13. Electronic Signatures. The words “execution”, “execute”, “signed”, “signature”, and
words of like import in or related to any document signed or to be signed in connection
with this Agreement and the transactions contemplated hereby shall be deemed to in clude
electronic signatures, the electronic matching of assignment terms and contract formations
on electronic platforms approved by the Parties, or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case
may be, to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the California Uniform
Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
[End of page. Signature page follows this page.]
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29 City of Chula Vista Agreement No.: 2018-075
RIDA CHULA VISTA, LLC
IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and
year first set forth above.
CITY
CITY OF CHULA VISTA, a California
charter city and municipal corporation
By:
Maria Kachadoorian, City Manager
ATTEST:
By:
Kerry Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Glen R. Googins, City Attorney
DEVELOPER
RIDA CHULA VISTA, LLC, a Delaware
limited liability company
California Contractor License Number:
1039979
By:
Ira M. Mitzner, Manager
DocuSign Envelope ID: 63A2F5F6-1483-4190-960F-D42128A6C289
For
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30 City of Chula Vista Agreement No.: 2018-075
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Exhibit A
Estimated Cost
Improvement Description
Sewer
Improvement Cost
Estimate
E Street (G Street to H Street) 730,000
G Street Connection 85,000
H-3 Utility Corridor 380,000
Total 1,195,000
DocuSign Envelope ID: 63A2F5F6-1483-4190-960F-D42128A6C289
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
City of Chula Vista First Amendment to Agreement No.: 2018-075
RIDA Chula Vista, LLC
FIRST AMENDMENT
TO REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO CONSTRUCT SPECIFIED BAYFRONT SEWER IMPROVEMENTS
This FIRST AMENDMENT (“Amendment”) is entered into effective as of February 27, 2024 (the
“First Amendment Effective Date”) by and among the City of Chula Vista, a chartered municipal
corporation (“City”) and RIDA Chula Vista, LLC, a Delaware limited liability company
(“Developer”) (collectively, the “Parties and, individually, a “Party”), with reference to the
following facts:
RECITALS
WHEREAS, City and Developer previously entered into Reimbursement Agreement to
Construct Specified Bayfront Sewer Improvements (the “Original Agreement”) on September 15,
2020; and
WHEREAS, City and Developer desire to amend the Original Agreement to expand the
scope of the Project Improvements (as defined in the Original Agreement) to include the
construction of in-road sewer facilities in H Street (the “H Street Sewer Improvements”) and an
overflow tank for the G Street sewer pump station as more specifically set forth below; and
WHEREAS, pursuant to Chula Vista Municipal Code (“CVMC”) Section 13.14.090
(Sewer Capacity Charge), any owner or person making application for a permit to develop or
modify use of any residential, commercial, industrial or other property shall pay a sewer capacity
charge. All revenue derived from such fees shall be deposited in the “Trunk Sewer Capital
Reserve” fund; and
WHEREAS, pursuant to CVMC Chapter 3.14 (Trunk Sewer Capital Reserve Fund), all
revenues collected under CVMC Section 13.14.090 shall be deposited into the “Trunk Sewer
Capital Reserve Fund” and may be used, in the discretion of the City Council, for the planning,
design, or construction of sewage collection or treatment or water reclamation purposes or
purposes incidental to paying all or any part of the cost and expense to enlarge sewer facilities of
the City so as to enhance efficiency of utilization and/or adequacy of capacity in order to
effectively serve the needs of the City or paying all or any part of the cost and expense to plan
and/or evaluate any future proposals for area-wide sewage treatment and/or water reclamation
systems or facilities; and
WHEREAS, City, Developer, and the San Diego Unified Port District (“District”) entered
into a Disposition and Development Agreement for the Resort Hotel Convention Center Project
(Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 (the “DDA”); and
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WHEREAS, the Scope of Development attached to the DDA provided that the G Street
sewer pump station would be constructed by or on behalf of the City and financed by the City,
which financing may be through any financing mechanism in City’s sole and absolute discretion;
and
WHEREAS, the G Street sewer pump station requires the construction of an overflow tank
(the “Pump Station Overflow Tank”), which is most efficiently placed within Developer’s
leasehold interest; and
WHEREAS, City has completed preliminary design of the Pump Station Overflow Tank;
and
WHEREAS, in order to achieve certain financial, construction management, and schedule
efficiencies, City recommends, and Developer agrees, that construction of the Pump Station
Overflow Tank shall be performed by Developer; and
WHEREAS, the estimated cost of constructing the Pump Station Overflow Tank is
$5,555,000; and
WHEREAS, the construction of the Pump Station Overflow Tank is eligible for
reimbursement from the Trunk Sewer Capital Reserve Fund; and
WHEREAS, costs for the H Street Sewer Improvements were not part of the Original
Agreement, but are also eligible for reimbursement and were included in the budget for the Project
Improvements approved by the City Council in May 2022; and
WHEREAS, City has completed preliminary design of the H Street Sewer Improvements;
and
WHEREAS, in order to achieve certain financial, construction management, and schedule
efficiencies, City recommends, and Developer agrees, that construction of the H Street Sewer
Improvements shall be performed by Developer; and
WHEREAS, the City has sufficient funds in the Sewer Income Fund and Trunk Sewer
Capital Reserve to reimburse Developer for the final design and construction of the Pump Station
Overflow Tank and the H Street Sewer Improvements; and
WHEREAS, Developer desires to enter into this Amendment, so that it may obtain
reimbursement for eligible costs incurred by Developer in the final design and construction of the
Pump Station Overflow Tank and the H Street Sewer Improvements; and
WHEREAS, the final design and construction of the Pump Station Overflow Tank and the
H Street Sewer Improvements shall be self-performed by Mortenson McCarthy Joint Venture
(“MMJV”) on a lump sum basis, with additional second-tier subcontracts to be awarded ancillary
scopes; and
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WHEREAS, such procurement has been found to be in the best interest of the public and
that appropriate safeguards are in place to protect the public interest and approved by the City
Manager’s designee, as authorized by City Council Resolution 2019-170.
NOW, THEREFORE, in consideration of the above recitals and the mutual obligations of
the parties set forth herein, City and Developer agree as follows:
1. Article I of the Original Agreement is hereby amended as follows:
a. The defined term “Estimated Cost” is amended to mean the total cost of the
design, development and construction of the Project Improvements, as
estimated by preliminary engineering studies to total $14,793,639, as shown
in Exhibit A attached hereto. As Estimated Cost is not initially the result of
competitive bids for the actual design, development 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.
b. The defined term “General Contractor” is amended to mean party or parties
under any contract with the Developer to perform the work or provide
supplies for the Project Improvements.
c. The defined terms “Project Improvements” and “Improvements” are
amended to mean the Developer’s Sewer Improvements, the Pump Station
Overflow Tank, and the H Street Sewer Improvements.
d. The defined term “Reimbursable Costs” is amended to mean costs of the
design, development and construction (including (i) the premium cost of
builder’s risk insurance, (ii) the premium cost of liability insurance, (iii) all
other approved premium insurance costs, and (iv) builder’s risk insurance
deductible, liability insurance deductible, and self-insured retention (SIR)
costs not-to-exceed $25,000 per occurrence and with an aggregate cap in an
amount approved by the City) of the Project Improvements that have been
expended by Developer and approved by the City through approval
procedures described in the Agreement.
e. The defined term “Sewer Income Fund Eligible Expenses” is amended to
mean means costs for which the City shall reimburse Developer from the
Sewer Income Fund or the Trunk Sewer Capital Reserve Fund (or an
alternative source of funds identified by the City) for the design,
development and construction (including the cost of builder’s risk insurance
and all other insurance costs) of the Project Improvements, not to exceed
the Reimbursable Costs.
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f. The defined term “Subcontractor” is amended to mean a party or parties
under any subcontract with the General Contractor to perform the work or
provide supplies for the Project Improvements.
2. Article I of the Original Agreement is hereby further amended by adding the
following definitions in alphabetical order:
a. Amendment. “Amendment” means that certain First Amendment to
Reimbursement Agreement with RIDA Chula Vista, LLC, to Construct
Specified Bayfront Sewer Improvements, dated as of February 27, 2024, by
and between City and Developer.
b. H Street Sewer Improvements. “H Street Sewer Improvements” means in-
road sewer facilities in H Street as shown in the Phase 1A Construction
Documents.
c. Pump Station Overflow Tank. “Pump Station Overflow Tank” means an
overflow tank for the G Street sewer pump station.
d. Trunk Sewer Capital Reserve Fund. “Trunk Sewer Capital Reserve Fund”
means the fund designated as the “Trunk Sewer Capital Reserve Fund” in
accordance with CVMC Chapter 3.14.
3. Exhibit A of the Original Agreement is hereby replaced with Exhibit A attached
hereto.
4. Section 2.1 of the Original Agreement is amended to read as follows:
2.1 Developer’s Sewer Improvements. Except as expressly provided in this
Agreement, Developer shall cause (a) the design and development of the
Developer’s Sewer Improvements in accordance with the Schematic Plans (as
defined in the DDA) for the development of Phase 1A Infrastructure Improvements
(as defined in the DDA) that the District shall submit to Developer pursuant to
Section 4.4(b) of the DDA, (b) the design and development of the Pump Station
Overflow Tank in accordance with the plans and specifications approved by the
City for the Pump Station Overflow Tank project, and (C) the design and
development of the H Street Sewer Improvements in accordance with the plans and
specifications approved by the City for the H Street Sewer Improvements project ,
and Developer shall cause the Project Improvements to be constructed so that the
Project Improvements are in accordance with the applicable Contract Documents
within the timeframe described in Section 5.1, in each case, in accordance with all
the terms and conditions of this Agreement and for the Maximum Reimbursement
Amount; provided, however, that the Developer shall have no obligation to develop
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City of Chula Vista First Amendment to Agreement No.: 2018-075
RIDA Chula Vista, LLC 5 of 9
or construct any of the Project Improvements unless and until DDA Close of
Escrow occurs in accordance with the DDA.
5. Section 2.2 of the Original Agreement is amended to read as follows:
2.2. Complete and Functional Improvements. Developer shall provide complete
and functional Project Improvements that meet the Contract Documents and all
other applicable standards identified herein.
6. Section 2.4 of the Original Agreement is amended to read as follows:
2.4. City Payment. City shall reimburse Developer, in an amount not to exceed
the Maximum Reimbursement Amount and subject to the terms and conditions
herein, for the Sewer Income Fund Eligible Expenses of design, development, and
construction of Project Improvements. City acknowledges and agrees that all of
the Estimated Costs identified in Exhibit A are Sewer Income Fund Eligible
Expenses. The City represents and warrants to Developer that, as of the First
Amendment Effective Date (as defined in the First Amendment), the aggregate
amount of funds on deposit in the Sewer Income Fund and the Trunk Sewer Capital
Reserve Fund is equal to or greater than the Maximum Reimbursement Amount
and that the City will use its reasonable efforts to manage the Sewer Income Fund
and the Trunk Sewer Capital Reserve Fund in a manner so that the aggregate
amount of funds on deposit in the Sewer Income Fund and the Trunk Sewer Capital
Reserve Fund during the term of this Agreement is sufficient to pay all
Reimbursable Costs in accordance with this Agreement. To the extent that the
amount of funds in the Sewer Income Fund and the Trunk Sewer Capital Reserve
Fund are insufficient to pay all Reimbursable Costs, City shall identify alternative
funds from which to pay City’s Sewer Facility Contribution obligation pursuant to
the DDA and the costs related to the Pump Station Overflow Tank and the H Street
Sewer Improvements.
7. Section 4.2.1 of the Original Agreement is amended to read as follows:
4.2.1. Revisions to the Estimated Cost. The City Manager or his/her designee shall
review complete sets of the drawings and specifications for the Project
Improvements promptly after Developer provides them to the City. In the event
that the City Manager or designee reviews the drawings and specifications for the
Project Improvements and determines that the cost of design, development, and
construction will exceed the then current Estimated Cost, the Estimated Cost shall
be increased to reflect the revised estimate in accordance with subsection 4.2.2.
8. Section 4.2.2 of the Original Agreement is amended to read as follows:
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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 Project Improvements, or
other cause beyond Developer’s control; (ii) actual bids received being greater than
estimated; (iii) other factors not the result of unreasonable conduct by Developer;
or (iv) the presence of any Hazardous Material on the Project Site (as defined in the
DDA). Subject to the prior written approval by the City Manager or his/her
designee, which approval shall not be unreasonably withheld, conditioned, or
delayed, the Estimated Cost shall be increased by the amount of the increase in the
cost of the design, development, and construction of the Project Improvements that
are determined by the City Manager or his/her designee (in such person’s
reasonable, good faith discretion) to be caused by such events or circumstances.
9. Section 9.1.2.1 of the Original Agreement is amended to read as follows:
9.1.2.1. Funds for Project. Funds for payment of costs/expenses for Project shall
be limited to the City’s Sewer Facility Contribution and the funds in the Trunk
Sewer Capital Reserve Fund.
10. Notwithstanding anything to the contrary in the Original Agreement, City
acknowledges and agrees that (a) the final design and construction of the Pump
Station Overflow Tank and the H Street Sewer Improvements shall be self-
performed by Mortenson McCarthy Joint Venture (“MMJV”) on a lump sum basis,
with additional second-tier subcontracts to be awarded ancillary scopes, (b) such
procurement is in the best interest of the public and that appropriate safeguards are
in place to protect the public interest and approved by the City Manager’s designee,
as authorized by City Council Resolution 2019-170, and (c) such procurement
complies with all applicable laws, rules, regulations and ordinances.
11. City represents that City has sufficient funds in the Trunk Sewer Capital Reserve
to reimburse Developer for the final design and construction of the Pump Station
Overflow Tank and the H Street Sewer Improvements.
12. Except as expressly provided herein, all other terms and conditions of the Original
Agreement shall remain in full force and effect.
13. Each Party represents that it has the full right, power, and authority to execute this
Amendment and to perform its obligations hereunder, without the need for any
further action under its governing instruments, and the individuals executing this
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Amendment on behalf of such Party are duly authorized agents with authority to do
so.
[Signature Pages Follow]
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RIDA Chula Vista, LLC 8 of 9
SIGNATURE PAGE TO FIRST AMENDMENT
TO
REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO CONSTRUCT SPECIFIED BAYFRONT SEWER IMPROVEMENTS
CITY
CITY OF CHULA VISTA, a California
charter city and municipal corporation
By:
Maria Kachadoorian
City Manager
APPROVED AS TO FORM:
By:
Jill D.S. Maland
Lounsbery Ferguson Altona & Peak
Acting City Attorney
DEVELOPER
RIDA CHULA VISTA, LLC, a Delaware
limited liability company
California Contractor License Number:
109979
By:
Ira M. Mitzner
Manager
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City of Chula Vista First Amendment to Agreement No.: 2018-075
RIDA Chula Vista, LLC
Exhibit A
Estimated Cost
Improvement Description Original Amended Value as of
05/10/2022
Current Cost Estimate as
of 02/27/2024
E Street (G Street to H Street) $ 730,000 $ 1,695,826 $ 1,695,826
G Street Connection 85,000 561,871 561,871
H-3 Utility Corridor 380,000 1,192,664 1,192,664
H Street (Bay Blvd to Street A) 10,380 10,380
H Street (Marina Pkwy to E Street) 965,843 965,843
G Street Pump Station Overflow Tank $ 5,555,000
Change Orders to Date $ 1,812,055
Projected Exposure $ 3,000,000
Total $ 1,195,000 $ 4,426,584 $ 14,793,639
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v . 0 0 4 P a g e | 1
February 27, 2024
ITEM TITLE
Lease Agreement: Approve a Lease Agreement with GGP-Otay Ranch, L.P. for Tenant Space at Otay Ranch
Town Center for the Otay Ranch Branch Library
Report Number: 24-0068
Location: Otay Ranch Town Center 2015 Birch Rd. Suite 1103
Department: Community Services – Library
G.C. § 84308: Yes
Environmental Notice: The Project qualifies for a Categorical Exemption pursuant to the California
Environmental Quality Act State Guidelines Section 15301 Class 1 (Existing Facilities).
Recommended Action
Adopt a resolution approving a lease agreement with GGP-Otay Ranch, L.P. for the Otay Ranch Branch
Library.
SUMMARY
Since 2012 the City has served eastern Chula Vista at the Otay Ranch Branch Library located at the Otay
Ranch Town Center Mall. The lease for this space, provided by General Growth Properties-Otay Ranch, L.P,
is one dollar per year. GGP- OTAY RANCH, L.P has requested the City relocate the library branch, at their
expense, to a new location within the mall, 2015 Birch Rd. Suite 1103.
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 Categorical Exemption
pursuant to State CEQA Guidelines Section 15301 Class 1 (Existing Facilities), because the proposed project
would not result in a significant effect on the environment, create a cumulative impact, damage a scenic
highway, or cause a substantial adverse change in the significance of a historical resource. Thus, no further
environmental review is required.
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BOARD/COMMISSION/COMMITTEE RECOMMENDATION
The Board of Library Trustees was made aware of the relocation at its January meeting.
DISCUSSION
In 2012, to mitigate the absence of a full-service public library branch in eastern Chula Vista, the City of Chula
Vista and General Growth Properties-Otay Ranch, L.P. (GGP) negotiated a lease for a space at the Otay Ranch
Town Center for a rate of one dollar per year.
GGP contacted the City requesting that the branch relocate within the Otay Ranch Town Center Mall from
2015 Birch Road, Suite 409 to 2015 Birch Road, Suite 1103. GGP is maintaining the same lease rate of one
dollar per year and has agreed to pay up to for $20,000 relocation costs.
The City plans to operate the branch at this location until the opening of Millenia library which is anticipated
in 2025.
DECISION-MAKER CONFLICT
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 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
There is no fiscal impact as a result of this action.
ONGOING FISCAL IMPACT
There is no ongoing fiscal impact as a result of this action.
ATTACHMENTS
1. Lease Agreement with GGP-Otay Ranch, L.P.
2. Otay Ranch Branch Relocation Signage
Staff Contact: Joy Whatley, Library Director
Page 96 of 177
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Form Rev 3/6/2023
RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE LEASE OF ONE TENANT
SPACE WITH GGP-OTAY RANCH, L.P. AT THE OTAY
RANCH TOWN CENTER FOR THE OTAY RANCH BRANCH
LIBRARY
WHEREAS, the Otay Ranch Library Branch (“Branch”) has been leasing a space at the
Otay Ranch Town Center at 2015 Birch Road Suite 409 since 2012 at a cost of $1.00 per year; and
WHEREAS, the location the Branch has occupied was intended for a restaurant use; and
WHEREAS, the City was notified that a restaurant tenant had been identified by GGP-
Otay Ranch, L.P. for the current Branch space necessitating the Branch to move to meet the needs
of Otay Ranch Town Center; and
WHEREAS, the Library Branch is relocating to a different space at the Otay Ranch Town
Center, located at 2015 Birch Road Suite 1103; and
WHEREAS, GGP-OTAY RANCH, L.P., a Delaware limited partnership is paying up to
$20,000 in moving expenses; and
WHEREAS, the Branch will be closed during the relocation starting February 5th, 2024 and
reopen as soon as the relocation is complete; and
WHEREAS, the Branch staff will keep patrons informed about the reopening and location
information through social media platforms and press releases.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista,
that it approves the lease of the tenant space located at 2015 Birch Road Suite 1103 Otay Ranch
Town Center for the Branch , between the City and GGP- Otay Ranch L.P., 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 to execute same.
Presented by Approved as to form by
Joy Whatley Jill D.S. Maland
Library Director Lounsbery Ferguson Altona & Peak
Acting City Attorney
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Otay Ranch Town Center
Chula Vista Public Library
Space No. 1103
TABLE OF CONTENTS
REFERENCE PROVISIONS
ARTICLE ARTICLE
1 Leased Premises, Term and Use 31 Remedies
2 Original Construction 32 Successors and Assigns
3 Rental Commencement Date 33 Representations
4 Rental 34 Waiver
5 Definition of Total Sales, Gross Sales, and Net Sales 35 Holding Over
6 Records and Audits 36 Interpretation
7 Taxes 37 Advertising and
8 Subordination and Attornment Promotional Service
9 Additional Construction 38 Quiet Enjoyment
10 Condition of Leased Premises 39 Waiver of Redemption
11 Repairs and Maintenance 40 Fees
12 Alterations 41 Tenant's Property
13 Fixtures and Personal Property 42 Lease Status
14 Liens 43 Recording
15 Laws and Ordinances 44 Force Majeure
16 Environmental Services 45 Construction of Lease
17 Joint Use Areas and Operating Expenses 46 Security Deposit
18 Damage to Leased Premises 47 Captions
19 Insurance 48 Severability
20 Indemnification 49 Objection to Statements
21 Assignment, Subletting and 50 Liability of Landlord
Ownership 51 No Option
22 Access to Leased Premises 52 Execution of Documents
23 Defaults by Tenant 53 Corporate Tenant
24 Surrender of Leased Premises 54 Printed Provisions
25 Tenant's Conduct of Business 55 Entire Agreement
26 Rules and Regulations 56 No Third-Party Rights
27 Eminent Domain 57 Financial Statements
28 Attorneys' Fees 58 Other Locations
29 Sale of Leased Premises by Landlord 59 Tenant's Failure
30 Notices 60 Ownership
61 Special Provisions
AFFIDAVIT
EXHIBITS
EXHIBIT A, A-1 Plans of Leased Premises
EXHIBIT B Site Plan
EXHIBIT C Description of Landlord/Tenant Work
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Otay Ranch Town Center
THIS LEASE is between GGP-OTAY RANCH, L.P., a Delaware limited partnership ("Landlord"),
and The City Of Chula Vista, a California municipal corporation ("Tenant"). The date of this Lease is
______________________, 2023 ("Effective Date"). The Leased Premises are located in the Otay Ranch Town
Center ("Shopping Center") in the City of Chula Vista, County of San Diego, and State of California.
REFERENCE PROVISIONS
The following references define terms used in the specified Articles and elsewhere in this Lease and shall
be construed in accordance with the provisions and conditions in this Lease:
1.01 Leased Premises: 1103 Otay Ranch Town Center containing approximately 4,025 square feet of floor
area.
[ARTICLE 1(a)]
1.02 Expiration Date: February 28, 2027
[ARTICLE 1(b)]
1.03 Permitted Use: Only for the operation of a city library and passport acceptance facility. Tenant shall
not use the Leased Premises for any other use or purpose whatsoever.
[ARTICLE 1(c)]
1.04 Submittal date for preliminary plans: Not Applicable
[ARTICLE 2(d)]
Submittal date for final plans and specifications: Not Applicable
[ARTICLE 2(d)]
1.05 Beginning Work Date: The date that Landlord tenders possession of the Leased Premises to Tenant,
estimated to be the date of full execution of this Lease
[ARTICLE 2(e)]
1.06 Opening Date: 30 days after the Beginning Work Date
[ARTICLE 3]
1.07 Minimum Annual Rental:
[ARTICLE 4(a)]
Rental Commencement Date - 2/28/2027 $1.00 per year ($0.08 per month)
The sum outlined in Reference Provision 1.07 includes an unallocated share o f Taxes under
ARTICLE 7 and the Operating Expense Payment under Reference Provision 1.22 and ARTICLE 17 .
Landlord shall allocate such rental in its sole discretion. Such allocation shall in no way increase the
sum outlined above.
1.08 Percentage Rate: Not Applicable
[ARTICLE 4(b)]
1.09 Annual Sales Base and Monthly Sales Base: Not Applicable
[ARTICLE 4(b)]
1.10 Address of Landlord:
[ARTICLES 4 and 30]
Landlord’s Notice Address
GGP-OTAY RANCH, L.P.
c/o Otay Ranch Town Center
350 N. Orleans St.
Suite 300
Chicago, IL 60654-1607
Attn: Law/Lease Administration
Department
With a copy to:
Otay Ranch Town Center
2015 BIRCH ROAD, SUITE 500
CHULA VISTA, California 91915
Attn: General Manager
Landlord’s Payment Address:
GGP-OTAY RANCH, L.P.
OTAY RANCH TOWN CENTER
PO BOX 860763
MINNEAPOLIS, Minnesota 55486-0763
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1.11 Address of Tenant:
[ARTICLE 30]
Notice:
The City Of Chula Vista
365 F STREET
CHULA VISTA, California 91910
Billing:
The City Of Chula Vista
365 F STREET
CHULA VISTA, California 91910
1.12 Additional Gross Leasable Area Annual Rental Increase: Not Applicable
[ARTICLE 4(c)]
1.13 Anchor Minimum Annual Rental Increase: Not Applicable
[ARTICLE 4(d)]
1.14 Trade Name: “Chula Vista Public Library”
[ARTICLE 25]
1.15 Intentionally Omitted
[ARTICLE 37]
1.16 Initial Assessment: Not Applicable
[ARTICLE 37]
1.17 Preliminary Rent: Not Applicable
1.18 Construction Allowance: Not Applicable
[ARTICLE 2]
1.19 Security: Not Applicable
[ARTICLE 46]
1.20 Radius: Not Applicable
[ARTICLE 58]
1.21 Intentionally Omitted
1.22 Operating Expenses Payment: Not Applicable Tenant has no obligation to pay
Operating Expenses or an Operating Expenses Payment
pursuant to this Lease.
[ARTICLE 17]
1.23 Not Applicable
1.24 Chargeback Waiver: Notwithstanding anything to the contrary contained in the EXHIBITS attached
hereto, the construction chargeback items which Tenant shall be obligated to pay Landlord in
connection with the construction of the Leased Premises pursuant to the EXHIBITS shall be waived.
1.25 Not Applicable
1.26 A. Not Applicable
B. Not Applicable
C. Not Applicable
1.27 Termination Right:
A. Landlord Termination Right: Landlord shall have the right to terminate this Lease upon 180 days
advance written notice to Tenant.
B. Tenant Termination Right: Only during the last 12 months of the Term, Tenant shall have the
right to terminate this Lease upon 90 days advance written notice to Landlord.
1.28 Not Applicable
1.29 Not Applicable
1.30 Not Applicable
1.31 Not Applicable
1.32 Not Applicable
1.33 Not Applicable
1.34 Not Applicable
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1.35 Anchors: An "anchor" for all purposes under this Lease is any operation, land, building, store or
business, whether occupied or vacant and whether owned or leased, which leases or occupies 30,000
square feet or more of space in the Shopping Center. A "variety or specialty store" is (aa) an
occupant which leases or occupies between 10,000 and 29,999 square feet of space in the Shopping
Center, or (bb) a restaurant occupant having an exterior entrance. An "outparcel" is any operation,
land, building, store or business whether occupied or vacant and whether owned or leased, that is not
an anchor or variety or specialty store and is separated by vehicular access or parking area from the
Main Mall Building(s) or does not have an entrance accessible to the customers of the Shopping
Center directly from the Main Mall Building(s).
1.36 Tenant’s Moving/Signage Costs: Following Landlord’s
receipt of invoices therefor and such other documentation
as Landlord may reasonably request, Landlord agrees to
directly pay Tenant’s moving and signage vendors for the
moving and signage costs associated with Tenant’s
relocation to the Leased Premises, such costs to Landlord
capped at an aggregate of $20,000.00.
References to articles are for convenience and designate some of the other provisions where references to the
particular Reference Provisions appear. If there is a conflict between a Reference Provision and the other provisions
of this Lease, the former shall control.
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ARTICLE 1 - Leased Premises, Term and Use
(a) Landlord leases to Tenant and Tenant takes from Landlord in consideration of the covenants and
agreements in this Lease, the premises ("Leased Premises") being that portion of the building measured to the center
of common walls and the outside faces of exterior walls, on the drawings attached to this Lease and made a part of
this Lease as “EXHIBIT A” and “EXHIBIT A-1”. The Leased Premises shall include corridors and passageways
for the exclusive use of the Leased Premises, columns, stairs, elevators and an y construction or equipment located in
the Leased Premises, as well as pipes, conduits, electrical wires and drainage lines that directly serve the Leased
Premises. The Shopping Center includes all buildings, land, improvements, additions, extensions and deletions
which may be made from time to time, and may include adjacent parcels of land not owned, leased or controlled by
Landlord but which are operated as an integral part of the Shopping Center. The Leased Premises are described
further in the Reference Provisions. If the square footage of the Leased Premises is different than the amount set
forth in Reference Provision 1.01, all rental and additional rental and amounts based upon the square footage of the
Leased Premises shall be proportionately adjusted, and the parties shall execute an amendment to this Lease
memorializing the adjustments. If Tenant constructs a mezzanine in the Leased Premises, the square footage of the
Leased Premises shall be increased in an amount equal to the square footage of the mezzanine, and all rental,
additional rental and amounts based upon the square footage of the Leased Premises shall be proportionately
adjusted. The Parties shall execute an amendment to this Lease memorializing the adjustment. A mezzanine shall
not be permitted if the Leased Premises are located on an upper level.
EXHIBITS A, A-1 and B are for informational purposes only, and are not a warranty, representation or agreement
that the Leased Premises, Shopping Center or other areas will be as shown on the EXHIBITS, or that other
occupants if shown on the EXHIBITS will be in the Shopping Center. Tenant has not been granted any easements
of light, air or access. Tenant's rights are limited to the use and occupancy of the Leased Premises and the license to
use the Joint Use Areas as they may exist from time to time, all subject to the terms, covenants, conditions and
provisions of this Lease.
(b) The term of this Lease ("Term") shall begin on the Effective Opening Date and end on the Expiration
Date in the Reference Provisions.
(c) The Leased Premises shall be used and occupied only for the Permitted Use in the Reference Provisions,
and for no other use or purpose whatsoever. Unless specifically noted in the Reference Provisions, Tenant does not
have exclusive rights to sell any particular merchandise or provide any particular services in the Shopping Center.
ARTICLE 2 - Original Construction
(a) Landlord may make minor changes to the Leased Premises, provided the same does
not materially adversely interfere with (i) Tenant’s ability to
operate for the Permitted Use, (ii) the visibility of the Leased
Premises, and (iii) Tenant’s access to the Leased Premises or
the parking areas. Landlord may also make changes, reductions and additions without restr iction in
other areas of the Shopping Center (including all Joint Use Areas and all buildings and other improvements),
whether the changes are requested by other tenants or deemed desirable by Landlord.
(b) (i) If (1) within 24 months following the Opening Date, construction has not begun on the Shopping Center
site, or (2) within 36 12 months following the Opening Date, the Leased Premises has not been delivered to
Tenant by Landlord, this Lease may be terminated by either party by notifying the other i n writing, within 30 days
thereafter. [FOR THIS LEASE AT OTAY RANCH TOWN CENTER ONLY, the
following sentence is stricken:] Tenant releases Landlord and Landlord's contractor from
any claim for damages against Landlord or Landlord's contractor for any delay in the date on which the Leased
Premises shall be ready for delivery to Tenant.
(ii) Notwithstanding anything in 2(b) (i) above to the contrary, unless a different contingency period is
specifically stated in this Lease, if any conditions or contingencies relative to performance of any obligation
hereunder by either party, including but not limited to the obtaining of permits for any reason, are not satisfied
within one year after the Effective Date, then this Lease may be terminated by eithe r party effective upon 30 days
prior written notice to the other.
(c) Notwithstanding anything in this Lease or the EXHIBITS to
the contrary, Landlord agrees to perform its construction work shall not be required
to perform any work ("Landlord's Work") in the Leased Premises substantially in accordance with the
EXHIBITS. Tenant accepts the Leased Premises in its “as is”
condition. All other work on the Leased Premises shall be done by Tenant, at Tenant's expense ("Tenant's
Work"). Tenant's Work shall include, but not be limited to be to construct the Leased
Premises to Tenant’s most current prototype design and install
signage that adheres with Landlord signage criteria. All
Tenant’s Work shall be completed by Tenant pursuant to
Landlord’s design criteria and in accordance with Tenant’s plans
and specification for the Tenant’s Work as first approved by
Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. , the installation of storefronts and storefront signs, customer entrance
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doors, floor covering, plastering, interior decorating, wall and ceiling treatment, completion of the air conditioning
system and fire sprinkler system, extension of electrical service to the Leased Premises, connection of plumbing
lines to Landlord's system, the installation of electric lights and fixtures and all other electrical work. The design
and installation of mechanical and electrical systems, if any, shall comply with the requirements attached
and made a part of this Lease as the EXHIBITS. All signs and electrical work for the signs shall be installed by
Tenant at Tenant’s expense. They shall be of such character, design, size and at such locations as Landlord may
approve, which approval shall not be unreasonably withheld,
conditioned or delayed. They shall be in accordance with the EXHIBITS, which is attached and
made a part of this Lease. Tenant agrees not to install any signs until they have been approved by Landlord ,
which approval shall not be unreasonably withheld, conditioned
or delayed. Food Court Tenants shall conform to the Design and Operation Criteria contained in EXHIBIT
FC "Design and Operations for Food Court Tenants" attached and made a part of this Lease. If Tenant is prevented
from beginning construction Tenant’s Work in the Leased Premises by the Beginning Work Date because
of the failure of Landlord to substantially complete Landlord's Work within the Leased Premises, or the failure of
Landlord to deliver possession of the Leased Premises to Tenant by the Beginning Work Date in Reference
Provision 1.05, the Beginning Work Date and the Opening Date shall be extended by 1 day for
each day that Tenant is prevented. The certification of Landlord's architect that Landlord's Work is substantially
complete and in accordance with the plans and specifications shall be conclusive and binding upon the parties.
(d) Approval of the plans and specifications by Landlord for Tenant’s Work shall not create any
responsibility by Landlord for their accuracy, sufficiency or compliance with laws or rules and regulations. Tenant
shall be solely responsible for the such plans and specifications. When Landlord has approved Tenant’s plans and
specifications for Tenant’s Work, Landlord shall return one set of approved plans to Tenant. Such
approved plans shall show the date of Landlord’s approval and shall be made a part of this Lease as “EXHIBIT P”,
whether or not physically attached hereto. Tenant agrees not to begin Tenant's Work until Landlord has approved the
plans and specifications.
(e) Tenant shall begin Tenant's Work by the Beginning Work Date specified in the Reference Provisions,
proceed with it diligently and complete it in strict accordance with EXHIBIT P. Upon completion of Tenant's Work
Tenant shall provide a certificate furnished by or otherwise reasonably satisfactory to Landlord from
Tenant's contractor stating that no asbestos-containing materials or other Hazardous Materials as defined in
ARTICLE 15 were used in the construction of the Leased Premises. Tenant shall complete the installation of
fixtures, trade fixtures, improvements, equipment, stock and inven tory prior to the Opening Date.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, TENANT IS
REQUIRED TO OPEN FOR BUSINESS TO THE PUBLIC IN THE LEASED PREMISES ON OR BEFORE THE
OPENING DATE SPECIFIED IN THE REFERENCE PROVISIONS, SUBJECT TO ARTICLE 2(C)
ABOVE AND ARTICLE 44 BELOW. UNLESS REQUESTED TO DELAY THE OPENING DATE
PURSUANT TO ARTICLE 3(b).
If Tenant does not begin Tenant’s Work by the Beginning Work Date, Landlord shall have the right to terminate this
Lease by notifying Tenant in writing and providing a cure period, not to exceed 5 30 days. Tenant shall pay
Landlord as liquidated damages the cost of any work done by Land lord for Tenant (representing the actual cost plus
10% 15% for overhead), including, without limitation, electrical work, plumbing, concrete floor slabs, and heating
and air conditioning equipment and facilities, if any. If Tenant has not completed Tenant 's Work and opened its
store for business to the public by the Opening Date (subject to ARTICLE S 2 AND 3), Landlord shall be entitled
(i) to declare the same a default, and (ii) . In in addition to (and not in lieu of) Landlord's other
rights and remedies, Tenant's rental shall pay to Landlord, nevertheless begin beginning on the
Opening Date at the per day rate of the greater of either: (i) 1/10th of the monthly Hold Over Rental as
defined in Article 35 installment of Tenant's Minimum Annual Rental; or (ii) $1,000.00. Late
performance will cause Landlord to incur losses, damages and costs not contemplated under this Lease, the exact
amount of which are difficult to ascertain extremely impractical to fix. The costs include,
without limitation, reasonable processing and accounting charges. The parties agree that these late charges
are liquidated damages, represent a reasonable estimate of Landlord's costs and expenses and are fair compensation
to Landlord for the loss suffered by Landlord.
ARTICLE 3 - Rental Commencement Date
(a) The rental payments shall begin to accrue on the earlier of the following dates ("Rental Commencement
Date"): (i) the Opening Date; or (ii) the date on which Tenant shall open or conduct business from the Leased
Premises.
(b) Notwithstanding any provision to the contrary contained in this Lease, if applicable, Tenant agrees if
requested by Landlord to delay the opening of the Leased Premises for business in order to coincide with the grand
opening of the Shopping Center or a grand re-opening in the case of a major renovation ("Grand Opening"). In that
event, Tenant's obligation to pay rental shall begin on the Gra nd Opening Date.
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ARTICLE 4 - Rental
Tenant shall pay Landlord as rental for the use and occupancy of the Leased Premises, at the times and in the
manner provided, the following sums of money per annum without deduction or set -off and without prior demand:
(a) MINIMUM ANNUAL RENTAL: The Minimum Annual Rental shall be payable in 12 equal monthly
installments in advance, annually, upon on or before the Rental Commencement
Date and each subsequent anniversary of the Rental Commencement
Date during the Term. In the event the Rental Commencement Date
does not occur on the first day of calendar month, for the
second and each subsequent year during the Term, Minimum Annual
Rental shall be due on the first day of the calendar month
immediately following the anniversary of the Rental Commencement
Date. the 1st day of each and every month during the periods of time specified in the Reference Provisions.
If under ARTICLE 3 rental begins on a day other than the 1st day of a month, the monthly installment of Minim um
Annual Rental for the period from the Rental Commencement Date until the 1st day of the month next following
shall be prorated accordingly. All past due rental, additional rental, and other sums due Landlord under this Lease
shall bear interest from the due date until paid by Tenant, at the rate of 2% above the Prime Rate (as defined below),
not to exceed the maximum rate of interest allowed by law in the state where the Shopping Center is located (the
"Interest Rate"). The interest shall be deemed to be additional rental. All rental provided for in this Lease shall be
paid to Landlord at the address in the Reference Provisions or to another payee or address that Landlord designates.
"Prime Rate" wherever it appears in the Lease means the prime rate (or base rate) reported in the Money Rates
column or section of The Wall Street Journal as being the base rate on corporate loans at large U.S. money center
commercial banks (whether or not that rate has been charged by any bank). If The Wall Street Journal ceases
publication of the prime rate, Prime Rate shall mean the highest rate charged by Chase (or its successor) on short
term unsecured loans to its most creditworthy large corporate borrowers. If The Wall Street Journal (i) publishes
more than one prime rate or base rate, the higher or highest of the rates shall apply, or (ii) publishes a retraction or
correction of that rate, the rate reported in that retraction or correction shall apply.
(b) PERCENTAGE RENTAL: Tenant shall pay Landlord as "Percentage Rental" at the times and in the
manner provided below, an amount equal to the Percentage Rate of all Net Sales (defined in ARTICLE 5) in excess
of the Annual Sales Base for the calendar year specified in the Reference Provisions. In addition to a nd not in lieu
of Percentage Rental, Tenant shall pay to Landlord an amount equal to 8% of all monies and other revenues received
by Tenant, without regard to the Annual Sales Base, for material and/or information digitally downloaded from the
internet or any other remote source to any software format now in existence or hereafter created and sold to
customers in, at or from the Leased Premises (“Digital Download Rent”). Sale of such software and the material or
information contained therein must be within Tenant’s Permitted Use. Income received by Tenant resulting from
such sales shall be separately stated monthly and otherwise recorded and documented as set forth in Article 6 hereof,
but the amount thereof shall not be included in Net Sales applied to the Annual Sales Base in any year. Any Digital
Download Rent due from Tenant to Landlord for any month during the Term shall be payable within 30 days after
the end of the month in which the monies or other revenues were received.
Percentage Rental shall be paid monthly no later than the 15th day of the month, except that if the Rental
Commencement Date is other than the first day of a month, the Net Sales during the first partial month shall be
added to the Net Sales of the next month. The amount of each payment of Percentage Rental shall be equal to the
amount of Net Sales in excess of the Monthly Sales Base for the immediately preceding month multiplied by the
Percentage Rate. The Annual Sales Base and/or the Monthly Sales Base shall be prorated for any partial calendar
year upon the basis of 1/12th for each full month of the partial calendar year, plus an amount equal to 1/360ths for
each day if the Rental Commencement Date is other than the first day of the month. At the end of each calendar
year Percentage Rental shall be adjusted to a calendar year basis and the balance of the Percentage Rental due shall
be paid within 60 days after the end of that calendar year (including the last calendar year). If at the end of the
calendar year, the amount of the Percentage Rental paid by Tenant exceeds the amount of Percentage Rental
required to be paid by Tenant for that calendar year, Tenant shall receive a credit for the excess, and the excess shall
be deducted by Tenant from the next payments of Percentage Rental due (or after the last calendar year, Landlord
shall refund the excess to Tenant after Landlord's receipt of Tenant's certified statement of Net Sales covering the
last calendar year). Each calendar year shall be considered as an independent accounti ng period for the purpose of
computing the amount of Percentage Rental due. The amount of Net Sales of any calendar year shall not be carried
over into any other calendar year.
Net Sales during any calendar month in which Tenant does not continuously a nd without interruption conduct its
business shall be deemed to be the greater of: (i) Net Sales during that calendar month or (ii) Net Sales during the
calendar month in which Net Sales were the highest. This paragraph shall not apply to any calendar mon th in which
the Leased Premises are closed for business with the prior written consent of Landlord, or if the closing of the
Leased Premises is expressly permitted by this Lease.
"Lease Year" for all purposes under this Lease shall mean the 12 calendar mo nths between February 1 through and
including the next succeeding January 31. If the Rental Commencement Date is not February 1, then the period
from the Rental Commencement Date through and including the next succeeding January 31 shall be a partial Leas e
Year; "calendar year" for all purposes under this Lease shall mean the 12 calendar months between January 1
through and including the next succeeding December 31. If the Rental Commencement Date is not January 1, then
the period from the Rental Commencement Date through and including the next succeeding December 31 shall be a
partial calendar year.
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(c) ADDITIONAL GROSS LEASABLE AREA MINIMUM ANNUAL RENTAL INCREASE: After the
Opening Date, should either (i) the Shopping Center be renovated at a cost in excess of $__*__________________;
(ii) the Shopping Center be expanded by an addition of at least 50,000 feet of leasable area; or (iii) a lifestyle village
or wing be added to the Shopping Center regardless of whether such addition occurs as a replacement for an anchor
or not, the Minimum Annual Rental shall automatically be increased in accordance with the Reference Provisions,
and the Annual Sales Base shall be increased accordingly. Any such increase shall commence on the first day after
the completion of any of the events set forth in (i) – (iii) above and continue during the remainder of the Term.
(d) ANCHOR MINIMUM ANNUAL RENTAL INCREASE: For each anchor (as defined in this Lease) that
is added to the Shopping Center after the Opening Date, the Min imum Annual Rental shall automatically be
increased in accordance with the Reference Provisions, and the Annual Sales Base shall be increased accordingly.
The increase shall continue during the remainder of the Term.
(e) If Minimum Annual Rental or additional rental is not paid within 10 days after it is due, Tenant shall also
pay Landlord, as liquidated damages, a late payment fee equal to the greater of $100.00 or 5% of the delinquent
rental for each and every month, or part of every month that the ren tal remains unpaid. The fee shall not excuse
Tenant from the timely payment of rental. If Landlord receives 2 or more checks from Tenant which are returned by
Tenant's bank for insufficient funds, Tenant agrees that all future checks shall be either bank certified, cashiers' or
treasurers' checks. All bank service charges resulting from bad checks shall be borne by Tenant.
(f) In addition to Minimum Annual Rental, Tenant shall pay, as additional rental, all sums of money required
to be paid pursuant to ARTICLE 4(b) (Percentage Rental), 7 (Taxes), ARTICLE 16 (Environmental Services), 17
(Joint Use Areas and Operating Expenses), and all other sums of money or charges required to be paid by Tenant
under this Lease (collectively referred to in this Lease as "additional rental"). All amounts shall be paid to
Landlord's Payment Address as shown in Reference Provision 1.10. If the amounts or charges are not paid at the
time provided in this Lease, they shall nevertheless be collectible as additional rental with the next installment of
Minimum Annual Rental falling due, but nothing in this Lease shall be deemed to suspend or delay the payment of
any amount of money or charge at the time it becomes due and payable or to limit any other remedy of Landlord.
All amounts of Minimum Annual Rental and additional rental payable in a given month (also collectively referred to
in this Lease as "rent" or "rental") shall be deemed to be a single rental obligation, and shall survive the expiration of
the Term or the earlier termination of this Lease. Any payment by Tenant or acceptance by Landlord of a lesser
amount than shall be due from Tenant to Landlord at the time of such payment shall be treated as a payment on
account. The acceptance by Landlord of a check for a lesser amount with an endorsement or statement thereon, or
any letter accompanying such check stating that such lesser amount is payment in full shall be given no effect, and
Landlord may accept such check on account without prejudice to any other rights or re medies which Landlord may
have against Tenant.
ARTICLE 5 - Definition of Total Sales, Gross Sales, and Net SalesINTENTIONALLY OMITTED
Total Sales is defined as the dollar aggregate of the full amount of the price charged or value received for all goods
and merchandise sold, leased, rented, licensed, or delivered, and all charges for all services sold or performed, and
all other receipts from all business conducted in, upon, or from, any part of the Leased Premises (including business
conducted by Tenant or its parent, subsidiary or affiliate, licensee, concessionaire, or subtenant (each a “Tenant’s
Affiliate”)) whether for cash, by check, on credit, by charge account, exchange, or otherwise, and in any
combination thereof, and shall include, but not be limited to, the following transactions: (i) sales or orders received,
placed, taken, billed, fulfilled, shipped, picked up by the customer, or delivered to the customer, from or at the
Leased Premises by any means, including but not limited to, mail order, electronic, computer, internet, telephone, or
other technology based system whether now existing or hereinafter developed; (ii) equipment leased; (iii)
reimbursements; (iv) uncollected and uncollectible credit accounts and bank checks and charges for bank credit
cards; (v) all deposits not refunded to purchasers; (vi) all money or other value that Tenant or Tenant’s Affiliate is
entitled to receive; (vii) the value of any gift certificates, gift cards, electronic vouchers, or like instrument, as well
as any associated purchase, service, activation or like fee for same; (viii) sales from vending machines; and (ix) any
other transactions that Tenant in the normal and customary course of its operations would credit or attribute to
Tenant’s business conducted in the Leased Premises. Gross Sales is defined as Total Sales less the following
exclusions, but only if and to the extent that, each such exclusion is included in Total Sales and is individually
itemized and valued by Tenant in its Gross and Net Sales reports submitted to Landlord as required pursuant to the
provisions of Article 6: (a) returns of merchandise to shippers and manufacturers; (b) receipts for the sale of fixtures,
equipment or property that are not stock-in-trade, or from any sales not in the ordinary course of Tenant’s business;
and (c) the value of any exchange or transfer of merchandise between the Leased Premises and another Tenant store
location if made solely for the convenient operation of Tenant’s business and not for the purpose of consummating a
sale made in, at, or from the Leased Premises. Net Sales is defined as Gross Sales less the following deductions, but
only if and to the extent that, each such deduction is included in Total Sales and is individually itemized and valued
by Tenant in its Gross and Net Sales reports submitted to Landlord as required pursuant to the provisions of Article
6: (1) refunds to customers to the extent and in the amount that the underlying transaction for which the refund is
sought was included in Gross Sales; (2) sales tax, use tax, excise tax, retailer's tax, occupation tax, or similar taxes
imposed in either a specific amount or as determined by Tenant’s sales; and (3) interest, service, finance, or sales
carrying charges paid by customers for the extension of credit on purchases if not included in the price.
ARTICLE 6 - Records and Audits INTENTIONALLY OMITTED
Tenant agrees to accurately record all sales in accordance with generally accepted accounting practices (showing all
of its sales separately from its other stores), and to maintain sufficient original records which accurately summarize
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all transactions relating to the Leased Premises (including the sales of any subtenant, licensee or concessionaire).
Original records shall include but not be limited to: sales documents, sequentially numbered tapes and readout totals
of cash registers or point of sale devices, sales returns and allowance detail, cash receipts, payroll journals, accounts
receivable, disbursement journals, bank statements, deposit slips, inventory records, purchase orders, receiving
records, sales journals or daily sales reports, orders accepted by means of electronic, telephonic, video, computer or
another electronic or other technology based system, state sales and use tax returns (and all documentation used to
prepare the returns), and a complete general ledger. Documentation and itemizatio n of specific sales exclusions
shall also be maintained. Records shall be preserved (properly totaled) by Tenant either (a) at the Leased Premises
or (b) at the home or regional offices of Tenant (provided Landlord shall be notified in writing of the addr ess at
which the records are maintained) and made available to Landlord at the Leased Premises or the offices, upon
demand, for a period of at least 3 years after the year in which the sales occurred (however, if any audit is begun by
Landlord or if there is a dispute regarding Tenant's Total, Gross, and/or Net Sales, Tenant's records shall be retained
by Tenant until a final resolution of the audit or dispute). The receipt by Landlord of a statement of Total, Gross,
and/or Net Sales or Percentage Rental shall not constitute an admission of its correctness. Tenant agrees to deliver
to Landlord a statement of each month's sales on or before the 5th day of the following month, and by January 31 of
each year of the Term an annual statement certified by a Cert ified Public Accountant or by a financial officer, owner
or partner of Tenant, of the Total, Gross, and/or Net Sales made during the preceding year. If the Term expires or is
terminated on a date other than December 31, then a like statement for the parti al calendar year in which expiration
or termination occurs shall be delivered within 30 days after expiration or termination. Landlord shall be entitled, at
Landlord's expense, to have at any time and from time to time an audit of the Total, Gross, and/or Net Sales made
during any period covered by the annual statement and account and to recalculate the rental payable for that period.
If there is a deficiency in the payment of percentage or additional rental, the deficiency shall be immediately due and
payable with interest at the Interest Rate, and the interest shall be additional rental, from the date when the payments
should have been made. If there is an overpayment by Tenant, it shall be credited by Landlord against payments
due. If Total, Gross, and/or Net Sales have been understated by more than 2% or Tenant fails to record, maintain or
make available the required sales supporting documentation, Tenant shall be in default, and shall pay the cost of the
audit and all other related costs and expenses. If Tenant is late furnishing Landlord any monthly sales statement,
Landlord shall have the right, without notice, to conduct an audit at Tenant's sole cost. If Tenant does not furnish
the sales documentation referred to above or otherwise impedes Landlord's audit of Tenant's Total, Gross, and/or
Net Sales, Landlord shall be entitled, in addition to Landlord's other rights and remedies, to estimate Tenant's annual
Total, Gross, and/or Net Sales as 125% of the Net Sales for the preceding year, and bill Te nant for any Percentage
Rental which may be due based upon the estimated Net Sales.
ARTICLE 7 – Taxes
(a) (i) Effective upon the Rental Commencement Date, Tenant shall pay, without deduction or set -off of any
kind, its proportionate share of Property Taxes shall include all real property taxes and
assessments which may be levied or assessed against the retail portion of the Shopping Center during the Term by
any lawful authority for each calendar year. Tenant’s proportionate share of Taxes
shall be included in Minimum Annual Rental and subject to
Landlord’s reasonable allocation rights as provided in Reference
Provision 1.07 of this Lease. Accordingly, Tenant shall have no
express or implied right to examine, inspect or audit Landlord’s
records pertaining to Taxes. Including, without limitation, all Impositions as defined below in
this subpart (a)(i) and the cost of any contest, review or negotiation of an assessment by Landlord, as described in
(c) below (collectively "Property Taxes"). Property Taxes shall exclude taxes and assessments actually paid by
anchors or outparcel occupants for land and buildings owned or leased by anchors and outparcels whether the
anchors and outparcels are occupied or vacant and whether or not the real property ta xes thereon are separately
billed or assessed. Notwithstanding anything to the contrary contained in this Lease, Property Taxes shall include
any form of tax or assessment, license fee, license tax, tax or excise on rent, or any other levy, charge, or sim ilar
imposition ("Impositions") imposed by any governmental authority or political subdivision having jurisdiction, or
any school, agricultural, lighting, drainage, management, roadway, water, levee, utility or other improvement or
special assessment district, on any interest of Landlord or Tenant in the Leased Premises, the Shopping Center or the
underlying realty. The Impositions shall include but not be limited to: (aa) any partial or total substitute impositions
for real property taxes; (bb) any impositions imposed upon owners of real estate (including any water and sewer tax
assessment) rather than upon persons generally, as well as any tax which may become a lien on the land, buildings
or other improvements in the Shopping Center, or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Leased Premises; (cc) any Impositions upon this
Lease or any document to which Tenant is a party creating or transferring an interest or an es tate in the Leased
Premises, and (dd) any impositions for offsite property or facilities that provide an easement required to be
maintained for the benefit of or that serves the Shopping Center.
(ii) Tenant's proportionate share shall be the product which results by multiplying the Property Taxes (less
any payment actually made by variety and specialty stores, and by anchors and outparcels as excluded in subpart
(a)(i) above) by a fraction, the numerator of which shall be the number of square feet of flo or area in the Leased
Premises and the denominator of which shall be the total number of square feet of gross leasable floor area in the
main mall building(s) (as determined by Landlord in its sole discretion; hereafter "Main Mall Building(s)") of the
Shopping Center which are occupied or producing rent, including the Leased Premises, determined as of August 1 of
each year (exclusive of the building areas utilized for non-retail exhibits;; recreational purposes, including, without
limitation, ice rinks; space operated for a not-for-profit purpose, including, without limitation, museums; the
building areas occupied by anchor buildings and outparcels whether the anchors and outparcels are occupied or
vacant and whether or not the portion of Property Taxes thereon are separately billed or assessed; and variety and
specialty stores [collectively, the "Excluded Areas"]). Tenant's share of Property Taxes shall not, however, be
calculated on the basis of less than 80% of the gross leasable area of the Main Mall Buil ding(s) of the Shopping
Center determined as of August 1 of each year (minus the Excluded Areas).
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(iii) Notwithstanding anything to the contrary contained in the Lease, an outparcel may at Landlord's sole
discretion be considered part of the Shopping Center for purposes of the definition of Property Taxes and the
calculation of Tenant's share of Property Taxes under ARTICLE 7, provided that if the Landlord considers an
outparcel to be part of the Shopping Center for such purposes Landlord shall include any payments toward Property
Taxes actually made by the outparcel occupant before the calculation of Tenant's share of Property Taxes.
(b) From time to time, Landlord shall notify Tenant in writing of Landlord's estimate of Tenant's monthly
installments due with respect to Property Taxes. Such monthly installments shall be paid on or before the 1 st day of
each calendar month, in advance. If Landlord is required however under a mortgage to escrow Property Taxes,
Landlord may, but shall not be obligated to, use the amount required to be escrowed as a basis for the estimate of the
monthly installments. Upon confirmation of all Property Tax bills attributed to any calendar year during the Term,
Landlord shall furnish Tenant with a written statement of the actual amount of Tenant's proportionate share of the
Property Taxes for that year. If the total amount paid by Tenant for any calendar year during the Term is less than
the actual amount due from Tenant for that year, as shown on the statement, Tenant shall pay Landlord the
deficiency within 10 days after demand by Landlord. If the total amount paid by Tenant for any calendar year
exceeds the amount due from Tenant for that calendar year, Landlord shall credit the excess against payments due.
Tenant's liability for its proportionate share of Property Taxes for the calendar years in which this Lease begins and
ends shall be subject to a prorata adjustment based on the number of days in those years. . Landlord's and Tenant's
obligations under this ARTICLE 7 shall survive the expiration of the Term. An official tax bill (or copy), if
available, shall be submitted by Landlord to Tenant, upon request by Tenant, and shall be conclusive evidence of the
amount of the tax assessed or levied, the items taxed and the installments.
(c) If Landlord contests, reviews or negotiates any tax or assessment upon the Shopping Center, Tenant agrees
to pay its proportionate share of Landlord's expenses, whether third party or internal, including but not limited to
legal, tax consultant and appraisal fees. Tenant’s proportionate share of such expenses shall be calculated and paid in
the manner set forth in ARTICLE 7(a). Tenant shall not have the right to withhold any payments to Landlord
notwithstanding anything to the contrary contained in this Lease, nor shall Landlord be obligated to withhold the
payment of Property Taxes levied or assessed against the Shopping Center. If Tenant pays an amount in excess of
its proportionate share of Property Taxes for any year as the result o f a subsequent reduction in total Property Taxes
for that year, the excess shall be refunded to Tenant (the “Net Refund”) when all refunds to which Landlord is
entitled from the taxing authority for that year are received by Landlord. The term “Net Refund ” means the refund
plus interest, if any thereon less appraisal, engineering, expert testimony, attorneys’, printing and filing fees and all
other costs and expenses of the contest, review or negotiation to the extent that such fees, costs and expenses hav e
not been previously included in taxes under this ARTICLE 7, and less an administrative fee equal to 15% of the
original refund.
(d) Notwithstanding anything to the contrary in this Article 7 or elsewhere in this Lease, any excise,
transaction, sales or privilege tax (except income, transfer, estate or inheritance tax) imposed upon Landlord on
account of, attributed to, or measured by rental or other charges payable by Tenant shall not be
considered Property Taxes and shall be paid by Tenant to Landlord.
ARTICLE 8 - Subordination and Attornment
(a) Tenant's rights shall be subordinate to the interest of any ground lessor and to the lien of any mortgage or
deed of trust in force or later placed against the Shopping Center, upon any building placed later upon the Shopping
Center and to all advances made upon the security thereof. No ground lessor nor the mortgagee or beneficiary
named in the mortgage or trust deed shall disturb Tenant’s peaceable possession of the Leased Premises if Tenant is
not in default under this Lease beyond any applicable note and cure period. Any
mortgagee or beneficiary of Landlord may, at its option, subordinate its mortgage or trust deed to this Lease. This
ARTICLE 8(a) is self-operative, and no further documentation of Tenant's subordination and attornment is required;
however, Tenant, at no cost or expense to Tenant, shall execute any subordination
agreement requested by Landlord, any mortgagor or beneficiary of Landlord upon written request. No
subordination agreement shall impose any economic obligations on
Tenant in addition to those economic obligations imposed under
this Lease, nor may any subordination agreement require any
change in, or modification of, this Lease that shall impose any
material obligation or responsibility on Tenant. Tenant shall accept
performance of any of Landlord’s obligations hereunder by any mortgagee or beneficiary of Landlord.
(b) If any proceedings are brought for foreclosure, or if the power of sale under any mortgage, deed of trust or
deed to secure debt made by Landlord covering the Leased Premises is exercised, Tenant shall attorn to the
purchaser upon the foreclosure or sale and recognize the purchaser as the Landlord under this Lease.
(c) Landlord covenants that it is or will be a party to a certain agreement or agreements with the anchors in the
Shopping Center (the "Agreement"), which may be amended from time to time. The Agreement shall not prevent
Tenant from using the Leased Premises for the purpose set forth in Reference Provision 1.03. This Lease is subject
and subordinate to the Agreement and any amendments to or modifi cations of the Agreement provided
that the Agreement shall not prevent Tenant from using the
Leased Premises for the purpose set forth in Reference Provision
1.03, change the economic terms hereof or materially affect
Tenant’s rights, increase Tenant’s obligations, or reduce
Landlord’s obligations hereunder.
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(d) Tenant, at no cost or expense to Tenant, agrees to make such reasonable
modifications to this Lease as may be reasonably required in connection with the obtaining of financing or
refinancing of the Shopping Center or any portion thereof or interest therein, so long as such modifications do not
change the economic terms hereof or materially affect Tenant’s rights, increase Tenant’s obligations, or reduce
Landlord’s obligations hereunder.
ARTICLE 9 - Additional Construction
Landlord reserves the right at any time to make alterations or addition s to, subdivide, change the building
dimensions and storefront lines, build additional stories on the building in which the Leased Premises are contained
or on any other building or buildings in the Shopping Center, and to build adjoining the Shopping Cent er. Landlord
also reserves the right at any time to construct other buildings, structures or improvements including, but not limited
to, surface, elevated or double-deck parking facilities and to erect temporary scaffolds and other aids to construction.
Landlord shall have the right at any time upon 90 days’ notice, to relocate the Leased Premises to another location
within the Shopping Center (“Substitute Space”), containing approximately the same amount of floor area as the
Leased Premises. Landlord shall pay the cost of improving the Substitute Space to a comparable condition that existed
in the Leased Premises, and for all reasonable moving expenses incurred by Tenant. Tenant shall, upon delivery of
the Substitute Space to Tenant, install its fixtures, furniture and equipment in the Substitute Space prior to opening for
business in the Substitute Space and Tenant shall open for business in the Substitute Space within 30 days after
delivery of the Substitute Space to Tenant. Minimum Annual Rental shall abate during any period Tenant is unable
to be open for business due to the relocation.
ARTICLE 10 - Condition of Leased Premises
Tenant's taking possession of the Leased Premises shall be conclusive evidence of Tenant's acceptance of the Leased
Premises in good order and satisfactory condition and "as-is", including patent and latent defects. Tenant agrees that
no representations about the condition of the Leased Premises, nor promises to decorate, alter, repair or improve the
Leased Premises [except as expressly provided for in ARTICLE 2(c) and
Exhibit C] have been made by Landlord or its agents to Tenant. Tenant also agrees that no representations
have been made to Tenant that any other tenants will lease space in the Shopping Center nor have an y promises been
made that Tenant has the exclusive right to sell any merchandise, goods or services. Tenant hereby waives any
implied warranties, including but not limited to fitness, suitability and habitability.
ARTICLE 11 - Repairs and Maintenance
Landlord shall be responsible for all structural repairs to the Leased Premises including pipes,
ducts, mains or conduits that may pass through the Leased
Premises, but which serve various tenants, the underground and
otherwise concealed plumbing which does not exclusively serve
the Leased Premises, the roof over the Leased Premises and the
drainage system. Landlord shall not be responsible for damage or personal injury caused by any defects
or other conditions, or the consequences thereof, except in the c ase of Landlord's gross negligence or
willful misconduct. Landlord shall not be liable to Tenant for any damage to merchandise, trade fixtures or personal
property of Tenant in the Leased Premises, including without limitation damage by water leakage, see page, water
discharge from a sprinkler system or water damage caused by leakage from other occupants. Beginning on the date
Tenant takes possession of the Leased Premises, Tenant shall be liable for the repairs, replacements and
maintenance of the interior, non-structural portions of the Leased Premises, except
those for which Landlord is responsible under this ARTICLE 11. Tenant shall keep the Leased Premises in good
order and repair, clean, sanitary and safe and shall notify Landlord, in writing, prior to beginning any repair. The
notice shall specify the repair work to be performed. Tenant's repairs, replacements and maintenance obligations
shall include, but not be limited to, its heating and cooling equipment; other equipment; fixtures; improvements;
floor covering; the exterior and interior portions of all doors, door locks, security gates, and windows; plumbing and
sewage facilities which are not Landlord's obligation; walls; ceilings; and plate glass. Tenant shall be solely
responsible for maintenance and repair costs related to the Leased Premises. Tenant agrees to keep the interior of
the Leased Premises in a clean and sightly appearance. If Tenant refuses or neglects to make repairs or maintain the
Leased Premises, in a manner reasonably satisfactory to Landlord, Landlord sha ll have the right, upon giving Tenant
reasonable 30 days written notice, to make the repairs or perform the maintenance on behalf of Tenant.
Tenant shall reimburse Landlord for Landlord’s actual costs promptly within 10
days upon receipt of a bill. The interior and storefront of the Leased Premises shall be painted, redecorated and
refurbished by Tenant at least once every 5 years. Landlord has no obligation to do work which Landlord is not
expressly required to perform under this Lease or which, under t his Lease, Tenant is required to perform. The
performance of that work by Landlord shall not constitute a waiver of Tenant's default.
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ARTICLE 12 - Alterations
Tenant shall not make any structural, electrical, storefront, exterior, major interior or mechanical alterations to the
Leased Premises without obtaining the written consent of Landlord , which shall not be
unreasonably withheld, conditioned or delayed. Tenant shall not
materially or adversely interfere with any work in the Shopping Center, and shall not cause the
closing, interruption or impairment of Tenant's normal conduct of business. All alterations, additions, improvements
and Tenant's Work shall become, upon expiration of the Term, or the earlier termination of this Lease, the property
of Landlord without any payment by Landlord. All such work by Tenant shall be made under the supervision of a
competent architect or competent licensed structural eng ineer and shall be in accordance with plans and
specifications approved in writing by Landlord before the start of the work , not to be
unreasonably withheld, conditioned or delayed. Landlord’s approval of Tenant’s
plans and specifications shall not create a responsibility or liability of Landlord for their accuracy, sufficiency or
compliance with laws or rules and regulations. The work shall be in accordance with necessary governmental
approvals and permits. Tenant shall obtain approvals and permits at its sole expense. The work shall be done in a
good and workmanlike manner and diligently prosecuted to completion. The Leased Premises shall at all times be a
complete unit except during the performance of work. Work done by Tenant without Landlord's con sent shall be
returned to its original condition, at Tenant’s expense, upon written request by Landlord.
ARTICLE 13 - Fixtures and Personal Property
Trade fixtures, signs and other personal property of Tenant not permanently affixed to the Leased Premi ses shall
remain the property of Tenant. Tenant shall have the right, provided Tenant is not in default, to remove its trade
fixtures, signs and other personal property. Tenant shall not however, during the Term, render the Leased Premises
unsuitable for conducting the type of business specified in Reference Provision 1.03 by removing personal property
unless Tenant immediately replaces it with personal property of comparable or better quality. Tenant, at its expense,
shall immediately repair damage to the Leased Premises caused by the removal of such trade fixtures, signs and
other personal property. Upon the expiration or earlier termination of this Lease, Tenant shall leave the Leased
Premises in a neat and clean condition, free of debris, normal wear and tear excepted. All
trade fixtures, signs, and other personal property installed in or to the Leased Premises by Tenant must be new or
like new when installed or attached. Tenant shall pay before delinquency all taxes, assessments, license fees and
public charges levied, assessed or imposed upon its business operation in the Leased Premises as well as upon its
trade fixtures, leasehold improvements (including but not limited to merchandise and other personal property in, on
or upon the Leased Premises). If Tenant's property is assessed with Landlord's property, the assessment shall be
equitably divided between Landlord and Tenant. Landlord shall determine in good faith and
using reasonable judgment, the basis of prorating the assessments and that determination shall
be binding. No taxes, assessments, fees or charges referred to in this ARTICLE 13 shall be considered Property
Taxes under ARTICLE 7. Tenant's obligation to perform the provisions of this ARTICLE 13 shall survive the
Expiration Date or the earlier termination of this Lease.
ARTICLE 14 - Liens
Tenant shall not permit a lien or claim to attach to the Leased Premises and shall promptly cause the lien or claim to
be released. If Tenant contests the lien or claim, Tenant shall indemnify L andlord and, if requested, deposit with
Landlord a cash or surety bond in a form and with a company satisfactory to Landlord in an amount equal to twice
the amount of the contested lien or claim. If Tenant shall fail to cause a lien to be discharged or bo nded, within 10
days after being notified of the filing of the lien, in addition to any other right or remedy, Landlord may discharge
the lien by paying the amount claimed to be due. The amount paid by Landlord, together with interest at the Interest
Rate and all costs and expenses, including reasonable attorneys' fees incurred by Landlord, shall be due and payable
by Tenant to Landlord as additional rental on the 1st day of the next following month. Tenant shall immediately
give Landlord written notice of the recording of a lien against the Leased Premises or the Shopping Center arising
out of work done by or at the direction of Tenant.
ARTICLE 15 - Laws and Ordinances
(a) Tenant shall comply with all laws, ordinances, codes, orders and regulations af fecting the construction, use,
occupancy, alteration, cleanliness, safety and operation of the Leased Premises, which are in force now or later.
Tenant shall comply with the regulations, requirements and recommendations of any insurance underwriter,
inspection bureau or similar agency. Tenant shall notify Landlord if Tenant has received notice of, or has
knowledge of any condition or occurrence that might result in liability to Landlord. Tenant shall give Landlord,
upon Landlord's request, information regarding the environmental condition of the Leased Premises so Landlord can
determine if Landlord must comply with any rule, regulation, order, act, law or statute pertaining to the
environmental condition of the Leased Premises or the Shopping Center, and for Landlord to accurately complete a
form or otherwise provide information required under any rule, regulation, order, act, law or statute. Tenant shall
permit Landlord to comply with those recommendations and requirements. In addition, Tenant agrees to comply, to
the extent that the same may be applicable to the Leased Premises and as same may be amended from time to time,
with the standards and requirements of the Williams-Steiger Act (PL91-596), known as the "Occupational Safety
and Health Act of 1970," notwithstanding the fact that Tenant may otherwise be exempted from the provisions of
said Act, and the Americans with Disabilities Act of 1990.
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(b) Tenant shall not: (i) permit an immoral practice in the Leased Premises; (ii) use or allow the Leased
Premises to be used or occupied in a manner that might invalidate or increase the rate of or make inoperative an
insurance policy carried on the Leased Premises or on property, buildings or improvements in the Shopping Center;
(iii) keep, use or permit in the Leased Premises inflammable fluids or explosives without the prior written
permission of Landlord, or engage in hazardous activities; (iv) use the Leased Premises for a purpose which might
create a nuisance or injure the reputation of the Leased Premises or the Shopping Center; (v) deface or injure the
Leased Premises or any portion of the Shopping Center; (vi) overload the floors; (vii) commit or suffer waste; (viii)
install electrical equipment that overloads lines; or (ix) conduct any sampling, testing, or drilling to locate any
Hazardous Material without Landlord's prior written approval. Tenant shall, upon written demand, reimburse
Landlord for extra premiums caused by Tenant's use or occupancy of the Leased Premises, whether or not Landlord
has consented to the use and occupancy. A schedule issued by the organization making the insurance rates on the
Leased Premises, showing the components of the rates, shall be conclusive evidence of the items and charges which
make up the hazard and other insurance rates on the Leased Premises. Tenant shall, at Tenant's expense, make from
time to time whatever changes are necessary to comply with the requirements of the insurance inspectors,
underwriters and governmental authorities in connection with electrical and fire prevention systems and equipment.
(c) Tenant shall not have a claim against Landlord, and Landlord shall not be liable for damages, demands,
expenses, fees, fines, penalties, suits, proceedings, claims, actions and causes of action arisin g out of or in any way
connected with Tenant's use or occupancy of the Leased Premises, if the use or occupancy is prohibited or
substantially impaired by any law, ordinance, regulation or by legal, governmental or other public authority.
(d) Tenant shall not cause or permit any Hazardous Material (defined below) to be brought upon, transported
through, stored, kept, used, discharged or disposed in or about the Leased Premises or the Shopping Center
(collectively "Property") by Tenant, its agents, employees or contractors. Tenant shall notify Landlord immediately
of the presence of or disposal of Hazardous Material on or near the Leased Premises, and of any notice by a party
alleging the presence of Hazardous Material on or near the Leased Premises. Howev er, Hazardous Materials
brought upon, transported, used, kept or stored in or about the Property which is necessary for Tenant to operate its
business for the use permitted under Reference Provision 1.03 of this Lease shall be brought upon, transported, us ed,
kept and stored only in the quantities necessary for the usual and customary operation of Tenant's business and in a
manner that complies with: (i) all laws, rules, regulations, ordinances, codes or any other governmental restriction or
requirement of all federal, state and local governmental authorities having jurisdiction and regulating the Hazardous
Material; (ii) permits (which Tenant shall obtain prior to bringing the Hazardous Material in, on or about the
Property) issued for the Hazardous Material; and (iii) all producers' and manufacturers' instructions and
recommendations, to the extent they are stricter than laws, rules, regulations, ordinances, codes or permits. If
Tenant, its agents, employees or contractors, in any way breaches the obligations in the preceding sentence; or if the
presence of Hazardous Material on the Property caused or permitted by Tenant results in the release or threatened
release of Hazardous Material on, from or under the Property; or if the presence on, from or under th e Property of
Hazardous Material otherwise arises out of the operation of Tenant's business then, without limitation of any other
rights or remedies available to Landlord under this Lease or at law or in equity, Tenant shall indemnify, defend,
protect and hold harmless Landlord (and Landlord's parents, subsidiaries, affiliates, employees, partners, agents,
mortgagees or successors to Landlord's interest in the Leased Premises) (collectively "Indemnity") from any and all
claims, sums paid in settlement of claims, judgments, damages, clean-up costs, penalties, fines, costs, liabilities,
losses or expenses (including, without limitation, attorneys', consultants' and experts' fees and any fees by Landlord
to enforce the Indemnity) which arise during or after the Term as a result of Tenant's breach of the obligations or the
release or contamination of the Property, including, without limitation: diminution in value of the Property;
damages for the loss of, or the restriction on the use of, rentable or usable spac e or any amenity of the Property;
damages arising from any adverse impact on the sale or lease of the Property; and damage and diminution in value
to the Property or other properties, whether owned by Landlord or by 3rd parties. This Indemnity includes, w ithout
limitation, costs incurred in connection with any investigation of site conditions or any clean -up, remedial, removal
or restoration work required by any federal, state or local governmental agency or political subdivision because of
Hazardous Material present in the soil or groundwater on, under or originating from the Property. Without limiting
the foregoing, if the presence of Hazardous Material on the Property caused or permitted by Tenant results in the
contamination, release or threatened release of Hazardous Material on, from or under the Property or other
properties, Tenant shall promptly take all actions at its sole cost and expense which are necessary to return the
Property and other properties to the condition existing prior to the introdu ction of the Hazardous Material; provided
that Landlord's written approval of the actions shall be obtained first (which approval shall not be unreasonably
withheld) and so long as such actions do not have or would not potentially have any material, advers e long-term or
short-term effect on Landlord or on the Property or other properties. This Indemnity shall survive the Expiration
Date or earlier termination of this Lease and shall survive any transfer of Landlord's interest in the Property.
"Hazardous Material" means any hazardous, radioactive or toxic substance, material or waste, including, but not
limited to, those substances, materials and wastes (whether or not mixed, commingled or otherwise combined with
other substances, materials or wastes) listed in the United States Department of Transportation Hazardous Materials
Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302)
and amendments thereto, or substances, materials and wastes which are or beco me regulated under any applicable
local, state or federal law including, without limitation, any material, waste or substance which is (i) a petroleum
product, crude oil or any faction thereof, (ii) asbestos, (iii) polychlorinated biphenyls, (iv) designate d as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251, et seq. (33 U.S.C.
Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317), (v) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq. (42 U.S.C. Section 6903) or (vi) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, et seq. (42
U.S.C. Section 9601), as all of the foregoing may be amended from time to time. Notwithstanding
anything to the contrary contained in this Lease, Tenant shall
not be required to remediate or pay (either as part of Operating
Expenses or otherwise) for the removal or remediation of
Hazardous Materials to the extent such Hazardous Materials exist
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in an amount in violation of applicable law and (i) were present
in the Leased Premises prior to the date Tenant first had access
to the Leased Premises, or (ii) are placed in, on, under or
about the Leased Premises by Landlord or any of Landlord’s
agents or contractors.
ARTICLE 16 – Environmental Services
(a) Tenant shall pay for all utilities used in the Leased Premises during the Term. Tenant shall, if required by
Landlord or applicable code, provide and pay for its own meters for heat, air conditioning, water, gas, electricity and
all other utilities, and shall pay all water and sewage charges (and all other charges for utilities used in the Leased
Premises), rentals and taxes imposed by governmental authority or otherwise. Landlord may at its election provide
Tenant with or designate a third party provider to provide Tenant with any or all of the utilities used in the Leased
Premises. If Landlord or its designee provides Tenant with the utilities used in the Leased Premises, Tenant shall
purchase such utilities from Landlord or its designee and may not pur chase such utilities from any other source.
Landlord agrees, however, that the charge to Tenant for utilities furnished by Landlord shall not exceed that which
Tenant would be required to pay for if Tenant purchased such utilities, with a comparable level and quality of
service and equipment, directly from the local public utility company , but not less than Landlord’s cost to provide
such utilities.
(b) Heating, ventilation and air conditioning for the Leased Premises will be in accordance with the EXHIBI TS.
(c) Tenant shall be responsible for completing the installation of the heating, ventilation and air conditioning
system within the Leased Premises, as provided for in the EXHIBITS. Tenant, at Tenant's expense, shall maintain
the heating, ventilation and air conditioning equipment which exclusively serve or are within the Leased Premises.
Tenant shall use best efforts to conserve energy in the operation of its heating, ventilation and air conditioning.
Tenant shall upon written request by Landlord supply Landlord with evidence satisfactory to Landlord that
Tenant is fulfilling Tenant's obligations under ARTICLE 16 of the Lease to maintain the heating, ventilation and air
conditioning equipment within the Leased Premises.
(d) Landlord has, at its cost and expense, preinstalled a potable water distribution system and a sewer system
which will provide water and sewer service to the Leased Premises in accordance with the EXHIBITS. Tenant, at
Tenant's expense, shall be responsible for completing the insta llation of may utilize the existing
water and sewer systems located within the Leased Premises. in accordance with the EXHIBITS.
(e) If Tenant shall require natural gas for the normal operation of Tenant's business, such utility service shall be
available in accordance with the EXHIBITS. All natural gas service shall be arranged by the Tenant and all such
work shall be done in accordance with the EXHIBITS.
(f) In addition to the Minimum Annual Rental, Tenant shall pay, as additional rental, in advance on the first day
of the month during the Term (prorated for any fractional month), without deduction set -off of any kind, a charge to
Landlord for any services furnished by Landlord to the Leased Premises under this Article 16 (the "Environmental
Charge"). In the event of any dispute, Tenant shall pay the bill for all such utility furnished to the Leased Premises
in accordance with Landlord's billing, and such payment shall not prejudice Tenant's position. The Environmental
Charge shall be adjusted from time to time by Landlord's engineer, shall be initially based on a typical store layout
that is comparable to Tenant's utility usage and shall be subject to adjustment by Landlord from time to time. If
Tenant fails to make any applicable payment of the Environmental Charge to Landlord within 10 days from the date
such payment is due, or upon failure of Tenant to pay any other sums of rental or other charges due under the
provisions of this Lease in full, Landlord may, without limitation, cut off and discontinue any such utilities furnished
by Landlord to the Leased Premises, without any liability to Landlord.
(g) If Landlord or Landlord’s third party designee is furnishing utilities to Tenant during the Term, Landlord or
such designee may cease furnishing any of such utilities without responsibility to Tenant except to connect or cause
to be connected to the service facilities another available source of supply. Notwithstanding anything contained in
this Lease to the contrary, Landlord or such designee shall not be responsible or liable for damages or injuries
sustained by Tenant or those claiming by, through or under Tenant, because of the interruption, discontinuance,
quality or quantity of any utility used in or for the Leased Premises, (whether or not supplied by Landlord or such
designee, and regardless of the reason or cause of the interruption or discontinuance). Tenant shall not be relieved
from the performance of its obligations if an interruption or discontinuance occurs. Landlord may take any energy
management measures it deems necessary for energy conservation including, but not limited to, control of all
Tenant's energy consumption.
(h) Landlord shall keep in good order and repair and shall maintain the telephone raceway and interface wi ring
system and shall make any necessary repairs to or replacements of such telephone raceway and/or interface wiring
system except that Landlord's obligation shall not include repair or replacement of service extensions, wiring or
other telephone systems exclusively servicing the Leased Premises and that Tenant shall reimburse Landlord for any
and all repairs thereto necessitated by any acts, omissions to act or negligence of Tenant or Tenant's agents,
employees and contractors.
(i) Tenant agrees that garbage and refuse shall be kept in an adequate container so as not to be visible to the
public, within the Leased Premises, for collection at reasonable times specified by Landlord and at Tenant's cost. In
lieu and instead of the foregoing provisions of thi s subsection (i), Landlord, or a contractor selected by the Landlord,
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at its option, may purchase or lease a garbage compactor for the use of tenants and occupants of the Shopping
Center. If Landlord, or a contractor selected by the Landlord, purchases or leases said garbage compactor for the
use of tenants in the Shopping Center, then Tenant agrees to use the same for the disposal of its garbage and refuse
to the exclusion of all other garbage collection companies. Tenants shall pay monthly, in advance, the charges
therefor, based upon Landlord's, or a contractor selected by Landlord, reasonable estimate of the amount of the
refuse and garbage generated and the frequency of use by Tenant. Tenant shall cause its garbage and refuse to be
taken to such garbage compactor within the Shopping Center; and it is understood and agreed that Tenant's monthly
charge as aforementioned will not include pick-up service. The aforementioned monthly charge as estimated by
Landlord, or a contractor selected by Landlord, sha ll be adjusted from time to time based upon the garbage
generated by Tenant and/or changes in rates for refuse collection. Tenant shall store soiled or dirty linen in
approved fire rating organization metal containers with self-closing fusible link covers. In addition to the foregoing,
Landlord may cause the removal of all debris, rubbish, material and equipment during the construction of Tenant's
store and/or during the time preceding the initial opening date of the Shopping Center . , and charge the cost
thereof to Tenant as provided in the EXHIBITS. Tenant shall pay Landlord such charge within 10 days of billing.
(j) During the Term, Landlord shall keep in good order and repair and shall maintain the sprinkler system in the
Leased Premises, including checking, testing and servicing thereof, and shall make any necessary repairs to or
replacements of such sprinkler system except that Tenant shall pay any and all charges billed by Landlord in
connection with all repairs and replacements thereto necessitate d by any acts, omissions to act or negligence of
Tenant or Tenant's agents, employees and contractors. All modifications to such sprinkler system that Tenant may
desire shall be performed as provided in the EXHIBITS. Should the utility company furnishing water to the
Shopping Center levy, assess or impose upon Landlord a sprinkler system backup charge, then Tenant shall pay to
Landlord its proportionate share thereof, which shall be in an amount equal to the product obtained by multiplying
said charge by a fraction, the numerator of which shall be the gross leasable area of the Leased Premises and the
denominator of which shall be the gross leasable area in the Shopping Center served by such sprinkler system
determined as of the date such charge is billed to Tenant; and shall be paid by Tenant within 10 days after billing by
Landlord.
ARTICLE 17 - Joint Use Areas and Operating Expenses
(a) The "Joint Use Areas" shall consist of all parking areas, parking facilities, approaches, streets, sidewalks,
malls, driveways, loading platforms, canopies, elevators, escalators, ramps, storm drainage facilities, exits,
entrances, sprinkler mains, landscaped areas, comfort stations, light facilities, computer facilities, cable facilities,
telecommunications facilities, washrooms, lounges and shelters, utility lines, roofs, roadways and other facilities
available for joint use or benefit designated by Landlord, as they may from time to time exist and be available to the
tenants in the Shopping Center, their employees, officers, agents, customers, licensees and invitees.
(b) Landlord shall, subject to events beyond its reasonable control, maintain or cause to be maintained the Joint
Use Areas in good order and repair. The Joint Use Areas and other facilities in and ab out the Shopping Center shall
at all times be subject to the control and management of Landlord and other parties that Landlord may designate.
Landlord shall have the right at any time to redesignate, modify, alter, close, restrict, expand, reduce and cha nge the
Joint Use Areas, provided the same does not materially adversely
interfere with (i) Tenant’s ability to operate for the Permitted
Use, (ii) the visibility of the Leased Premises, and (iii)
Tenant’s access to the Leased Premises or the parking areas.
Landlord shall also have the right to permit entertainment events, the placement of kiosks, carts, advertising and
other displays in the Joint Use Areas, and to convert the Joint Use Areas into retail areas , provided the
same does not materially adversely interfere with (i) Tenant’s
ability to operate for the Permitted Use, (ii) the visibility of
the Leased Premises, and (iii) Tenant’s access to the Leased
Premises or the parking areas. The activities and uses may be temporary or permanent.
(c) (i) Operating Expenses shall consist of all expenditures relating to operating, managing, equipping,
policing, protecting, lighting, repairing, cleaning, replacing and maintaining the Joint Use Areas in the same or
improved condition as when originally installed, including any rental and lease payments paid for machinery and
equipment used in the maintenance of the Joint Use Areas and the personnel costs to implement those services,
compliance with statutes, laws, codes, rules and regulations, even if applicable after the Effective Date; maintaining
parking spaces for employees, customers and other parties; music; maintenance of the roof; removal of snow, ice,
rubbish, dirt and debris; garbage collection service; planting, replanting and replacing flowers and land scaping; costs
and expenses of utilities including, but not limited to, maintaining lighting facilities and storm drainage and
detention systems (whether on or off the Shopping Center); sewage treatment plant; domestic water wells, pumps,
and similar facilities and equipment; heating and cooling the enclosed portion of the Shopping Center; pest
extermination; the alarm service charge if a supervised fire sprinkler alarm system is installed; premiums for
liability, property, damage, fire and rental interruption insurance (if carried by Landlord); the cost of the personnel
reasonably required to implement all of the foregoing, including the policing of the Joint Use Areas and the
directing of traffic and parking of automobiles on the parking area; insurance a ggregate allocations and losses borne
by Landlord as a result of deductibles or self -insured retention limits carried by Landlord under an insurance policy
or self insurance by Landlord; costs of adjusting an insured casualty; wages; unemployment, social s ecurity and
personal property taxes; all other expenditures made for the use or benefit of the Joint Use Areas; direct or indirect
costs of advertising, marketing and promotion of the Shopping Center as set forth in Article 37, including the cost of
marketing and customer service personnel; and maintenance of the sprinkler grid in tenant spaces of the Shopping
Center.
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(ii) Effective upon the Rental Commencement Date, Tenant shall pay, without deduction or set -off of any
kind, the Operating Expenses Payment, which for the calendar year stated in Reference Provision 1.22 shall be the
amount specified in Reference Provision 1.22. Tenant’s Operating Expenses Payment shall increase on the 1 st day
of each subsequent calendar year by _%. As Tenant’s obligation to pay the Operating Expenses Payment is
predetermined and not subject to adjustment except as expressly provided herein, Operating Expenses
shall be included in Minimum Annual Rental and subject to
Landlord’s allocation rights as provided in Reference Provision
1.07 of this Lease. Accordingly, Tenant shall have no express or implied right to examine,
inspect or audit Landlord’s records pertaining to the Operating Expenses Payment. Landlord shall have the right, in
its sole and absolute discretion, to allocate all or a portion of any of Tenant’s rental payments that are
required under this Lease including, but without limitation, Minimum Annual Rental and Operating
Expenses Payment, toward Operating Expenses.
ARTICLE 18 - Damage to Leased Premises
If the Leased Premises are damaged, destroyed or rendered partially untenantable by fire or other insured casualty,
Landlord shall promptly repair and restore the Leased Premises in accordance with Landlord's Work. From the date
of the fire or casualty until the Leased Premises are repaired and restored, Minimum Annual Rental and any
additional rental, except for any additional rental due under ARTICLE 7, shall abate in the proportion that the part of
the Leased Premises destroyed or rendered untenantable bears to the total Leased Premises. Landlord shall not be
required to repair or restore the Leased Premises or any part of the Shopping Center as the re sult of an uninsured
casualty. If 50% or more of either the Leased Premises or the Shopping Center is destroyed or rendered
untenantable by fire or other casualty during the last 3 years of the Term (based upon the replacement cost compared
with the market value of the improvements immediately prior to the fire or other casualty as shown by the certificate
of Landlord's architect), either party shall have the right to terminate this Lease. The termination shall be effective
on the date of casualty by Landlord or Tenant giving the other, within 90 days after the casualty, written notice of
termination. If the notice is given within the 90 day period, this Lease shall terminate and Minimum Annual Rental
and all additional rental shall abate from the date of the casualty. Landlord shall promptly repay Tenant any
rental paid in advance which had not been earned at the date of the casualty. If the notice is not given and Landlord
is required or elects to repair or rebuild the Leased Premises, Tenant shall use reasonable efforts
to obtain funding necessary to repair and replace its merchandise, signs, goods, trade
fixtures, furnishings, equipment, furniture and other personal property to a condition at least equal to its condition
prior to its damage or destruction and, if Tenant has closed, Tenant shall, providing Tenant has
obtained the necessary funding, promptly reopen for business. Landlord shall not be
required to expend more for repair or restoration of the Leased Premises or the Shopping Center than the amount of
insurance proceeds paid Landlord (or, if Landlord is self -insured, the amount of insurance proceeds which would
have been paid Landlord if Landlord was not self -insured). Except as expressly provided to the contrary, this Lease
shall not terminate nor shall there be an abatement of Minimum Annual Rental or additional rental as the result of a
fire or other casualty.
ARTICLE 19 - Insurance
(a) Landlord agrees to carry, or cause to be carried by a party other than Tenant, the
following insurance coverages and types:
(i) Workers’ Compensation Insurance in statutory amounts;
(ii) Employer’s Liability Insurance in the amount of $1,000,000 per person for each accident, or
disease;
(iii) Commercial General Liability Insurance on the Joint Use Areas providing coverage of not less
than $1,000,000 per occurrence, with a $2,000,000 aggregate.
(iv) Commercial Property Insurance including special form perils endorsement insuring Landlord’s
property in the Shopping Center for the full replacement value. This insurance will exclude
Tenant’s Work and Tenant’s merchandise, signs, goods, trade fixtures, furnishings, equipment,
furniture and other personal property).
(v) Landlord will have the right to carry or cause to be carried by a party other than
Tenant additional types of insurance in whatever limits Landlord chooses, including coverage
under blanket insurance policies which may be allocated by Landlord among the properties owned
or managed by Landlord which in Landlord’s opinion Landlord deems appropriate.
(b) Tenant agrees to carry the following insurance coverages and types:
(i) Workers’ Compensation Insurance in statutory amounts;
(ii) Employer’s Liability Insurance in the amount of $1,000,000 per person for each accident , or
disease;
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(iii) Commercial General Liability Insurance including products and completed operations coverages
of not less than $1,000,000 per occurrence, with a $2,000,000 per location aggregate (for
Shopping Centers in the states of New York, Texas and California these l imits shall be
$3,000,000 per occurrence with a $5,000,000 per location aggregate). The fire legal liability limit
shall be not less than $1,000,000. This policy shall include Contractual Liability coverage. This
policy shall also include an Additional Insured Endorsement containing the names of the
Additional Insureds identified below. The policy must have a Waiver of Subrogation endorsement
in favor of all Additional Insureds. Any deductible/self -insured retention in excess of $5,000 per
occurrence requires Landlord’s written consent.
(iv) Commercial Property Insurance including special form perils endorsement insuring Tenant’s
property, including plate glass, in the Shopping Center for the full replacement value, without
deduction for depreciation. This policy shall have an Agreed Value Endorsement. This insurance
must include all of Tenant’s work, improvements and betterments, Tenant’s inventory,
merchandise, signs, goods, trade fixtures, furnishings, equipment, furniture, wall coverings, floor
coverings, and other personal property). Tenant shall insure for loss from flood, including
coverage for water damage from all causes including but not limited to sprinkler damage, sewer
discharge or backup, water line breakage, and overflow from other tena nt’s spaces or from the
Joint Use Areas. Where available, Tenant shall insure for earthquake. Landlord shall be named as
a loss payee with respect to the coverage for Tenant’s betterments and improvements. The policy
must have a Waiver of Subrogation endorsement in favor of all Additional Insureds. The
deductible/self-insured retention shall not exceed $25,000 $5,000 per occurrence without
Landlord’s written consent.
(v) Loss of Business Income Insurance, including Extra Expense and Contingent Business income
coverage. The insurance limits for this insurance shall be based upon a minimum of 12 months
business income with a 60-day extended period of indemnity endorsement.
(vi) Boiler and Machinery insurance, including mechanical breakdown, covering rooftop HVAC units
and any separate heating units or boilers which serve only the Leased Premises. Such coverage
shall be for the full replacement value of the units without deduction for depreciation.
Tenant’s obligations regarding HVAC are set forth in
ARTICLE 11.
(vii) If in Landlord’s reasonable judgment there is a need for additional or different types of insurance,
Tenant shall obtain upon Landlord’s request the insura nce at Tenant’s sole expense.
(viii) Automobile liability coverage, including owned, non-owned and hired automobiles, with limits of
not less than $1,000,000 combined single limit for bodily injury and property damage.
(ix) If Tenant sells or serves alcoholic beverages, Tenant shall obtain and maintain, at all times during
the Term, Liquor Liability Insurance with policy limits of not less than $2,000,000.00 per
occurrence, naming Landlord and such additional parties as listed in (e) below as Additional
Insureds. If Tenant fails to obtain or to continue this coverage, Tenant shall immediately
discontinue selling and serving alcoholic beverages from the Leased Premises.
(x) If Tenant performs professional services on the Leased Premises Tenant shall obtain and
maintain, at all times during the Term, Professional Liability insurance appropriate to the service
provider's profession, with policy limits of not less than $1,000,000 per occurrence or loss. This
insurance shall not exclude coverage for bodily injury.
Landlord acknowledges and agrees that Tenant is a member of
the Public Entity Risk Pool (PRISM) and is permitted to
provide the insurance required in this ARTICLE 19(b)
through PRISM.
(c) All policies of insurance (including policies of Tenant’s contractors and subcontractors) shall contain a
Waiver of Subrogation Endorsement in favor of all Additional Insureds. If Tenant is permitted to self -insure for any
of the insurance coverages required to be provided, Tenant hereby waives against Landl ord, its parents, partners,
joint venturers, subsidiaries and affiliates, against the property manager, and against the Additional Insureds if not
listed below, all claims, including any and all rights of subrogation which may exist, for all losses and dam ages no
matter how caused, which were or could have been insured for under any policy of insurance required to be obtained
by Tenant. This waiver of liability and waiver of subrogation expressly includes any cause of loss due to the sole or
concurrent negligence of any Additional Insured. If Tenant shall, for any reason, fail to obtain from its insurance
carrier(s) the required Waiver of Subrogation Endorsement, the Tenant shall fully and completely defend and
indemnify the Landlord and all Additional Insureds from any claims and demands, including lawsuits, brought
against Landlord and/or the Additional Insureds by any insurance company which insured Tenant for a paid loss and
which seeks to recover amounts paid under Tenant’s policy.
(d) Tenant shall, upon request of Landlord, provide a Certificate of Insurance to Landlord evidencing all of the
required coverages and Endorsements. The Certificate of Insurance must remain current (or be replaced with a
current Certificate) at all times during the period of Tenant’s tenancy. All policies of insurance must be written by
insurance carriers licensed to do business in the state in which the Shopping Center is located and have an A.M.
Best’s rating of not less than A:VII. All Tenant’s liability policies shall be endorsed to be primary and non-
contributory to policies of the Landlord and the Additional Insureds, and shall contain either a cross -liability
endorsement or separation of insureds provision which permits the limits of liability under Tenant’s policies to apply
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separately to each Additional Insured. Tenant shall promptly give the certificate holder written notice in advance of
any cancellation, lapse, reduction in amount of coverage or any other adverse change to the policy or insurer.
(e) The Additional Insureds who shall be named on Tenant’s policies shall include the Landlord, Brookfield
Properties Retail Inc., Brookfield Properties Retail Holding LLC, and such other entities provided by Shopping
Center Management, any owner or occupant in or adjoining the Shopping Center (including anchors), any joint
venturer or partner of Landlord, and any mortgagee or beneficiary of any part of the Shopping Center.
ARTICLE 20 - Indemnification
Excluding the gross negligence or willful misconduct of the indemnitee, Tenant shall indemnify,
defend and save harmless Landlord, its parents, partners, subsidiaries, affiliates and any anchor, owner or operator
which is or may be in the Shopping Center, their agents, officers and employees from and against liability, claims,
demands, expenses, fees, fines, penalties, suits, proceedings, actions, and causes of action arising out of or
connected with Tenant's use, occupancy, management or control of the Leased Premises or Tenant's operation s or
activities in the Shopping Center (whether or not occurring or resulting in damage or injury within the Leased
Premises or the Joint Use Areas). This obligation to indemnify shall include reasonable legal and investigation costs
and all other reasonable costs, expense and liabilities from the 1st notice that any claim or demand is or may be
made. Tenant's obligation shall become effective beginning on the date Tenant is delivered the Leased Premises.
Tenant's indemnification obligation shall survive the expiration of the Term or the earlier termination of this Lease.
Excluding the gross negligence or willful misconduct of the
indemnitee, Landlord shall indemnify, defend and save harmless
Tenant, its agents, officers and employees against liabilities
claims, demands, expenses, fees, fines, penalties, suits,
proceedings, actions, and causes of action arising out of or
connected with Landlord’s management or control of the Joint Use
Areas or Landlord’s operations or activities in the Joint Use
Areas, except any matter arising out of or in connection with
ARTICLE 15(d). This obligation to indemnify shall include
reasonable legal and investigation costs and all other
reasonable costs expense and liabilities from the 1st notice that
any claim or demand is or may be made. Landlord’s
indemnification obligation shall survive the expiration of the
Term or the earlier termination of this Lease.
ARTICLE 21 - Assignment, Subletting and Ownership
(a) Tenant acknowledges that its agreement to operate in the Leased Premises for the use permitted in the
Reference Provisions for the Term was a primary inducement and precondition to Landlord's agreement to lease the
Leased Premises to Tenant. Additionally, the parties agree that the successful commercial profitability of the
Shopping Center is based on the appropriate mix of retail and nonretail activity and that Landlord has leased the
Leased Premises to Tenant because, in Landlord's opinion, Tenant's presence and commercial activity during the
Term will significantly contribute to the profitability, viability and success of the Shopping Center. Accordingly,
Tenant shall not transfer, assign, sublet, enter into license or concession agreements, change ownership or
hypothecate this Lease or Tenant's interest in and to the Leased Premises in whole or in part, or otherwise permit
occupancy of all or any part of the Leased Premises by anyone with, through or under it , without the
prior written consent of Landlord, which shall not be
unreasonably withheld, conditioned, or delayed. Any of these acts shall be
considered a "transfer" for the purposes of ARTICLE 21. Any attempt at a transfer without
Landlord’s cosent shall be null and void and confer no rights upon a 3rd person. These prohibitions
shall be construed to refer to events occurring by operation of law, legal process, receivership, bankruptcy or
otherwise. Notwithstanding any permitted transfer, the Leased Premises shall be used and operated as a single store.
Notwithstanding the foregoing, and without conferring any rights upon Tenant, Tenant shall submit the request for a
transfer, in writing, with sufficient time and information for Landlord to make an informed decision regarding the
qualifications of the proposed transferee. In any event, Landlord may upon re ceipt of a request to transfer, instead
of consenting to or denying the proposed transfer, terminate Tenant's obligations under the Lease and regain
possession of the Leased Premises. Tenant may, within 15 days of receipt of the notice of termination, wit hdraw its
request for the transfer by written notice to Landlord, and continue in possession under the terms of the Lease.
Landlord's right to terminate the Lease because of that request shall in that event be inoperable. If Landlord
exercises its termination right, Tenant shall surrender possession of the Leased Premises on the termination date
specified in Landlord’s notice, which shall not be less than 90 nor more than 180 days of receipt of the notice of
termination in accordance with the provisions of this Lease.
(b) Landlord's consent to a transfer shall not constitute a waiver of Landlord's right not to consent to a
subsequent transfer. The receipt of rental or additional rental from any party other than Tenant shall not be deemed
to be a consent to a transfer, nor shall that receipt relieve Tenant of its obligation to pay rental or additional rental for
the Term. Tenant shall not have a claim and waives the right to any claim against Landlord for damages because of
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the refusal, withholding or delaying by Landlord of consent. Tenant's only remedies shall be an action for specific
performance or an injunction to enforce a consent requirement.
(c) Each transfer to which Landlord has consented shall be in writing, in a form satisfactory to Landlord and
executed by the transferor and transferee. The transferee shall agree, in writing, to assume, be bound by and
perform the covenants and conditions of this Lease. Tenant shall deliver to Landlord a statement within 30 days
after the end of each calendar year, and within 30 days after the expiration or earlier termination of the Term,
specifying each transfer in effect during the period covered by the statement, as well as: (a) the date of the transfer
document's execution and delivery; (b) the square footage of the rentable area demised and the term; and (c) a
computation in reasonable detail showing the amounts, if any, paid and payable by Tenant to Landlord for the
transfer pursuant to this subsection. Tenant shall not be released from liability or r elieved of its obligations, unless
Landlord expressly agrees otherwise in writing. If the Minimum Annual Rental, Percentage Rental, additional rental
or other payment to be paid to Tenant from a transfer exceeds the rental and additional rental Tenant is required to
pay Landlord under this Lease, then Tenant shall pay to Landlord the entire amount of the excess, without prior
demand, which shall be deemed additional rental.
(d) If Tenant (or a guarantor of the Lease) is a nonpublic corporation and the con trol of the corporation
changes, Tenant shall notify Landlord. If the control changes (whether or not Tenant has notified Landlord),
Landlord may declare the change to be a default, effective 60 days from the date of the notice from Tenant, or the
date on which Landlord first has knowledge of the change, whichever occurs first. The provisions of the preceding
sentence shall not be applicable if control of the corporation changes as the result of a public offering which occurs
on a major security exchange. If Tenant (or a guarantor of the Lease) is a partnership or entity other than a
corporation (including, but not limited to, a sole proprietorship) and if the control changes (if Tenant is a
partnership, a change shall include, but not be limited to, the withdrawal of a partner or partners from the partnership
or the dissolution of the partnership), Tenant shall notify Landlord. If the control changes (whether or not Tenant
has notified Landlord), Landlord may declare the change a default, effective 60 da ys from the date of the notice
from Tenant, or the date on which Landlord first has knowledge of the change, whichever occurs first. The receipt
by Landlord of rental from a party other than Tenant shall not be deemed notice of change in control or owners hip of
Tenant.
(e) Tenant agrees to pay Landlord $400 plus one month's installment of Minimum Annual Rental $1,000
to reimburse Landlord for reasonable attorneys' fees and administrative expense for the review, processing
or preparation of any document in connection with a transfer, whether or not Landlord ’s consent to the transfer is
required or obtained.
(f) If Landlord is not permitted to terminate this Lease because of the provisions of Title 11 of the United
States Code relating to Bankruptcy, as amended ("Bankruptcy Code"), Tenant agrees, as a debtor in possession or
any trustee for Tenant, within 15 days after Landlord's request to the Bankruptcy Court, to assume or reject this
Lease. Tenant, on behalf of itself and any trustee, agrees not to seek or request an extension or adjournment of the
application to assume or reject this Lease. In no event after the assumption of this Lease shall an existi ng default
remain uncured for a period more than the earlier of 10 days or the time period specified in this Lease. If a filing of
a petition under the Bankruptcy Code occurs, Landlord shall not have an obligation to provide Tenant with services
or utilities unless Tenant has paid and is current in all payments of rental and additional rental.
(g) If Tenant receives Landlord's consent to a transfer under ARTICLE 21(a), and if Landlord does not
terminate the Lease under ARTICLE 21(d), the Minimum Annual Rental payable to Landlord shall not be less than
the highest annual combined Minimum Annual Rental and Percentage Rental payable by Tenant during any
previous year.
All of the other obligations, covenants and conditions shall remain unamended.
ARTICLE 22 – Access to Leased Premises
Tenant agrees that Landlord, its agents, employees, servants or any person authorized by Landlord, may enter the
Leased Premises upon no less than 24 hours prior notice by Landlord to
Tenant (and without notice in the event of an emergency) to: (a) inspect
its condition; (b) make repairs, additions or improvements to any part of the Shopping Center, including the Leased
Premises; (c) exhibit the Leased Premises to prospective purchasers of the Shopping Center; (d) pla ce notices during
the last 60 days of the Term in the Leased Premises at such places as may be determined by Landlord; (e) perform
construction on or near the Leased Premises; and (f) post notices of non -responsibility.
ARTICLE 23 - Default by Tenant
(a) The following shall be a default by Tenant:
(i) The failure to pay when due an installment of rental, or any other payment required to be made in
whole or in part, if the failure shall continue for more than 10 days after written notice that same is p ast
due, provided that any such notice given by Landlord shall be in lieu of, and not in addition to, any notice
required by state law; and/or
(ii) The abandonment or vacation of the Leased Premises or any part of it; and/or
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(iii) The failure to observe or perform any other provision of this Lease, if the failure continues for 10
days after written notice to Tenant; if the default cannot reasonably be cured within 10 days, Tenant shall
not be in default if Tenant begins to cure the default within 10 days and diligently cures the default; and/or
(iv) The making by Tenant of a general assignment for the benefit of creditors; the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt, or of a petition for reorganization or arrangement
under any law relating to bankruptcy (unless a petition filed against Tenant is dismissed within 60 days);
the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at
the Leased Premises or of Tenant's interest in this Lease if possession is not restored to Tenant within 30
days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at
the Leased Premises, or of Tenant's interest in this Lease, if the seizure is not discharged within 30 days;
and/or
(v) The failure more than twice within a 12 month period to make any payment of rental, provided
Landlord has given Tenant the required written notices in each case. Th e 3rd failure shall be a non-curable
default.
(b) In addition to any other remedies available to Landlord at law or in equity for default, Landlord shall have
the immediate option to terminate this Lease and the rights of Tenant by written notice to Tenant. If Landlord elects
to terminate, Landlord shall have the right to recover from Tenant as damages:
(i) The worth at the time of the award of any unpaid rental which has been earned at the time of
termination; and
(ii) The worth at the time of the award of the amount by which the unpaid rental which would have
been earned after termination until the time of award exceeds the amount of rental loss Tenant proves could
have been reasonably avoided; and
(iii) The worth at the time of award of the amount by which the unpaid rental for the balance of the
Term after the time of award exceeds the amount of rental loss Tenant proves could be reasonably avoided;
and
(iv) Any other amount necessary to compensate Landlord for the detriment proximately caused by
Tenant's failure to perform its obligations (including the costs and expenses of recovering the Leased
Premises and reasonable attorneys' fees) or which would be likely to result from Tenant's failure; and
(v) At Landlord's election, other amounts permitted by applicable law.
(c) The word "rental" shall mean the Minimum Annual Rental and all other sums required to be paid by Tenant
under this Lease. The word "award" means a judgment issued or rendered in favor of Landlord in a proceeding or
action to recover damages from Tenant. The phrase "at the time of the award" means the date of entry of such a
judgment. All sums, other than Minimum Annual Rental, shall be computed based on the average monthly amount
accruing during the 24 month period preceding the default. However, if it b ecomes necessary to compute the rental
before the 24 month period has occurred, the rental shall be computed on the basis of the average monthly amount
accruing during that shorter period. As used in paragraphs (i) and (ii) above, the "worth at the time o f the award" is
computed by allowing interest at the Interest Rate. As used in paragraph (iii) above, the "worth at the time of the
award" is computed by discounting that amount at the discount rate of the Federal Reserve Bank of Chicago, at the
time of award, plus 1%. In order to determine the amounts payable under ARTICLE 23, Percentage Rental shall be
included as additional rental and determined based on the average annual Net Sales for the 36 months (or, if Tenant
has been operating in the Leased Premises less than 36 months, on the average Net Sales for the 12 month period)
preceding the termination of Tenant's right to possession of the Leased Premises.
(d) Landlord shall also have the right if Tenant defaults under this Lease beyond applicable
notice and cure periods, to terminate Tenant’s right to possession of the Leased Premises
(without terminating this Lease) and reenter the Leased Premises and remove all persons and property from the
Leased Premises. The property may be stored at Tenant's cost. Landlord shall not be liable to Tenant for loss or
damage resulting from an entry by Landlord pursuant to this ARTICLE 23(d) unless
in the event of Landlord’s gross negligence or willful
misconduct. Tenant shall pay as additional rental, upon demand, expenses incurred or paid by Landlord
because of Landlord’s entry. If 2 or more or any combination of individuals, corporations, partnerships or other
business associations ("Individuals") sign this Lease as Tenant or guarantee this Lease as Guarantors, t he liability of
each individual group to pay rental and perform the obligations under this Lease shall be joint and several. The
failure or refusal by Landlord to proceed against all the (or any combination of the) Individuals comprising Tenant
or against Tenant or against 1 or more of the Guarantors shall not be a release or waiver of rights which Landlord
may possess against the others, nor shall the granting by Landlord of a release of or execution of a covenant not to
sue any 1 or more of the (or any combination of the) Individuals comprising the Tenant or the Guarantors be a
release or waiver in whole or in part of rights which Landlord may possess against the others. If either party
institutes legal suit or action for enforcement of an obligation, La ndlord may determine the venue. Landlord shall
not be in default unless and until Landlord shall have failed to perform its obligations under this Lease for 30 days
(or within such additional time as is reasonably required) after written notice to Landlor d properly specifying
Landlord's failure to perform the obligations. Landlord shall not be in default until and unless a court of competent
jurisdiction has determined that Landlord is in default. To the extent permitted by applicable law, Tenant waives
notice of reentry (or institution of legal proceedings), including the right to receive notice pursuant to any statute or
judicial decision of law. Notwithstanding anything to the contrary contained in ARTICLE 23, any written notice,
other than as specifically set forth in this ARTICLE 23, required by a statute or law enacted now or later is waived
by Tenant, to the extent permitted under that statute or law.
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(e) If all or any part of the Leased Premises are vacated or abandoned by Tenant, or if Landlord elects to
reenter or take possession of the Leased Premises pursuant to legal proceedings or notice, and if Landlord does not
elect to terminate this Lease, then Landlord may from time to time, without terminating this Lease, either recover
rental as it becomes due or relet the Leased Premises or any part of it for any length of time, rental and conditions
that Landlord in its sole discretion deems advisable. Landlord shall have the right to make alterations and repairs to
the Leased Premises. If Tenant has left all or any of its trade fixtures, furniture, furnishings, signs, stock or other
personal property in the Leased Premises, that shall not preclude a determination that a vacation or abandonment has
occurred.
(f) If Landlord elects to relet, rental received by Landlord from reletting shall be applied : 1st, to the payment
of indebtedness other than rental due Landlord from Tenant; 2nd, to the payment of the cost of reletting; 3rd, to the
payment of the cost of alterations and repairs to the Leased Premises; 4th, to the payment of rental due and unpaid;
and the remainder, if any, shall be applied to the payment of future rental that may become due. If the rental
received from reletting during any month which is applied to the payment of renta l is less than the rental payment
during that month by Tenant, Tenant shall pay the deficiency to Landlord. The deficiency shall be calculated and
paid monthly. Tenant shall also pay Landlord, as soon as ascertained, the costs and expenses incurred by La ndlord
to relet or make alterations and repairs not covered by the rental received from the reletting of the Leased Premises.
(g) A reentry or taking possession of the Leased Premises by Landlord shall not be construed to be an election
to terminate this Lease, nor shall it cause a forfeiture of rental remaining to be paid during the balance of the Term,
unless a written notice of that intention is given to Tenant or the termination is decreed by a court of competent
jurisdiction. Notwithstanding a reletting without termination by Landlord because of default by Tenant, Landlord
may at any time after reletting elect to terminate this Lease for any default.
(h) Tenant expressly waives any right or defense it may have to claim a merger, and neither the
commencement of an action or proceeding nor the settlement of, or entering of judgment for any action or
proceeding shall bar Landlord from bringing subsequent actions or proceedings, based upon other or subsequently
accruing claims, or based upon claims or events which have previously accrued and not been resolved in any prior
action, proceeding or settlement. The parties waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties against the other, regardless of whether such action, proceeding or counterclaim is related to
a default under this Lease.
ARTICLE 24 - Surrender of Leased Premises
Tenant shall, upon expiration of the Term, or the earlier termination of this Lease, surrender to Landlord, without
damage, injury, disturbance or payment, the Leased Premises including, without limitation, all apparatus,
equipment, alterations, improvements and additions by either party to, in, upon or about the Leased Premises. If
Tenant shall be in default, beyond applicable notice and cure period, Tenant shall
not have the right to remove trade fixtures, signs and other personal property. They shall remain or become, as the
case may be, the property of Landlord. Tenant, at its sole expense, shall immediately repair damage to the Leased
Premises, ordinary wear and tear excepted, caused by Tenant vacating the Leased
Premises or by Tenant's removal of trade fixtures, signs and other personal property. Tenant shall comply with all
laws and governmental regulations applicable to the removal and repair of the property. Tenant shall not create a
disturbance or health problem for customers, agents, invitees or other parties in the Shopping Center as result of the
removal or repair. Any property not removed may be deemed by Landlord to be abandoned by Tenant and may be
retained by Landlord or may be removed and stored for Tenant, at Tenant's sole cost. Tenant shall surrender the
Leased Premises to Landlord free of Hazardous Material and free of any violation of any environmental rul e or
regulation. Upon surrender of the Leased Premises, Tenant shall provide Landlord with a report by experts
acceptable to Landlord showing the Leased Premises free of Hazardous Material. Tenant's obligation to observe and
perform the provisions of this ARTICLE 24 shall survive the expiration of the Term or earlier termination of this
Lease.
ARTICLE 25 - Tenant's Conduct of Business
(a) Subject to ARTICLE 44 of this Lease, Tenant covenants to continuously and
uninterruptedly operate within the entire Leased Premises the business it is permitted to operate under Reference
Provision 1.03, except any portion of the Leased Premises while that portion is untenantable because of fire or other
casualty. Tenant agrees to conduct its business at all times in a first-class manner consistent with reputable business
standards and practices, and to maintain within the Leased Premises a stock of merchandise and trade fixtures
adequate to service and supply the usual demands of its customers. Tenant shall keep the Leased Premises in a neat,
safe, clean and orderly condition. Tenant also agrees to conduct Tenant's business under the Trade Name set forth in
the Reference Provisions, which Tenant represents that it has a right to use. Tenant further agrees to keep o pen the
Leased Premises and operate its business for 35 hours per week, Tuesday through
Saturday, excluding federally recognized and official Tenant
holidays when the Tenant is closed for business. at the hours and on the
days and evenings of the week determined from time to time by Landlord in Landlord's sole and absolute discretion.
A vacation or abandonment of other premises by any other tenant, occupant or anchor in the Shopping Center shall
not release Tenant from its obligations under this Lease, no twithstanding anything to the contrary contained in this
Lease.
If Tenant shall request Landlord’s approval to open the Leased Premises for business for periods other than as set
forth above and Landlord shall approve such request (which approval shall be in Landlord’s sole and absolute
discretion), Tenant shall pay for any additional costs incurred by Landlord in connection with such extended hours,
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including but not limited to the cost of security, heating, ventilating and air -conditioning the Leased Premises and
the Joint Use Areas required in order to access the Leased Premises, and any extra maintenance and/or repair to the
Joint Use Areas required as a result of such extended operating period. Additionally, Tenant shall be responsible for
any such extraordinary additional maintenance, security or other costs which are incurred by Landlord as a result of
Tenant’s use of the Leased Premises during normal operating hours.
(b) The parties agree that because of the difficulty or impossibility of determini ng Landlord's damages, if
Tenant fails to keep open the Leased Premises and operate its business as provided in this Lease
twice in any calendar year during the hours and on the days and evenings of the week
determined by Landlord, in addition to and not in lieu of Landlord's other rights and remedies, Tenant shall pay
Landlord liquidated damages of $150 $75.00 per day hour or fraction of the hour, as the case may be, that
Tenant fails to keep open and operate the Leased Premises and operate its business in accordance with
the terms and conditions set forth herein. Landlord and Tenant agree that this
amount represents a reasonable estimate of the damages that Landlord would suffer.
ARTICLE 26 - Rules and Regulations
Tenant shall require its employees, agents and contractors to comply with the rules and regulations made by
Landlord from time to time regarding the operation of the Shopping Center or the Leased Premises including, but
not limited to, the following:
(a) Tenant shall not put on the glass and supports of the windows (nor within 24 inches of any window), doors
or exterior walls of the Leased Premises any signs, advertising placards, names, insignias, trademarks or descriptive
material. No signs or other items shall be placed within the Leased Premises if they materially obstruct a view of
the Leased Premises. Tenant shall be allowed to place promotional signage
from time to time in display windows and sign holders, provided
(i) Tenant obtains Landlord’s prior approval, which shall not be
unreasonably withheld, conditioned or delayed, and (ii) the
signs are professionally prepared and meet Landlord's sign
criteria. Tenant shall not place vents, structures, improvements or obstructions on the exterior of the
Leased Premises without Landlord's written consent, not be unreasonably withheld,
conditioned or delayed. Landlord shall have the right, without giving notice to Tenant and without
liability, to restore the Leased Premises and remove property from the Leased Premis es unless the size, type, color,
location, copy, nature and display qualities of the property were approved by Landlord in writing. The cost of the
restoration and removal of property shall be paid for by Tenant promptly upon receipt of a bill, no later
than 10 days. Tenant shall not place a sign on the roof of the Leased Premises notwithstanding anything in
this Lease to the contrary.
(b) No awning or other projections shall be attached to the outside walls of the Leased Premises or the
Shopping Center without the written consent of Landlord, not be unreasonably withheld,
conditioned or delayed.
(c) Loading and unloading of goods shall be done only at the times, in the areas and through the entrances
designated by Landlord (“Designated Area”). Landlord agrees that Tenant
may receive up to two (2) deliveries per day by a Tenant owned
vehicle, at the Designated Area, for the drop off and pick-up of
books, equipment and/or supplies. Landlord acknowledges the
duration of each such delivery may last up to 30 minutes.
(d) Garbage shall be kept in the kind of container approved by Landlord's fire and casualty consultants and
shall be removed and deposited daily in mass disposal containers in the manner prescribed from time to time by
Landlord. Landlord shall provide or designate a service for collection of garbage from designated mass disposal
containers.
(e) Except solely for Tenant’s own internal operations use within the Leased Premises, no radio or television
aerials or other receivers and/or equipment, infrared transmitters/receivers, cabling, telecommunications systems
(including but not limited to switching, relay, hub or booster systems) shall be erected or placed within the Leased
Premises or on the roof or walls (interior or exterior) of the Leased Premises or the Shopping Center without the
written consent of Landlord, which may be withheld in Landlord’s sole discretion. If Landlord's consent is not
received, anything erected or placed on the roof or elsewhere within the Sh opping Center may be removed, without
notice, and any damage to the walls or roof or elsewhere within the Shopping Center shall be the responsibility of
Tenant. Tenant's access to the roof is limited to the maintenance of equipment installed with Landlord 's approval
and inspections for damage. Tenant shall not go on the roof without the written approval of Landlord.
(f) No loudspeakers, televisions, phonographs, radios, flashing lights, machinery or other devices shall be
heard or seen outside of the Leased Premises without the prior written consent of Landlord, which shall
not be unreasonably withheld, conditioned or delayed. Subject to Landlord’s
approval of Tenant’s plans and specifications, Tenant may install one or more video monitors in the Leased
Premises that are visible from the Joint Use Area provided the sole purpose of such video monitors is the promotion
of merchandise offered for sale in the Leased Premises and not for general advertising purposes. Sound from the
video monitors may not emanate into the Joint Use Area and content displayed may not be unreasonably offensive
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to patrons of the Shopping Center. Landlord will have the right to revoke its approval and require Tenant to remove
such video monitors on 2 days’ prior notice if sound or content emanating from Tenant’s video monitors is offensive
in Landlord’s sole discretion.
(g) No auction, fire, bankruptcy or selling-out sales shall be conducted without the written consent of
Landlord.
(h) Tenant shall keep its display windows and signs illuminated every day of the Term during the hours
designated by Landlord.
(i) Areas immediately adjoining the Leased Premises shall be kept clear by Tenant of Tenant’s
property and waste, and Tenant shall not place nor permit obstructions, garbage, r efuse, improvements,
merchandise or displays [except as otherwise provided in ARTICLE 26(a)] in
those areas.
(j) Tenant and its employees shall not park motor vehicles in parts of the parking area which may be
designated for customer parking. Tenant shall furnish Landlord the state automobile license numbers assigned to the
vehicles of Tenant's employees within 10 5 days after request by Landlord. Tenant shall notify Landlord of
changes to the numbers within 10 5 days after the changes occur. If Tenant or Tenant's employees continue to park
in the customer parking areas, after notice is given to Tenant by Landlord, Landlord may, in addition to any other
remedies Landlord may have, charge Tenant $25 per day, for each day or partial day, per vehicle parked in the
customer parking areas, attach violation stickers or notices to the vehicles and have the vehicles removed at Tenant's
expense.
(k) Tenant shall use the pest extermination contractor that Landlord may choose, and when Landlord requires
Tenant to do so. Tenant shall not keep or permit any animals in the Leased Premises, unless expressly allowed by in
this Lease, or unless used by disabled persons. Notwithstanding the foregoing and in
accordance with written rules and procedures submitted by Tenant
and approved in advance by Landlord, Landlord will allow Tenant
to conduct special programs involving the display of live
animals within the Leased Premises from time to time. Tenant
shall ensure that all animal waste including but not limited to
feces, urine, hair, and food is disposed of pursuant to
applicable law and Landlord criteria. Tenant shall ensure that
all waste is properly bagged and stored in containers prior to
disposing so as not to (i) emanate any smell; or (ii) cause any
health concerns. Landlord may at Landlord's option, require
Tenant to dispose of such in trash bins which are not located at
the Shopping Center, at Tenant's expense.
(l) If Landlord installs a central music system in the Shopping Center, and Tenant desires to purchase another
music system, Tenant may, at Landlord's option, purchase the system from Landlord (provided Landlord's charge is
competitive with any similar service available to Tenant).
(m) Tenant shall not carry on any trade or occupation or operate any instrument, apparatus or equipment which
emits an odor or causes a noise outside the Leased Premises or which is offensive.
(n) Tenant shall not put temporary signs or fixtures (including portable trade fixtures, displays and folding
tables) for the display of merchandise within 3 feet of either side of any entrance to the Leased Premises.
Merchandise displays shall not extend beyond the frontage line of the Leased Premises.
Notwithstanding the foregoing and with Landlord’s prior written
consent, which shall not be unreasonably withheld, conditioned
or delayed, Tenant shall be allowed to place professionally
prepared signage and promotional materials which conform to
Landlord’s design criteria at or near the entrance of the Leased
Premises to announce library programs and activities or deliver
library services.
(o) Tenant shall store and stock in the Leased Premises only goods, wares, merchandise and other property
necessary for the conduct of Tenant's business.
(p) Tenant shall not use or permit the Leased Premises to be used for living, sleeping, residential or lodging
purposes.
(q) Tenant shall not use the plumbing for a purpose other than that for which it is constructed. No gre ase or
foreign substance shall be put in the plumbing, and the expense of any resulting breakage, stoppage or damage
(whether on or off the Leased Premises) shall be borne by Tenant.
(r) Tenant shall not in the Joint Use Areas:
(i) vend, peddle or solicit orders for sale or distribution of any merchandise, device, service,
periodical, book, pamphlet or other matter;
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(ii) exhibit any sign, placard, banner, notice or other written material;
(iii) distribute any circular, booklet, handbill, placard or other material;
(iv) solicit membership in any organization, group or association or contribution;
(v) parade, patrol, picket, demonstrate or engage in conduct that might interfere with or impede the
use of the Joint Use Areas by any customer, invitee or employee, create a disturbance, attract attention or
harass, annoy, disparage or be detrimental to the interest of any of the other tenants;
(vi) use the Joint Use Areas for any purpose when none of the retail establishments within the
Shopping Center are open for business;
(vii) panhandle, beg or solicit funds; nor
(viii) solicit business.
(s) Tenant shall have the responsibility for protecting the Leased Premises from theft, robbery and pilferage,
and shall keep non-customer doors locked.
(t) No symbol, design, name, mark or insignia adopted for or used by Landlord in the Shopping Center shall
be used by Tenant without the prior written consent of Landlord.
(u) In the event Tenant requires the use of telecommunication, high -speed network or data transmission
services from the Leased Premises, Landlord may require Tenant to contract for such services through Landlord or
one of Landlord’s designated service providers, provided that the cost thereof is comparable to that availab le to
Tenant from another provider, given a comparable level and quality of service and equipment. Landlord’s liability
relative to such services shall be the same as that for provision of utilities as set forth in Article 16(g).
Landlord shall have all remedies provided in this Lease for the breach of any of the provisions of ARTICLE 26.
After the first violation in any calendar year, Tenant agrees to pay
Landlord, upon demand, in addition to and not in lieu of Landlord's other remedies, $70 per violati on of any of the
rules and regulations. Landlord shall have the right to grant variances of the rules and regulations, and shall enforce
the rules and regulations at its sole discretion.
ARTICLE 27 - Eminent Domain
(a) If the entire Leased Premises is appropriated or taken under eminent domain by any public or quasi-public
authority, this Lease shall terminate on the date of the taking. Landlord and Tenant shall be released from liability
accruing after that date. If more than 25% of the square footage of floor area (including a mezzanine, if any) of the
Leased Premises is taken under eminent domain by any public or quasi -public authority, or if because of the
appropriation or taking, regardless of the amount taken, the remainder of the Lea sed Premises is not usable for the
purposes specified in Reference Provision 1.03, either Landlord or Tenant shall have the right to terminate this
Lease as of the date Tenant is required to vacate a portion of the Leased Premises which has been taken, by giving
notice to the other in writing within 60 days after the date of the taking. Landlord and Tenant shall be released from
liability accruing after that date.
(b) Whether or not this Lease is terminated, Landlord shall be entitled to the entire award or compensation and
any portion of any compensation awarded for the diminution in value of the leasehold interest or fee of the Leased
Premises, but Tenant's right to receive compensation or damages for Tenant's fixtures and tangible personal property
shall not be affected. In addition, Tenant may seek its own award for
moving expenses and Tenant's loss of goodwill to the extent same
does not diminish Landlord' s award. If this Lease is terminated, rental, additional rental
and other charges for the last month of Tenant's occupancy shall be prorated, and Landlord shall refund to Tenant
rental, additional rental or other charges paid in advance.
(c) If Landlord and Tenant elect not to terminate this Lease, Tenant shall remain in the portion of the Leased
Premises which has not been appropriated or taken. Landlord agrees, at Landlord's cost and expense, to restore the
remaining portion of the Leased Premises to the quality and character that existed prior to the appropriation or
taking as soon as reasonably possible. The Minimum Annual Rental shall be adjusted, on an equitable basis, taking
into account the relative value of the portion taken compared to the portion remain ing. A voluntary sale or
conveyance in lieu of condemnation, but under threat of condemnation, shall be an appropriation or taking under
eminent domain. Tenant shall not have a claim against Landlord because of a taking.
ARTICLE 28 - Attorneys' Fees
If, during the Term or afterwards, either party institutes an action, proceeding or counterclaim against the other
relating to this Lease, or a default, the unsuccessful party shall reimburse the successful party for the total amount of
court costs, expenses and reasonable attorneys' fees actually incurred, the parties waiving any statute, rule of law or
public policy to the contrary. The parties agree to confirm this agreement in writing at the start of the action,
proceeding or counterclaim. The giving of a notice of default by Landlord shall constitute part of an action or
proceeding under this Lease, entitling Landlord to reimbursement of its reasonable expenses of attorneys' fees and
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disbursements, even if an action or proceeding is not commenced in a court of law and whether or not the default is
cured. This ARTICLE 28 shall survive the expiration or termination of this Lease.
ARTICLE 29 - Sale of Leased Premises by Landlord
In the event of the sale or exchange of the Leased Premises or the Shopp ing Center and the assignment of this Lease,
Landlord shall be relieved of all liability for the covenants and obligations in or derived from this Lease, or arising
out of any act, occurrence or omission relating to the Leased Premises or this Lease. The covenants, representations
and obligations of Landlord shall be binding on Landlord only during the period that Landlord has an ownership
interest in the Shopping Center.
ARTICLE 30 - Notices
Notices and demands shall be given in writing and sent by certified mail or by nationally recognized overnight
courier service, addressed to Landlord and to Tenant at the addresses specified in the Reference Provisions or at the
addresses which were last specified by notice by Landlord or Tenant. Notices or demand s shall be deemed to have
been given, made or communicated on the date they were deposited in the United States mail as certified matter,
with postage fully prepaid or deposited with the nationally recognized overnight courier service.
ARTICLE 31 - Remedies
All rights and remedies of Landlord and Tenant under this Lease or at law are cumulative, and the exercise of one or
more rights or remedies shall not exclude or waive the right to the exercise of any others. All rights and remedies
may be exercised and enforced concurrently, whenever and as often as desirable.
ARTICLE 32 - Successors and Assigns
All covenants, promises, conditions, representations and agreements shall be binding upon, apply and inure to
Landlord and Tenant and their heirs, executors, administrators, successors and assigns. The provisions of ARTICLE
21 hereof shall not be affected by this ARTICLE 32.
ARTICLE 33 - Representations
Tenant agrees that Landlord, its employees and agents have made no representations, inducemen ts or promises about
the Leased Premises, the Shopping Center or this Lease, or about the characteristics or conditions regarding or
pertaining to the Leased Premises or the Shopping Center, unless the representations, inducements and promises are
in this Lease. Tenant has independently investigated the potential for the success of its operations in the Shopping
Center. Therefore, no claim or liability, or cause for termination, shall be asserted by Tenant against Landlord, its
employees and agents, for, and they shall not be liable because of, the breach of any representations, inducements or
promises not expressly in this Lease.
Any claim, demand, right or defense by Tenant which is based upon or arises in connection with this Lease or the
negotiation of this Lease prior to its execution shall be barred unless Tenant commences an action or interposes a
legal proceeding or defense within 1 year after the date of the inaction, omission or occurrence of the event, or the
action to which the claim, demand, right or defense relates.
ARTICLE 34 - Waiver
The failure by Landlord or Tenant to insist upon strict performance by the other of any of the covenants, conditions,
provisions, rules and regulations and agreements in this Lease, or to exercise a right, s hall not be a waiver of any
rights or remedies and shall not be a waiver of a subsequent breach or default. A surrender of the Leased Premises
shall not occur by Landlord's acceptance of rental or by other means unless Landlord accepts the surrender in
writing. A payment by Tenant or receipt by Landlord of an amount less than the monthly rental shall not, nor shall
the endorsement, statement, check, letter accompanying a check or payment of rental, be an accord and satisfaction.
Landlord may accept a check or payment without prejudice to its right to recover the balance of rental due and
pursue any other remedy. A waiver by Landlord for one tenant shall not constitute a waiver for another tenant.
ARTICLE 35 - Holding Over
If Tenant remains in possession of the Leased Premises after the expiration of the Term without a new lease (even if
Tenant has paid and Landlord has accepted rental), Tenant shall be deemed to be occupying the Leased Premises as
a tenant from month to month, subject to the covenants, conditions and agreements of this Lease, provided
however, in lieu of Minimum Annual Rental, Tenant shall be
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obligated to pay “Hold Over Rental” of $2,000.00 per month for
as long as Tenant remains in possession of the Leased Premises.
The monthly rental shall be computed based on 1/6th of the full Minimum Annual Rental and additional rental due
during the last 12 month period of the Term (without benefit of any right to pay less rental otherwise set forth in this
Lease). If Tenant fails to surrender the Leased Premises on the termination of this Lease, Tenant shall, in addition to
other liabilities to Landlord, indemnify, defend and hold Landlord harmless from loss and liability resulting from
that failure including, but not limited to, claims made by a succeeding tenant. The exercise of Landlord's rights shall
not be interpreted to allow Tenant to continue in possession, nor shall it be deemed an election to extend the Term
beyond a month-to-month basis. If Landlord, in its sole discretion, determines to permit Tenant to remain in the
Leased Premises on a month-to-month basis, the month-to-month tenancy shall be terminable on 30 days prior
written notice given by either party to the other party.
If Tenant remains in possession of the Leased Premises after the
expiration of the Term and Tenant and Landlord are involved in
good faith negotiations for a new lease as demonstrated by a
renewal lease being executed within 30 days of the expiration of
the Term, the rental provisions of this ARTICLE 35 shall not
apply. However, if Landlord and Tenant do not enter into a
properly executed and delivered renewal lease within 30 days of
the termination of this Lease, then, commencing 30 days after
the expiration of the Term, Tenant shall pay Hold Over Rental on
the 1st day of each and every month for as long as Tenant remains
in possession of the Leased Premises.
If under ARTICLE 35 Hold Over Rental begins on a day other than
the 1st day of a month, the monthly installment of Hold Over
Rental for the period from the beginning date until the 1st day
of the month next following shall be prorated accordingly. All
Hold Over Rental, rental, additional rental, and other sums due
Landlord under this Lease shall bear interest from the due date
until paid by Tenant, at the rate of 2% above the Prime Rate (as
defined below), not to exceed the maximum rate of interest
allowed by law in the state where the Shopping Center is located
(the "Interest Rate"). The interest shall be deemed to be
additional rental. All rental provided for in this ARTICLE 35
shall be paid to Landlord at the address in Reference Provision
1.10 or to another payee or address that Landlord designates.
"Prime Rate" wherever it appears in the Lease means the prime
rate (or base rate) reported in the Money Rates column or
section of The Wall Street Journal as being the base rate on
corporate loans at large U.S. money center commercial banks
(whether or not that rate has been charged by any bank). If The
Wall Street Journal ceases publication of the prime rate, Prime
Rate shall mean the highest rate charged by Chase (or its
successor) on short term unsecured loans to its most
creditworthy large corporate borrowers. If The Wall Street
Journal (i) publishes more than one prime rate or base rate, the
higher or highest of the rates shall apply, or (ii) publishes a
retraction or correction of that rate, the rate reported in that
retraction or correction shall apply.
ARTICLE 36 - Interpretation
Only the relationship of Landlord and Tenant is created by this Lease. No provision of this Lease or act of either
party shall be construed to create the relationship of principal and agent, partnership, or joint venture or enterprise.
ARTICLE 37 - Advertising and Promotional Service
As part of Operating Expenses, Landlord may furnish and maintain professional advertising, marketing and sales
promotions which are intended to promote the Shopping Center and/or benefit sales therein. Such advertising and
promotion services may be provided in whole or in part by a 3rd party provider or by Landlord or by an affiliate,
subsidiary or other related company of Landlord. The nature and extent of such advertising and sales promotion
services shall be within Landlord's sole and absolute discretion. , and the portion of Minimum Annual Rental
and/or Operating Expenses Payment used by Landlord for such advertising and sales promotion services as set forth
in Article 17 shall constitute the entire obligation of Tenant to contribute to the co st of such services. Tenant shall
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pay Landlord the initial assessment specified in the Reference Provisions, for advertising and promotional activities,
in a lump sum within 10 days after demand.
ARTICLE 38 - Quiet Enjoyment
Landlord has the right, power and authority to enter into this Lease. Tenant, or any permitted assignee or sublessee
of Tenant, upon the payment of the rental and performance of Tenant's other covenants, shall and may peaceably
and quietly have, hold and enjoy the Leased Premises during the Term. This covenant shall be construed as a
covenant running with the land. It shall not be construed as a personal covenant of Landlord.
ARTICLE 39 - Waiver of Redemption
Tenant waives any right of redemption if Tenant is evicted or dispossessed for any cause, or if Landlord obtains
possession of the Leased Premises because of the default of Tenant or otherwise. The rights given to Landlord are
in addition to rights that may be given to Landlord by statute or oth erwise.
ARTICLE 40 - Fees
Tenant and Landlord warrants and represents that it has not had negotiations with or dealt with a realtor,
broker or agent in connection with this Lease. Tenant and Landlord agrees to pay and hold the
other party Landlord harmless from the cost, expense or liability (including the costs of suit and
reasonable attorneys’ fees) for compensation, commissions or charges claimed by a realtor, broker or agent
claiming it represents the indemnitor regarding this Lease.
ARTICLE 41 - Tenant's Property
Except for the gross negligence or willful misconduct of Landlord, its agents or employees, Landlord,
its agents and employees shall not be liable, and Tenant waives all claims, for damage to persons, property and
Tenant's business sustained by Tenant (or anyone claiming through Tenant) located on the Leased Premises.
Property kept or stored on the Leased Premises shall be kept or stored at the sole risk of Tenant, and Tenant shall
indemnify, defend and hold Landlord harmless from any claims arising out of damage to the same or damage to
Tenant's business, including subrogation claims by Tenant's insurance carrier.
ARTICLE 42 - Lease Status
Within 20 10 days of Landlord's written request, Tenant shall without charge exec ute, acknowledge and deliver to
Landlord an instrument required under this Lease or an instrument prepared by Landlord containing the Rental
Commencement Date Opening Date and Expiration Date of this Lease, and if true, that (a) this Lease is a
true copy of the Lease between the parties, (b) there are no amendments (or stating the amendments), (c) the Lease
is in full force and effect and that, to the best of Tenant's knowledge, there are no offsets, defenses or counterclaims
of rental or in the performance of the other covenants and conditions to be performed by Tenant, (d) no default has
been declared by either party and that Tenant has no knowledge of any facts or circumstances which it believes
would constitute a default by either party and (e) any other matters reasonably requested by Landlord. Tenant shall
remain liable to Landlord for damages sustained by Landlord because of the failure by Tenant to execute,
acknowledge and deliver the instrument. The failure of Tenant to execute, acknowledge and del iver the instrument
shall be an acknowledgment by Tenant that the statements contained in the instrument are correct. Anyone
transacting with Landlord shall have the right to rely on the accuracy of the statements contained in the instrument,
whether it is signed by Tenant or deemed acknowledged by Tenant pursuant to this ARTICLE 42.
ARTICLE 43 - Recording
Tenant shall not record this Lease, a memorandum, "short form" or other reference to this Lease, without the written
consent of Landlord.
ARTICLE 44 - Force Majeure
If either party is delayed, hindered or prevented from the performance of an obligation because of strikes, lockouts,
labor troubles, the inability to procure materials, power failure, restrictive governmental orders, mandates, laws,
regulations, or impositions of quarantine relating to events such as epidemics or pandemics that affect the area the
Shopping Center is in, riots, insurrection, war or another reason not the fault of the party delayed, but not including
financial inability, the performance shall be excused for the period of delay. The period for the performance shall
also be extended for a period equal to the period of delay. Tenant shall not be excused from the prompt payment of
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rental, additional rental or other payments. It shall be a condition of Tenant's right to claim an extension that Tenant
notify Landlord, in writing, within 10 days after the occurrence of the cause, specifying the nature of the cause and
the period of time necessary for performance.
ARTICLE 45 - Construction of Lease
Tenant has read and understands this Lease. The rule of construction that a document should be construed most
strictly against the party which prepared the document shall not be applied, because both parties have parti cipated in
the preparation of this Lease.
ARTICLE 46 – Security Deposit
(a) Tenant has deposited with Landlord the sum specified in the Reference Provisions, which shall be held by
Landlord, without liability for interest, as security for the perform ance by Tenant of Tenant's obligations. The
deposit shall not be mortgaged, assigned, transferred or encumbered by Tenant without Landlord's written consent,
and any such act by Tenant shall be without force and effect and not binding on Landlord. If Ten ant performs the
covenants and agreements in this Lease, the deposit, or the portion of the deposit not previously applied, shall be
returned to Tenant after the expiration of the Term, if Tenant has surrendered possession at the expiration of the
Term, and has left the Leased Premises in the condition required under this Lease.
(b) Landlord may commingle the deposit with its other funds. If the rental or any other sum is overdue, if Landlord
makes payments for Tenant, or if Tenant fails to perform any o f its obligations, Landlord may (without affecting any
remedy Landlord may have), apply this deposit, or so much of it to be necessary, to compensate Landlord for rental,
additional rental and any loss or damage sustained by Landlord. Tenant shall, upon d emand, restore the deposit to
the original amount. If a bankruptcy or other creditor-debtor proceedings against Tenant occurs, the deposit and all
other securities shall be applied first to the payment of rental and other charges due Landlord for periods prior to the
filing of the proceedings. Landlord may deliver the deposit to the transferee of Landlord's interest in the Leased
Premises. If that interest is transferred, upon notice to Tenant, Landlord shall be discharged from further liability,
and this provision shall also apply to subsequent transferees. Tenant hereby grants Landlord a security interest in
the deposit, and to execute the necessary Uniform Commercial Code filing to perfect the security interest granted
Landlord; this provision shall survive the expiration or termination of the Lease.
(c) Neither Landlord's right to possession of the Leased Premises for non-payment of rental or for any other reason,
nor any other right of Landlord, shall be affected because Landlord holds the deposit .
ARTICLE 47 - Captions
Captions are for convenience and reference only. The words contained in the captions shall not be deemed to
explain, modify, amplify or aid in the interpretation, construction or meaning of this Lease. The use of masculine or
neuter genders shall include the masculine, feminine and neuter genders. The singular form shall include the plural
if the context requires. "Landlord" and "Tenant" means "Landlord" and "Tenant" and "their agents and employees",
unless the context requires otherwise.
ARTICLE 48 - Severability
If any provision of this Lease or any paragraph, sentence, clause, phrase or word is judicially or administratively
held invalid or unenforceable, that shall not affect, modify or impair any other paragraph, sentence, clause, phrase or
word. The parties acknowledge that certain charges, fees and other payments are deemed "additional rental" in
order to enforce Landlord's remedies, and shall not be construed to be "rent" if rent controls are imposed.
ARTICLE 49 - Objection to Statements
Tenant's failure to object to a statement, invoice or billing within one year after receipt shall constitute Tenant's
acquiescence. Tenant shall be required to provide Landlord with a specific and detailed list of Tenant's objections at
the time Tenant makes its objection to Landlord. The statement, invoice or billing shall be an account stated
between Landlord and Tenant.
ARTICLE 50 - Liability of Landlord
Landlord's liability under this Lease or arising out of the relationship of the parties shall b e limited to Landlord's
interest in the Shopping Center. Judgments rendered against Landlord shall be satisfied solely out of the proceeds of
the sale of Landlord's interest in the Shopping Center which have been received by Landlord. No personal judgmen t
shall apply against Landlord upon extinguishment of its rights in the Shopping Center. A personal judgment shall
not create a right of execution or levy against Landlord's assets. The provisions of this ARTICLE 50 shall inure to
Landlord's successors and assigns. These provisions are not designed to relieve Landlord from the performance of
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its obligations under this Lease, but to limit the personal liability of Landlord in case of a judgment against
Landlord. Tenant's right to obtain injunctive relief or specific performance or to have any other right or remedy
which may be awarded Tenant by law or under this Lease shall not be limited however. No personal liability is
assumed by nor shall at any time be enforceable against Landlord.
ARTICLE 51 - No Option
The submission of this Lease is not a reservation of or option for the Leased Premises or any other space in the
Shopping Center, and vests no right in Tenant. This Lease shall become effective only upon proper execution and
delivery by the parties.
ARTICLE 52 - Execution of Documents
Tenant shall pay Landlord $400 plus one month's installment of Minimum Annual Rental $0.00 (plus charges,
if any, from Landlord's mortgagee) to reimburse Landlord for the administrative and legal expense for the review,
preparation and processing of any document sent to Landlord at Tenant's request, whether or not the document is
executed by Landlord.
ARTICLE 53 - Corporate Tenant
If Tenant is or will be a corporation or partnership or limited liability company of any kind, the persons executing
this Lease on behalf of Tenant covenant and represent that Tenant is a duly incorporated or duly qualifie d (if
foreign) corporation or partnership, as the case may be (including without limitation a limited liability corporation
and a limited liability partnership) and is authorized to do business in the State where the Shopping Center is located
(evidence shall be supplied Landlord upon request). Tenant also covenants and represents that the person or
persons, partner or member executing this Lease on behalf of Tenant is (if a corporation) an officer of Tenant, and is
(if a corporation or partnership of any kind) authorized to sign and execute this Lease.
ARTICLE 54 - Printed Provisions
The printed provisions of this Lease and written or typed additions shall be given equal weight for the interpretation
of this Lease. The deletion of any portion of this Lease shall not create an implication regarding the intent of the
parties, and this Lease shall be read and interpreted as if the deleted portion had never been in this Lease.
ARTICLE 55 - Entire Agreement
This Lease is the only agreement between the parties for the Leased Premises. An amendment, modification or
supplement to this Lease shall not be effective unless it is in writing and executed by the parties.
ARTICLE 56 - No Third-Party Rights
This Lease shall not confer rights or benefits, including third-party beneficiary rights or benefits to anyone that is not
a named party to this Lease, including any individual, corporation, partnership, trust, unincorporated organization,
governmental organization or agency or political subdivision.
ARTICLE 57 - Financial Statements DepositIntentionally Omitted
(a) Tenant acknowledges that it has provided Landlord with its financial statement or annual report
("Statement") and represents that the Statement is a primary inducement to Landlord's agreement to lease the Leased
Premises to Tenant. Landlord has relied on the accuracy of the Statement in order to enter into this Lease. Tenant
represents that the information contained in the Statement is true, complete and correct in all materia l aspects. This
representation is a precondition to the Lease.
(b) At the request of Landlord, unless Tenant is a publicly traded company, Tenant shall, not later than 30 days
following such request, furnish to Landlord its most recent balance sheet for at least the most recent fiscal year, a
statement of income and expense for that year and an opinion of an independent certified public accountant
satisfactory to Landlord (or a certificate of the chief financial officer, owner or partner of Tenant) indica ting the
financial statement has been prepared in conformity with generally accepted accounting principles consistently
applied and fairly present the financial condition and results of the operations of Tenant for that year.
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ARTICLE 58 - Other Locations DepositIntentionally Omitted
If during the Term: (a) Tenant, its parent, subsidiary, franchisor, or franchisee, the Guarantor of this Lease; (b) any
person, firm, corporation or other entity having an interest in any of the above parties; or (c) any oth er person, firm
or corporation controlling or controlled by Tenant or any of the above parties, shall directly or indirectly, either
individually or as a partner, shareholder, agent, employee or otherwise, own, operate, maintain or have an affiliation,
investment or interest in business similar to or in competition with the one operated at the Leased Premises within
the radius specified in Reference Provision 1.20 as measured from the perimeter of the Shopping Center (except
those carried on as of the Effective Date) then that shall constitute a default. At Landlord's option, in addition to
Landlord's other remedies, the Net Sales from any other business within the specified radius shall be included in the
Net Sales of the Leased Premises during each year. The Percentage Rental shall be computed on the aggregate of
the annual Net Sales made on, in or from the Leased Premises and on, in or from any other business located within
the radius. Tenant shall submit monthly sales statements and maintain records of the sales and transactions of the
other business. Landlord shall have the right to examine and audit those statements and records as though they were
made on, in or from the Leased Premises. A substantial increase in size or other substantial change in the business
at locations in existence on the Effective Date, or change in location to a location within the radius, shall remove the
exemption created for that location. "Radius" shall mean a geometric measurement and not the actual distance over
roads.
ARTICLE 59 - Tenant's Failure
This Lease shall be governed by the laws of the State in which the Shopping Center is located and shall be deemed
made and entered into in the county in which the Shopping Center is located. If Tenant fails to comply with and
perform any of its covenants, conditions or agreements, Landlord shall have the right, but not be obligated, to
perform the covenants, conditions or agreements. Tenant shall pay to Landlord on demand as additional rental, a
sum equal to the amount spent by Landlord for the performance, plus 15% of such amount to defray supervision and
overhead. If Landlord performs any covenants, conditions or agreements, Landlord, its agents or employees may
enter the Leased Premises. That entry and performance shall not constitute an eviction of Tenant in whole or in part,
nor relieve Tenant from the performance of the covenants, conditions and agreements. Landlord, its agents and
employees shall not be liable for claims for loss or damage to Tenant or anyone clai ming through or under Tenant.
ARTICLE 60 - Ownership
(a) If the ownership of the Shopping Center is in a Real Estate Investment Trust, then Landlord and Tenant
agree that Minimum Annual Rental, Percentage Rental and all additional rental paid to Landlord under this Lease
(collectively referred to in this Article as "Rent") shall qualify as "rents from real property" within the meaning of
Section 856(d) of the Internal Revenue Code of 1986, as amended (the "Code") and the U.S. Department of
Treasury Regulations (the "Regulations"). Should the Code or the Regulat ions, or interpretations of them by the
Internal Revenue Service contained in Revenue Rulings, be changed so that any Rent no longer qualifies as "rent
from real property" for the purposes of Section 856(d) of the Code and the Regulations, other than by re ason of the
application of Section 856(d)(2)(B) or 856(d)(5) of the Code or the Regulations, then Rent shall be adjusted so that
it will qualify (provided however that any adjustments required pursuant to this Article shall be made so as to
produce the equivalent (in economic terms) Rent as payable prior to the adjustment).
(b) Any services which Landlord is required to furnish pursuant to the provisions of this Lease may, at
Landlord’s option, be furnished from time to time, in whole or in part, by emplo yees of Landlord or Landlord’s
affiliates or by one or more third parties hired by Landlord or Landlord’s affiliates. Tenant agrees that upon
Landlord’s written request it will enter into direct agreements with the parties designated by Landlord to provid e
such services, provided that no such contract shall result in Tenant having to pay, in the aggregate, more money for
the occupancy of the Leased Premises under the terms of this Lease, or Tenant’s receiving fewer services or services
of a lesser quality than it is otherwise entitled to receive under the Lease.
ARTICLE 61 - Special Provision
(a) Tenant shall, in addition to the Net Sales reporting requirements contained in ARTICLE 6, separately state the
gross taxable sales made during the preceding year for California state sales tax reporting purposes. Tenant waives
the provisions of California Civil Code Sections 1941 and 1942 or any successor or similar legislation with respect
to Landlord's obligations for tenant ability of the Leased Premises and Tenant's right to make repairs and deduct the
expenses of such repairs from rent or to vacate the Leased Premises. Tenant also waives the provisions of California
Civil Code Section 1931(1), or any successor or similar legisl ation as to Tenant's right to terminate this Lease for
Landlord's failure to maintain or repair the Leased Premises. Tenant waives the provisions of California Civil Code
Sections 1932(2) and 1933(4), or any successor or similar legislation, with respect to any damage or destruction of
the Leased Premises. Any notice other than as specifically set forth in ARTICLE 23 shall be in lieu of and not in
addition to any notice required under California Code of Civil Procedure Section 1161 or any similar or succe ssor
statute. Each party waives the provisions of California Code of Civil Procedure Section 1265.130, or any successor
or similar legislation, allowing the Superior Court upon petition of either party to terminate this Lease for a partial
taking of the Leased Premises.
(b) The Leased Premises have not undergone an inspection by a Certified Access Specialist (CASp). In accordance
with Section 1938, subsection (e), as amended, of the Civil Code of the State of California, please note the following
as of January 1, 2017: “A Certified Access Specialist (CASp) can inspect the subject premises and determine
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whether the subject premises comply with all of the applicable construction-related accessibility standards under the
state law. Although state law does not require a CASp inspection of the subject premises, the commercial property
owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for
the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall
mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the
CASp inspection and the costs of making any repairs necessary to correct violations of construction-related
accessibility standards within the premises.”
(c) In the event Tenant has provided Landlord with a security deposit, Tenant agrees that the provisions of this
commercial lease relating to the security deposit control the handling of the security deposit and Tenant waives the
provisions of California Civil Code Sec. 1950.7.
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The exhibits are incorporated by reference into this Lease.
If Tenant is a CORPORATION, the authorized signatory shall sign on behalf of the corporation and indicate the
capacity in which they are signing. The Lease must be executed by the president or vice president an d attested by
the secretary or assistant secretary, unless the bylaws or a resolution of the board of directors provides otherwise. In
that case, the bylaws or a certified copy of the resolution shall be attached to this Lease. The appropriate corporate
seal must be affixed to the Lease.
Electronic Signatures. Landlord and Tenant intend to have the option for either party or both parties, to enter into
this Lease with electronic signatures or with signatures signed, scanned to Portable Document Format (“PDF”) and
delivered via email or DocuSign (or similar electronic format) and, if so, each party hereby consents to the other
party entering into this Lease with electronic signatures or with signatures signed, scanned to PDF and delivered via
email, and such electronic signature shall be as valid as an original handwritten signature of such party to this Lease
and shall be effective to bind such party to this Lease.
REMAINDER OF PAGE INTENTIONALLY BLANK
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This Lease is dated as of the date first written above.
TENANT:
The City Of Chula Vista, a California municipal corporation
d/b/a “Chula Vista Public Library”
By:___________________________________
_____________, Mayor
By:___________________________________
______________, City Clerk
Approved as to Form
By:___________________________________ Jill D.S. Maland
Lounsbery Ferguson Altona & Peak
Acting City Attorney
LANDLORD:
GGP-Otay Ranch, L.P., a Delaware limited partnership
By: GGP-Otay Ranch L.L.C., a Delaware limited liability company, its general partner
By: GGP/Homart II L.L.C., a Delaware limited liability company, its sole member
By: ___________________________
Authorized Signatory
__________________
APPROVALS
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EXHIBIT C
DESCRIPTION OF LANDLORD/TENANT WORK
ALL TENANTS
Otay Ranch Town Center
CHULA VISTA, California
Tenant accepts the Leased Premises in its “as-is” condition. Tenant, at Tenant’s expense, shall complete any
improvements that may be required for Tenant’s use of the Leased Premises. If Tenant’s design is not feasible with
the existing utility locations, such as mechanical, electrical, plumbing or fire protection, any alterations to the existing
utility locations shall be completed by Tenant at Tenant’s expense, subject to Landlord’s prior approval, not to
be unreasonably withheld, conditioned or delayed. All such work shall be in
accordance with this Exhibit “C”, the Tenant Criteria Manual and other information contained within the Te nant
Package reference below. All work to be performed by Landlord in delivering the Leased Premises to Tenant shall
be limited to those items expressly set forth in Exhibit “C” and Article 2 of the Lease, some of which may be performed
by Landlord on behalf of, and for Tenant as is more fully described herein.
A. TENANT PACKAGE
Tenant Package Landlord shall provide a “Tenant Package” to better identify the Leased Premises and
provide details in describing conditions of the shell structure. This packag e may contain such items as:
a. Lease exhibit drawing indicating approximate Leased Premises.
b. Dimensional floor plan drawings, if available. Tenant shall not rely on such plans or
drawings and must field-verify physical dimensions and existing conditions in the Leased
Premises prior to and during Tenant Work (defined in ARTICLE 2 of the Lease ).
c. Criteria Manual containing Tenant-required drawing submissions information, sign
criteria, architectural, electrical and mechanical information necessary for the preparation
of Tenant's plans, typical detail sheets, and other information.
d. By the execution of Tenant’s Lease, Tenant acknowledges receipt of the Tenant Package
and by this reference, it is incorporated in the Lease.
B. TENANT PLAN SUBMITTAL REQUIREMENTS
1. Tenant Working Drawings
Tenant shall provide working drawings (which may be electronic copies)
consisting of architectural, mechanical, electrical, plumbing, structural, life safety, specifications
and supporting calculation data, prepared by a registered architect and licensed engineer of the state
in which the Shopping Center is located as deemed necessary by Landlord. Refer to Tenant Package
for details. Tenant agrees to comply with the schedule set forth in 2 below.
2. Tenant Plan Submittal & Additional Requirements
a. By the submittal date for preliminary plans and specifications specified in the Reference
Provisions, Tenant agrees to notify Landlord of the identity and mailing address of the
licensed architect engaged by Tenant for the preparation of plans for Tenant's Work. At
the same time Tenant, at Tenant's expense, shall cause Tenant's architect to prepare and
deliver to Landlord for Landlord's approval, not to be unreasonably
withheld, conditioned or delayed one (1) preliminary drawing
submittal for Tenant's Work, adhering to the requirements as described in the Tenant
Package.
b. If Tenant does not furnish Landlord with the identity of Tenant’s architect or furnish
Landlord with drawings and specifications by the required date, Landlord shall have the
right, in addition to any other right or remedy it may have at law or in equity, to cancel and
terminate this Lease by written notice to Tenant. Landlord shall in addition to all other
remedies, be entitled to retain and have recourse to any bond, deposit or advance rental
previously deposited by Tenant under this Lease as liquidated damages.
c. By the submittal date for final plans and specifications specified in the Reference
Provisions, Tenant, at Tenant’s expense, shall cause Tenant’s architect to prepare and
deliver to Landlord for Landlord’s approval , not to be unreasonably
withheld, conditioned or delayed three one (31) sets of final
working drawings and specifications for Tenant’s Work, adhering to the requirements as
described in the Tenant Package.
d. Landlord shall review Tenant’s drawings and specifications and notify Tenant within 15
days of their receipt if they do not meet with Landlord’s approval. Tenant shall, within 10
days of the receipt of notification, revise and resubmit the drawings and specifications.
When Landlord has approved Tenant’s drawings and specifications, Landlord shall initial
and return one (1) set of approved drawings to Tenant. That set shall show the date of
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Landlord’s approval, and shall be made a part of this Lease as “EXHIBIT P .”
e. If any changes and/or revisions are made in Tenant’s working drawings and specifications
after Landlord’s initial approval, Tenant shall deliver to Landlord one set of revised
working drawings and specifications for additional approval.
f. No approval by Landlord shall be valid unless signed in writing by Landlord or Landlord’s
representative.
g. Tenant shall prepare its plans and perform Tenant's Work in compliance with Landlord's
requirements, governing statutes, ordinances, regulations, codes and insurance rating
boards. Tenant shall pay Landlord for review of final plans at the rate of $0.50 per square
foot of space in the Leased Premises, plus $0.25 per square foot for each required additional
review of final plans. Landlord's approval does not relieve Tenant of its obligation to
complete Tenant's Work in accordance with the terms of the Lease , nor of the necessity of
Tenant’s compliance with the laws, rules, regulations and ordinances of local governing
authorities.
h. Any approval by Landlord or Landlord’s architect shall neither obligate Landlord in any
manner whatsoever with respect to the finished product, design and/or construction by
Tenant nor be deemed to be a modification or amendment to the provisions of the Lease.
Any deficiency in design or construction, with or without prior approval of Landlord, shall
be solely the responsibility of Tenant. Tenant shall be solely responsible for corrections in
Tenant’s Work and its working drawings and specifications required by governmental
authority.
i. Notwithstanding anything to the contrary contained in this Lease, Tenant shall comply with
the Americans with Disabilities Act of 1990 ("ADA"), and any amendment to the ADA, as
well as applicable state, local laws, regulations, ordinances and independent inspections.
Compliance will include, but not be limited to, the design, construction, and alteration of
the Leased Premises as well as access to, employment of and service to individuals covered
by the ADA. Upon completion of work, Tenant’s or Tenant’s architect must supply to
Landlord a letter, satisfactory to Landlord, stating that the Leased Premises have been
designed and constructed in accordance with and are in compliance with the ADA .
j. Within 10 days after opening for business in the Leased Premises, Tenant shall provide
Landlord with one set of "as-built" drawings and specifications indicating the changes from
EXHIBIT P made during the performance of Tenant's Work. As-built drawings shall
accurately locate all underground utilities and equipment installed. As-built drawings shall
be delivered to Landlord prior to final inspection of the Leased Premises.
C. STRUCTURE
1. Building Shell
a. Landlord may provide, at its option, a concrete floor slab within the interior of the Leased
Premises at Tenant’s expense. In the event Landlord provides a concrete floor slab based
on the area of the Leased Premises, Tenant shall pay Landlord $3.00 per square foot for
concrete slab. Such concrete slab shall be installed in accordance with the requirements as
described in the Tenant Criteria Manual. Any tenant whose requirements exceed the
designed live load shall furnish Landlord with load information prepared by a licensed
structural engineer. At Landlord's option, Landlord may, at Tenant’s expense, submit
structural information to its engineer for verification.
b. Tenant is responsible for maintaining the integrity of the concrete slab. Any alterations to
Landlord’s slab shall be executed in accordance with the requirements described in the
Tenant Criteria Manual.
c. Upper and lower level suspended slab floor penetrations shall be core-drilled; no saw
cutting or trenching is permitted. All floor penetrations shall be sleeved and sealed as
required in the Tenant Criteria Manual.
d. Structural modifications and or additions by Tenant to Landlord’s structure is subject to
Landlord’s prior approval. Tenant shall submit structural calculations, which have been
prepared by a licensed structural engineer, to Landlord for review by Landlord's engineer,
at Tenant's expense.
2. Roof Penetrations
Roof penetrations by Tenant shall be held to a minimum. Penetrations, flashing and patching of the
roofing system shall be made by Landlord's roofing contractor, subject to Landlord's prior approval,
at Tenant's expense. Any structural framing or structural calculations required by Landlord as a
result of Tenant's roof penetrations shall be performed at Landlord's option by Landlord's contractor,
at Tenant's expense. Any associated curbs, rails, skids, etc. which can impact the roof system shall
be designed in accordance with the manufacturer's recommendations and installed by Landlord's
approved roofing contractor, at Tenant's expense.
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3. Waterproof Membrane
All food tenants, high water use tenants such as, beauty salons, pet stores, etc., lower and upper level
tenants whose design includes water being present, such as in kitchens or restrooms, shall install
and maintain a waterproof membrane approved by Landlord throughout the Leased Premises. A
water test shall be performed by Tenant. Tenant is responsible for maintaining liqu id-tight
capacities of the floor and other boundaries of the Leased Premises.
4. Fireproofing
Landlord may provide, at its option, fire retardant material on its structure within the Leased
Premises. Tenant shall be required to protect fireproofing and damage to fireproofing shall be
repaired by Tenant as necessary to meet the requirements and recommendations of applicable code
and local inspectors, at Tenant's expense.
D. STOREFRONTS
1. Neutral Piers and Bulkhead
Landlord may provide, at its option, vertical neutral surfaces or structural columns at the lease line
separating Tenant storefront construction from another adjacent space. Tenant shall pay Landlord
$200.00 for neutral piers and $6.50 per lineal foot of bulkhead soffit. The storefront area will be
left open for Tenant construction between the edges of the neutral surfaces and between the mall
finished floor and the underside of the horizontal soffit.
2. Additional Storefront Requirements
a. Landlord has established design criteria regulating materials and construction of the
storefronts and signage so that tenant storefronts contribute to the overall design concept
of the Shopping Center. In order to contribute to this theme, the overall storefront design
must conform to the design criteria as described in the Tenant Criteria Manual. Landlord
has the right to reject storefronts which do not meet the design criteria and to accept and
approve unusual designs that deviate from the required criteria, all at Landlord's sole
reasonable discretion.
b. Tenant is responsible for constructing a complete storefront to the full height and for
making a suitable attachment or termination of construction to the bulkhead soffit and
proper closure against each neutral pier. Refer to Tenant Criteria Manual for details.
Tenant shall be solely responsible for the repair of damage it causes to Landlord's finish
material.
c. Tenant’s storefront shall be self-supporting. Limited lateral bracing is permitted from
Landlord’s structure. The storefront or any part of the interior cannot be suspended from
Landlord's bulkhead framing or structure .
E. DEMISING WALLS AND EXITS
1. Demising Walls
a. Landlord shall provide light gauge metal studs or unfinished masonry separating the
Leased Premises from adjacent space. Tenant shall pay Landlord $10.00 per linear foot
for demising partitions.
b. Tenant is responsible for furnishing gypboard on all demising partitions and surfaces in
accordance with code and as described in the Tenant Criteria Manual .
c. Tenants are prohibited from allowing music or other sounds to emanate from their space
into an adjacent Tenant space or into the mall common area. Tenants who generate sound
levels greater than 40 decibels, or as otherwise deemed necessary by Landlord, shall
insulate their space against sound transmission. Methods to prevent sound transmission
must be thoroughly detailed on Tenant’s plans and is subject to Landlord’s approval, as
described in the Tenant Criteria Manual.
d. Tenant is responsible for providing Landlord with anticipated load and weight calculations
for any wall hung fixtures. If Landlord deems necessary, Tenant shall provide backing and
bracing support to demising walls to compensate for loading imposed by Tenant’s wall -
hung fixtures at Tenant’s expense.
e. Tenant is responsible for the construction of any wall in which an expansion join t occurs,
the construction of such wall shall be in accordance with acceptable construction design
practices and applicable codes.
2. Service Doors
Tenant is responsible for furnishing and installing a service door connecting to service corridors or
mall exterior service areas. The door shall comply with applicable code requirements and Landlord
requirements as described in the Tenant Criteria Manual. In the event Landlord has installed any
such doors, frames and hardware, then Tenant shall reimburse Lan dlord for the cost thereof at
$1000.00 per door.
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3. Exit Requirements
Tenant is responsible for providing all exit requirements and exit identifications within the Leased
Premises in accordance with requirements of applicable code and subject to approval by the local
building authority.
F. INTERIOR FINISHES, FURNISHINGS AND EQUIPMENT
1. Floor Finish
Tenant is responsible for all floor finish covering materials for the Leased Premises and shall make
a smooth, level transition with the mall floor at the lease line. In the event that Tenant is required
to match Landlord’s floor tile at Tenant’s lease line and closure line, Tenant shall pay Landlord
$22.00 per square foot for Landlord selected floor tile. Tenant shall protect and repair any damage
to Landlord's floor finish material, at Tenant's expense.
2. Wall Finish
Tenant is responsible for the installation of finished walls on the demising partitions, including any
necessary additional supports, wall blocking, fire tapping and wall finishes, at Tenant’s expense.
3. Ceilings
Ceiling height limitations are created by existing conditions and floor-to-floor heights vary
throughout the Shopping Center. Where building conditions permit, higher ceilings may be allowed
with the written approval of Landlord. Any relocation of or modification to existing piping, conduit
and/or ductwork necessitated by Tenant’s installation of a ceiling shall be at Tenant’s expense. If
the area above the ceiling is a return air plenum, ceilings are required throughout the Leased
Premises including, without limitation, stock and toilet rooms.
4. Access Panels
Tenant is responsible for providing access panels throughout the Leased Premises. Tenant shall at
minimum provide 24” x 24” flush mount access panels in the ceiling within the Leased Premises at
dampers, HVAC equipment and elsewhere as required by Landlord or as required by code in order
to provide access to the equipment.
5. Furnishings and Equipment
Tenant is responsible for furnishing and installing all fixtures, furnishings, equipment, shelving,
trade fixtures, leasehold improvements, interior decorations, graphics, signs, mirrors, coves and
decorative light fixtures and other special effects, as first approved and permitted by Landlord and
in accordance with all applicable federal, state, local laws, regulations and ordinances .
G. SIGNAGE
1. Tenant Signage Submittal
a. Tenant shall submit sign manufacturer's shop drawings to Landlord depicting sign, lettering
dimensions, overall dimensions, color, materials, mounting details, quantities and location
of the sign in relation to each elevation, as described in the Tenant Criteria Manual. Signs,
permits and related or resulting construction shall be Tenant's responsibility. All signs
shall be installed under the supervision of Landlord. The sign contractor shall repair any
damage caused by its work.
b. Landlord's final written approval, not to be unreasonably
withheld, conditioned or delayed, is required prior to sign
fabrication. Tenant shall not be permitted to open for business in the Leased Premises
without a sign that has been approved in writing by Landlord and which conforms to
applicable building and electrical codes.
2. Interior Signage Requirements
a. No signage shall be applied to storefront or hung within 4 '-0 from the lease line without
Landlord’s written approval. Refer to Tenant Criteria Manual for additional information.
b. No signs shall be allowed beyond the lease line without Landlord’s written approval .
c. No flashing, action, moving or audible signs are permitted.
d. No television or projection screens are permitted within 15 feet of the lease line without
Landlord’s written approval. Subject to Landlord’s approval, not to be
unreasonably withheld, conditioned or delayed, of
Tenant’s plans and specifications, Tenant may install one or more video monitors in the
Leased Premises that are visible from the Joint Use Area provided the sole purpose of
such video monitors is the promotion of merchandise offered for sale in the Leased
Premises and not for general advertising purposes. Sound from the video monitor s may
not emanate into the Joint Use Area and content displayed may not be unreasonably
offensive to patrons of the Shopping Center. Landlord will have the right to revoke its
approval and require Tenant to remove such video monitors on 2 days’ prior noti ce if
sound or content emanating from Tenant’s video monitors is offensive in Landlord’s sole
discretion.
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e. Signs may be vertical, horizontal, and be illuminated. Multiple signing may be permitted
on multi-directional storefronts but only with Landlord ’s prior written approval.
f. The length of horizontal lettering shall not exceed 50% of the horizontal storefront length.
The proportional ratio of the proposed signage length to the overall horizontal storefront
length shall be left to the sole discretion of Landlord.
g. Landlord reserves the right to regulate signage location throughout the mall and near
Anchor stores.
h. Wording is limited to the trade name of the store. Landlord shall review logos on a case -
by-case basis.
i. Sign shall be on a timer set to illuminate during mall hours.
j. No sign manufacturer's identification, decals or registered trademark shall be permitted .
k. Tenant shall keep the sign in good repair at all times.
H. HEATING VENTILATION AND AIR CONDITIONING
1. Landlord provided Heating, Ventilation and Air Conditioning System, “HVAC System”
Landlord may provide, at its option, the HVAC system to the Leased Premises, as defined in the
Tenant Criteria Manual. Tenant is responsible for design and installation, at its sole expense, of the
mechanical system within the Leased Premises from Landlord’s distribution point.
2. Tenant provided Roof Top Unit, “RTU System”
a. Tenant may, at its sole expense, upon prior written approval of Landlord , not to
be unreasonably withheld, conditioned or delayed,
install and operate a supplemental RTU System on the roof of the Shopping Center. The
RTU System shall supplement, and not replace, any existing air conditioning unit, and shall
be compatible with the Landlord-provided air conditioning system in all respects including,
but not limited to, roof integrity, structure, air flow, electric load, life safety alarm system
and utility capacity.
b. In the event Landlord does not provide the HVAC system, Tenant is required to design and
install the RTU System to the Leased Premises as defined in the Tenant Criteria Manual.
c. Landlord may provide, at its option, universal roof supports for roof-mounted equipment.
Tenant shall reimburse Landlord for all associated costs.
d. Tenant shall locate the RTU System and provide structural modifications in order to
comply with the Shopping Center's structural load limits. Tenant shall submit structural
calculations, which have been prepared by a licensed structural engineer , to Landlord for
review by Landlord's engineer, at Tenant's expense. Landlord may require modifications
to Tenant's design and construction.
e. Tenant shall not install or operate the RTU System without the prior written approval of
Landlord. Tenant shall not enter the roof without prior permission from a representative
of Landlord.
f. Tenant shall supply Landlord with maintenance agreements, plans and specifications fo r
the installation and operation of the RTU System.
g. Notwithstanding anything to the contrary contained in the Lease, Tenant shall have no right
to an abatement, deduction or set-off in rental if Tenant’s RTU System is or becomes
inoperable.
3. Additional Tenant Requirements
a. Tenant is responsible for providing the mechanical system within the Leased Premises,
including but not limited to maintenance, supply metal ductwork, grilles, registers,
electrical wiring, controls, heating, heat detectio n and circuitry necessary for the
satisfactory operation of an air conditioning system. Refer to Tenant Criteria Manual for
details.
b. Tenant is responsible for the design of all ductwork and accessories for air distribution in
accordance with the procedures described in the American Society of Heating,
Refrigerating, and Air Conditioning Engineering Guide (“ASHRAE”), and in accordance
with the latest methods recommended in the Sheet Metal and Air Conditioning Contractors
National Association (“SMACNA”) low velocity duct manual, and as otherwise set forth
by code.
c. In the event Landlord provides a pre-approved mechanical contractor, Tenant will be
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required to use Landlord’s contractor for the purchase and installation of Tenant’s HVAC
unit, heating & cooling equipment and HVAC curb, all at Tenant’s sole expense. Refer to
Tenant Criteria Manual for details.
d. Tenant is responsible for providing the Leased Premises with its own thermostat(s) in
accordance with the requirements of the Tenant Criteria Manual.
e. Tenant shall provide plans, specifications and calculations required in connection with the
installation and operation of Tenant’s HVAC System. Any review of the plans,
specifications and calculations performed by Landlord or Landlord's engineer , as Landlord
deems reasonably necessary, shall be at Tenant's expense.
f. Tenant is required to route HVAC condensation lines as directed by code and the mall on-
site representative.
g. Tenant is responsible for providing Landlord copies of air test and balance reports upon
completion of work.
h. Tenant shall reimburse Landlord, at Landlord’s option, for any measurement system(s)
required by Landlord for measuring Tenant’s consumption of conditioned air.
i. Landlord may provide, at its option, a smoke evacuation and control system within the
Leased Premises. In the event Landlord provides a smoke evacuation and control system,
Tenant shall pay Landlord $3.00 per square foot.
j. Tenants HVAC System and related rooftop equipment must be compatible with Landlord’s
life safety/ smoke exhaust system. Alterations to and interface with Landlord’s life
safety/smoke exhaust system shall be by Landlord’s contractor at Tenant’s sole expense.
k. Tenant may be required to provide and install, at Tenant's expense, heat or smoke detectors
within the Leased Premises to shut down the heating, air conditioning and ventilation
whenever an abnormal condition is detected. In addition, these devices may be required
by local code authorities as part of the fire prevention smoke removal system. Refer to
Tenant Criteria Manual for details.
l. Landlord shall have the right to require Tenant to cease operation of the Tenant’s HVAC
System if it is causing damage to any of the structural or mechanical elements of the
Shopping Center, interfering with or diminishing any service provided by Landlord or
others, or interfering with any other tenant’s business.
I. TOILET EXHAUST SYSTEM
a. Landlord may provide, at its option, a common toilet exhaust system to the Leased
Premises, as defined in the Tenant Criteria Manual. Tenant shall design and install a toilet
exhaust system and connect to Landlord’s exhaust duct system within the Leased Pr emises.
b. In the event Landlord does not provide the common toilet exhaust system, Tenant is
required to design and install the exhaust system for the Leased Premises, per code and as
defined in the Tenant Criteria Manual.
J. SPECIAL EXHAUST AND MAKE-UP AIR SYSTEMS
1. Special Exhaust Systems
Odors produced by tenants such as food service, beauty salons, pet shops, etc. must be exhausted to
the atmosphere through a tenant-furnished exhaust system. Tenant shall design and install an
engineered exhaust and make-up air system to maintain a negative pressure in the Leased Premises
to keep odors from disturbing Landlord, customers and other tenants. The location and minimum
distance of exhaust fans from any air intakes shall be as directed by Landlord and i n accordance
with applicable code. Refer to Tenant Criteria Manual for details.
2. Make-Up Air Systems
Make-up air systems as referenced in 1 above shall be furnished and installed by Tenant, upon
Landlord's approval, utilizing secondary mall air. If Tenant uses more than 10% of Landlord's air
supply for Tenant's special exhaust system, Tenant shall be responsible for an adjusted operating
charge.
3. Exhaust Discharge
a. Tenant is responsible for providing mushroom-type exhaust discharge outlets. All roof-
mounted equipment shall be approved by Landlord and installed on curbs per the
specifications in the Tenant Criteria Manual. All roof flashing shall be performed by
Landlord's roofing contractor at Tenant's expense. Projections above 3 '-0" will require
approval by Landlord and may require additional screening by Tenant.
b. Tenant shall provide a residue trough grease containment system, approved by Landlord,
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on all roof-mounted grease exhaust discharge equipment. The containment system shall
be cleaned and replaced on a regular basis.
4. Damper Control and Interlock
Tenant shall provide damper controls with automatic fan shutdown and interlock to maintain the
original design air balance approved by Landlord and in accordance with applicable code. The
control system must be able to shut down its fans in case of fire.
K. UTILITIES
1. Electric Service
a. Landlord shall provide the main electric distribution system as more fully described in the
Tenant Criteria Manual.
b. Landlord may provide, at its option, an empty electrical conduit to the Leased Premises
and associated electrical equipment serving the Leased Premises. In the event Landlord
provides electrical conduit and equipment, Tenant shall pay Landlord $800.00 for the
empty electrical conduit and $2,500.00 for electrical equipment.
c. In the event Landlord provides a Cable Tap Box assembly (“CTBA”) switch terminal to
the Leased Premises, Tenant shall pay Landlord $2,500.00.
d. Landlord will furnish electric service within the Leased Premises of not more than 15 watts
per square foot. Tenant’s electrical requirements for the space shall be determined from
Tenant’s electrical engineering plans in accordance with the National Electrical Code
(“NEC”). If the electrical service described above exceeds the minimum electric service
required by the NEC and as Tenant’s plans indicate, Tenant shall relinquish to Landlord
such excess service. Electrical system within the Leased Premises shall be “as-is” with all
electrical upgrades and modifications by Tenant at Tenant’s expense, upon Landlord’s
approval.
2. Tenant Electrical Requirements
a. Tenant is responsible for providing a complete electrical system from Landlord’s
distribution point within the Leased Premises. This shall include, but not be limited to, all
necessary labor, branch and main circuit breakers, panels, transformers, connection to
HVAC power supply, temperature controls and connection to Landlord’s smoke detector
or smoke evacuation system, if required .
b. Tenant shall pull copper conductors in conduit and make final connections at Landlord’s
electrical distribution panel. Conductors shall be continuous with no splices between the
switchgear in the distribution room and panels within the Leased Premises .
c. Tenant’s electrical engineer shall include an electrical riser line diagram and a complete
electrical panel schedule (quantities and sizes of lamps, appliances, signs, water heaters,
etc.), indicating individual and total demand of all electrical loads .
d. Electrical materials and equipment shall be new and installed per code and shall bear the
Underwriters Laboratories label. All wire must be copper.
e. Lighting fixtures shall be furnished and installed by Tenant, and shall be of a type approved
by applicable codes. Recessed fixtures in furred spaces shall be connected by a flexible
metal conduit and run to a branch circuit outlet box which is independent of the fixture.
Fluorescent ballast shall have individual non-resetting overload protection.
f. Panel board furnished and installed by Tenant for lighting and power within the Leased
Premises shall be equal to type NLAB class panels, and shall meet the requirements of
applicable code.
g. A floor-mounted transformer shall be furnished and installed by Tenant, as required.
3. Water Service
Landlord may provide, at its option, a cold water supply line at or near the boundary of the
Leased Premises. The water service will terminate with a valve connection. Tenant shall
pay Landlord $300.00 per valve connection.
4. Sanitary Service
Landlord may provide, at its option sanitary sewer stubs at or near the boundary of the
Leased Premises. Tenant shall pay Landlord $1,000.00 per sanitary sewer stub.
5. Vent Stub
Landlord may provide, at its option, plumbing vent stacks throughout the Shopping Center.
Tenant shall pay Landlord $500.00 per vent connection.
6. Tenant Plumbing Requirements
a. Tenant is responsible for providing a complete plumbing system from Landlord’s point of
service within the Leased Premises. This shall include, but not be limited to, all necessary
labor, connections to supply stubs, piping, vents, clean-outs, fixtures, etc. necessary for the
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satisfactory operation of a plumbing system.
b. Lower Level - Tenant is responsible for connecting to Landlord’s sewer stubs where
provided. Upper Level - Tenant is responsible for providing the floor penetrations for
connecting plumbing to sanitary sewer stubs. All floor penetrations shall be sleeved and
sealed as required in the Tenant Criteria Manual to prevent the penetration of odors or
liquids to any space below the Leased Premises. Floor penetrations shall be core -drilled;
no saw cutting is permitted. All horizontal sanitary sewer lines shall be installed above
the ceiling of a lower level tenant and the lines shall be insulated to prevent condensation.
c. Tenant is responsible for providing cleanouts in accordance with applicable codes.
d. Where more than one tenant is required to attach to a single sanitary and/or vent stub, the
first installing tenant shall install a plugged “Y” branch fitting for future connections, at
that tenant’s expense. Tenant shall run piping to the nearest stack and connect to the
opening provided by Landlord.
7. Water Meter
Tenant is responsible for connecting at the point of service and installing an accessible water meter
or accessible remote readout, and extending service accordin g to Tenant's requirements, in
accordance with Code and the Tenant Criteria Manual.
8. Water Heaters
Tenant is responsible for providing electric water-heaters for domestic water usage in the Leased
Premises. Electric water-heaters shall be automatic and shall be limited to 12-gallon capacity or as
per code. Water heaters must have a pressure relief valve discharge piped to the nearest drain in the
Leased Premises.
9. Toilet Facilities
Tenant is responsible for providing toilet facilities in compliance with ADA within the Leased
Premises, and shall provide and maintain a Landlord approved waterproof membrane, at Tenant's
expense. A minimum of one water closet, one lavatory and one cleanout, in accordance with code,
is required in the Leased Premises. Food court tenants shall not be subject to this requirement unless
required by applicable code. Upper level tenants shall not place toilet facilities over Landlord's
electrical service room.
10. Natural Gas Service
If natural gas service is available from the local utility company, Landlord shall arrange for the
installation of the meter banks and mains at the designated locations throughout the Shopping
Center. Landlord may provide, at its option, a natural gas line to the Leased Premises. Tenant shall
pay Landlord $2,000.00 for natural gas line. All piping, associated work and meter for extension of
services to the Leased Premises shall be provided by Tenant, at Tenant's expense, in accordance
with applicable code, and subject to Landlord's approval.
11. Telephone
Landlord shall arrange with the telephone company to install telephone service to the main telephone
terminal. Landlord may provide, at its option, a raceway from the main telephone terminal to the
Leased Premises. All telephone work for extension of services to the Leased Premises shall be
provided by Tenant, at Tenant's expense, in accordance with applicable code, and subject to
Landlord's approval.
L. SPECIAL FOOD TENANT REQUIREMENTS
1. Food Preparation Extinguishing Systems
a. Tenant shall design and install automatic extinguishing equipment in accordance with the
National Fire Protection Association Standard latest edition. The extinguishing system
shall be an Underwriters Laboratories approved pre -engineered system with the following
features:
i. Protection of the hood and duct;
ii. Surface protection for deep fat fryer, griddle, broiler and range;
iii. Automatic devices for shutting down fuel or power supply to the appliances.
These devices must be of the manual reset type;
iv. Provided with a simple means to manually activate the fire extinguishing
equipment within a path of ingress or egress. The means of manual activation
shall be mechanical (not electrical) and must be clearly identified.
b. Tenant shall ensure that extinguishing system is inspected in accordance with code. Tenant
shall enter into an inspection agreement with a firm qualified by the system manufacturer
to perform such inspections. The systems vendor shall submit plans and other pertinent
information on the proposed system to Landlord for prior review and approval.
2. Grease Removal and Cleaning
a. Tenant shall remove grease from all exposed surfaces of the Leased Premises daily.
Additionally, Tenant agrees to retain a dependable bonded degrea sing service for the
Leased Premises on a minimum monthly basis throughout the term of this Lease to clean
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and degrease the entire kitchen area, ranges, cooking equipment, broilers, stoves, hoods,
vents, exhaust and blower systems, filters and all associated ductwork to prevent grease
accumulation. If Tenant fails to do so, Landlord may maintain the system and charge
Tenant at three times Landlord's cost.
b. Copies of maintenance and cleaning reports shall be submitted to Landlord's on -site
representative.
c. Underwriters Laboratories approved grease-extracting hoods with water wash down cycle
or conventional range hood with washable grease filters in accordance with applicable code
are acceptable and subject to Landlord's fire protection engineer’s app roval.
3. Grease Interceptor
a. Landlord may provide, at its option, a common grease trap system for food tenants. Tenant
shall pay Landlord $3.00 per square foot for the common grease trap system.
b. If Tenant is unable to connect to Landlord’s common grease trap system, Tenant shall
install, (in accordance with applicable code and subject to Landlord's approval), a dedicated
grease trap system and indicate the location of the dedicated grease trap system on its
plumbing plans.
c. All food-related tenants shall connect all sinks and floor drains within the Leased Premises
(except toilet facility fixtures and drains) to the grease line in accordance with applicable
code, and subject to Landlord's approval.
4. Grease Trap Service and Removal
a. Tenant is responsible for properly maintaining its grease trap system. If Tenant fails to do
so, Landlord may maintain the system and charge Tenant at three times Landlord's cost.
Tenant shall not place any grease into trash compactor, normal garbage containers, floor &
sink drains or toilets. Landlord may provide, at its option, grease containers in a designated
area for grease removal. In the event Landlord does not provide grease containers, Tenant
is responsible to provide the grease container in a designated area as defined by Landlord.
Tenant may be required to use Landlord’s pre -approved removal service at Tenant’s sole
expense.
b. Copies of maintenance and cleaning reports shall be submitted to Landlord's on -site
representative.
M. FIRE PROTECTION SYSTEM
1. Tenant Sprinkler System
a. Landlord may provide, at its option, a complete wet sprinkler fire protection grid system
within the Leased Premises. Tenant shall pay Landlord $3.00 per square foot for the
sprinkler fire protection grid system.
b. Landlord may provide, at its option, a blind flange connection for Tenant’s sprinkler system
stubbed in the Leased Premises. Tenant shall pay Landlord $1,000.00 for blind flange
connection.
c. Tenant shall design and install an engineered wet sprinkler fire protection system within
the Leased Premises. In the event Landlord provides a pre -approved sprinkler contractor
Tenant will be required use Landlord’s contractor for such work at Tenant’s expense.
d. Tenant’s fire protection system shall comply with the requirements of the applicable
building codes, fire marshal and be approved by Landlord’s insurance carrier. Any
modifications or additions to the sprinkler system, main relocation, or installation of any
necessary sprinkler heads shall be engineered, fabricated and installed by Tenant at
Tenant’s expense. Refer to Tenant Criteria Manual for details.
e. Tenant’s sprinkler drawings and hydraulic calculations shall be prepared by a licensed
engineer of the state in which the Shopping Center is located. Drawings are subject to
Landlord’s approval, not to be unreasonably withheld,
conditioned or delayed.
f. Tenant shall pay Landlord $350.00 per shutdown for Tenant’s sprinkler system tie -in to
Landlord’s sprinkler system.
2. Tenant Fire System
a. Landlord may provide, at its option, a connection for a fire alarm system within or adjacent
to the Leased Premises. Tenant shall pay Landlord a charge of $1,000.00 for the fire alarm
point of connection. In the event Landlord completes final fire alarm system hookup, it
shall be at Tenant's expense. Refer to Tenant Criteria Manual for details.
b. Tenant may be required to design and install an engineered fire alarm system within the
Leased Premises. Tenant’s fire alarm system shall be compatible with Landlord’s system
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and comply with the requirements of the applicable building codes, fire marshal and be
approved by Landlord’s insurance carrier. Refer to Tenant Criteria Manual for details.
c. Tenant’s fire alarm drawings shall be prepared by a licensed engineer of the state in which
the Shopping Center is located. Drawings are subject to Landlord’s approval.
3. Tenant Fire Extinguishers
Tenant shall provide and install fire extinguishers in the Leased Premises. The number of
extinguishers provided by Tenant shall be as required by applicable building codes, fire marshal and
be approved by Landlord’s insurance carrier.
N. CONSTRUCTION REQUIREMENTS
1. Construction Deposit
Tenant shall cause its general contractor to deposit with Landlord, without liability for interest, the
sum of $5000.00 prior to construction start. This sum shall be applied toward any costs incurred by
Landlord or Landlord's contractor to repair any damage to Landlord’s property and to complete any
part of Tenant's Work which Tenant or Tenant's contractor fails to complete within the time period
required by ARTICLE 2 of the Lease. This remedy shall be in addition to and not in lieu of any
other rights and remedies of Landlord. The balance of the deposit shall be returned to Tenant's
general contractor after Tenant's Work has been reviewed and accepted by Landlord.
2. Construction Barricade
Landlord may require Tenant to erect a barricade that complies with mall standards at the start of
Tenant's Work, at Tenant's expense. In the event Landlord has previously erected a barricade or if
Tenant fails to erect a barricade and Landlord elects to erect a barricade on Tenant's behalf, Tenant
shall pay Landlord $85.00 per lineal foot for the barricade. Tenant's barricade may not be
dismantled without Landlord's prior approval.
3. Construction Trash Removal
Tenant is responsible for trash removal during construction, fixturing and stocking at Tenant’s
expense. Tenant shall break its boxes down and place its trash daily in the containers provided.
Trash accumulation shall not be permitted overnight in the Leased Premises, Joint Use Ar eas or
service corridors. In the event Landlord provides construction trash removal, Tenant shall pay
Landlord a single charge equal to the greater of $750.00 or $0.75 per square foot of the Leased
Premises. Compliance with Landlord's recycling program is mandatory.
4. Temporary Electric
Landlord may provide, at its option, temporary electrical service in general areas during
construction. Tenant shall request, in writing, permission to connect to the temporary service and
distribute temporary service to the Leased Premises in accordance with applicable code. In the event
Landlord provides temporary electrical service, Tenant shall pay Landlord a single charge equal to
the greater of $750.00 or $0.75 per square foot of the Leased Premises.
5. Contractor Requirements
a. Tenant and or Tenant’s contractor shall not commence any work without checking in with
Landlord’s on-site representative and supplying all required pre-construction documents.
Documents shall include but not be limited to a copy of building permit, Certificate of
Insurance and contractor’s license.
b. Tenant shall ensure that all Tenant’s contractors are bondable and licensed in the state
where the Shopping Center is located. Landlord shall have the right to approve Tenant's
contractors and subcontractors; however, appr oval shall not constitute the assumption of
any responsibility or liability by Landlord for the actions of Tenant's contractors or
subcontractors or the quality or sufficiency of Tenant's Work.
c. Tenant’s contractor or subcontractor shall not post signs in any part of the Shopping Center,
on construction barricades or in the Leased Premises without approval from Landlord .
d. All supplies necessary for construction, fixturing or merchandising the Leased Premises
must be delivered through designated truck docks and down the service corridors.
e. The contractor may perform “noisy” construction, such as jack hammering, saw cutting,
core drilling, etc., only during hours reasonably approved by Landlord’s on-site
representative. The Landlord’s on-site representative will terminate any construction
activity that is deemed excessively noisy or dusty or which is disruptive to the normal
operations of the adjacent tenants and/or the mall.
f. Tenant’s contractor shall obtain Landlord’s approval, not to be
unreasonably withheld, conditioned or delayed,
regarding all drilling, welding or other attachment to Landlord’s structural system.
Approval by Landlord shall be in writing before the start of Tenant's Work, and must be
clearly identified on Tenant's drawings. Landlord approval of the drawings does not relieve
Tenant’s contractor of the responsibility to make a request in writing prior to starting
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Tenant's Work.
g. Tenant’s contractor shall supply fire extinguishers during construction, in accordance with
code.
6. Tenant’s Work
a. Tenant shall conform to and comply with all federal, state, county and local laws,
ordinances, permits, rules and regulations in the performance of Tenant's Work or in the
performance of any alterations, additions or modifications.
b. Tenant's Work shall be coordinated with Landlord's Work as well as with the work of other
tenants in the Shopping Center so that Tenant's Work shall not interfere with or delay
completion of other construction in the Shopping Center.
c. In the event Tenant’s Work and Landlord’s Work shall progress simultaneously, Landlord
shall not be liable for any injury to persons or damage to property of Tenant, or of Tenant's
employees, licensees or invitees from any cause whatsoever occurring upon or about the
Leased Premises, and Tenant shall and will indemnify, defend and save Landlord harmless
from any and all liability and claims arising out of or connected with any injury or damage,
unless due to the gross negligence or willful
misconduct of Landlord. Tenant acknowledges that these provisions
become effective beginning upon the date Tenant or its agents first enter the Leased
Premises. This obligation to indemnify shall include reasonable attorneys' fees and other
reasonable costs, expenses and liabilities incurred by Landlord and its attorneys from the
first notice that any claim or demand is to be made or may be made.
d. Work performed by Tenant or Tenant's contractor shall be performed so as to avoid a labor
dispute. If there is a labor dispute, Tenant shall immediately undertake whatever action
may be necessary to eliminate the dispute including, but not limited to, (i) removing all
disputants from the job site until the labor dispute is over, (ii) seeking an injunction in the
event of a breach of contract action between Tenant and Tenant's contractor and (iii) filing
appropriate unfair labor practice charges in the event of a union jurisdictional dispute. If,
during the period of initial construction of the Leased Premises, any of Tenant's employees,
agents or contractors strike, or if picket lines or boycotts or other visible activities
objectionable to Landlord are conducted or carried out against Tenant or its employees,
agents or contractors, Tenant shall immediately close the Leased Premises and remove all
employees until the dispute giving rise to the strike, picket line, boycott or objectionable
activity has been settled to Landlord's satisfaction .
e. Tenant agrees that it will not, at any time prior to or during this Lease, including the period
of the performance of Tenant's Work, either directly or indirectly employ or permit the
employment of any contractor, or use any materials in the Leased Premises, if the use of
the contractor or the materials would, in Landlord's sole opinion, create a difficulty, strike
or jurisdictional dispute with other contractors engaged by Tenant or Landlord or others,
or would in any way disturb the construction, maintenance or operation of the Shopping
Center. If any interference or conflict occurs, Tenant, upon demand by Landlord, shall
cause all contractors or all materials causing the interference, difficulty or conflict, to leave
or be removed from the Shopping Center immediately.
f. Tenant’s Work shall be subject to inspection by Landlord during the course of construction
for the purpose of determining the quality of the workmanship and adherence to Landlord
requirements. Tenant shall require its contactor to cooperate with Landlord and correct any
deficiencies noted by Landlord. All work performed by Tenant during the Term of the
Lease shall be performed in accordance with this Lease, all exhibits thereto, the Tenant
Design Manual and as directed by Landlord’s representative.
g. All work by Tenant, including repair work, shall be performed in a first-class workmanlike
manner and shall be in a good and usable condition at completion. Tenant shall require
any person performing work to guarantee that the work is free from any and all defects in
workmanship and materials for one (1) year from the date of completion. Tenant shall also
require any such person to be responsible for the replacement or repair, without additional
charge, of work done or furnished by or through such person which shall become defective
within one (1) year after substantial completion of the work. The correction of work shall
include, without additional charge, all expenses and damages in connection with the
removal, replacement or repair of any part of work which may be damaged or disturbed.
All warranties or guarantees for materials or workmanship on or regarding Tenant's Work
shall be contained in the contract or subcontract. The contract shall be written so that all
warranties and guarantees shall inure to the benefit of both Landlord and Tenant, as their
respective interests appear, and so that either party can directly enforce the contract.
h. In the event Tenant or Tenant's contractor fails to perform Tenant's Work, or any part of
Tenant's Work, in a manner satisfactory to Landlord within 1030 days after receipt of
Landlord's punch list, Landlord shall have the right, in addition to and not in lieu of
Landlord's other rights and remedies, to perform the work and Tenant shall pay Landlord
for costs incurred by Landlord in such performance .
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O. INSURANCE REQUIREMENTS
Tenant's contractor must fulfill the following insurance requirements, and shall maintain at no expense to
Landlord:
a. Workers' Compensation Insurance within statutory limits and Employer's Liability
Insurance with limits of not less than $100,000.
b. General Liability Insurance with limits of not less than $2,000,000 combined single limit
for bodily injury and property damage, including personal injury, Contractual Liability
coverage specifically endorsed to cover the indemnity provisions contained herein and
Contractor's Protective Liability coverage if contractor uses subcontractors.
c. Motor Vehicle Liability Insurance in the Contractor's name, including owned, non-owned,
leased and hired car coverage with limits of not less than $2,000,000 combined single limit
per occurrence for bodily injury and property damage .
d. Tenant shall cause each of its contractors to agree to name Landlord, the parents,
subsidiaries and affiliates of Landlord and if Landlord elects, any owne r or other occupant
in or adjoining the Shopping Center, as Additional Insureds on Contractor's Commercial
General Liability Insurance and Motor Vehicle Liability Insurance. In addition to the
insurance Tenant is required to maintain under ARTICLE 19, Tenant shall maintain
Builders Risk Insurance including water damage and earth movement for the full
replacement cost of Tenant's Work.
e. Each of Tenant's contractors shall also, to the fullest extent permitted under the law, protect,
defend, save harmless and indemnify Landlord, the parents, subsidiaries and affiliates of
Landlord, and if Landlord elects, any owner or other occupant in or adjoining the Shopping
Center, and their employees, officers and agents against any and all liability claims,
demands or expenses incurred on account of any injury or damage, alleged or real, arising
out of or in any way connected with any act or omission to act on the part of the indemnitor.
f. Certificate evidence of the required insurance shall be furnished to Landlord before the
start of Tenant's Work. Insurance carriers shall have an AM Best's rating of A -VII or better,
and shall be registered or authorized to do business in the state in which the Shopping
Center is located.
P. GENERAL
1. Landlord’s Access
Landlord, Tenant or any local utility company shall have the right, subject to Landlord's approval,
to run utility lines, pipes, ducts, etc. above the Leased Premises. It shall be Tenant's responsibility
to provide flush-mounted access panels in its finished work where required by Landlord.
2. Additional Landlord’s Work
Landlord shall have the right to charge Tenant for certain improvements and other work performed
by Landlord or caused to be performed by Landlord at Tenant's request within the Leased Premises
although they may not be itemized in the Lease. This work shall be paid for by Tenant as additional
rental upon notice by Landlord. Landlord has no duty, however, to do any work which Landlord is
not specifically and expressly required to perform under this Lease or which, under any provisions
of this Lease, Tenant may be required to perform. The performance of work by Landlord shall not
constitute a waiver of Tenant's default in failing to perform the work
3. Hazardous Materials
Tenant shall comply with any existing or future city, state, county or federal regulations or
legislation regarding the control of pollution. Tenant shall not use or install, nor shall permit its
contractors to use or install, any building materials containing asbestos or other Hazardous Material.
Upon expiration of the Term or the earlier termination of this Lease, Tenant shall provide Landlord
with a statement signed by Tenant that the Leased Premises do not contain any Hazardous Material.
If Tenant fails to do so, Landlord shall have the right to have the Leased Premises inspected for the
presence of Hazardous Material, and if Hazardous Materials are present in the Leased Premises, to
take all actions which are necessary to return the Leased Premises to the condition it was in prior to
the presence of Hazardous Material in the Leased Premises, all at Tenant's expense. This obligation
by Tenant shall survive the Expiration Date or earlier termination of this Lease and shall survive
any transfer of Landlord's interest in the Shopping Center.
4. Tenant’s Refuse
Tenant is responsible for keeping the Leased Premises, the corridor, mall or arcade adjacent to the
Leased Premises broom clean and free of trash. If Landlord removes Tenant's or Tenant's
contractor's trash, the charge to Tenant will be three (3) times Landlord's cost. Any material,
whether trash or otherwise, placed outside of the Leased Premises for more than 24 hours shall be
subject to removal and disposal without notice.
5. Certificate of Occupancy
Tenant is responsible for obtaining a Certificate of Occupancy promptly following completion of
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Tenant's Work, and shall promptly forward a copy of it to Landlord prior to Tenant opening for
business in the Leased Premises. Tenant shall not be permitted to open for business without a
Certificate of Occupancy. Upon completion of Tenant's Work or any alterations under ARTICLE
12 of the Lease, Tenant shall submit an original contractor's notarized affidavit, all subcontractors'
original notarized affidavits and original notarized final waivers of lien, as well as any original
notarized lien waivers that Landlord may require from contractors, subcontractors, laborers, and
material suppliers. The documents must be in a form and detail satisfactory to Landlord .
6. Lien Protection
a. Neither Landlord nor any mortgage lender of Landlord shall be liable for any labor or
materials furnished to Tenant upon credit, and no mechanics or other lien for labor or
materials shall attach to or affect any interest of Landlord or the mortgage lender in the
Leased Premises or the Shopping Center. Nothing in this Lease shall be deemed or
construed to constitute Tenant as Landlord's agent or contractor for the performance of
Tenant's Work. Tenant acknowledges that Tenant's Work is to be performed solely for the
benefit of Tenant. Nothing in this Lease shall be construed as constituting the consent or
request of Landlord to any contractor for the performance of labor or the furnishing of any
materials for Tenant, nor as giving Tenant authority to contract as the agent of or for the
benefit of Landlord.
b. If Landlord’s insurance premium or real estate tax assessment increases as a result of
Tenant’s improvements to the Leased Premises, Tenant shall pay the increase as additional
rental upon notice from Landlord.
7. Square Footage Calculations
The calculations of the dimensions and square footage of the Leased Premises are from the
centerline of interior partitions, from the outside face of exterior walls, and from the full thickness
of corridor and shaft walls. No deductions are allowed for the space occupied by columns, interior
partitions, or other interior construction or equipment installed or placed in the Leased Premises.
The Leased Premises shall not include any space above the bottom of the structural framework
supporting the upper level or roof of the Shopping Center, as the case may be, or below the floor
level of the Leased Premises.
REMAINDER OF PAGE INTENTIONALLY BLANK
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The Chula Vista Public Library-
Otay Ranch Branch will
soon be relocated to:
Suite #1103
Library and passport services will close
on Monday, February 5 & reopen
as soon as possible.
Thank you for your
patience & understanding.
WE ARE
MOVING!
New Location
www.chulavistalibrary.com
619-397-5740
2015 Birch Road,
Suite 1103
Chula Vista, CA 91915 Page 147 of 177
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v . 0 0 4 P a g e | 1
February 26, 2024
ITEM TITLE
City Council Vacancy: Declaring a Vacancy for the District 4 City Councilmember Seat, Declaring an Intention
to Use Good Faith, Best Efforts to Appoint a Person to Fill the Seat, and Providing Direction to Staff on the
Appointment Process
Report Number: 24-0078
Location: No specific geographic location
Department: City Clerk & City Attorney
G.C. § 84308: No
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
Adopt a resolution declaring a vacancy for the District 4 City Councilmember Seat and declaring an intention
to use good faith, best efforts to appoint a person to fill the vacant seat within 45 days and discuss and provide
direction to staff regarding the appointment process.
SUMMARY
The District 4 City Councilmember seat is vacant as a result of the resignation of former Councilmember
Andrea Cardenas. The City Charter provides regulations for filling elected official vacancies, depending on
the length remaining in the unexpired term of the office. Due to the length of the remaining term for the
District 4 City Councilmember seat, the Council must use good faith, best efforts to fill the vacancy by
appointment. The ensuing report provides additional details and options for filling the vacancy.
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 unde r
Section 15378 of the State CEQA Guidelines because it will not result in a physical change in the environment;
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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
BACKGROUND
Former Councilmember Andrea Cardenas submitted a letter of resignation to her City Council colleagues on
February 19, 2024. (Attachment 1). Pursuant to Chula Vista Charter section 303(A), Ms. Cardenas is deemed
to have vacated her seat as of that date. The City Charter requires the City Council to declare the vacancy by
resolution as soon as practicable. Once the vacancy is declared, the City Council must take certain steps to fill
the vacancy within 45 days, as outlined below. Adoption of the resolution presented with this item will
declare the seat vacant and declare the intention to fill the vacancy in accordance with the Charter
requirements. In addition, City staff is requesting City Council direction with respect to the appointment
process.
PROCESS TO FILL THE DISTRICT 4 CITY COUNCILMEMBER VACANCY
The vacant District 4 City Councilmember seat term expires in December 2024. City Charter Section
303(C)(1) provides that if a vacancy is declared by the City Council with less than one year remaining in the
term for a Councilmember, the City Council is to use their good faith, best efforts to fill the vacancy by City
Council appointment no later than forty-five days after the date of such declaration. If the vacancy is declared
on February 26th, the appointment must be made by April 11th. If the Council is unable to make an
appointment during the prescribed forty-five day time period, the Council’s power to appoint to fill the
vacancy shall terminate and the seat shall remain vacant for the remainder of the term.
Appointment Options and Considerations
Process. Chula Vista Municipal Code (CVMC) Chapter 2.53 establishes the appointment process to fill
vacancies on the City Council. CVMC Chapter 2.53, a sample appointment timeline, and sample materials for
the appointment are provided as Attachments 2 and 3. A summary of the process is as follows:
1. The City Clerk works with City staff to notify the public of the vacancy. Communication regarding the
vacancy would include: posting notice of the vacancy on the City’s website and at City facilities,
publication of advertisements in the language-specific newspapers used for election-related
advertisements (languages are English, Spanish, Filipino, Vietnamese, and Chinese), social media
posts, press release, notification to those registered for City newsletters, and notification to City
board and commission members.
2. The application period begins on a date established by the City Clerk within five calendar days of the
vacancy being declared and ends 14 calendar days later. Applicants must submit a qualified
application during the application period. The City Council may provide direction to staff on the
components required for a qualified application, such as a resume and/or disclosure of economic
interests. Following the close of the application period and no later than 72 hours before a City
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Council meeting to consider the applications, the City Clerk will make all qualified applications
available to the City Council and the public at the same time. City Councilmembers shall
independently review all applications. Staff is recommending that the application period open on
March 1st and close on March 15th, and that an application form substantially similar to that included
in Attachment 3 be utilized in this process.
3. At an open City Council meeting, the City Council will make nominations of applicants for interviews.
Members of the public, including applicants, are afforded the opportunity to speak on the item. The
City Council publicly makes nominations for interviews at the meeting. Any applicant receiving two
or more nominations will be invited to interview. (If four or fewer qualified applications are received,
the nomination process does not occur, and all applicants are invited to interview.)
4. At an open City Council meeting, the City Council will interview applicants, with the public being
afforded the opportunity to speak before and after the interview process.
5. Following the interviews and public comment, the City Council publicly deliberates and selects one
individual to fill the vacancy. The affirmative vote of at least three City Councilmembers is required
for appointment.
Appointee Prohibited From Running for Election Immediately After the End of Appointed Term. The City Charter
prohibits an individual appointed by the City Council from seeking nomination and election to the office to
which they were appointed until one year from the termination of the appointed term has elapsed. As a result,
any person seeking nomination and election to the District 4 City Councilmember seat in 2024 would be
ineligible to be appointed.
Timeframe for New Member to be Seated. If the vacancy is filled by appointment, the member is expected to
be seated by April 2024.
If City Council is Unable to Make an Appointment within 45 Days. City Charter Section 303(C)(1) states that if
the City Council is unable to make an appointment within 45 days of the City Council declaring the vacancy,
the City Council’s power to appoint is terminated and the seat will remain vacant for the remainder of the
term.
District 4 Boundaries for Purposes of Filling the Vacancy
Although redistricting was completed in 2021 and new boundaries have been drawn for the City’s four City
Council districts, the new map does not go into effect until the primary election for each district (2022 for
Districts 1 and 2 and 2024 for Districts 3 and 4). The boundaries that were in place when the current District
4 term began in 2020 (the City Council district map adopted in 2015) will apply to fill the vacancy for the
unexpired term. The City Council District 4 map that applies to fill the current vacancy is provided as
Attachment 4.
At this time, staff recommends that City Council adopt the proposed resolution declaring the vacancy of the
District 4 Councilmember seat and declaring an intent to use good faith, best efforts to fill the vacancy. Staff
additionally requests that the City Council provide direction to staff on the appointment process.
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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 (Cal. Gov't Code § 87100, et seq.).
Staff is not independently aware and has not been informed by any City Councilmember of any other fact
that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
The cost of the appointment process is relatively minor, consisting mostly of staff time , basic supplies, and
language-specific newspaper publications used for election-related advertisements. Sufficient funds have
been budgeted in the current fiscal year for this expense.
ONGOING FISCAL IMPACT
There is no ongoing fiscal impact as a result of this action.
ATTACHMENTS
1. Letter of Resignation
2. CVMC 2.53 – City Council Vacancy Appointment Process
3. Appointment Timeline and Sample Documents
4. District 4 Map Applicable to Fill Vacancy
Staff Contact: Tyshar L. Turner, Deputy Director of City Clerk Services
Audrey Malone, Deputy Director of City Clerk Services
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Form Rev 3/6/2023
RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA DECLARING THE VACANCY OF THE
OFFICE OF DISTRICT 4 CITY COUNCILMEMBER AND
DECLARING AN INTENTION TO USE GOOD FAITH, BEST
EFFORTS TO APPOINT A PERSON TO FILL THE VACANT
SEAT
WHEREAS, under the provisions of Chula Vista Charter Section 303(A), a vacancy occurs
when a current office holder resigns from office, and the City Council shall declare by resolution
the existence of any vacancy as soon as practicable; and
WHEREAS, District 4 City Councilmember Andrea Cardenas submitted a letter of
resignation effective February 19, 2024, attached hereto as Exhibit 1; and
WHEREAS, the current District 4 City Councilmember term expires in December 2024,
leaving less than one year remaining in the term; and
WHEREAS, pursuant to Charter Section 303(C)(1), when a vacancy occurs with less than
one year remaining in the term, the City Council must use their good faith, best faith efforts to fill
that vacancy by Council appointment by no later than 45 days after the date of declaring the seat
vacant; and
WHEREAS, although a new Redistricting Plan was approved in 2021, the boundaries for
City Council District 4 adopted as part of the Districting Plan in 2015 will be applicable to fill this
unscheduled vacancy as Charter Section 903(A)(2) states that a new Redistricting Plan with
adjusted district boundaries is used commencing with the next scheduled primary municipal
election (March 2024 for District 4); and
WHEREAS, under the provisions of Charter Section 303(C)(1), if the City Council is
unable to make an appointment within 45 days of declaring the vacancy, the Council’s power to
appoint is terminated and the seat will remain vacant for the remainder of the term.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista,
that it does hereby declare, as of the date of this resolution, that: (i) the Office of District 4 City
Councilmember became vacant on February 19, 2024; and (ii) it intends to use good faith, best
efforts to fill the vacancy by City Council appointment within forty-five days of this declaration
of vacancy.
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Resolution No.
Page 2
Presented by Approved as to form by
Kerry K. Bigelow Jill D.S. Maland
City Clerk Lounsbery Ferguson Altona & Peak
Acting City Attorney
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MEMORANDUM
OFFICE OF COUNCILMEMBER ANDREA CARDENAS
DATE:
TO:
FROM:
SUBJECT:
February 19, 2024
Mayor and City Councilmembers
Councilmember Andrea Cardenas
Resigna(on from Office
Dear Mayor and Councilmembers,
In an effort to priori8ze my mental health, and the health of my community, I have made the very
difficult choice to formally resign effec8ve immediately from my posi8on as Councilmember for our
City’s 4th District. It has been an honor and privilege to serve my community and work alongside all of
you.
Sincerely,
Andrea Cardenas
Former Councilmember
District 4
CC: City Manager, City Clerk, City AGorney
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2.53.010
2.53.020
2.53.030
2.53.040
2.53.050
2.53.060
Chapter 2.53
APPOINTMENT PROCESS TO FILL VACANCIES ON THE CITY COUNCIL
AND SPECIFIED COMMISSIONS
Sections:
Purpose and intent.
Applicability.
Definitions.
City Council vacancy appointments.
Specified City commission vacancy appointments.
California Public Records Act and Ralph M. Brown Act compliance.
2.53.010 Purpose and intent.
The purpose of this chapter is to set forth a fair and open appointment process to be used by the City Council to
fill vacancies (defined below) on specified City commissions (defined below) and to fill vacancies on the City Council
where such appointment is authorized by the Charter. (Ord. 3370 § 1, 2016).
2.53.020 Applicability.
This chapter applies to appointments to fill (A) any vacancy (defined below) on the City Council when the City
Council has elected to fill such vacancy by appointment as permitted under Charter Section 303(C); and (B) any
vacancy on specified City commissions (defined below). The appointment processes for seats on other City
commissions, where either nominations for vacancies are to be made by the Mayor or where alternative
appointment processes apply, are set forth elsewhere in this code, in the chapters and code provisions specifically
applicable thereto. (Ord. 3370 § 1, 2016).
2.53.030 Definitions.
“Application period” means the time frame during which applications are accepted for a particular vacancy
(defined below). The application period for City Council vacancies is defined in CVMC 2.53.040(C). The application
period for specified City commission vacancies is defined in CVMC 2.53.050(B). Once established, the application
period will be posted on the City’s website.
“Interview” means the process at a public meeting by which applicants are given an opportunity to present
themselves to the City Council, and the City Council questions and evaluates the applicants. Should an applicant be
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unable to attend the scheduled interview, the Council may elect to consider a letter of interest or interview by
other means, such as telephone or video conference, in lieu of an in-person meeting.
“Qualified application” means an application received within the application period with all of the required
components. The application form shall be available through the City Clerk’s office and will specify the required
components for an application to be deemed a qualified application.
“Specified City commissions” means those City commissions specified elsewhere in this code, in the chapters and
code provisions specifically applicable thereto.
Vacancy (or Vacancies). For specified City commission seats, “vacancy” is defined in accordance with CVMC 2.25.105.
For City Council seats, “vacancy” is defined in accordance with Charter Section 303(A). (Ord. 3490 § 1, 2020; Ord.
3435 § 1, 2018; Ord. 3393 § 1, 2016; Ord. 3370 § 1, 2016).
2.53.040 City Council vacancy appointments.
A. The process for filling a vacancy by appointment to the City Council is intended to be consistent with and
implementing of Chula Vista Charter Section 303(C). To the extent there is any conflict between the Charter and
this chapter, the terms of the Charter shall govern.
B. In the event of a City Council vacancy, the City Clerk will work with City staff to notify the public of the vacancy
in accordance with then applicable “best practices.” At a minimum, notice of the vacancy will be posted on the
City’s website and at the City Clerk’s office.
C. The application period shall commence on a date established by the City Clerk no later than five calendar
days after the vacancy is declared by the City Council in accordance with Charter Section 303(A) and end on the
day falling 14 calendar days after the commencement date. An individual desiring to fill a vacancy must submit a
qualified application during the application period. The City Clerk will collect and provide all qualified applications
received within the application period to the Mayor and each Councilmember no later than 72 hours prior to the
meeting scheduled for nominations or interviews. Such applications will be made available to the public at the
same time. Applications received after the established application period shall not be accepted. The Mayor and
each Councilmember shall independently review all forwarded qualified applications for the vacancy.
D. Should four or fewer qualified applications be received by the City Clerk within the application period,
following the close of the application period, the appointment process shall be as follows:
1. At an open meeting of the City Council, the Mayor and City Council shall collectively set a date and time
to hold an interview of all applicants who have submitted a qualified application during the specified
application period.
2. At the meeting set for interviews, any member of the public shall be afforded the opportunity to speak to
the item prior to commencement of the interview process.
3. The Mayor and City Council will then conduct the interviews.
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4. Public comment will be solicited and allowed again after the interviews.
5. Following the interviews and any public comment, the Mayor and City Council shall publicly deliberate
and select one individual for each available position. The affirmative votes of at least three Councilmembers
are required for appointment.
E. Should five or more qualified applications be received by the City Clerk within the application period,
following the close of the application period, the appointment process shall be as follows:
1. The City Clerk shall place an item on the agenda of an open City Council meeting, indicating that
nominations by the City Councilmembers for interviews to fill the vacancy will take place. The vacancy and the
names of applicants who have submitted a qualified application during the application period will be listed.
2. At the meeting for nominations, any member of the public, including any individual submitting a
qualified application, shall be afforded the opportunity to speak to the nomination item.
3. Following the public comment period, the Mayor and each Councilmember will complete a form
indicating one or more applicants each wishes to nominate for an interview and provide the form to the City
Clerk. The forms submitted to the City Clerk shall be public record and retained on file in the office of the City
Clerk.
4. The City Clerk shall then publicly announce each applicant receiving two or more nominations and
indicate that each Councilmember’s nomination form is available for public review.
5. The Mayor and City Council shall then collectively set a date and time to hold an open meeting of the City
Council for the purpose of interviewing each applicant who received two or more nominations.
6. At the meeting set for interviews, any member of the public shall be afforded the opportunity to speak to
the interview item prior to the commencement of the interview process.
7. The Mayor and City Council will then conduct the interviews.
8. Public comment will be solicited and allowed again after the interviews.
9. Following the interviews and any public comment, the Mayor and City Council shall publicly deliberate
and select one individual for each available position. The affirmative votes of at least three Councilmembers
are required for appointment. (Ord. 3370 § 1, 2016).
2.53.050 Specified City commission vacancy appointments.
The appointment process for filling vacancies on specified City commissions shall be consistent with the process
for City Council appointments provided in CVMC 2.53.040, with the following exceptions:
A. In the event of a vacancy, the City Clerk will follow current organizational best practices to notify the public of
the vacancy. Vacancies shall be noticed and filled in accordance with the requirements of Government Code
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Section 54970 et seq. (Maddy Act). The City Clerk will maintain applications received for prospective membership
on specified City commissions for a period of one year from the date of application.
B. For vacancies that are noticed on the “local appointments list” as defined and in accordance with Government
Code Section 54972, the application period shall commence on the day one year prior to the date of vacancy and
end 30 days before the date of vacancy. In the event of an unscheduled vacancy, the application period shall
commence on the day one year prior to the date of the notice of vacancy, in accordance with Government Code
Section 54974, and end a minimum of 21 days after such notice, on a date specified and noticed by the City Clerk.
In the event that fewer than three qualified applications are received during the application period, the application
period may be extended by the City Clerk. Applications received after the established application period shall not
be accepted. In the event that an applicant submits more than one qualified application for a vacancy during the
application period, the last qualified application for the vacancy received by the City Clerk shall be deemed the
applicant’s qualified application.
C. No later than 72 hours prior to the meeting scheduled for nominations or interviews, the City Clerk will
provide the Mayor and each Councilmember with all qualified applications received within the application period.
Such applications will be made available to the public at the same time.
D. Should four or fewer qualified applications be received by the City Clerk within the application period, the City
Clerk may independently poll the City Councilmembers for their availability and subsequently set a date and time
to hold interviews of all applicants who have submitted a qualified application during the specified application
period. (Ord. 3435 § 1, 2018; Ord. 3370 § 1, 2016).
2.53.060 California Public Records Act and Ralph M. Brown Act compliance.
Interviews and meetings that occur in accordance with this chapter shall comply with Government Code Sections
54950 through 54963 (Ralph M. Brown Act). Should written material be submitted, such material shall be made
available for public inspection, in accordance with Government Code Sections 6250 through 6276.48 (California
Public Records Act) and with the Ralph M. Brown Act. (Ord. 3370 § 1, 2016).
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The Chula Vista Municipal Code is current through Ordinance 3562, passed January 9, 2024.
Disclaimer: The City Clerk’s Office has the official version of the Chula Vista Municipal Code. Users should contact
the City Clerk’s office for ordinances passed subsequent to the ordinance cited above.
To be notified when additions, amendments, or revisions are made to the code, send your e-mail address to (be
sure to add "Chula Vista Municipal Code" in the subject line) CPC@codepublishing.com.
City Website: www.chulavistaca.gov
Hosted by Code Publishing Company, A General Code Company.
Ch. 2.53 Appointment Process to Fill Vacancies on the City Council | Chula Vista Municipal Code Page 5 of 5
The Chula Vista Municipal Code is current through Ordinance 3562, passed January 9, 2024.
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Attachment 3 – Appointment Timeline & Sample Document
Contents
1. Sample Appointment Timeline
2. Draft Application
3. Sample Economic Interest Disclosure Form
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Draft Appointment Timeline
2024 Council Appointment Process
Proposed Dates Action Notes
3/1/2024 – 3/15/2024 Application Period Application period per CVMC
2.53
3/15/2024 by 11:59pm Completed applications due
3/26/2024 or other
meeting date(s) set by City
Council
Councilmembers to provide
nominees for interviews
City Clerk will deliver
applications to City Council
and public no later than 72
hours before the meeting
3/28/2024 by 11:59pm Nominees submit Economic
Disclosure form
If required by City Council
4/9/2024 or other meeting
date(s) set by City Council
Candidate Interviews City Clerk will publish the list
of final nominee names and full
application packets no later
than 72 hours before the
meeting.
(Additional City Council meetings may be required to continue interviews and/or deliberations.)
4/11/2024 Deadline to make an
appointment
If Council, by majority vote,
does not make an appointment
during the 45-day time period,
the City Council’s power to
appoint is terminated and the
seat will remain vacant for the
remainder of the term.
(Charter Sec. 303(C)(1))
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Please keep this page 1 2 / 2 0 22
APPLICATION FOR DISTRICT 4 CITY COUNCILMEMBER
COVER PAGE – PLEASE KEEP THIS PAGE
Deadline: Friday, March 15, 2024
Instructions: All application questions must be answered and the required application components identified
below must be submitted during the application period to be considered.
Application Deadline: Friday, March 15, 2024, by 11:59 p.m. for electronically submitted applications or by
5:00 p.m. if personally delivered to the City Clerk’s Office. If submitted by mail, the completed application,
résumé, and biography must be postmarked by March 15, 2024, and received no later than March 20, 2024.
Late or incomplete applications will not be accepted.
Required Components:
A “qualified application” is an application received within the application period with all of the following
required components:
1. Completed application
2. Résumé – maximum of two pages in length
3. Biography – one page in length
Application Submittal: Online at www.chulavistaca.gov/d4application, or personally delivered or returned
by mail to: Chula Vista City Hall, Attn: City Clerk, 276 Fourth Avenue, Chula Vista, CA 91910.
District 4 City Council Boundaries: The District 4 boundaries that were adopted by the City Council in 2015
will apply to fill this vacancy. Please use the interactive map at www.chulavistaca.gov/d4application to look up
your home address. The applicable District 4 map is shown below.
QUESTIONS? Contact us at cityclerk@chulavistaca.gov or (619) 691-5041
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Please Note: This application, including attachments, may be subject to the California Public Records Act and, therefore, may be publicly disclosed unless otherwise exempt.
Page 1 of 2 – City of Chula Vista District 4 City Councilmember Application 12/2022
APPLICATION FOR DISTRICT 4 CITY COUNCILMEMBER
Please read all instructions, submittal requirements, and deadline information on the cover page.
All questions must be answered. If a question does not apply to you, write “N/A” in the space provided.
Any application received after the application deadline will be disqualified from consideration. Any application received
that is incomplete or missing required components will also be disqualified unless cured prior to the application deadline.
1. First and Last Name: (☐Mr. ☐Ms. ☐Mrs. ☐Mx. ☐Other: ____) ________________________________________________________
2. E-mail: ___________________________________________________________ Phone: _______________________________________
3. Home Address: ________________________________________________________ City: ____________________________________ Zip: __________
4. Do you live within the City of Chula Vista District 4 boundaries, as adopted by the City Council in 2015?
Interactive map available at www.chulavistaca.gov/d4application ☐Yes ☐No If yes, how long? ____________
I confirm I am a registered voter in the District 4 boundaries specified above.
Initials
5. Present Employer: _____________________________________________________ Occupation: ___________________________________________
6. Relevant Educational Background:
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
7. Are you currently serving on any board or commission for the City or any other governmental agency?
If appointed to City Council, you must resign from your current City board or commission position.
☐Yes ☐No If yes, which one(s)? _______________________________________________________________________________________
8. Have you previously served on the City Council or any board or commission for the City or any other
governmental agency?
☐Yes ☐No If yes, which one(s)? __________________________________________ Dates Served: _____________
9. Please list any local, civic, or community groups you have been involved with:
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
10. What experience or special knowledge could you bring to this position?
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
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Please Note: This application, including attachments, may be subject to the California Public Records Act and, therefore, may be publicly disclosed unless otherwise exempt.
Page 2 of 2 – City of Chula Vista District 4 City Councilmember Application 12/2022
11. What would you hope to accomplish as a Councilmember?
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
Acknowledgments
Please initial the lines below to acknowledge each statement:
_____ I understand that, if appointed, I will NOT be eligible to seek election to District 4 City
Councilmember in the City of Chula Vista for a period of one year following the termination of my
appointed term. City Charter Section 300(E)
_____ I understand that, if I am selected as a finalist, I will be required to complete an Economic Interests
Disclosure form, on which I must disclose all economic interests that I have within the boundaries
of the City of Chula Vista in the categories of investments, income, gifts, and real property.
_____ I understand that I must submit a completed application, résumé (maximum of two pages), and a
biography (one page) by the application deadline and that late applications and those missing required
components will be disqualified. I understand the application deadline is Friday, March 15, by 11:59
p.m. for electronically submitted applications or by 5:00 p.m. if personally delivered to the City
Clerk’s Office. If submitted by mail, the application must be postmarked by March 15, 2024, and
received by the Office of the City Clerk no later than March 20, 2024.
_____ I understand that this application and any documents submitted in connection with the application
process are public records and will be publicly disclosed unless otherwise exempt. Email addresses
and phone numbers will be redacted.
_____ I understand that my application will not be considered if I am determined to be disqualified from
holding office pursuant to Government Code section 1021, Chula Vista Charter Section 903, or any
other applicable local, state, or federal law.
I hereby certify under penalty of perjury under the laws of the State of California that the
information I have provided in this application is true and correct, and that I meet the qualifications
of this office as established by the Chula Vista Charter and other applicable statutory or
constitutional laws.
Signature: ________________________________________________________________________ Date: ____________________________________________
Official Use Only
Clerk District Lookup By Résumé Received
ROV Verif Date By Biography Received
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Name: ______________________________________
Email: ______________________________________
1 | P a g e 1 2 / 2 0 22
ECONOMIC INTERESTS DISCLOSURE
In order to determine potential conflicts of interest, please disclose all economic interests that you have
had within the boundaries of the City of Chula Vista under the following categories (if you have nothing to
disclose, indicate with “N/A”). Attach additional pages as needed.
INVESTMENTS
Disclose any financial interests with a value greater than $2,000 that you, your spouse, registered domestic
partner, or dependent children had with any business located, doing business, planning to do business, or
that has done business in the past two years, in the City of Chula Vista (include stocks, bonds, sole
proprietorships, partnerships, trusts).
BUSINESS NAME ESTIMATED VALUE GROSS ANNUAL INCOME
☐ $0-1,999 ☐ $2,000-$10,000
☐ $10,001-$100,000 ☐ $100,001-$1,000,000
☐ Over $1,000,000
☐ $0-499 ☐ $500-$1,000
☐ $1,001-$10,000 ☐ $10,001-$100,000
☐ Over $100,000
☐ $0-1,999 ☐ $2,000-$10,000
☐ $10,001-$100,000 ☐ $100,001-$1,000,000
☐ Over $1,000,000
☐ $0-499 ☐ $500-$1,000
☐ $1,001-$10,000 ☐ $10,001-$100,000
☐ Over $100,000
☐ $0-1,999 ☐ $2,000-$10,000
☐ $10,001-$100,000 ☐ $100,001-$1,000,000
☐ Over $1,000,000
☐ $0-499 ☐ $500-$1,000
☐ $1,001-$10,000 ☐ $10,001-$100,000
☐ Over $100,000
Attach additional pages as needed.
INCOME
Disclose the source and amount of gross income or loan of $500 or more that was received by you, your
spouse, or your registered domestic partner during the past year from any source located, doing business,
planning to do business, or that has done business in the past two years, in the City of Chula Vista. (You
are not required to report loans from commercial lending institutes, child support or alimony payments,
or salaries, reimbursements for expenses, social security, disability, or other similar benefit payments from
a federal, state, or local government agency.)
SOURCE OF INCOME YOUR BUSINESS
POSITION
GROSS ANNUAL INCOME OR LOAN
AMOUNT
☐ $500-$1,000 ☐ $1,001-$10,000
☐ $10,001-$100,000 ☐ Over $100,000
☐ $500-$1,000 ☐ $1,001-$10,000
☐ $10,001-$100,000 ☐ Over $100,000
☐ $500-$1,000 ☐ $1,001-$10,000
☐ $10,001-$100,000 ☐ Over $100,000
☐ $500-$1,000 ☐ $1,001-$10,000
☐ $10,001-$100,000 ☐ Over $100,000
Attach additional pages as needed.
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Name: ______________________________________
2 | P a g e – E c o n o m i c I n t e r e s t s D i s c l o s u r e 0 1 / 2 0 2 3
GIFTS
Disclose the source, description, and value of gift(s) valued at $50 or more from a single source during the
past year from any source located, doing business, planning to do business, or that has done business in
the past two years, in the City of Chula Vista. A gift is anything of value for which you have not provided
equal or greater consideration to the donor. (You are not required to disclose gifts from family members,
inheritances, or campaign contributions.)
NAME OF SOURCE DESCRIPTION OF GIFT VALUE
Attach additional pages as needed.
REAL PROPERTY
Disclose interests that you, your spouse, registered domestic partner, or your dependent children had of
$2,000 or more during the past year in real property located in the City of Chula Vista or within two miles
of the boundaries of the City of Chula Vista. (You are not required to disclose property used exclusively as
a personal residence.)
CITY WHERE
PROPERTY IS
LOCATED
FAIR MARKET VALUE GROSS ANNUAL INCOME
(IF RENTAL)
☐ $2,000-$10,000 ☐ $10,001-$100,000
☐ $100,001-$1,000,000 ☐ Over $1,000,000
☐ $0-499 ☐ $500-$1,000
☐ $1,001-$10,000 ☐ $10,001-$100,000
☐ Over $100,000
☐ $2,000-$10,000 ☐ $10,001-$100,000
☐ $100,001-$1,000,000 ☐ Over $1,000,000
☐ $0-499 ☐ $500-$1,000
☐ $1,001-$10,000 ☐ $10,001-$100,000
☐ Over $100,000
☐ $2,000-$10,000 ☐ $10,001-$100,000
☐ $100,001-$1,000,000 ☐ Over $1,000,000
☐ $0-499 ☐ $500-$1,000
☐ $1,001-$10,000 ☐ $10,001-$100,000
☐ Over $100,000
Attach additional pages as needed.
I hereby certify under penalty of perjury under the laws of the State of California that the
information I have provided in this application is true and correct.
Signature _________________________________________________ Date ________________________
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
District 4 Map – Depicting 2015 & 2021 Boundaries
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
District 4 boundaries are those that applied when former Councilmember Cardenas was elected (2015 district map)Page 170 of 177
City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Application and questions
Required components
Timeline
City Council meeting schedule for
nominations and interviews
Interview questions and format
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
DATE ACTION
3/1/2024 –3/15/2024 Application period
3/15/2024 Applications due, including required components
3/26/2024 or other meeting
date(s) set by City Council
City Council Meeting –Nominate applicants for
interviews and set date for interviews
3/27/2024 Nominees submit Economic Disclosure form (if
required)
4/9/2024 or other meeting
date(s) set by City Council
City Council Meeting(s) –Interview candidates
(Additional City Council meetings may be required to continue interviews and/or deliberations.)
4/11/2024 Deadline to make appointment
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
City Council adopt the proposed resolution declaring the
vacancy of the District 4 Councilmember seat and declaring an
intent to use good faith, best efforts to fill the vacancy.
Staff additionally requests that the City Council provide
direction to staff on the appointment process.
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February 26, 2024 Post Agenda - Special Meeting
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City of Chula Vista - City Council
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting
Conviction for:
•Bribery involving Executive Officer
•Perjury
•Forgery
•Malfeasance in Office
•Embezzlement
•Extortion or theft of Public Money
•Corruption of the Voting Process
•Willful Violation of Prohibitions Against Conflict of Interest
Person who advocates the overthrow of the Govt of US or the State
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City of Chula Vista - City Council
February 26, 2024 Post Agenda - Special Meeting