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Agenda Packet 2005/02/22
MtJ/5éD - ITE//) /1!o. /i li//E /Jill) J!.¡/Tl/ll;9-£ CITY COUNCIL AGENDA February 22, 2005 6:00 p.m. Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista ~~~ ~ -- - - - ~~~~ CllY OF CHULA VISfA City Council Patty Davis John McCann Jerry R. Rindone Steve Castaneda Stephen C. Padilla, Mayor City Manager David D. Rowlands, Jr. City Attorney Ann Moore City Clerk Susan Bigelow ********** The City Council meets regularly on the first calendar Tuesday at 4:00 p.m. and on the second, third and fourth calendar Tuesdays at 6:00 p.m. Regular meetings may be viewed at 7:00 p.m. on Wednesdays on Cox Cable Channel 24 or Chula Vista Cable Channel 68. Agendas are available on the City's website at: www.chulavistaca.gov ********** AGENDA " are under penalty of periury that I ahlO c:"", he City of Chula Vista In t e 3mployed by ~'ty Clerk and that I posted this 0f11ce of tht e t'he bulletin board according to documen on Brown Act require:ents. ~ ...,iJ!r;.c Signed Dated ~ 6:00 P.M. February 22, 2005 CALL TO ORDER ROLL CALL: Councilmembers Castaneda, Davis, McCann, Rindone, and Mayor Padilla PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY · PRESENTATION OF A PROCLAMATION BY MAYOR PADILLA TO: ~ Vince Davies, President, Chula Vista Rotary Club ~ Thomas Bucknell, President-Elect, Chula Vista Rotary Club and President, Chula Vista Rotary Foundation aned ~ Tina Williams, Immediate Past President, Chula Vista Rotary Club and Chair of the Centennial Project, PROCLAIMING THE WEEK OF FEBRUARY 21, 2005 AS ROTARY INTERNATIONAL WEEK AND RECOGNIZING THE ROTARY CLUB OF CHULA VISTA AND ROTARY INTERNATIONAL FOR THEIR CONTRIBUTIONS TO THE LOCAL COMMUNITY · PRESENTATION BY JUSTIN AUGUSTINE, ATC REGIONAL VICE-PRESIDENT, AND JEANNIE SNYDER, ATC CHULA VISTA GENERAL MANAGER, OF CHULA VISTA TRANSIT'S DRIVER OF THE YEAR A WARD TO TAMARA MOORE · RECOGNITION BY ANDY TRUJILLO, TRANSIT COORDINATOR, OF ATC TRANSIT EMPLOYEES FREDRICK RODRIGUEZ AND MARY PRICE FOR DEMONSTRATING A RIDER-FIRST APPROACH TO PASSENGERS CONSENT CALENDAR (Items 1 through 12) The Council will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Action Items. 1. APPROVAL OF MINUTES of February 1, and February 8,2005. Staffrecommendation: Council approve the minutes. Page I - Council Agenda February 22,2005 2 A. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECREASING THE SPEED LIMIT ON "J" STREET FROM 35 MPH TO 30 MPH BETWEEN BAY BOULEVARD AND BROADWAY (FIRST READING) B. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A 25-MPH SPEED LIMIT ON SAINT CLAIRE DRIVE FROM MARQUETTE ROAD TO OTA Y LAKES ROAD (FIRST READING) Based on provisions of the California Vehicle Code and pursuant to authority under the Chula Vista Municipal Code, the City Engineer has determined that the following speed limits should be changed or established: Decrease the speed limit on "J" St. to 30 mph between Bay Boulevard and Broadway, and establish a 25-mph speed limit on St. Claire Drive fÌom Marquette Road to Otay Lakes Road. (Director of General Services, City Engineer) Staff recommendation: Council place the ordinances on first reading. 3 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING COOPERATIVE AGREEMENT WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS) REGARDING CONSTRUCTION SERVICES ON THE I-805ÆAST H STREET RAMP WIDENING IMPROVEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE EASEMENTS TO SBC/PACBELL COMMUNICATIONS, INC. AND CALTRANS AS NECESSARY FOR THE COMPLETION OF THE EAST H STREET RAMP WIDENING C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING A CONSTRUCTION CONTRACT FOR THE I-805ÆAST H STREET WESTBOUND-NORTHBOUND RAMP WIDENING IN THE CITY OF CHULA VISTA (STM-356) CALTRANS CONTRACT NO. 11-240214 TO YEAGER-SKANSKA, INC., IN THE AMOUNT OF $2,100,496 Major improvements to East H Street in the vicinity of the I-80S interchange have been completed over the past several years in order to accommodate increasing traffic volumes in the area. The City is now prepared to award a construction contract for the project that will include widening the westbound-to-northbound onramp to 1-805. (Director of General Services, City Engineer) Staff recommendation: Council adopt the resolutions. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS, AWARDING A CONTRACT FOR THE WESTERN CHULA VISTA STREET, SIDEWALK, AND DRAINAGE IMPROVEMENTS PROJECT (STL-313), AUTHORIZING THE EXPENDITURE OF ALL AVAILABLE CONTINGENCIES, AND APPROPRIATING FUNDS AS NECESSARY TO COMPLETE THE PROJECT Page 2 - Council Agenda February 22,2005 On February 9, 2005, sealed bids were received for this project. The work to be done consists of pavement rehabilitation, drainage improvements, and sidewalk rehabilitation at various locations in the City. (Director of General Services) Staff recommendation: Council adopt the resolutions. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING INFORMAL BIDS, REJECTING THE LOWEST BID AS NON- RESPONSIVE, AWARDING A CONTRACT FOR THE OT A Y PARK RENOVATION CAPITAL IMPROVEMENT PROJECT, PLAYGROUND INSTALLATION, TO THE NEXT LOWEST BIDDER; AUTHORIZING STAFF TO EXPEND ALL AVAILABLE CONTINGENCY, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT, AND AUTHORIZING THE REPROGRAMMING OF GRANT FUNDS FROM THE "RESTROOM RENOVATION" CAPITAL IMPROVEMENT PROJECT (CIP NO. PR214) TO THE "OTAY PARK RENOVATION" CAPITAL IMPROVEMENT PROJECT (CIP NO. PR240) AS NECESSARY TO COMPLETE THE PROJECT AND COMPLY WITH THE STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION GRANT FUNDS REQUIREMENTS Per Section 1009 of the City's Charter, the Director of General Services, in an effort to secure competitive prices ITom interested contractors, invited four playground equipment manufacturers to submit informal bids for the construction of a children's play area at Otay Park designed for the 5-12-year-old age group per City standards. The final date for submittal of informal bids was February 15, 2005. The provision of the playground is a component ofthe master plan for the improvement Otay Park approved by the Council on May 24, 1994. (Director of General Services) Staff recommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AWARDING A PURCHASE AGREEMENT IN THE AMOUNT OF $120,057 FOR SIX FOUR-WHEEL DRIVE INTERMEDIATE-SIZE PICKUP TRUCKS TO MAlTA CHEVROLET THROUGH A COOPERATIVE BID WITH THE STATE OF CALIFORNIA (CONTRACT #1-05-23-20), AND AMENDING THE FISCAL YEAR 2005 FIRE DEPARTMENT BUDGET TO APPROPRIATE $5,120 FOR MAINTENANCE AND REPLACEMENT COSTS The Fiscal Year 2004/2005 budget provides for the purchase of two vehicles for the Fire Department. The Fire Department also received Council authorization to purchase four additional vehicles through the approval of the Strategic Plan. Chula Vista Municipal Code and Council Resolution No. 6132 authorize the Purchasing Agent to participate in cooperative bids with other government agencies for the purchase of materials of common usage. The City is participating in a current State of California bid ITom Maita Chevrolet. (Director of Public Works Operations) Staff recommendation: Council adopt the resolution. Page 3 - Council Agenda February 22, 2005 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH THE SAN DIEGO REGIONAL ENERGY OFFICE TO INSTALL ENERGY EFFICIENT MEASURES AT CITY FACILITIES, APPROPRIATING $2,500 FROM THE GENERAL FUND TO THE ENERGY CONSERVATION FUND BUDGET TO IMPLEMENT THE PROJECT AND AUTHORIZING THE CITY MANAGER TO EXECUTE ALL IMPLEMENTING AGREEMENTS (4/5THS VOTE REQUIRED) Adoption of the resolution approves an agreement with the San Diego Regional Energy Office (SDREO) for $182,500. The agreement requires the City to serve as a subcontractor to the SDREO to implement energy efficient projects for City buildings. The projects are anticipated to reduce the City's energy costs and the City's impact on the environment. The agreement between SDREO and the City is contingent on California Public Utilities Commission approval to include the City's projects into SDREO's workplan. (Director of Conservation and Environmental Services) Staff recommendation: Council adopt the resolution. 8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE SWEETWATER UNION HIGH SCHOOL DISTRICT FOR THE PROVISION OF MIDDLE SCHOOL AFTER-SCHOOL PROGRAMS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The Sweetwater Union High School District has awarded the City, through its Recreation Department, a $75,169 contract for the provision of after-school programming at six Chula Vista middle schools. (Director of Recreation) Staff recommendation: Council adopt the resolution. 9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2005 RECREATION DEPARTMENT BUDGET BY APPROPRIATING $9,672 BASED ON UNANTICIPATED REVENUE FROM THE YOUTH SERVICES NETWORK FUNDED BY COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS FOR THE WIZ KIDZ PROGRAM (4/5THS VOTE REQUIRED) The Youth Services Network, a collaborative comprised of six agencies, including the Recreation Department, was awarded $113,039 in Community Development Block Grant funds for Fiscal Year 2004/2005. The Recreation Department is requesting an appropriation of its share of the funds, $9,672, to its operating budget to fund the Wiz Kidz program at Otay Recreation Center for the fiscal year. (Director of Recreation) Staff recommendation: Council adopt the resolution. Page 4 - Council Agenda February 22,2005 10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED STATE HOMELAND SECURITY GRANT PROGRAM FUNDS AND AMENDING THE FISCAL YEAR 2005 BUDGET TO APPROPRIATE SAID FUNDS (4/5THS VOTE REQUIRED) Chula Vista is the recipient of several State Homeland Security Grant Program allocations. These grants are administered by the County of San Diego Office of Emergency Services and distributed on a formula basis to participating agencies. As stipulated by the grant, the funds will be used to purchase specified first responder personnel protective clothing and related tools and equipment. (Fire Chief) Staff recommendation: Council adopt the resolution. 11 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED URBAN AREA SECURITY INITIATIVE GRANT PROGRAM FUNDS AND AMENDING FISCAL YEAR 2005 BUDGET TO APPROPRIATE SAID FUNDS (4/5THS VOTE REQUIRED) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AWARDING A PURCHASING AGREEMENT TO FISHER SAFETY SCIENTIFIC FOR PERSONNEL PROTECTIVE EQUIPMENT Chula Vista is the recipient of several Urban Area Security Initiative (VAS I) grant allocations. These grants are administered by the City of San Diego Office of Homeland Security and distributed on a formula basis to participating agencies. The Fire Department is the administrator of UASI grant funds for Chula Vista. As stipulated by the grant, $310,026 ITom the Fiscal Year 2003 Park II UASI equipment grant and $189,351 ITom the Fiscal Year 2004 UASI equipment grant will be used to purchase specified first responder protective clothing and related tools and equipment for Fire, Emergency Medical Services, and Police. An additional $211,195 ITom the UASI Fiscal Years 2003 and 2004 grants will be used to train and prepare Police, Fire and City personnel on emergency preparedness. (Fire Chief) Staff recommendation: Council adopt the resolution. 12. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE PURCHASE OF TREE TRIMMING SERVICES ON AN AS- NEEDED BASIS FROM GREAT SCOTT TREE SERVICE IN ACCORDANCE WITH TERMS AND CONDITIONS OF A COOPERATIVE AGREEMENT WITH THE CITY OF SAN DIEGO THROUGH JUNE 30, 2005, WITH OPTIONS TO RENEW FOR THREE ADDITIONAL ONE-YEAR PERIODS The City of San Diego has put out a bid for tree trimming services. The City of Chula Vista has an opportunity to participate in the contract for favorable terms and pricing. (Director of Public Works Operations, Director of Finance) Staff recommendation: Council adopt the resolution. Page 5 - Council Agenda February 22,2005 ORAL COMMUNICATIONS Persons speaking during Oral Communications may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for jùture discussion or refer the matter to staff. Comments are limited to three minutes. ACTION ITEMS The items listed in this section of the agenda will be considered individually by the Council, and are expected to elicit discussion and deliberation. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 13. REPORT REGARDING CHULA VISTA TRANSIT (CVT) FUNDING AND OPERATIONS At its meeting of February 11, 2003, the Council directed staff to return to the Council with an annual report on CVT's funding and operations. On January 13, 2004, Transit staff presented the second report, and the report presented at this time is an update of that report. (Director of Public Works Operations) Staff recommendation: Council accept the report. 14. CONSIDERATION OF APPROVAL OF A LOAN AGREEMENT, RELATED RESTRICTIVE COVENANTS, AND AN AFFORDABLE HOUSING AGREEMENT FOR THE DEVELOPMENT AND OPERATION OF SENIORS ON BROADWAY AFFORDABLE HOUSING AGREEMENT Adoption of the resolutions approves two actions: 1) Approve financial assistance to the Seniors on Broadway development in an amount not to exceed $1,043,850 and to approve all agreements and documents related to this assistance, and 2) Adopt a resolution authorizing a waiver of the Parklands and Public Facilities fees pursuant to Municipal Code Section 17.10 to facilitate the construction of low-income housing. (Director of Community Development) Staff recommendation: Council adopt the following resolutions: Page 6 - Council Agenda February 22,2005 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A LOAN AGREEMENT AND RELATED RESTRICTIVE COVENANTS, AND AFFORDABLE HOUSING AGREEMENT, AND TRANSFERRING AVAILABLE HOME FUNDS FROM EXISTING PROJECTS TO PROVIDE FINANCIAL ASSISTANCE TO SENIORS ON BROADWAY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, FOR THE DEVELOPMENT AND OPERATION OF SENIORS ON BROADWAY AFFORDABLE HOUSING DEVELOPMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A WAIVER OF THE PARKLANDS AND PUBLIC FACILITIES FEES PURSUANT TO MUNICIPAL CODE SECTION 17.10 TO FACILITATE THE CONSTRUCTION OF LOW INCOME HOUSING 15. CONSIDERATION OF ADOPTION OF A RESOLUTION APPROPRIATING $250,000 FOR OVERTIME EXPENSES RELATED TO OPERATIONS SAFE NEIGHBORHOODS In response to growing concerns by the community following several noteworthy violent crimes, the Police Department is increasing enforcement efforts in concentrated areas in an effort to make a significant impact on violent crime within Chula Vista. The proposed resolution appropriates $250,000 for overtime expenses for this project. (Chief of Police) Staff recommendation: Council adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $250,000 IN THE FISCAL YEAR 2005 POLICE DEPARTMENT PERSONNEL SERVICES BUDGET FOR OVERTIME EXPENSES RELATED TO OPERATION SAFE NEIGHBORHOODS FROM THE UNAPPROPRIATED BALANCE OF THE GENERAL FUND ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 16. CITY MANAGER'S REPORTS 17. MAYOR'S REPORTS 18. COUNCIL COMMENTS ADJOURNMENT to an Adjourned Regular Meeting with the Planning Commission on February 24, 2005, at 6:00 p.m., at Hedenkamp Elementary School, located at 930 East Palomar Street, and thence to the Regular Meeting of March I, 2005, at 4:00 p.m. in the Council Chambers. Page 7 - Council Agenda February 22,2005 DRAFT MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA February 1, 2005 4:00P.M. A Regular Meeting of the City Council of the City of Chula Vista was called to order at 4:16 p.m. in the Council Chambers, located in the Public Services Building, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Councilmembers: Castaneda, Davis, McCann, Rindone, and Mayor Padilla ABSENT: Councilmembers: None ALSO PRESENT: City Manager Rowlands, City Attorney Moore, and City Clerk Bigelow PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE Moment of Silence was held in memory of Martin Altbaum. SPECIAL ORDERS OF THE DAY · INTRODUCTION BY ASSISTANT CITY MANAGER PALMER OF THE EMPLOYEE OF THE MONTH, JOY WHATLEY, CIRCULATION SUPERVISOR- LffiRARY Assistant City Manager Palmer introduced Ms. Whatley. Mayor Padilla read the proclamation, and Deputy Mayor Davis presented it to Ms. Whatley. · OATH OF OFFICE: JOANNE CLAYTON, MOBILEHOME RENT REVIEW COMMISSION Ms. Clayton was not present at the meeting, and the oath was not administered. · INTRODUCTION BY FIRE CHIEF PERRY AND DEPUTY CHIEF PETER OF NEW AND RECENTLY PROMOTED FIRE DEPARTMENT EMPLOYEES Deputy Fire Chief Geering introduced the new and recently promoted personnel. · PRESENTATION OF A PROCLAMATION BY MAYOR PADILLA AND RECOGNITION BY DEPUTY CHIEF PETER COMMENDING JOE KELLEJIAN, REGIONAL MANAGER, ECOLOGY AUTO PARTS, FOR CONTINUOUS SUPPORT OF THE FIRE DEPARTMENT Deputy Fire Chief Peter spoke of Mr. Kellejian's generous support of the department. Mayor Padilla read the proclamation and Deputy Mayor Davis presented it to Mr. Kellejian. · INTRODUCTION BY POLICE CHIEF EMERSON OF TWO RECENTLY HIRED LATERAL POLICE OFFICERS, ISAAC BURRUEL AND BRADLEY WENTZEL Police Chief Emerson introduced the recently hired officers and presented them with their badges. City Clerk Bigelow then administered the oath of office. Page 1 - Council Minutes I February 1, 2005 ,j CONSENT CALENDAR (Items 1 through 7) 1. APPROVAL OF MINUTES ofJanuary 11 and January 25, 2005. Staff recommendation: Council approve the minutes. 2. ORDINANCE NO. 2992, ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO CHULA VISTA MUNICIPAL CODE CHAPTERS 8.24 AND 8.25 TO CONFORM LANGUAGE RELATING TO SOLID WASTE, LITTER, AND RECYCLING, AND THE IMPLEMENTATION OF A VARIABLE RATE STRUCTURE (SECOND READING) The Council approved the implementation of a variable rate structure/unit pricing for small quantity generators and rate structure modifications for large quantity generators that encouraged waste reduction and provided recycling incentives. The implementation of these programs prompted the need for minor conforming modifications to Municipal Code Chapters 8.24 and 8.25 relating to solid waste, litter and recycling. This ordinance was introduced on January 25, 2005. (Director of Conservation and Environmental Services) Staff recommendation: Council adopt the ordinance. 3. ORDINANCE NO. 2993, ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 19.58.340 TO REGULATE THE SPACE ALLOCATED FOR THE TEMPORARY STORAGE, COLLECTION, AND LOADING OF RECYCLABLE MATERIALS AND SOLID WASTE IN DEVELOPMENT PROJECTS (SECOND READING) The proposed ordinance regulates the location and design of areas dedicated to the temporary storage, collection and loading of recyclable materials and solid waste associated with new construction projects and subdivisions. Adoption of the regulations brings the City into compliance with State law. This ordinance was introduced on January 25,2005. (Director of Conservation and Environmental Services) Staff recommendation: Council adopt the ordinance. 4. RESOLUTION NO. 2005-031, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2005 LIBRARY DEPARTMENT BUDGET BY APPROPRIATING A ONE-TIME UNANTICIPATED DONATION IN THE AMOUNT OF $5,000 Since July 1, 2004, the Library Department has received donations ITom various organizations and individuals for the purchase of new books to add to the library's collection. (Assistant City Manager Palmer) Staff recommendation: Council adopt the resolution. 5. RESOLUTION NO. 2005-032, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $485,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE PUBLIC LIABILITY EXPENSE BUDGET TO COVER ANTICIPATED COSTS AND EXPENSES RELATED TO CURRENT PUBLIC LIABILITY CLAIMS THROUGH THE END OF THE FISCAL YEAR Page 2 - Council Minutes February 1, 2005 CONSENT CALENDAR (Continued) The City's budget includes funds to defend and pay settlements on claims against the City based on typical claims activity. Depending upon the number and the complexity of claims received, the cost to defend or settle them may exceed the costs anticipated during budget preparation. Such is the case this fiscal year. This appropriation will cover currently known claims expenses through the end of the fiscal year. (Director of Human Resources, City Attorney) Staff recommendation: Council adopt the resolution. 6 A. RESOLUTION NO. 2005-033, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING AN ANNEXATION MAP SHOWING TERRITORY PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) AND IMPROVEMENT AREA A THERETO B. RESOLUTION NO. 2005-034, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING ITS INTENTION TO AUTHORIZE THE ANNEXATION OF TERRITORY TO COMMUNITY FACILITIES DISTRICT NO. 97- 2 (PRESERVE MAINTENANCE DISTRICT) AND IMPROVEMENT AREA A THERETO McMillin Otay Ranch, LLC has requested the annexation of territory into Improvement Area A of Community Facilities District No. 97-2 (CFD 97-2.) CFD 97-2 was formed in 1998 and funds the maintenance of areas that have been conveyed to the preserve in accordance with the Otay Ranch Resource Management Plan. Adoption of the resolutions initiates the formal proceedings for the annexation of Village 12 to CFD No. 97-2, Improvement Area A. (Director of General Services, City Engineer) Staff recommendation: Council adopt the resolutions. 7 A. REPORT ON THE APPLICATION FOR THE FORMATION OF COMMUNITY FACILITIES DISTRICT NO. 13-1 (OTAY RANCH VILLAGES TWO AND SEVEN) B. RESOLUTION NO. 2005-035, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE INITIATION OF PROCEEDINGS TO CONSIDER THE FORMATION OF PROPOSED COMMUNITY FACILITIES DISTRICT NO. 13-1 (OTAY RANCH VILLAGES TWO AND SEVEN) FOR A PORTION OF VILLAGE SEVEN OF THE OTAY RANCH, AND APPROVING THE FORM OF A REIMBURSEMENT AGREEMENT WITH OT A Y PROJECT, LP Otay Project, LP submitted an application for establishing Community Facilities District No. 13-1 (CFD 13-1) to fund the acquisition or construction of certain public improvements serving Chula Vista and development improvements serving the Otay Project, LP. properties in the amount of approximately $100 million. Adoption of the resolution initiates the formal proceedings for the proposed CFD 13-1. (Director of General Services, City Engineer) Staffrecommendation: Council accept the report and adopt the resolution. ACTION: Mayor Padilla moved to approve staffs recommendations and offered the Consent Calendar, headings read, texts waived. The motion carried 5-0. Page 3 - Council Minutes February 1, 2005 ORAL COMMUNICATIONS Marco Polo Cortes, speaking as Chair of the Planning Commission, a member of the Reinvestment Task Force and a resident, requested an immediate 30 to 45-day moratorium on check cashing/payday lending institutions to develop a process by which to regulate such businesses, which are now granted administrative, over-the-counter approvals. He also mentioned other types of businesses in the City that should be more regulated. PUBLIC HEARING 8. CONSIDERATION OF APPROVAL OF A TENTATNE MAP TO SUBDNIDE 6.95 ACRES AT 1441 SANTA LUCIA ROAD INTO ONE-LOT CONDOMINIUM PARCEL CONTAINING 168 RESIDENTIAL UNITS (APPLICANT: LYON OTAY RANCH, LLC) Lyon Otay Ranch submitted an application for a tentative subdivision map to convert an existing 168-unit apartment complex to 168 condominium units for individual ownership. The 6.95-acre project site is located at 1441 Santa Lucia Road in Village One (Heritage) of the Otay Ranch. (Director of Planning and Building) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Padilla opened the public hearing. Associate Planner Phelps presented the proposed condominium conversion. Terry Plowden, with the Douglas Wilson Companies, and representing Lyon Otay Ranch Company, asked the Council to approve the proposed subdivision. Councilmember McCann asked Mr. Plowden to describe the purchase opportunities that would be offered to the current residents of the apartment complex. Mr. Plowden responded that all the residents have a 90-day, first right of refusal to purchase their unit. Additionally, as an incentive, Otay Ranch has offered current residents up to $5,000 towards closing costs. He also added that there are a sufficient number of vacant apartments within close proximity to subj ect apartment units to accommodate the residents who would need to vacate. There being no further members of the public who wished to speak, Mayor Padilla closed the public hearing. ACTION: Councilmember Rindone offered Resolution No. 2005-036, heading read, text waived: RESOLUTION NO. 2005-036, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AND ESTABLISHING CONDITIONS OF A TENTATNE MAP TO SUBDNIDE 6.95 ACRES AT 1441 SANTA LUCIA ROAD INTO A ONE-LOT CONDOMINIUM TENTATIVE SUBDNISION MAP CONTAINING 168 RESIDENTIAL UNITS The motion carried 5-0. Councilmember Castaneda expressed the need to review the first-time homebuyer program to see how it could be expanded to accommodate a broader range of residents in the future. Page 4 - Council Minutes February 1, 2005 ACTION ITEMS 9. CONSIDERATION OF APPROVAL OF APPROPRIATION OF FUNDS FOR THE PURCHASE OF ISTREETVIEW SOFTWARE iStreetView software is a street-level image set that provides a web-based viewer, permitting city staff to simulate navigating streets. Adoption of the resolution approves the appropriation of $30,000 for the procurement of the imagery and software program. (Director of Management and Information Services, Director of General Services, Director of Public Works Operations, Director of Planning and Building, Fire Chief) Management and Information Systems Director Vignapiano presented the proposed iStreetView imagery and software program. He also addressed questions about the program that were raised by the Council at a previous meeting. Councilmember Castaneda expressed concern about the costs associated with updating the streets as rrequently as every six months, stating that he would prefer to see increased street paving in lieu of such rrequent photography. Deputy Mayor Davis asked if the City would control the street photography updates, and Director Vignapiano responded affirmatively. Councilmember McCann asked for an estimate on the return on investment. Director Vignapiano responded that while he could not quantify the estimate in terms of dollars, there would be significant savings on fuel, vehicle maintenance, and staff time. Mayor Padilla expressed the need to quantify the benefits and added value of the software. He asked about the potential value of the software to the Police Department. Director Vignapiano replied that the Police Department does not wish to use the proposed software at this time but has no such software currently in place. ACTION: Deputy Mayor Davis offered Resolution No. 2005-037, heading read, text waived: RESOLUTION NO. 2005-037, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE APPROPRIATION OF ADDITIONAL FUNDS TO THE GIS- ORTHOPHOTOGRAPHY/TOPOGRAPHY PROJECT (GG183) FROM THE AVAILABLE BALANCE OF THE TRANSIT CAPITAL FUND FOR THE PROVISION OF PROCURING THE ISTREETVIEW IMAGERY AND SOFTWARE PROGRAM Councilmember Rindone requested that staff be directed to report in one year on the program's utility, benefit and cost savings; and that the program require Council approval before proceeding with the second year. Page 5 - Council Minutes February 1, 2005 ACTION ITEMS (Continued) Mayor Padilla moved to amend the motion to include that staff be directed to report in one year on the program's utility, benefit and cost savings; and that the program will require Council approval before proceeding with the second year. The motion carried 5-0. 10. CONSIDERATION OF APPROVAL OF AGREEMENTS WITH STRATUS, A DNISION OF THE JCM GROUP, FOR THE FORMALIZATION OF CHARTER UNIVERSITY PARTNERS; AND WITH BMS FOR THE DEVELOPMENT OF A FRAMEWORK LAND USE STRATEGY AND THE DEVELOPMENT OF A PRELIMINARY CAMPUS PLAN CONCEPT FOR THE UNNERSITY PARK In November 2003, the City CouncillStaffUniversity Working Group selected a team of consultants, led by Stratus, to develop a higher education recruitment strategy. Subsequently, the working group requested that the Stratus team present a Phase II planning approach. Adoption of the resolution approves an agreement with Stratus to accomplish specific tracks of the planning approach, and with BMS to develop a land use strategy and preliminary campus plan concept for the University Park. (Director of Community Development) RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING AGREEMENTS WITH STRATUS, A DNISION OF THE JCM GROUP, FOR THE FORMALIZATION OF CHARTER UNIVERSITY PARTNERS AND THE DEVELOPMENT OF KEY COLLABORATION, BUSINESS AND ACADEMIC PLANS BETWEEN AND AMONG THOSE PARTNERS; AND WITH BMS FOR THE DEVELOPMENT OF A FRAMEWORK LAND USE STRATEGY AND THE DEVELOPMENT OF A PRELIMINARY CAMPUS PLAN CONCEPT FOR THE UNNERSITY PARK; AND APPROPRIATING $843,829 FROM THE AVAILABLE FUND BALANCE OF GENERAL FUND FOR THE PERFORMANCE OF THESE TASKS ACTION: Mayor Padilla moved to continue Item No. 10 to March 1, 2005. Councilmember McCann seconded the motion, and it carried 5-0. OTHER BUSINESS 11. CITY MANAGER'S REPORTS There were none. 12. MAYOR'S REPORTS Mayor Padilla asked for Councilmembers' particular areas of interest for purposes of proposing assigmnents to represent the City on regional committees and task forces. Councilmember McCann stated he would like to participate on the university project, as well as SANDAG. Councilmember Castaneda indicated his interest in serving on the Inter-Agency Water Task Force, relocation of the power plant, and any other assigmnents deemed appropriate by the Mayor. Deputy Mayor Davis stated that she would also like to be involved with SANDAG, the Council Legislative Sub-Committee, and the university project. Councilmember Rindone indicated that he would like to continue representing the City with regard to MTS and SANDAG's transportation committee. Page 6 - Council Minutes February 1, 2005 OTHER BUSINESS (Continued) 13. COUNCIL COMMENTS Councilmember Castaneda reported on the Planning Commission's unanimous vote to recommend that the Council enact an emergency moratorium on the approval of new check cashing/payday loan establishments in the City. He asked staff to prepare an emergency ordinance, as well as a permanent ordinance to establish a use permit process for these establishments, to be acted upon by the Council to regulate their location and operation. He distributed a memorandum to the Council regarding this request and said he hoped to see something come forward within 30 days. Deputy Mayor Davis congratulated the Chamber of Commerce on a successful dinner dance last Friday evening; and the Bonita Business & Professional Association for its installation of officers on Saturday evening. Councilmember McCann mentioned three successful events: the League of California Cities/San Diego Division quarterly dinner meeting hosted by Chula Vista at the Olympic Training Center on Thursday evening, the Chamber's dinner dance on Friday evening, and the Bonita Business' & Professional Association's installation ceremony on Saturday evening. He also asked staff to determine how to use excess Interim SR-125 development impact fees to allow those who paid the fees to receive a discount for using the road, perhaps through a toll reduction or discount toward fast track. Councilmember Rindone invited Councilmembers and key City staff to attend a dinner on Saturday evening in honor of the visiting Chinese delegation. CLOSED SESSION 14. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) A. City ofChula Vista v. Evanston Insurance Co (SDSC #GIC818513) No reportable action was taken on this item. B. City ofChula Vista v. SANDPIPA No reportable action was taken on this item. ADJOURNMENT At 6:30 p.m., Mayor Padilla adjourned the meeting in memory of Martin Altbaum to the Regular Meeting of February 8, 2005, at 6:00 p.m. in the Council Chambers. ~i.u. G ~'~J -c>. ~ Susan Bigelow, MMC, City Clerk Page 7 - Council Minutes February 1, 2005 DRAFT MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA February 8, 2005 6:00 P.M. A Regular Meeting of the City Council of the City of Chula Vista was called to order at 6:03 p.m. in the Council Chambers, located in the Public Services Building, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Councilmembers: Castaneda, Davis, McCann, Rindone, and Mayor Padilla ABSENT: Councilmembers: None ALSO PRESENT: City Manager Rowlands, City Attorney Moore, and City Clerk Bigelow PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY There were none. CONSENT CALENDAR (Items 1 through 6) Councilmember McCann stated that he would abstain ITom voting on Item 3 due to his ownership of property located within 500 feet of the project. Deputy Mayor Davis requested that Item 6 be removed ITom the Consent Calendar for discussion. 1. WRITTEN COMMUNICATIONS . Letter of resignation ITom Sara Alviz, member of the International Friendship Commission. Staff recommendation: Council accept the resignation and direct the City Clerk to post the vacancy in accordance with Maddy Act requirement~. 2. RESOLUTION NO. 2005-038, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING THE CONTRACT FOR CONSTRUCTION OF THE UPGRADE OF TRAFFIC SIGNAL AT FIRST AVENUE AND H STREET (TF-311) PROJECT Upgrade of the traffic signal at the subject intersection was approved and budgeted as part of the Fiscal Year 2003/2004 capital improvements program. The scope of the project includes the upgrade of. the existing traffic signal system and other work necessary to complete the project. (Director of General Services, City Engineer) Staff recommendation: Council adopt theresolution. Page 1 - Council Minutes I February 8, 2005 CONSENT CALENDAR (Continued) 3. RESOLUTION NO. 2005-039, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING CHANGE ORDERS REQUESTED BY THE EASTLAKE COMPANY FOR THE CONSTRUCTION OF TELEGRAPH CANYON TRUNK SEWER IMPROVEMENTS The City entered into an agreement with the Eastlake Company (EastLake) that authorized EastLake to construct required improvements to the Telegraph Canyon trunk sewer and be reimbursed ITom project funds. EastLake has completed the improvements and submitted a request for reimbursement in accordance with the terms of the agreement. (Director of General Services, City Engineer) Staff recommendation: Council adopt the resolution. 4. RESOLUTION NO. 2005-040, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE 6 UNIT 1, NEIGHBORHOOD R-8; AND APPROVING A SUPPLEMENTAL SUBDNISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE 6 UNIT 1, NEIGHBORHOOD R-8 On March 26, 2002, the Council approved a tentative subdivision map for Otay Ranch Village 6. Approval of the final "B" map and its associated supplemental subdivision improvement agreements allows the final map to record and the individual units within the project to be sold. (Director of General Services, City Engineer) Staff recommendation: Council adopt the resolution. 5 A. RESOLUTION NO. 2005-041, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING IN ITS CAPACITY AS THE LEGISLATNE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2001-1 (SAN MIGUEL RANCH), DECLARING THE RESULTS OF A SPECIAL ELECTION TO AUTHORIZE MODIFICATIONS TO THE FACILITIES TO BE FINANCED BY SUCH COMMUNITY FACILITIES DISTRICT, THE RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAXES TO BE LEVIED WITHIN IMPROVEMENT AREA B THEREOF AND BONDED INDEBTEDNESS FOR SUCH IMPROVEMENT AREA B B. RESOLUTION NO. 2005-042, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING THE RESULTS OF A SPECIAL ELECTION IN TERRITORY AREA TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 2001-1 (SAN MIGUEL RANCH) AND IMPROVEMENT AREA B THERETO C. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING ORDINANCE NO. 2850 AND AUTHORIZING THE LEVY OF A SPECIAL TAX IN IMPROVEMENT AREA B OF COMMUNITY FACILITIES DISTRICT NO. 2001-1 (SAN MIGUEL RANCH) PURSUANT TO A REVISED RATE AND METHOD OF APPORTIONMENT, OF SPECIAL TAX (FIRST READING) Page 2 - Council Minutes February 8, 2005 CONSENT CALENDAR (Continued) On December 14, 2004, the Council adopted the resolution of intention to modify the types of public facilities to be financed by Community Facilities District 2001-1 (CFD 2001-1). The Council also approved amending the rate and method of apportionment and the special taxes thereof, annexation of certain commercial territory into CFD 2001-1; and increasing the appropriation limits for CFD 2001-1. Adoption of the resolutions certifies that 100% of the eligible voters were in favor of the proposed modifications to the types of public facilities authorized to be financed by this Community Facilities District for Improvement Area B. (Director of Gerieral Services, City Engineer) Staff recommendation: Council adopt the resolutions and place the ordinance on first reading. ACTION: Mayor Padilla moved to approve staff's recommendations and offered Consent Calendar Items 1 through 5, headings read, texts waived. The motion carried 5-0, except on Item No.3, which carried 4-0-1 with Councilmember McCann abstaining due to his ownership of property located within 500 feet of the project. ORAL COMMUNICATIONS There were none. ITEMS PULLED FROM THE CONSENT CALENDAR 6. RESOLUTION NO. 2005-043, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE MODIFICATION TO THE CITY OF CHULA VISTA MONUMENT WALL LOCATED AT THE POLICE DEPARTMENT AND THE CONSTRUCTION OF AN EMPLOYEE SERVICE RECOGNITION WALL The Police Department seeks approval to modify the original plans for the memorial wall to include the establishment of a Countywide law enforcement memorial to recognize the "line of duty deaths" of Chula Vista Police Officers Clarence L. Henrichon and Robert Earl Cox, as well as the other 76 law enforcement personnel who have died in the line of duty dating back to 1864. In addition, the department also seeks approval to construct an employee service recognition wall that was originally incorporated into the memorial wall. (police Chief) Staff recommendation: Council adopt the resolution. Deputy Mayor Davis expressed concern about citywide equity issues associated with recognizing only non-sworn Police Department personnel for their years of service. Following Council discussion, City Manager Rowlands stated that staff would prepare a report/proposal to incorporate a memorial wall into the Civic Center project to recognize City personnel for milestone years of service to the City. ACTION: Deputy Mayor Davis then offered Resolution No. 2005-043, heading read, text waived. The motion carried 5-0. Page 3 - Council Minutes February 8, 2005 OTHER BUSINESS 7. CITY MANAGER'S REPORTS There were none. 8. MAYOR'S REPORTS Mayor Padilla discussed regional and subcommittee assigmnents, based upon input by Council, and said a completed list would be placed on the agenda for an upcoming meeting. 9. COUNCIL COMMENTS Deputy Mayor Davis commended Councilmember Rindone on the success of a recent dinner held for the Chinese exchange program delegates and presented him with a flag ITom the Secretary Chairperson of the Communist Party of China. Deputy Mayor Davis also reported that the Hilltop High School basketball team has been challenged to a basketball game in China against one ofthe high schools participating in the exchange program. Councilmember Rindone stated that he and Deputy Mayor Davis represented the City at a recent press conference regarding the current health care crisis and its impacts on the South Bay. Councilmember Rindone offered a staff referral to establish a work group to monitor the issue. Mayor Padilla requested that the referral be submitted to the Council Subcommittee on Legislation. Councilmember McCann commented on his attendance at the Otay Mesa Chamber of Commerce installation dinner, stating that he looks forward to continued economic development in the regIOn. CLOSED SESSION 10. CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: Agency negotiator: Negotiating Parties: Under Negotiation: 525 Hunte Parkway, Chula Vista, CA David D. Rowlands, Jr. City of Chula Vista, California Bank & Trust Price and terms No reportable action was taken on this item. ADJOURNMENT At 8:30 p.m., Mayor Padilla adjourned the meeting to the Regular Meeting of February 15, 2005, at 6:00 p.m. in the Council Chambers, and thence to an Adjourned Regular Meeting on February 15, 2005, at 7:00 p.m. in the Council Chambers for the purpose of a workshop with the Planning Commission. , -= - t.u á...J.J ~ ~ ð e· .-/ Susan Bigelow, MMC, City Clerk Page 4 - Council Minutes February 8, 2005 COUNCIL AGENDA STATEMENT Item ~ Meeting Date 02/22/05 ITEM TITLE: A. Ordinance Decreasing the Speed Limit on "J" Street ITom Bay Blvd. to Broadway Establishing a 25 mph speed limit on Saint Claire Drive ITom Marquette Road to Otay Lakes Road B. Ordinance SUBMITTED BY: Director of General Services/City Engineerf/"t< CityManager~\fr'" (4/5ths Vote: Yes_ NolO REVIEWED BY: Based on provisions of the California Vehic1e Code and pursuant to authority under the Chula Vista Municipal Code, the City Engineer has detemllned that the following speed limits should be changed or estab lished: . Decrease the speed limit on "J" St. to 30 mph between Bay Blvd. and Broadway . Establish a 25 mph speed limit on St. Claire Dr. ITOm Marquette Rd. to Otay Lakes Rd. RECOMMENDATION: That Council adopt the ordinances. BOARDS AND COMMISSIONS: The Safety Commission, at their meeting of January 13, 2005, voted to concur with staffs recommendation to decrease the speed limit on "J" St. and to establish the speed limit on St. Claire Drive. DISCUSSION: ITEM A - "J" STREET "J" Street ITom Bay Blvd. to Broadway is currently posted with a 35 mph speed limit. Staff has completed an Engineering and Traffic Survey for this roadway that will be in effect until August 2011. Based on the results of this survey, staff recommends decreasing the speed limit on this roadway to 30 mph. Upon approval ofthe proposed speed limit by City Council, Schedule X of the register maintained in the office of the City Engineer will be revised to include the following information: 2-1 Page 2, Item ,;¿ Meeting Date 02/22/05 10.48.020 Schedule X - Established Speed Limits in Certain Zones - Designated Name of Street Beginning At Ending At Proposed Speed Limit "J" St. Bay Blvd. Broadway 30 mph The existing characteristics for "J" Street, as shown in the Engineering and Traffic Survey, are listed in the following table. Segment Limits Len h/Width Classification ADT ear Exist. Seed Limit 85'h% Seed Number of Lanes Striping On-Street Parkin Land Use Horizontal AIi nment Vertical Alignment Accident Rate: Se ment / State 2.35/2.16 (per million vehicle miles) Even though the vertical aligmnent of "J" Street produces a design speed of 19 mph, this vertical curve occurs on the approach to the railroad crossing at the intersection of "J" Street and the 1-5 Northbound Ramp. Since this vertical curve occurs at a controlled intersection, it is felt that the proposed speed limit along the segment should not be based on the design speed of this vertical curve. Therefore, the justification for decreasing the speed limit is based on a combination of the following factors: The 85th percentile speed supports decreasing the existing speed limit. Speed limits should normally be established at or below the 85th percentile speed in increments offive (5) mph. However, it is felt that a 25 mph speed limit along this portion of"J" Street is too low for a 4 lane divided roadway leading to a ITeeway. Therefore, staff is proposing a 30 mph speed limit at this time. The speed limit is also proposed at 30 mph so that this portion of "J" Street will be consistent with the speed limit east of Broadway. . . 2-2 Page 3, Item ;;2, Meeting Date 02/22/05 . The accident rate is slightly higher than the statewide rate for similar roadways. This supports decreasing the existing 35 mph speed limit along this roadway. ITEM B - ST. CLAIRE DRIVE Saint Claire Drive ITom Marquette Road to Otay Lakes Road is currently posted with a 30 mph speed limit; however, an official speed limit has yet to be established by Ordinance of the City Council. Staff has completed an Engineering and Traffic Survey for this roadway that will be in effect until September 2011. Based on the results ofthis survey, staff recommends establishing a 25 mph speed limit on this roadway. Speed limits should be established at or below the 85th percentile speed in increments of five (5) mph. The 85th percentile speed is defined as the speed at or below which 85 percent of the traffic is moving. Speed limits set in this manner provide law enforcement officers with the means to control drivers who will not conform to what the majority considers reasonable and prudent. Upon approval ofthe proposed speed limit by City Council, Schedule X of the register maintained in the office of the City Engineer will be revised to include the following information: 10.48.020 Schedule X - Established Speed Limits in Certain Zones - Designated Name of Street Beginning At Ending At Proposed Speed Limit Saint Claire Drive Marquette Road Otay Lakes Road 25 mph The existing characteristics for St. Claire Dr., as shown in the Engineering and Traffic Survey, are listed in the following table. Segment Limits Marquette Rd. - Otay Lakes Rd. Length/Width 0.25 mi. / 40' - 60' Classification Residential Collector ADT (Year) 1,867 (2004) Exist. Sneed Limit 30 mnh 85th% Sneed 26 mph Number of Lanes 2 Strining Left turn pockets at Versailles Rd. and at Otav Lakes Rd. On-Street Parkin!! Allowed Land Use Limited residential ITontage. Park on the west side of the street Horizontal Alignment 450'radius (36 mph design speed) 2-3 "'Ì Page 4, Item C7' Meeting Date 02/22/05 Vertical Alignment Accident Rate: Se ment / State 3.91/1.95 (per million vehicle miles) Based on the accident rate and the 85th percentile speed, as well as other roadway characteristics outlined in the Engineering/Traffic Survey, staff recommends establishing the speed limit on Saint Claire Drive at 25 mph from Marquette Road to Otay Lakes Road. FISCAL IMPACT: The cost to replace existing speed limit signs and pavement legends is $ 1050.00 on "J" Street and $150.00 on St. Claire Drive. Attachments: Engineering Traffic Surveys Aerials Basic Speed Law J:\EngineerIAGENDAICAS200512-22-05\J St. & St Claire speed.sm.doc 2-4 SPEED LIMIT - ENGINEERING/TRAFFIC SURVEY STREET: "J" Street LIMITS: Bav Boulevard to Broadwav Length of Segment (it): 2.584' (.49 miles) Existing Posted Limit (mph): 35 mph SUMMARY OF SPEED SURVEY Segment: 1-5 Ramps to Broadwav Date Taken: 08/27/2004 No. of Vehicles on Sample: 100 85th Percentile: 25 mph Range of Speeds Recorded: 14 - 31 mph BavBou1evard to 1-5 NB Ramps 11/18/2004 100 22 mph 12-26mph ROADWAY CHARACTERISTICS Width (it): 64' curb to curb (wI a 14'raisedmedian), east of the 1-5 ramps. 84'- 96' curb to curb (with a 9'-14' painted median), west of the 1-5 ramps. Total No. of Lanes: 4 total lanes (2 per dITection), east of the 1-5 ramps. 5 total lanes (3 eastbound. 2 westbound) west of the I-5 SB ramps. Horizontal Alignment: Tangent Vertical Alignment: A grade change from -8.68% to +0.88% over 50' along the centerline - produces a desi lID sneed of 19 mph. at the railrdad. R=aining seam.ent has a less then 2% grade change. TRAFFIC CHARACTERISTICS Average Daily Traffic: 19.024 (2003) On-Street Parking: Not allowed Special Conditions: Single familv dwellings with dITect driveway access. Divided roadwav east of the 1-5 ramps. Bike lanes in both directions of the roadwav. No curb or gutter west of the 1-5 ramps along the north side. Accident History: The accident rate at this seam.ent is 2.3 5 (accidents per million vehicles miles) which is higher then the average rate of 2.16 for similar roadwavs in the State of California. . SURVEY RESULTS Study was Prepared by: Erica Mancilla Date: 12 I 21 12004 Reco=endation: Lower the existing sneed limit to 30 mph based on the accident rate. the 85th percentile sneed. and the fact that the seam.ent east ofBroadwav is osted at 30 h. Date Reco=endation Approved: By: James R. ewton P.E Approved Speed Limit (mph): 30 MPH ' Per CYC 40803, Survey Expires: 8/27/2011 2-5 CITY OF CHULA VISTA - VEHICLE SPEED SURVEY SEGMENT UNDER STUDY "J" Street ( 1-5 Ramps - Broadway) DATE 08/26/2004 SURVEY SITE J Street & Madison Avenue POSTED SPEED 35 TIME START 10:28AM TIME END 11:00AM WEATHER Clear , ! . DIRECTION: E =0 W -/ MPH s 10 1S 2\J TOTAL % CUM% 50 49 -48 47 46 45 44 43 42 41 40 39 38 37 36 35 34- 33 32 31 / 1 1 100 30 0 0 99 29 0 0 99 28 / 0 2 2 99 27 / / / / 4 4 97 26 / / / / / 0 0 7 7 93 ;¡ 23 / / / / / / / 0 0 0 0 11 11 70 22 / / / / / 0 0 0 0 0 10 10 59 21 / / / / / / 0 0 0 0 0 0 0 0 0 15 15 49 20 / / / / / / / 0 0 0 0 0 0 0 14 14 34 19 0 0 0 0 4 4 20 18 / / 0 0 4 4 16 17 / 0 0 0 0 0 6 6. 12 16 / 0 0 3 3 6 15 / 0 2 2 3 14 0 1 1 1 13 RECORDER: ERICA MANCILLA TOTAL NUMBER OF VEHICLES: 100 H:\HOME\ENGlNEER\TRAFFIC\Speed_Surveys\J Street-(l-5 Ramps to Broadway).xls 2-6 CITY OF CHULA VISTA - VEHICLE SPEED SURVEY SEGMENT UNDER STUDY J Street ( Bay Boulevard - 1-5 North Bound Ramps) DATE 11 /18/2004 SURVEY SITE 50' from 1-5 Southbound off-ramp POSTED SPEED 35 TIME START 8:39 AM TIME END 9:05 AM WEATHER Clear DIRECTION: W =0 E =/ MPH 5 10 15 20 TOTAL % CUM% 50 49 . 48 47 46 . 45 44 43 42 41 40 39 38 37 36 - - 35 34 33 32 31 30 29 28 27 26 0 0 0 3 3 100 25 0 0 97 24 0 0 0 0 4 4 97 23 0 0 0 0 / / / / 8 8 93 21 0 0 0 0 / / / / / I 10 10 78 20 0 0 0 0 0 0 0 0 0 I I I / I I I I I I 19 19 68 19 0 0 0 0 0 0 0 0 I I I I / I I I I 17 17 49 18 0 0 0 0 0 0 0 I I I I I 12 12 32 17 0 0 I / I I I 7 7 20 16 0 I I I I I 6 6 13 15 0 0 I 3 3 7 14 0 I . 2 2 4 13 0 1 1 2 12 I 1 1 1 RECORDER: ERICA MANCILLA TOTAL NUMBER OF VEHICLES: 100 H:\HOME\ENGINEER\TRAFFIC\Speed_SurveysIJ Street (Bay Boulevard- 1-5 North bound r.amps).xls 2-7 SPEED LllWT - ENGINEERING/TRAFFIC SURVEY STREET: Saint Claire Drive LIMITS: Marquette Road to Otav Lakes Road Length of Segment (ft): 1.300' (.25 miles) Existing Posted Limit (mph): 30 mph (Not established) SUMMARY OF SPEED SURVEY Segment: Otav Lakes Road - Marquette Road Date Taken: 09/15/2004 No. ofVehicIes on Sample: 100 85th Percentile: 26 mph Range of Speeds Recorded: 12 - 31 mph ROADWAY CHARACTERISTICS Width (ft): 40'- 60' (curb to curb) Total No. of Lanes: 2 total lanes (1 per direction) Horizontal Alignment: A Radius of 450' over 328' of length along the centerline produces a design speed 006 mph. Vertical Alignment: A grade change of +3.00 to +8.64 over a 110' vertical curve produces a design speed of25 mph. at the intersection of Otav Lakes Road and Saint Claire Drive. A grade change of + 1.67 to +6.00 over a 120' vertical curve produces a design speed 000 mph north of Versailles Road. TRAFfiC CHARACTERISTICS Average Daily Traffic: 1.867 (2004) On-Street Parking: Allowed Special Conditions: Public Park on west side of se=ent. Accident History: The accident rate at this se=ent is 3.91 (accidents per million vehicle miles). which is higher than the average rate of 1.95 for similar roadwavs in the State of California. SURVEY RESULTS Study was Prepared by: Erica Mancilla Date: 09/21/2004 Recommendation: Establish a 25 mph sPeed limit based on the 85th percentile sPeed and the accident rate. Date Recommendation Approved: lZ;lzz.¡o'-/ By: James R. Newton. P.E /-i/JC: Approved Speed Limit (mph): 25 MPH ,/ Per CVC 40803, Survey Expires: 09/23/2011 2-8 CITY OF CHULA VISTA - VEHICLE SPEED SURVEY SEGMENT UNDER STUDY Saint Claire Dr. (Otay Lakes Road - Marquette Road) DATE 09/15/2004 SURVEY SITE 180' North of Versailles POSTED SPEED 30 TIME START 12:57 PM TIME END 2:03 AM WEATHER Cloudy DIRECTION: S =0 N =1 MPH 5 10 15 20 TOTAL % CUM% 50 49 48 47 46 45 44 43 42 41 40 39 38 37 . 36 35 34 33 32 0 1 1 100 31 1 1 1 99 30 1 0 2 2 98 29 1 1 0 3 3 96 28 1 0 2 2 93 27 0 0 0 0 0 5 5 91 24 1 1 1 1 4 4 80 23 1 1 1 1 4 4 76 22 1 1 1 0 0 0 6 6 72 21 1 1 1 1 1 1 1 .1 0 0 0 0 0 13 13 66 20 1 1 1 1 I I 1 0 0 0 0 0 12 12 53 19 I 1 1 1 1 I 1 I 1 0 0 0 12 12 41 18 1 1 1 0 0 0 0 0 0 0 10 10 29 17 1 0 0 0 0 0 6 6 19 16 1 I 0 0 0 5 5 13 15 1 0 0 0 . 4 4 8 14 0 0 2 2 4 13 0 1 1 2 12 I 1 1 1 11 0 0 0 RECORDER: ERICA MANCILLA TOTAL NUM8ER OF VEHICLES: 100 H:\HOME\ENGINEER\TRAFFIC\Speed_Surveys\Saint Claire Dr (Otay Lakes Rd - Marquette_ Rd).xls 2-9 ~ >-. ro ~ ""d ro o I-i ÇQ I . ""d :> ,........, ÇQ >-. ro ÇQ '-" ..;....> Q) Q) I-i ..;....> r:/J ~ ~ ""' ~ ~ 2-10 ,-..., · '"d ~ r:t:J. C) ';j ro ~ ~ --+-' o I · '"d ~ C) --+-' --+-' C) g, ~ ~ '-" · ;...; o C) ;...; ....... ro ~ U ~ ....... ro UJ 2-11 BASIC SPEED LAW Speed limits in California are governed by the California Vehicle Code, Sections 22348 through 22413, and Section 22350, The Basic Speed Law, of the Vehicle Code. This Basic Speed law provides that no person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard for weather, visibility, traffic and the surface and width of the highway, and in no event at a speed which endangers the safety of persons or property. The basic speed law is founded on the belief that most motorists are able to modify their driving behavior properly, as long as they are made aware of the conditions around them. Section 22358.5 of the Vehicle Code states that it is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to the driver, in the absence of other factors, would not require special downward speed zoning. The speed limit normally should be established at the first five mile per hour increment below the 85th percentile speed. However, in matching existing conditions with the traffic safety needs of the community, engineering judgment may indicate the need for a further reduction of five miles per hour. The factors justifying such a further reduction are the same factors mentioned above. Whenever such factors are considered to establish the speed limit, they should be documented on the speed zone surveyor the accompanying engineering report. In determining the speed limit that is most appropriate to facilitate the orderly movement of traffic and is reasonable and safe, important factors are prevailing speeds, unexpected conditions, and accident records. Traffic regulations are based upon observations of the behavior of groups of motorists under various conditions. Generally speaking, traffic regulations that reflect the behavior of the majority of motorists are found to be most successful. Laws that arbitrarily restrict the majority of drivers encourage wholesale violation of posted restrictions, lack public support and usually fail to bring about the desired changes in driving behavior. This is especially true of speed zoning. Before and after studies consistently demonstrate that there are no significant changes in traffic speeds following the posting of new or revised speed limits. California Vehicle Code (CVC) Sections 22357 and 22358 authorize local authorities to establish intermediate prima facie speed limits on streets and roads under their jurisdiction, on the basis of an Engineering and Traffic Survey. These state laws permit local authorities to lower the maximum speed limit (65 M.P.H.) or to raise business or residence district speed limits (25 M.P.H.) on the basis of an Engineering and Traffic Survey. These "intermediate limits" between 25 and 65 M.P.H. must be posted to define clearly the limits of the zone and the prima facie speed limit established. Speed Trap-Section 40802(b) provides that prima facie speed limits established under Sections 22352(b)(1), 22354, 22357, 22358 and 22358.3 may not be enforced by radar unless the speed limit ha's been justified by an Engineering and Traffic Survey within the last seven years. An "Engineering and Traffic Survey" is required where enforcement involves the use of radar or other electronic speed measuring devices, under CVC 40802(b). THE SPEED LIMIT ESTABLISHMENT PROCESS Speed limits should be established preferably at or near the 85th percentile speed, which is defined as a speed exceeding that which 85 percent of the traffic is moving. The 85th 2'"_11"2 percentile is often referred to as critical speed. Speed limits higher than the 85th percentile are not generally considered reasonable and safe and limits significantly below the 85th percentile do not facilitate the orderly movement of traffic. Speed limits established on this basis conform to the consensus of those who drive highways as to what speed is reasonable and safe, and are not dependent on the judgment of one or a few individuals. Realistic speed zones will invite public compliance by conforming to the behavior of the majority and by giving a clear reminder to the non-conforming violators. These realistic zones will also offer an effective enforcement tool to the Police Department by clearly separating the occasional violator from the reasonable majority. The basic intent of speed zoning is to influence as many drivers as possible to operate at or near the same speed, thus reducing the number of conflicts created by wide differentials in operating speeds. Only when roadside development results in traffic conflicts and unusual conditions, which are not readily apparent to drivers, are speed limits somewhat below the 85th percentile warranted. Realistic speed zoning is a Traffic Engineering tool used to derive the best traffic service for a given set of conditions. While the basic speed law states that no person shall drive at a speed· greater than is reasonable or prudent, the majority of drivers comply with this law, and disregard regulations that they consider unreasonable. It is only the top fringe of drivers that are inclined to be reckless and unreliable, or who have faulty judgment and must be controlled by enforcement. Speed limits set at or slightly below the 85th percentile speed provide law enforcement officers with a means of controlling the drivers who will not cOnform to what the majority considers reasonable and prudent. Experience has shown that the 85th percentile speed is the one characteristic of traffic speeds most nearly conforming to a safe and reasonable speed limit. Speed limits set higher than the critical speed will make very few additional drivers "legal' for each 5 M.P.H. that the posted speed limit is increased. Speed limits lower than the critical speed will make a large number of reasonable drivers 'illegal' for each 5 M.P.H. increment that the speed limit is reduced. For practical purposes, the 5 M.P.H. increment at or immediately below the 85th percentile is the numerical value best selected for the posting of a realistic and legally enforceable speed limit. ENFORCEMENT Concurrence and support of enforcement officials are necessary for the successful operation of a restricted speed zone. Realistic speed zones tend to minimize public antagonism toward police enforcement of obviously unreasonably low speed limits. By posting and enforcing the appropriate speed limits, local authorities invite the public to comply with the reasonable behavior of the majority of the public, while giving a clear reminder to the non-conforming violators. These regulations also offer an effective enforcement tool for the local police by clearly distinguishing the intentional violator from the reasonable majority. Therefore, the establishment of a speed limit of more than 5 M.P.H. below the 85th percentile (critical) speed should be done with great care as this may make violators of a disproportionate number of the reasonable majority of drivers. Z2t3 ORDINANCE NO. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECREASING THE SPEED LIMIT ON "J" STREET FROM 35 MPH TO 30 MPH BETWEEN BAY BOULEVARD AND BROADWAY WHEREAS, based on the provisions of the California Vehicle Code and pursuant to authority under the Chula Vista Municipal Code, the City Engineer has dete=ined that the speed limit on "J" St. between Bay Blvd. and Broadway be decreased to 30 mph; and WHEREAS, this recommendation and other info=ation in the City Engineer's report has been fully considered by the City Council; and WHEREAS, the Safety Commission ofthe City ofChula Vista, at its meeting ofJanuary 13, 2005, voted to concur with staff s recommendation to decrease the existing speed limit on "J" Street. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows: SECTION 1: The speed limit on "J" St. between Bay Blvd. and Broadway is hereby decreased ITom 35 mph to 30 mph. SECTION II: Schedule X of a Register of Schedules maintained by the City Engineer as provided in Section 10.48.020 ofthe Chula Vista Municipal Code, "Established Speed Limits in Certain Zones- Designated," is hereby amended to include the following info=ation: ChuIa Vista Municipal Code Section 10.48.020 - Schedule X Established Soeed Limits in Certain Zones Name of Street Beginning At Ending At Proposed Speed Limit "J" St. Bay Blvd. Broadway 30 mph SECTION Ill: This ordinance shall take effect and be in full force on the thirtieth day ITom and after its adoption. Presented by Approved as to fo= by Jack Griffin Director of General Services ::Vet- '7 ( µ. Ann Moore City Attorney ~ J:\EngineerIAGENDA\Ordinances\Ord2005\J St Speed linUt Bay to Bdwy Ordinance.sm.doc 2-14 ORDINANCE NO. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A 25 MPH SPEED LIMIT ON SAINT CLAIRE DRIVE FROM MARQUETTE ROAD TO OTAY LAKES ROAD WHEREAS, based on the provisions of the California Vehicle Code and pursuant to authority under the Chula Vista Municipal Code, the City Engineer has determined that the speed limit on St. Claire Dr. ITOm Marquette Rd. to Otay Lakes Rd. be established at 25 mph; and WHEREAS, this recommendation and other info=ation in the City Engineer's report has been fully considered by the City Council; and WHEREAS, the Safety Commission of the City ofChula Vista, at its meeting ofJanuary 13, 2005, voted to concur with staffs recommendation to establish this speed limit on Saint Claire Drive. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows: SECTION 1: A 25 mph speed limit on St. Claire Dr. ITom Marquette Rd. to Otay Lakes Rd. is hereby established. SECTION II: Schedule X of a Register of Schedules maintained by the City Engineer as provided in Section 10.48.020 of the Chula Vista Municipal Code, "Established Speed Limits in Certain Zones- Designated," is hereby amended to include the following info=ation: Chula Vista Municipal Code Section 10.48.020 - Schedule X Established Sneed Limits in Certain Zones Name of Street Beginning At Ending At I Proposed Speed Limit Saint Claire Drive Marquette Road Otay Lakes Road 25 mph SECTION III: This ordinance shall take effect and be in full force on the thirtieth day ITom and after its adoption. Presented by Approved as to fo= by :00- 7.~ Jack Griffin Director of General Services Ann Moore . City Attorney J:\Engineer\AGENDA\Ordìnances\Ord2005\St Claire Speed Limit Ordinance.srn.doc 2-15 COUNCIL AGENDA STATEMENT Item ..3 Meeting Date 02/22/05 ITEM TITLE: Resolution amending Cooperative agreement with the State of California Department of Transportation (CALTRANS) regarding construction services on the 1-805/ East H Street Ramp Widening Improvements and authorizing the Mayor to execute said agreement amendment Resolution authorizing the Mayor and City Clerk to execute the easements to SBC/PacBell Communication and Caltrans as necessary for the completion of the East H Street ramp-widening. Resolution accepting bids and awarding a construction contract for the I-805/East H Street Ramp Widening Improvements (STM-356) Project to Yeager-Skanska Inc. SUBMITTED BY: Director of General Services / City Engineer ()k REVIEWED BY: CitYManager~or/ (4/5ths Vote: Yes_NoL) Major improvements to East H Street in the vicinity ofI-805 interchange have been completed over the past several years in order to accommodate increasing traffic volumes in the area. The south side was widened about two years ago to add an additional eastbound through lane and last year, the westbound was widened to provide an additional lane to the 1-805 northbound on-ramp. The City is now prepared to award a construction contract for the project that will include widening the westbound-to-northbound on ramp to 1-805. RECOMMENDATION: That Council adopt the resolutions. BOARDS/COMMISSIONS: N/A DISCUSSION: Proiect Background The interchange at I-805/East H Street will be improved to accommodate an additional lane on the westbound-to-northbound on ramp to 1-805 (see Attachment 1). Items of work include ramp widening, a retaining wall, overhead sign structures and landscaping improvements. This facility will ultimately provide the roadway capacity needed in the area and will serve the eastern portions of the City. The proj ect will provide two overhead sign structures on the approach, revised lane geometry so that the merge area is within the State right-of-way area and not on East H Street. The project will also construct a retaining wall and revise the landscaping along the base ofthe retaining wall. 3-1 Page 2, Item ~ Meeting Date 02/22/05 Cooperative Agreement with Caltrans Most ofthe work is within the State right-of-way - State of California, Department of Transportation (Caltrans) jurisdiction - but some work east of the bridge deck is within the City of Chula Vista's jurisdiction. The City is considered to be the project applicant and administrator with Caltrans providing oversight. Caltrans and the City have signed a Cooperative Agreement (COOP) (see Attachment 2) for the construction of the interchange improvements and this COOP must be amended for the construction phase. The agreement was approved on December 16, 2003, by Resolution No. 2003-495 (Attachment 3), and identifies the roles and responsibilities ofCaltrans and the City. When the East H Street widening project was contemplated, it was designed to match the proposed ramp widening to be built by Caltrans as part of a corridor ramp-metering project on 1-805. At the commencement of the City's project, Caltrans was performing design and environmental permitting for the ramp metering project and it was anticipated that the actual on-ramp widening would be performed concurrent with or immediately after the construction ofthe City's widening project. In 2003 Caltrans staff informed the City that the funding for the ramp metering projects would be delayed until at least the State's Fiscal Year 2009-2010. With the lack of an alternative funding source, the existing condition of two westbound lanes on East H Street flowing into one on-ramp lane could be a long-term issue of concern to the City. To provide an immediate solution, staff entered into discussions with Caltrans to enable the construction of the ramp proj ect as quickly as possible. The proposal put forward by staff and Caltrans requires Caltrans to perform all necessary right of way and design for the ramp widening. Caltrans provided design documents, while the City advertised and awards the proj ect. The current COOP requires the City to administer the construction of the project but in discussion with Caltrans staff, it is more advantageous to have Caltrans provide the inspection ofthose facilities that relate to the interstate system. Therefore, an amendment to the COOP is necessary before the project is awarded. The amendment to the agreement specifies the following: CITY has requested STATE to perform inspection services at a cost not to exceed $500,000; STATE agrees to provide inspection services for the PROJECT CITY has requested STATE to provide certain materials on behalf of the CITY for the PROJECT at cost not to exceed $50,000; STATE agrees to provide certain materials on behalf of the CITY for the PROJECT; STATE agrees to refund to CITY any amount remaining in deposit after final accounting is completed. Due to timing implications, Caltrans has proposed to initially provide the necessary mitigation for the impacts to the California Gnat Catcher. The City will provide replacement mitigation to Caltrans at a later date. Although the mitigation replacement is not specifically covered in the Cooperative Agreement, City staff anticipates that it will be a condition of the encroachment permit issued by the State. Staff estimates that the mitigation cost will not exceed $200,000. This amount is included in the total amount of the project. 3-2 Page 3, Item ~ Meeting Date 02/22/05 In order to effectively implement this process, Caltrans will provide sufficient staffing including a Resident Engineer to perform oversight services in accordance with the provisions of the COOP. Caltrans has also agreed that reimbursed work will not exceed $550,000, per the COOP amendment # 1 (see Attachment #4). Caltrans staff that is currently working on the I-805/0range Avenue/Olympic Parkway project will also be working on this project since the construction schedule overlaps that project. Since the contractor for the 1-805/Orange Avenue/Olympic Parkway project is the same contractor for the I-805/East H Street project, coordination issues will be facilitated. Both construction permits have provisions regarding traffic control impacts on the local streets and interstate. Priority scheduling has been granted to the I-805/0range Avenue/Olympic Parkway project since it is already under construction. Right-of- W av In order to complete construction ofthis project an additional easement needs to be provided. SBC Communications will require an easement for a facilities vault that has been relocated in preparation for this project and CAL TRANS will require an access easement for maintenance of a new overhead sign structure being installed as part of the ramp-widening project. Both of these easements are located on property owned in fee by the City adjacent to the north side of East H Street (see attachment 5). Contractor Bids The City advertised the project on October 22, 2004 and on December 22, 2004 received three bid proposals, all of which were below the Engineer's estimate of$2,521,078.00: CONTRACTOR BID AMOUNT % BELOW COST ESTIMATE 1.Yeager-Skanska Inc., Riverside, CA. $2,100,496.00 16.68 % 2.Archer-Western Contractors Ltd. San Diego, CA. $2,356,391.00 6.53 % 3.Erreca's Inc., Lakeside, CA. $2,394,312.00 5.03 % The low bid by Yeager-Skanska Inc., is below the Engineer's estimate by $420,582.00, or 16.68%. The range between the lowest bid and the highest bid submitted is about 11.6%. Yeager-Skanska Inc. is currently working on the I-805/0range Avenue/Olympic Parkway interchange project. Staff has also verified the contractor's license and other qualifications and determined that these are in good order. Caltrans staffhas also reviewed the bids and recommends proceeding with awarding the contract to Yeager-Skanska Inc., based on the bid submitted. The City has received a letter dated February 14, 2005 ITom Yeager-Skanska, Inc. extending their bid amount until March I, 2005 to fulfill the time requested for awarding this contract. 3-3 Page 4, Item L Meeting Date 02/22/05 Disclosure Statement A copy of the contractor's disclosure statement is attached (Attachment 6). Environmental Status Caltrans has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA). Based on an examination of the proposed project, Caltrans has determined that the proposed project qualifies for a Class I categorical exemption pursuant to Section15301 of the Sate CEQA Guidelines and meets the criteria for a Categorical Exclusion under NEPA, Section 771.l17(d)(1). The Categorical Exemption/Categorical Exclusion Determination Form prepared by Caltrans is attached as Attachment 7. The City's Environmental Review Coordinator has reviewed the proposed project for compliance with the guidelines and criteria established for CEQA and NEP A and has determined that the proposed project was adequately covered in the Categorical Exemption/Categorical Exclusion Determination Form prepared by Caltrans. Thus, no further environmental review or documentation IS necessary. Construction Schedule and Phasing The project is anticipated to begin construction in March 2005 with a completion timeframe of120- working days (end of August 2005). The contract does provide for a 12-month landscape establishment and maintenance period. Extensions of time will be granted for weather delays but once the 120 working days have elapsed, the contractor will be subject to liquidated damages in the amount of$3,400 per calendar day delay in completing the project. The liquidated damages amount is consistent with Caltrans criteria and is based on the value of the construction. The first phase of work will be along the canyon area east ofI-805 along the north side of the existing on-ramp. Any ramp work and paving, striping or traffic control work will be done during night time hours and no daytime closure of the ramp will be allowed. If gnatcatchers nest near the construction area, it may become necessary to erect noise barriers to lower noise levels at the nest sites to acceptable levels. It is impossible to know if the erection of noise barriers will be necessary during the course of this project, where the barriers would be located, or the size of such noise barriers. Therefore, it may be necessary for the Director of Public Works Operations to authorize the contractor to construct noise barriers. Since the limits and size of such noise barriers would not be known until the location of any nests are determined, noise barrier costs could potentially exceed the Director's individual change order authority of $50,000 under City Council Policy 574-01. 3-~ Page 5, Item L Meeting Date 02/22/05 Traffic Control Project specifications and construction plans contain phasing and traffic control plans that detail the daytime hours during which ramps and/or ITeeway lanes must remain open. All ramp lanes and fteeway lanes stay open during daytime hours (see Attachment #8). Work on the ramp widening will be done utilizing approved traffic control plans ITom Caltrans and the City. Construction plans require that no fewer than three lanes be open to traffic at all times on the existing bridge. Ramp closures and lane closures must be approved by both the City and Caltrans staff and generally will not occur during the morning peak period. Generally, ramps may only be closed between 10 p.m. and 5 a.m. between Monday and Thursday nights and between midnight and 5 a.m. on Fridays. Closures will be allowed on Saturdays between 3 a.m. and 8 a.m. and on Sundays between 3 a.m. and 10 a.m. For each 10-minute interval, or ITactional part thereof, that a closure is not reopened to the public by the time specified, the contractor is subj ect to liquidated damages in the amount of$5,200.00. Per the Project report, within the State right-of-way area, Construction Zone Enhanced Enforcement Program (COZEEP) will be provided by the California Highway Patrol (CHP) within and near the limits of construction in order to control the movement of public traffic through the work zone. The Director of Public Works Operations must enter into an agreement with the California Highway Patrol for COZEEP services. Most of the project work is located within the ramp area and East H Street. Thus, since there are no anticipated ITeeway lane closures, it is expected that the cost of these services will be no more than $15,000. During the pre-construction meeting to be scheduled in early March with the contractor, City staff, Caltrans staff, the Chula Vista Police and Fire Departments, and the California Highway Patrol will discuss traffic control issues and access availability across the construction zone. It should be noted that continuous lane closures that could potentially impact both peak and non-peak traffic are expected to be very minimal and, possibly, unnecessary, other than occasional overnight ramp closures that will only minimally affect on-ramp traffic. Wage Statement Due to the Federal funds on this project, contractors bidding this project are required to pay prevailing wages. Special minority or women-owned business requirements were necessary as part of the bid documents. Disadvantaged businesses were encouraged to bid through the sending ofthe Notice to Contractors to various trade publications. Yeager-Skanska Inc. made extensive efforts to secure DBE/WBE on this project through itself and seven (7) subcontractors (Attachment 9). The City's target goal on this project was 1.0% and the contractor exceeded the City's target goal. The contractor will provide 6.8% through three (3) subcontractors that are DBE certified. FISCAL IMPACT: Appropriation The estimated cost of the work required under this agreement is $3,300,000 as outlined above. 3-5 Page 6, Item L Meeting Date 02/22/05 Council approved appropriating $3,300,000 for this project. The loan of Interim SR-125 DIF funds in this amount for this project is possible because funds are available in this fund. Staff anticipates bringing a comprehensive update of the Transportation DIF (TDIF) program in March of2005. At that time, staff will be recommending the forgiveness of this $3,300,000 loan to the TDIF in conjunction with the combination of these two funds. There is no impact to the General Fund. As part of the FY 03/04 Capital Improvement Program (ClP) process, Council approved $3,300,000 ITom the TDIF for the ramp-widening project (STM- 356). The approved project is funded ITom the following source: TOTAL PROJECT FUNDS BUDGETED A. TDIF (funds loaned ITom the Interim SR-125 DIF) $ 3,300,000 TOTAL BUDGET $ 3,300,000 FUNDS REOUIRED FOR CONSTRUCTION A. Construction Costs "Contract Amount" $ 2,100,496 B. Construction Contingencies (10.0%) $ 210,050 C. City staff costs, including inspection, biologist, administration $ 120,000 D. Mitigation costs $ 200,000 D. Caltrans Cooperative Agreement (COOP)(not to exceed amount) $ 550,000 E. City of Chula Vista "Agencv" Furnished Materials $ 119,454 TOTAL FUNDS REOUIRED FOR CONSTRUCTION $ 3.300.000 Attachments: 1. Project plans. 2. Caltrans Cooperative Agreement No. 11-240200 dated December 16, 2003 3. Resolution 2003-495 4. Caltrans Amendment No.1 (Agreement No. 11-0609/Al) 5. SBC/PacBell easement plat 6. Contractor's Disclosure Statement 7. Caltrans Environmental Documentation 8. Traffic Control Charts 9. 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On - Ramp Widening and Metering COOPERATIVE AGREEMENT .t.¡/þ <'6' ~ THIS AGREEMENT, ENTERED INTO EFFECTNE ON Dce-e",};t>/1 / ¡ , 2003, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as STATE, and CITY OF CHULA VISTA, a body politic and a municipal corporation of the State of Califprnia, referred to herein as "CITY". RECITALS 1. STATE and CITY, pursuant to Streets and Highways Code sections 114 and 130, are authorized to enter into a Cooperative Agreement for improvements to State highways within the City of Chula Vista, County of San Diego. 2. CITY and STATE desire to reduce congestion and improve safety ofloca1 and regional transportation facilities in the County of San Diego and the City of Chula Vista by widening ramps, adding ramp meters, and constructing retaining walls on northbound Interstate 805 (1-805) between the Main Street over-crossing and the Bonita Road over-crossing. CITY desires the earlier completion of a portion of the aforementioned project ITom the East H Street over-crossing to the Bonita Road over- crossing, this segment referred to herein as "PROJECT." PROJECT has been included in CITY's adopted "Capital Improvement Program - FY 2004 & 2005" as CIP No. STM 305. 3. STATE agrees to prepare plans, specifications and estimate (PS&E) for PROJECT. Page 1 0;5724 j, , 3-11 4. CITY agrees to fund all PROJECT construction costs, estimated to not exceed $3,000,000, and will construct PROJECT in accordance with STATE's PS&E. 5. STATE and CITY agree to jointly participate in the development of the Environmental Documentation (ED) and Project Report (PR) for PROJECT and desire to specify herein the te=s and conditions under which the PR, ED, and PS&E for PROJECT are to be prepared and how PROJECT will be financed and constructed. Section I CITY AGREES: 1. To perfo= the necessary geotechnical investigations and drilling and provide a geotechnical report conforming to STATE standards. Said geotechnical report shall be provided to STATE for review and acceptance prior to STATE commencing work on the PS&E. 2. To identify and locate all high and low risk underground facilities within PROJECT and to protect or otherwise provide for such utilities, all in accordance with STATE's Manual on High and Low Risk Underground Facilities Within Highway Rights of Way. 3. To cooperate with the STATE Design Manager to provide timely resolution of design issues and inquires related to CITY's facilities and right of way. 4. To provide necessary environmental mitigation sites as determined and detailed in the final ED and as required by permitting agencies. 5. To provide all necessary construction capital and construction engineering support, including electronic and hard copies of "As-Built" plans, changes pursuant to contract change orders, construction related claims, and arbitration rulings required for PROJECT and to be responsible to identify and provide one hundred percent (100%) of the expense thereof, subject to approval by STATE. 6. To advertise, award and administer a construction contract for PROJECT in ac- cordance with requirements of State Contract Act, Local Agency Public Construction Act and California Labor Code, including its prevailing wage provisions. Workers employed in perfo=ance of work contracted for by CITY, and/or perfo=ed under STATE's encroachment pe=it, are covered by provisions of Labor Code in the same manner as are workers directly employed by one of ST ATE's contractors. CITY shall Page 2 .....-,,+ ,. .:5 - ¡? ,....... 015724 obtain applicable wage rates ITom the State Department ofIndustrial Relations and shall adhere to applicable provisions of the State Labor Code. Violations shall be reported by CITY to the State Department of Industrial Relations. 7. To comply with Disadvantaged Business Enterprise (DBE) Program Guidelines in advertising, awarding, and reporting DBE utilization for PROJECT in accordance with the Annual DBE Program approved by STATE's District 11 Local Assistance Engineer. 8. To apply for necessary, fee exempt, encroachment permit(s) for required work within STATE's highway right of way in accordance with STATE's standard permit procedures, as more specifically defined in Articles 3, 4 and 5 of Section ill of this Agreement and to abide by the conditions of said encroachment permit(s). 9. In recognition that PROJECT construction work done on STATE's property will not be directly funded and paid by STATE, for the purpose of protecting stop notice claimants and the interests of STATE relative to successful PROJECT completion, CITY agrees to require its construction contractor to furnish both a payment and a performance bond naming CITY as obligee, with both bonds complying with the requirements set forth in Section 3-1.02 of ST ATE's current Standard Specifications, prior to performing any PROJECT construction work. CITY shall defend, indenmify, and hold harmless STATE and all its officers and employees ITom all claims by stop notice claimants related to the construction of PROJECT. 10. CITY's contract administration procedures shall conform to requirements set forth in STATE's Construction Manual, Local Assistance Procedures Manual and Encroachment Permit for construction of PROJECT. 11. Construction within existing or ultimate STATE right of way shall comply with all applicable requirements in STATE's Standard Specifications, Standard Plans, PROJECT PS&E, and will conform to methods and practices specified in STATE's Construction Manual, subject to approval of ST ATE's Resident Engineer for oversight. 12. CITY desires to use contractor/consultant staff to perform material testing and quality control. Such work shall conform to STATE's Construction Manual and STATE's Materials Testing Manual and will be performed, at CITY's expense. Independent assurance testing, specialty testing and off-site source inspection and testing shall be performed by STATE, at CITY's expense. Selection of asphalt and concrete plants shall be approved by STATE prior to issuance of Notice to Proceed to contractor. 13. CITY shall perform a system operational check for deficiencies of all existing facilities within the PROJECT work limits, at CITY's expense, as the first order of work in the contract. The facilities to be checked include, but are not limited to, all electrical, drainage, irrigation and landscape, and signage elements. If deficiencies Page 3 3-13 015724 are found, CITY shall not be responsible for repairing or replacing a deficient facility unless that deficiency is to be repaired or replaced as shown in the PS&E. 14. To furnish qualified support staff, subject to approval of STATE, including a full time Resident Engineer, as necessary to assure that construction is being performed in accordance with plans and specifications provided by STATE. The Resident Engineer shall be a licensed Civil Engineer in the State of California and must be a public employee in accordance with Chapter 16 ofthe Local Assistance Procedures Manual. 15. To make progress payments to contractor using CITY funds. CITY's representative shall develop and pay all contract progress pay schedules. CITY is responsible for accuracy of itemization on progress pay schedules. 16. Upon completion of work under this Agreement, CITY will assume maintenance and the expense thereof for any part of PROJECT located outside of STATE's right of way. Ifrequired, CITY shall provide adequate access to STATE for maintenance to existing and new STATE right of way. 17. To maintain, or cause to be maintained, PROJECT landscape within STATE's right of way for 12 months ITom date of completion of construction, in accordance with landscape maintenance provisions of the PS&E, to the satisfaction of and subject to approval of STATE. CITY shall not be responsible for landscape within the STATE's right of way, which was not within the limits of the construction disturbance shown on the plans or included in an approved contract change order. CITY shall maintain, or cause to be maintained, existing facilities within the construction disturbance limits that service areas within the PROJECT limits. 18. To pay all PROJECT related landscape maintenance costs, including water costs for 12 months ITom date of completion of construction, and to repair or cause to be repaired any deficiency during that period that is within the PROJECT's disturbance limits or damaged by the PROJECT's construction or landscape maintenance activities. 19. If CITY terminates PROJECT prior to completion of the construction contract for PROJECT, STATE may require CITY to return STATE's right of way to its original condition or to a condition of acceptable permanent operation. If CITY fails to do so, STATE reserves the right to finish PROJECT or place PROJECT in a condition of satisfactory permanent operation. STATE will bill CITY for all actual expenses incurred and CITY agrees to pay said expenses within thirty (30) days or STATE, acting through the State Treasurer or State Controller, may withhold an equal amount ITom future apportionments due CITY ITom the Highway User Tax Fund or any other available funds. 20. To retain or cause to be retained for audit by STATE or other government auditors for a period of three (3) years ITom date of final payment, all records and accounts relating to PROJECT construction and to the acquisition and disposition of mitigation sites. Page 4 3-ltf 015724 21. To warranty for a period of 3 years after completion of construction, all new signs furnished by CITY's contractor for the PROJECT. 22. To submit all construction change orders within STATE's right of way to STATE for prior approval, except for change orders necessary for safety of traveling public or immediate protection of property. 23. CITY Point of Contact: Clifford Swanson CITY ofChula Vista 276 Fourth Avenue Chula Vista, Ca. 91910-2631 Telephone No. 619- 691-5142 SECTION II STATE AGREES: 1. To prepare by January 31, 2004, PS&E including, but not be limited to, design engineering. 2. By December 31,2003, to provide CITY, at no cost to CITY, all the necessary layouts to allow CITY to secure rights of entry to allow CITY to clear PROJECT site of vegetation. 3. To secure all required permits by January 15, 2004 including, but to limited to, Regional Water Quality Control Board number 401, U.S. Corps of Engineers number 404, Department ofFish and Game number 1601, and the Coastal Zone prior to issuing a Notice to Proceed to the CITY Contractor selected to construct PROJECT. 4. Upon proper application by CITY and by CITY's contractor, to issue at no cost to CITY and CITY's contractor, necessary encroachment permits for required work within STATE's highway right of way. 5. To perform all right of way activities, including determination of right of way impacts and associated costs. 6. STATE desires to use STATE staff to perform survey mapping during PS&E and construction phases. Such surveys performed shall conform to methods, procedures, and requirements of STATE's Surveys Manual and STATE's Staking Information Booklet, and subject to approval of STATE Resident Engineer for oversight. Final Page 5 :3 -/5' 015724 project surveys will include fmal right of way monumentation in accordance with District 11 Survey Branch policy and procedures. 7. STATE Point of Contact: Carl Savage Department of Transportation District 11 MS. 2829 Juan Street San Diego, Ca 92110 Telephone No. 619-688-3670 SECTION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under terms of this Agreement are subject to appropriation of resources by Legislature, State Budget Authority, allocation of those resources by the California Transportation Commission, and the encumbrance of funds toward PROJECT costs. 2. Should a portion of PROJECT be financed with Federal funds or State gas tax funds, all applicable laws, regulations and policies relating to use of such funds shall apply notwithstanding other provisions of this Agreement. 3. CITY shall obtain the aforesaid encroachment pernùt through STATE's District 11 Pernùt Engineer and CITY's permit application shall be accompanied by the appropriate number of plans, estimated at two (2) full size construction plan sets (including specifications) and twenty-five (25) sets of reduced construction plans (l1x17) (including specifications) of the aforesaid STATE accepted contract plans. Receipt by CITY of an approved encroachment pernùt shall constitute CITY's authorization ITom STATE to proceed with work to be performed by CITY or CITY's representatives within proposed State right of way or which affects STATE's facilities pursuant to this Agreement. CITY's authorization to proceed with said work shall be contingent upon CITY's compliance with all provisions set forth in this Agreement and in said encroachment permit. Page 6 3~/6 015724 4. CITY's construction contractor shall obtain a. separate encroachment permit ITom STATE prior to commencing any work within STATE's rights of way or which affects STATE's facilities. The CITY's Contractor's permit application shall include proof said contractor has acceptable and valid payment and performance surety bonds covering PROJECT construction. 5. STATE shall provide completed resource agency permits utilizing CITY furnished mitigation as described in Article 4 of Section I, for all mitigation requirements of PROJECT prior to granting said encroachment permit. 6. Failure of CITY to provide the required Geotechnical Report pursuant to Article 1 of Section I by December 12, 2003, shall relieve STATE of its obligations to deliver PS&E and RW pursuant to Articles 1 and 2 of Section II. 7. STATE may provide a representative, at STATE's option, to review and oversee the work performed by CITY's contractor. 8. If any existing public and/or private utility facilities conflict with construction of PROJECT or violate STATE's encroachment policy, CITY shall m¡¡ke all necessary arrangements with owners of such facilities for their protection, relocation, or removal in accordance with STATE's policy and procedure for those facilities 10c;J.ted within limits of work providing for improvements to State highway and in accordance with CITY's policy for those facilities located outside of limits of work for improvement to State highway. Costs for utility protection, relocation, or removal within STATE right of way shall be apportioned between the owner of the utility facility and CITY in accordance with STATE's policy and procedure. CITY shall require any utility owner performing relocation work in STATE highway right of way to obtain an encroachment permit ITom STATE prior to performance of said relocation work. Requirements of most current version of STATE's "Policy on High and Low Risk Underground Facilities Within Highway Rights of Way" shall be fully complied with. Any relocated or new facilities shall be correctly shown and identified on final "As-Built" plans. 9. Any hazardous material or contamination of an HM-1 category founq within existing State highway right of way during construction requiring remedy or remedial action, as defined in Division 20, Chapter 6.8 et seq. of Health and Safety Code, shall be the STATE's responsibility. Any hazardous material or contamination ofan HM-l category found within local road right of way during construction requiring same defined remedy or remedial action shall be responsibility of CITY. For the purpose of the Agreement, hazardous material ofHM-1 category is defined as that level or type of contamination which State or Federal regulatory control agencies having jurisdiction have determined must be remediated by reason of its mere discovery, regardless of whether it is disturbed by PROJECT or not. STATE sh¡¡11 sign the HM-1 manifest and pay all costs for remedy or remedial action within the ex:isting State highway right of way, CITY shall sign HM-1 manifest and pay all costs for required remedy or remedial action outside of STATE's right of way . STATE will exert every effort to fund remedy or remedial action for which STATE is responsible. In the Page 7 3..-/7 015724 event STATE is unable to provide immediate funding, CITY will have an option to either delay further construction of PROJECT until STATE is able to provide that funding or CITY may proceed with remedy or remedial action at CITY's expense. In such event, STATE agrees to reimburse CITY for remedial work within STATE's right of way, subject however to the appropriation of funds by the California Transportation Commission for that purpose and the availability of State Budget Authority . 10. Remedy or remedial action with respect to any hazardous material or contamination of an HM-2 category found within existing STATE highway right of way during construction shall be the responsibility of STATE and STATE shall sign the HM-2 storage manifest if PROJECT proceeds and HM-2 material must be removed in lieu of being treated in place. For purposes of this Agreement, any hazardous material or contaIIÚnation of HM-2 category is defined as that level or type of contaIIÚnation which said regulatory control agencies would have allowed to remain in place if undisturbed or otherwise protected in place had the PROJECT not proceeded. If category HM-2 is found in the area of the PROJECT outside of STATE highway right of way, CITY shall have the responsibility for the remedy or remedial action. CITY shall sign any HM-2 manifest if construction of PROJECT proceeds and HM-2 material must be removed in lieu of being treated in place. If CITY and STATE decide to not proceed with PROJECT, there will be no obligation to STATE other than STATE's duty to cover and protect HM-2 material left in place within State highway right of way. 11. If hazardous material or contaIIÚnation of either HM-1 or HM-2 category is found during construction on new right of way acquired by or on account of CITY for PROJECT, CITY shall be responsible, at CITY's expense, for all required remedy or remedial action and/or protection in absence of a generator or prior property owner willing or capable of performing that corrective work. 12. Locations subject to remedy or remedial action arid/or protection include utility relocation work required for PROJECT. Costs for remedy and remedial action and/or protection shall include but not be limited to, identification, treatment, protection, removal, packaging, transportation, storage, and disposal of such material. 13. The party responsible for funding any hazardous material cleanup shall be responsible for development of necessary remedy and/or remedial action plans and designs. Remedial actions proposed by CITY on State highway right of way shall be pre- approved by STATE and shall be performed in accordance with STATE's standards and practices and those standards mandated by Federal and STATE regulatory agencies. 14. CITY will not authorize any work within the STATE right of way not included in contract documents approved by STATE or required to complete PROJECT without the written approval of STATE. Any work not approved in writing and not considered as emergency work as determined by CITY and STATE, shall be the sole responsibility of CITY. Page 8 3,·1<2 015724 15. If previously unidentified cultural, archaeological, palentological or other protected resources are encountered during construction of PROJECT, CITY shall stop all work in that area until a qualified archaeologist, biologist, or other appropriate staff can evaluate the nature and significance of the find and recommend mitigation strategies for the area(s). The CITY and STATE, in consultation, shall agree on a reasQnable mitigation strategy to be followed and responsibility for costs for the selected mitigation strategy, if any. If CITY determines that the cost of mitigation is excessive, CITlY may terminate the construction of PROJECT. In such event, CITY shall return the PROJECT site to its original condition or a condition deemed satisfactory by the STATE. 16. CITY's construction contractor shall maintain in force, until completion and acceptance of PROJECT construction contract, a policy of Contractual Liability Insurance, including coverage of Bodily Injury Liability and Property Damage Liability in accordance with Section 7-1.12 of State Standard Specifications. Such policy shall contain an additional insured endorsement naming STATE, its officers, agents and employees as additional insureds. A Certificate of Insurance shall evidence coverage in a form satisfactory to STATE, which shall be delivered to STATE before issuance of an encroachment permit to CITY's contractor. 17. Prior to award of construction contract for PROJECT, CITY may terminate this Agreement by written notice. Should CITY terminate Agreement, CITY will bear all costs and reimburse applicable costs to STATE for any expenses due directly to termination of contract. Such expenses shall not include design or other expenses for work that will be part of the future ramp metering project's design as part of a future STATE ramp meter project. 18. In construction of said PROJECT, representatives of CITY and STATE will cooperate and consult with each other, but decisions of STATE's Resident Engineer for oversight shall prevail as final, binding and conclusive in all matters concerning PROJECT construction contracts within STATE right of way. Decisions of CITY's Resident Engineer shall prevail as final, binding and conclusive in all matters concerning PROJECT construction contracts within CITY right of way, except where such matters affect safety of the travelling public or immediate protection of property. All work pursuant to PROJECT shall be accomplished according to approved PS&E and applicable ST ATE standards. Satisfaction of these requirements shall be verified by STATE's Resident Engineer for oversight. STATE's Resident Engineer for oversight and other ST ATE staff are authorized to enter CITY property during construction for the purpose of monitoring and coordinating construction activities. Representatives of STATE shall coordinate all visits with CITY's Resident Engineer. 19. Changes to PROJECT PS&E shall be implemented by contract change orders by CITY's Resident Engineer and according to Section I, Article 5, of this Agreement. All changes affecting public safety or public convenience, all design and specification changes and all major changes as defined in STATE's Construction Manual shall be approved by STATE in advance of performing work. Unless otherwise directed by STATE's Resident Engineer for oversight, changes authorized as promded herein will Page 9 3 -/'1 015724 not require an encroachment permit rider. All changes shall be shown on As-Built plans. 20. Pursuant to authority contained in Section 591 ofVehic1e Code, STATE has determined that within such areas as are within limits of PROJECT and are open to public traffic, CITY shall comply with all of requirements set forth in Divisions II, 12, 13, 14, and 15 of the Vehic1e Code. CITY shall take all necessary precautions for safe operation of CITY's vehicles, its construction contractor's equipment and vehicles and/or vehicles of personnel retained by CITY and for the protection of the traveling public ITom injury and damage ITom such vehicles or equipment. 21. Upon completion and acceptance of PROJECT construction contract by CITY, to the satisfaction of STATE and subsequent to execution of a maintenance agreement, STATE will accept, control and maintain, at its own cost and expense, those portions of PROJECT lying within STATE's right of way, with the exception of landscaping, which is addressed elsewhere in this Agreement. 22. CITY will accept control of and maintain, at its own cost and expense, those portions of PROJECT lying outside STATE's right of way, including, but not limited to, any mitigation lands, other agreed areas, and local roads delegated to CITY for maintenance. Also, CITY will maintain, at CITY expense, local roads within STATE's right of way delegated to CITY for maintenance as well as all traffic service facilities that may be required for benefit or control of CITY local road traffic, including landscaped medians and parkways. 23. Upon completion of all work under this Agreement, ownership and title to materials, equipment and appurtenances installed within STATE's right of way will automatically be vested in STATE, and materials, equipment and appurtenances installed outside of STATE's right of way will automatically be vested in CITY or a third party as provided for by CITY. No further agreement will be necessary to transfer ownership as hereinabove stated. 24. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or to affect legal liability of any party to this Agreement by imposing any standard of care with respect to construction, operation, or maintenance of STATE highways different ITom the standard of care imposed by law. 25. Neither STATE nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, CITY shall fully defend, indemnity and save harmless STATE and all of its officers and employees ITom all claims, suits or actions· of every name, kind and description brought for or on account of injury (as defmed in Government Code Section 810.8) occurring by reason of lLIlything done or omitted to be done by CITY under or in Page 10 3-20 015724 connection with any work, authority or jurisdiction delegated to C¡TY under this Agreement. 26. Neither CITY nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by ST ATE under or in connection with any. work, authority or jurisdiction delegated to STATE under this Agreement. It is understood and agreed that, pursuant to Government Codes Section 89S.4, STATE shall fully defend, indemnify and save harmless CITY ITom all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Govemment Code Section 810.8) occurring by reason of anything done or omitted to be done by STATE under or in connection with any wdrk, authority or jurisdiction delegated to STATE under this Agreement. 27. No alteration or variation of terms of this Agreement shall be valid unless made in writing and signed by parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of parties hereto. 28. The provisions of this agreement contained herein, with respect to delivery dates and tasks, may be altered, changed, or amended by mutual written consent of the parties hereto. This Agreement may be terminated or provisions contained, delivery dates, tasks herein may be altered, changed, or amended by mutual written consent of the parties hereto 29. Portions of this Agreement pertaining to construction of PROJECT shall terminate upon completion and acceptance of construction contract for PROJECT by CITY with concurrence of STATE, or on December 31, 200S, whichever is earlier in time. However, ownership, operation, maintenance, indemnification, and claims clauses shall remain in effect until terminated or modified, in writing, by mutual agreement. Should a construction-related claim arising out of PROJECT be asserted against CITY, STATE agrees to extend the termination date of this Agreement or execute a subsequent Agreement to cover those eventualities. STATE OF CALIFORNIA Department of Transportation CITY OF CHULA VISTA JEFF MORALES Director of Transportation By: r,/?Joel Certified as to funds: Approved as to form: Page 11 3-ZI 015724 By: ~c--~\a0-- District 11 udget Manager\ BK~ Approved as to form and procedure: BY:\~ Attorney Department of Transportation Certified as to fmancial terms and conditions: Page 12 :3 - 2"2- By: G--, ì\( .A't~ City Attorney 015724 DESIGN PHASE ACTIVITIES RESPONSmILITY STATE CITY PROJECT ACTIVITY 1. PRELIMINARY COORDINATION Request 1 - Phase EA Field Review of Site Provide Geometrics Approve Geometries Obtain Surveys & Aerial Mapping Obtain Copies of Assessor Maps and Other RIW Maps Obtain Copies of As-Builts Send Approved Geometrics to Local Agencies for Review Revise Approved Geometrics if RequITed Approve Final Geometrics Detennine Need for Permits from Other Agencies Request Permits Initial Materials & Geotechnical Discussion Initial Hydraulics Discussion with District Staff Initial Electrical Design Discussion with District Staff Initial Traffic & Signing Discussion with District Staff Initial Landscape Design Discussion with District Staff Plan Sheet Format Discussion 2. ENGINEERING STUDIES AND REPORTS Prepare & Submit Geotechnical Report Review and Approve Materials Report & Typical Section Prepare & Submit Landscaping Recommendation Review & Approve Landscaping Recommendation Prepare & Submit Hydraulic Design Studies Review & Approve Hydraulic Design Studies x X X X X X ·X X X X X X X X X X X X X X X x X 3. R/W ACQillSITION & UTILITIES Request Utility Verification Request Preliminary Utility Relocation Plans from Utilities Prepare RIW RequITements Prepare RIW and Utility Relocation Cost Estimates Submit RIW RequITements & Utility Relocation Plans for Review Review and Comment on RfW Requirements Longitudinal Encroachment Review Longitudinal Encroachment Application to District (If necessary) Approve Longitudinal Encroachment Application Request Final Utility Relocation Plans x X X X X X X X X X X X X X X X Page 13 3-23 015724 PROJECT ACTIVITY Submit Utility Relocation Plans for Approval Approve Utility Relocation Plans Submit Final RIW Requirements for Review & Approval Fence and Excess Land Review RIW Layout Review Approve RIW Requirements Prepare and Submit Certification of RIW Review and Approve Certification ofRIW Approve & Record Title Transfer Documents Prepare RIW Record Maps 4. PERFORM RIGHT OF WAY ENGINEERING Retrace & Perpetuate Existing Land Net for RlW Acquisitions Perform Record Data Search Perform land net Recovery & Field Ties Perform Monument Perpetuation Surveys Prepare & file Perpetuation Documents Prepare Land Net Map Prepare Right of Way Maps Perform Right of Way Monumentation Survey Prepare & File Monumentation Maps Perform Close Out Prepare Relinquishment & Vacation Maps . Prepare Corresponding Documentation . Prepare CTC Resolution Prepare Deed Package for Excess Land Transactions Prepare right of Way Record Map Review temporary Record Map Verify & Post Conveyance Docs 5. PREPARATION OF PLANS, SPECIFICATIONS AND ESTIMATES Prepare and Submit Preliminary Stage Construction Plans Review Preliminary Stage Construction Plans Calculate and Plot Geometrics Cross-Sections & Earthwork Quantities Calculation Prepare and Submit BEES Estimate Put Estimate in BEES Local Review of Preliminary Drainage Plans and Sanitary Sewer and Adjnstment Details Prepare & Submit Preliminary Drainage Plans Page 14 3-2Lf RESPONSIBILITY STATE CITY X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 015724 PROJECT ACTIVITY Review Preliminary Drainage Plans Prepare Traffic Striping and Roadside Delineation Plans & Submit Review Traffic Striping and Roadside Delineation Plans Prepare & Submit Landscaping and/or Erosion Control Plans Review Landscaping and/or Erosion Control Plans Prepare & Submit Pre1iminary Electrical Plans Review Preliminary Electrical Plans Prepare & Submit Preliminary Signing Plans Review Pre1iminary Signing Plans Quantity Calculations Safety Review Prepare Specifications Prepare Final Contract Plans Prepare Lane Closure Requirements Review and Approve Lane Closure Requirements Prepare & Submit Striping Plan Review & Approve Striping Plan Prepare Final Estimate Prepare & Submit Draft PS&E Review Draft PS&E Finalize & Submit PS&E to City Prepare & Submit Resident Engineering Book RESPONSIBILITY STATE x X X ,X I X X X X X X X X X X X X X X X X X X CONSTRUCTION PHASE ACTIVITIES Prepare Resident Engineer File Perform Construction Site Surveying Prepare Construction Staking Perform Construction Contract Administration Work Perform Contract Items work Sample and Test Construction Materials Perform Safety and maintenance Reviews Administer Mitigation Site Prepare and administer Contract Change Orders Implement TMP Resolve Contract Claims Accept Contract, Prepare Final Construction Estimate and prepare Final Report Perform Over-site on Construction Activities Prepare As-Builts Plans in Caltrans Format Obtain Permits from State for Work on State R!W Page 15 3-2.6 X X X X X CITY X X X X X X X X X X X X 015724 ~ A1TACHMENT 6 RESOLUTION NO. 2003-495 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHUIA VISTA APPROVING A COOPERATIVE AGREEMENT WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION REGARDING CONSTRUCTION CONTRACT ADMINISTRATION ON WESmOUND EAST H STREET TO NORTHBOUND INTERSTATE 805 RAMP WIDENING PROJECT, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT, AND APPROPRIATING $3,300,000 AS A LOAN FROM THE AVAILABLE BALANCE OF THE INTERIM STATE ROUTE 125 DEVELOPMENT IMPACT FEE FUND TO THE TRANSPORTATION DEVELOPMENT IMPACT FEE FUND WHEREAS, the State of California Department of Transportation (CALTRANS) has delayed funding for the westbound East H Street to northbound Interstate 805 on-ramp widening and metering project to match the City's completed westbound East H Street improvements has been delayed until at least 2009; and WHEREAS, the City proposes to fund and construct the proposed on-ramp widening within the state highway right-of-way to improve the flow of traffic from westbound East H Street onto northbound Interstate 805; and WHEREAS, in order to permit the City to perform these contract functions, the State of California Department of Transportation requires the City to enter into a cooperative agreement which sets out each agency's responsibilities for the design and construction process. NOW THEREFORE BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve a cooperative agreement with the State of California Department of Transportation regarding construction contract administration to be undertaken by the City of Chula Vista on the westbound East H Street to northbound Interstate 805 ramp widening project and a copy of which shall be kept on file in the office of the City Clerk and appropriating $3,300,000 as a loan from the available balance of the Interim State Route 125 Development Impact Fee Fund. BE IT FURTHER RESOLVED that the Mayor of Chula Vista is hereby authorized to execute said agreement on behalf of the City of Chula Vista. Presented by Approved as to form by ~ .Þ Clifford Swanson Engineering Director ~~~ City Attorney 3 ,2-,b Resolution 2003-495 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 16th day of December, 2003, by the following vote: AYES: Councilmembers: Davis, McCann, Rindone, and Padilla NAYS: Councilmembers: None ABSENT: Councilmembers: Salas ~#" ATTEST: -: 3i-l11i.A ~~ P ~ Susan Bigelow, CMC, City lerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-495 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 16th day of December, 2003. Executed this 16th day of December, 2003. . ~l-l tLLl~D n.-J Susan Bigelow, CMC, Ci lerk 3-27 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Ann Moore City Attorney ~~- Dated: ,,/1- 06 Amendment No.1 to ooperative Agreement with The State of California Department of Transportation (CAL TRANS) regarding Construction Services on the I-805/East H Street Ramp Widening Improvements (STM-356) 3-2$ An'ACHMENT i 11-0609/ Al ll-SD-80S PM 6.8/7.7 E.A. 11-240200 Agreement No. 11-0609/ Al Westbound East H Street to Northbound 805 On - Ramp Widening and Metering AMENDMENT NO.1 TO AGREEMENT THIS AMENDMENT NO.1 TO AGREEMENT, ENTERED INTO EFFECTNE ON , is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE", and CITY OF CHULA VISTA, a body politic and a munidipal corporation of the State of California, referred to herein as "CITY". RECITALS 1. The parties hereto entered into an Agreement (Document No.15724), on December 16, 2003, said Agreement defining the terms and conditions of a Project in the County of San Diego and the City of Chula Vista to widen ramps, add ramp meters, and . construct retaining walls on northbound Interstate 80S (I-80S) between the Main Street over-crossing and the Bonita Road over-crossing. CITY desires the earlier completion of a portion of the aforementioned project ITom the ,East H Street over- crossing to the Bonita Road over-crossing, this segment referred to herein as "PROJECT." Pursuant to said Agreement, CITY was to provide all staff necessary to administer the PROJECT construction contract and to provide certain materials for the construction contractor to complete PROJECT. 2. CITY has requested STATE to perform construction inspection servIces and IS willing to pay one hundred percent (100%) of the cost thereof. 3. CITY has requested STATE to provide certain materials, identified in the PROJECT Construction Contract as "City furnished materials", at CITY's expense. 3-2!1 1l-0609/AI IT IS THEREFORE MUTUALLY AGREED: 1. Article 12 of Section I of the original Agreement is hereby amended to read as follows: "CITY desires to use STATE's staff or STATE's consultant staff to perform material testing and quality control. Such work shall conform to STATE's Construction Manual and STATE's Materials Testing Manual and will be performed, at CITY's expense. Independent assurance testing, specialty testing and off-site source inspection and testing shall also be performed by STATE, at CITY's expense. Selection of asphalt and concrete plants shall be approved by ST ATE prior to issuance of Notice to Proceed to contractor." 2. Article 14 of Section I of the original Agreement is hereby amended to read as follows: "To furnish a full time Resident Engineer to assure that construction is being performed in accordance with plans and specifications provided by STATE. The Resident Engineer shall be a licensed Civil Engineer in the State of California and must be a public employee in accordance with Chapter 16 of the Local Assistance Procedures Manual." 3. Article 15 of Section I of the original Agreement is hereby amended to read as follows: "To make progress payments to CITY's contractor using CITY funds. CITY's representati ve shall develop and pay all contract progress pay schedules. CITY is responsible for accuracy of itemization on progress pay schedules." 4. Article 24 is hereby added to Section I of the original Agreement to read as follows: "To deposit with STATE within twenty five (25) days of receipt of billing, which billing will submitted immediately following the execution of this Amendment, the amount of $550,000, which figure represents the estimated cost of work to be performed by STATE, estimated to be $ 500,000, and materials to be furnished by STATE, estimated to be $50,000, on CITY's behalf pursuant to this Agreement. " 5. Article 25 is hereby added to Section I of the original Agreement to read as follows: "To pay STATE upon completion of all work on PROJECT and within twenty five (25) days of receipt of a detailed statement made upon final accounting of costs therefore, any amount, concurred to in writing by both parties, over and above the aforesaid deposit required to complete CITY's obligation assurned pursuant to this Agreement." 6. Article 8 is hereby added to Section II of the original Agreement to read as follows: 2 3-30 1l-0609/Al "To submit a billing to CITY, which billing will be submitted immediately following the execution of this Amendment, in the amount of $550,000, which figure represents the estimated cost of work to be performed by STATE, estimated to be $500,000 and materials to be furnished by STATE, estimated to be $50,000, on CITY's behalf pursuant to this Agreement". 7. Article 9 is hereby added to Section II of the original Agreement to read as follows: "Upon completion of PROJECT and all work incidental thereto, to furnish CITY with a detailed statement of the costs to be borne by CITY. STATE thereafter shall refund to CITY, promptly after completion of STATE's final accounting of PROJECT costs, any amount of CITY's deposit required in Section I, Article 24, remaining after actual costs to be borne by CITY have been deducted or to bill CITY for any additional amount, concurred to in writing by both parties, required to complete CITY's fi- nancial obligations pursuant to this Agreement. 8 The other terms and conditions of said Agreement (Document No.14211) shall remain in full force and effect. This Amendment No.1 to Agreement is hereby deemed to be a part of Document No. 15724. STATE OF CALIFORNIA Department of Transportation CITY OF CHULA VISTA WILL KEMPTON Director By: Deputy District Director By: Mayor Certified as to funds: District Budget Manager BK Attest: City Attorney Approved as to form and procedure: Attorney Department of Transportation Certified as to financial terms and conditions: Accounting Administrator 3 3-31 j) !ž w :E :I: ~ ~ I 'j! >- Z \U ~ \U ~ <..) '" <f) \U > ¡¡j o :3 z <..) UJ ið ~I ti ~ I- tf) F I- :2 lLJ I-D ZZLL lLJ<eO ¿lLJtf) ztf)z 0:=10 --'lLJ- ~ > 1;20 tf) . I-:=1ILI- z--'lLJz lLJUtf)lLJ ¿(ð:=1¿ lLJ lLJ :2ô~:2 lLJ tf)lLJ lLJz:=1lLJ ZO--'z -UO ~~(ð:c IL Z , IL lLJ --' Z lLJ--' --' 0 lLJlLJ lLJ I-DZI- <.') >- Z Z Z \U Z ~0fã ~""'" \U ~ u... <..)-0 á) ~ ~ <f) '" Z ILl u.... Õ ~ 00- ~ ~ ~ dð~ ið "- Z . o '" Z ¡q 0 ¡¡¡¡j q a.; ¡¡¡¡¡ "- >- o \U i2 o . <..) "ii¡I (j')!::. <..!) CON u.J Z 1:. 0 I- ~ið¡ 0 ~ §¡!8 z o "'.'" ~ UJ \J) 0 ::;: UOOZ IL Z,,",Z 0 UJ - 0 ¡¡¿ "- ¡:: ..-8 f-- u.J «:::I ::c LL ~ ---I N <.!) UJ-,~.¡¡z ¡¡¿ \U lLi ..- 32C£>- «LL.« "-O~ -' \U ál~ «:0 "-I: . LL.<..)« 0LL.<..) -oô ¡¡j~1i3 kìuõ «\Uz "-I:« Z>-<f) O~lL Z ·0 º~ç filOz 0""':0 IL~O «0<..) t!>Z<t." ""~Iii ~~5 a:j q "- ~ < ~ ~ ~ i '!~ . I, T H i 0 !J~ ; "u .~ ~ > '¡ h ~ ! - LU 4. \¡) 5 \~ ./;1 % ~, :y, .f? I ^ , ~"'"/ . /? of, .~/ , / , , / , / , , , , / j IE/ \J) , 8 , f!: @ , "', 0"1 :]oj 0'> "- - « '- , , -~ "'/ 0'> -' -' <5, -\U\U ,<..)<..) / '" "'''' 0'>«« m "- "- , I , I I @> ~ ;. ~ " ;. ;; ,.- " '" ~ f- Ñ ¡., ~" - CI1!!1<o N ~ - No¢":'" ¡[I1i1 ò" 8t';~t>1 g"" ¡., 2~ ~c @ N' - ~ ~~~I'-: 6> -(\ -~ "'- '-" © -1'--,(1') e "'~ "'- II II II ~ 11 11 © " " tI!....1<11- ~~ oj)- -N-- III1 ~~ 11111111 1111 at....l<ll- ~~ ~~ ;. ;. ~ ,.- '" " ,.- " ~ ~ m~~~ " ¡; ~2 ~- f-.£'Iñ-¡ òÙl~\.o 2ò\ N .N . N NI'-~Il"! 2 -f'-' (1') ;¡.~¡g~ ò ON' - @ i~· @ z':: @ -C\ -- 11111111 8kJ'1'«) I@ -Co º1I~liïi 1111 al...J<l1- @ lO"¢"N z_ ~~ ~~ ïì~"1i " " 1:1<'-'<::11- tI!....I<H- ~~ 3 ~3 z... : ~ ! ; ~~ ~ ~ ~ ~ - 05 § ..~ " I ~ii ~III '!!;> ~ . ~ I ~ ~ ~ ~ . DISCLOSURE OF LOBBYING ACTIVITIES ATTACHMENT 0 ~l , Type of Federa! Action: a.canlraCl b.grant \:.- coopc:rat;YC:3grccmcnt . .~ c. Ioanguaramcc r.loaninsurancc Com lete this form to disclosure lobb in activities to 31 U.S.c. 1352 2. Status of Federal Action: . NOT APPLICABLE a. bidloffo:..-fapplicatiOI\ _ b. inilÎalaward . c.. post_award 3. Report Type: a. initial _ b. materialcllangc 4. Name and Address of Reporting Entity: Prime Subawardee Tier_, ¡fknown ~ Congressional District, ¡fknown: 6. Federal Department! Agency 8. Federal Action Number, if known 10. a. Name and Address of Lobbying Entity (if individual, last, name first name, MI): (attach Continuation Sheet(s) if necessary, 11. Amount of Payment (check all that apply): ~ $ Amount _ actual _ planned 12. Form of Payment (check all that apply): Leash b. ¡n-k ind ~ s pee i fy: nôtl ure Y1I.lue ForMaterialCl'langeOnly' Year_quarter date of last report 5. If Reporting in No.4 is $I/Ibawardee. Enter Name and Address of Prime: Congressional District, ifknown 7. Federal Program Name/Description: CFDA Number, ¡f:applicable 9. Award Amount, ¡fknown: $ b. Individuals Performing Services (including add different from No. lOa) (last name, first name, MI): (attach Continuation Sheet(s~ if necessary, 13. Type of Payment (cheeR al1 that apply) a.. rdôt;ner b.one-timefee c. commission d.contingenlfee e deferred [other,spcciiy 14. Brief Description of Serviçes Performed or to be performed and Date(s) of Service, ¡ncluding officer(s), employee(s)m or member(s) contacted, for Payment Indicated in Item 1 I: . 15. Continuation Sheet(s) attached: Ves (attach Continuation Sheet(s) ¡fnecessary) No 16. Information requested ¡hrougl'llhis form is autl'loriwi by Tille 31 U.S.C. Section 1352. This disclosure oflobbY;l1g activities is a material representation of fact upon which reference was placed by tbe user above when this transaction was made or el1tered inlO. This disclosure- is required pursuanllO 3 I U.S.C 1352. Tl1is information will be reporte-d 10 the- Congress semi· annually and will be avai!able for public inspection. Any penon who fails 10 file the required disclosure shill1 bc subjecl to a civil pcnahy of not Icss tl1atSIO.OOOandnotrnoreth.anSlOO,OOO ro r cach such failure. Federal Use Onlv: Signature Print Namc: u l¡t J. Aadlan Vice President Date: December 22, 684-5360 2004 Title-: Telephone No.: (951) Authorized for local Reoroduct Standard Form-L Standard Form LLL Rev. 06·04-90 J:\Engineer\$TM-J56\Conlr.:acl Documents\STMJ56_DBE_I00404.doc 300 3-3.3 YEAGER SKANSKA INC City of Chula Vista Disclosure Statement Pursuant to Council Policy 101-0 I, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following infonnation must be disclosed: NOT APPLICABLE 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. 2. If any person' identified pursuant to (I) above is a corporation or partnership, list the names of all individua1s with a $2000 investment in the business (corporation/partnership) entity. 3. If any person' identified pursuant to (I) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 4. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. 5. Has any person' associated with this contract had any financial dealings with an official" of the City ofChula Vista as it relates to this contract within the past 12 months? Yes_ No_ J:\EngÎneer\STM-J56\ContJact DocumemsISTMJ56_DBE_1 00404.doc 3--3t.J' 306 YEAGER SKANSKA INr: ~ ·1 [fYes, briefly describe the nature of the financial interest the official" may have in this contract. 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? No _ Yes _ [fyes, which Council member? 7. Have you provided more than $340 (or an item of equivalent value) to an official" of the City ofChula Vista in the past twelve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No_ [fYes, which official" and what was the nature of item provided? NOTHING TO DISCLOSE Date: 12/22/04 Signatuntöf on ctor/Applicant Douglas . Aadland, Vice President Yeager Skanska Inc. Print or type name of Contractor! Applicant , Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. " Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member ofa board, commission, or committee of the City, employee, or staff members. 3-35 J:\Engillcer\STM-356\COßtraç DOCllIl1Cllts\STM356_DBE_I00404.doc 307 YEAGER SKANSKA INC Jan 02 OS 03:s4p Carlos COr"'r.ez (6iS) 688-6664 p.i ATTACHMENT 7 CATEGORICI\L EXEMPTION CATEGORICAL EXCLUSION/PROGRAMMATIC CATEGORICAL EXCLUSION DETERMINATION FORM Additional information attached or referenced, as appropriate (e.lJ. Mitigation '".ommllments for NEPA only; Air Quality studies or documentatiol1 of exemption from regional conformity or UJ)P,i of CO Pl'ot(¡cQI; §1OQ çcmmitments; §4{f) or Programmatic: §4(f); date cf ACOE nationwide p£':I'mit; § 7 spi¡cic¡:s SUN'~y rC3ult!i; Wc:U¡:¡nd=. ~ind¡ng; :,Ioodplain Finding; :1dditianal sh.ldioc: design conditions. R,sv. .tJ'-D01 The project will comply with the conditions of the BiolQgical Opinion (completed Decernber 30,2003)_ Negative HPSR and negative ASR. completed QII Fet.:lfUi:IfY ZO, 2001. FÌi s1 Suppleow:'\tal ç.cmpr.stcd on NO'Ycmber 6. 2003. Project will comply with tne oonditlons In thE! Mitigation MOf1ilQril'1g and R~porting Rec;ord (MMRR) FSKH 7671 Oale From C.V Co. T'hopc ff Fax U Pos'.ít· Fax Note To h-"flll. -~ CoJ';;;;" c-' It· ð Pho!1l~ I --.-, 3>~3¡;:" Jan 02 05 03:55p Carlos COr"'t.E"Z [61SJ 688-6664 p.2 CATEGORICAL EXEMPTION CATEGORICAL EXCLUSION/PROGRAMMATIC: CATEGORICAL EXCILUSION DETERMINATION FORM 11 ,50-805 5,8112.9 (3.6/B.0) 2'10200 Dist...Co..Rte. (or I n(';:II1 AOl'!n(~y) K.P.JK.P.(P~M/?M.)·- EA. (SI.,lte project) Proj. No. (local project) (red,Pp:;lg. P'reflx Pr'-1j. Nu., A~I, Nt:l.) PROJECT DESCRIPTION: (Briefly describe pr~i.oct, purp~(!, [ocation.limits, right-of-way requlram.n~, and activities involved.) Located ,,(1 1.805 fmrn Auti'J F"ark Drive lo Bonita Road irllhe CIty of Chula Vista. San Diøgo County; project prþposas tQ install rilrnp me'ers, widen on-ramps fer High Occupancy Vehicle (HOV) l.mE!S, and add Callfomi¡¡¡ Hiøhway Patrol (CHP) pads on ~e Ne, ï"If1P.:s idll Aula Park Drive, Tel~rapt1 Canyon Road, E¡¡¡flt H Streét (bctl'1 EB and WB), a.nd Bar,ita Road. R;;~taining walls, the excavation land replacement of two down drains ar~d a concrete-lil'led ditch, aind the improvemer'! of a mllintellance road are also proposlltd along th, H :Street on-ramp. No new Rjght..of- Wi1y fcq\ ir~d. "Conditions .,pply, see below .-'--- CEQA COMPLIANCE (for St.te PrcjQcls only) Based on an examinalion of this proposal, supporting ir,iormatior" and the foIlow:ng 5tatements (See 14 CCR. :15300 et seq.): If this proJact falls withil'l exempt class 3, 4, 5.6 or 11, it does not imp.I·;t an efwlronmentaJ re:~u..oe:Qf haz:ardCXJIiI Qr critical c::onGarn where designated. precisely mapped and official y adopleå pursuaot to law. The.r. will not be a significant cumUlative elfE: 'c:t by this project and suc.l;es~ive projeçts of the same type in the same place, over time. There is not a l"Qasanable pO&$ibilily that the projec::t WJ!I rave a slgnlfk ant effec:t on the enVironment "ue to unusual circumstances.. This projed does nöt damage a scenic resource within an officially de~;ignated .:Itete sÇlflnlc highw¡ty. This Plujt:çt Î~ nal toc:a~ on a silE includod çln 3ny list cumpiled pUIiõ.II;¡1In~ tn C;ovl Code § 65962.5 ("Cortese Lisn· This project d08s not cause a substantial adverse changl~ in the signi""icance of a historical resour~. .---.-- CAL TRANS CE.~TERMINATION D Exompt by 5talulg (PRe: 21080) Based or! an examinatIon of ¡his proposal, supporting !rlfQrmatlon. ,Ind thl!: aboVf! statements, the project is: ~ Categorié1!llly e)r~mr'Jt (":I;ass _1_, or General Rule .~£ml¿;tion IS projeCl.does not,..1I within an !l9:empldass. but it can be !jean WIth certainty. at ere Îs OQ possibility Ulut the activil áve .~ sign' nt effect on tfle environment [CCR 15051(b)(~)]) /~ / «è~-' I 51 natUle.Enwonmen d'/~~.~ : Pro! atM.n r ~ NEPA COMPlIA1.ICE (2~ CFR 771.117) Bas.ed ()n an examination of this proposal, supportinn Information, 3nd the follo'fling statements. This project does not have a signifiCllnt imp¡1ct on the environment íiI!; defined by the NEPA. This þfoject dolts not involve substan~al con,roversy on environment.:!1 grounds. ThIs project does nOf Involve slgnilit:::llll hl'~JðC.t:$ on prop~"'i.:!¡I prctQc;~,xI by S.ctJÇtn 4.(f) of thl¡! nOT Act or Sectlen 106 of the National Historic Preservation Acl In nan-attainment or maintQn~nce areas for Federal air (¡uaJity standards; thl$ project çome~ from a currently conforming plan and Transportation Improvement Program or i~ ~lr.empt from regional contormlty. This project is corl.sistent with all Federal. SI¡tts, &. local aws, requlrell1emkl or admini:stnnivf¡I dc:tCnTlìn3tions relating to theo environmental aspects of this action. CAL TRANS NEPA DETERMINATION Based on an examination of this proposal. $upporting information. and the stati:ments abQve under "NEPA Ciompliance", it is determined that the projecf is a: 181 PROGRAMMATIC CATEGORICAL EXCLUSION (PCE): B;::sed on the el/aluation of this project and supporting documentøtion in the project files, all the condilic)fls of the NCV8mber 18, :2003 Programn1atlc: Categorical Exclusion Aç¡reHment have been met. CATEGORICAL 'ëXCLUSION (Cë): For iiIIctior"~ that do not indivldu311y or cumulà(ively h~ve a significant e!nvironmental effnct and are e,.,c: uded fmm e equlrsmenr to prepare an Environmen ~~esame EA) or Envlronmentallmpaict. :;::>"ent (EI5). Require determ' all . / - .L.[' Il.zz/~ ~; ager/OLA Engineer /.~ D .,-- FHWA DETERMINATION Based on the evaluation o1lhis project iilnd the statcm~above, it is det2rmined that the project meets the criteria of and is properly classifiad as 21 CateQoric:a1 Exclusion (CE). /.. V or"' D~:.·- ç{~.....(~ ..e.-;.~ ,I,.,,, [.,11 :;lgnabJre: FJ-IWA ranspQfl, on Engineer ~ 3-37 ATTACHMENT 8 Chart No. 1 RamD Lane ReQuirements Direction: Northbound SD - 805 Location: NB On-ramp from WB East H St I a.m. T p.m I FROM HOUR TO HOUR 12 1 2 3 4 5 6 7 8 9 1011 12 1 2 3 4 5 6 7 8 9 101112 Mondays throuoh Thursdays R R R R R R R Fridays R R R R R Saturdays R R R R Sundays R R R R R R R Day before desionated leoal holiday R R R R R Desionated leoal holidays Legend: R Ramp may be closed --.:..:- - No work that interferes with public traffic will be allowed - REMARKS: KP: 11.600 F- 240200041403AP Chula Vista Contract No. STM-356 Caltrans Contract No. 11-240214 172 -3~ '3"i I I I I I I I I II II Chart No. 2 Ramp Lane Requirements Direction: Northbound SO - 805 Location: NB On-ramp ITom EB East H St I a.rn. I p.rn. 9 10 11 l~ FROM HOUR TO HOUR 12 I 2 3 4 5 6 7 .8 9 10 11 12 I 2 3 4 5 6 7 8 Mondays tbrough ThursdayS R R R R R R R R Fridays R R R R R i. Saturdays R R R R R R R R R Sundays R R R R R R R R R R R R Day before designated legal holiday R R R R R Designated legal holidays Legend: - R Ramp may be closed - - No work tbat interferes witb public traffic will be allowed - REMARKS: KP: 11.601 Chart No. 3 Road Lane Requirements Direction: Westbound EastHSt Location: Terra Nova Dr to 0.1 Ian west of Hidden Vista Dr I a.rn. 9 1011 \2 1 p.rn. 9 10 11 l~ FROM HOUR TO HOUR 12 1 2 3 4 5 6 7 8 2 345 6 78 Mondays tbrough Thursdays 1 1 1 1 I 2 1 1 Fridays 1 I I 1 I Saturdays I I I I Sundays 1 I 1 I 1 2 1 1 Day before designated legal holiday 1 1 1 1 1 Designated legal holidays ~nd: lOne lane open in direction of travel ~ Two lanes open in direction of travel No lane closure allowed REMARKS: F-240200041403AP · - · · I I I I IÎ . Chula Vista Contract No. STM-356 Caltrans Contract No.1 1-240214 173 3-.=q F"240201121203JAB i I I I I ~ I II . - . .. -- Chart No.4 Road Lane Requirements Direction: Westbound East H St Location: 0.2 km east of Hidden Vista Dr to RTE 805 12 1 a.m. 91011\21 p.m. T FROM HOUR TO HOUR 2 3 4 5 6 7 8 2 3 4 5 6 7 8 9 101112 Mondavs through Thursdays 1 1 1 1 1 2 1 1 Fridavs 1 1 1 1 1 Saturdavs 1 1 1 1 Sundays I 1 1 1 1 2 1 1 Dav before designated legal holidav Designated legal holidays Legend: lOne lane open in direction of travel -2.- - 2 Two lanes open in direction of travel I-"- No lane closure allowed REMARKS: KP: Chula Vista Contract No. STM-356 Caltrans Contract No. 11-240214 174 ':3 -LfO F-240201121203JAB ----- I I Chart No. 5 Road Lane Requirements Direction: Southbound Hidden Vista Dr Location: 0.4 Ian north afEast H St to East H St I a.m I p.m I FROM HOUR TO HOUR 12 1 2 3 4 5 6 7 8 9 1011 12 1 2 3 4, 5 6 7 8 9 10 11 12 Mondays throu2h ThursdayS 2 2 2 2 2 2 2 2 Frida'>'. 2 2 2 2 2 Saturdays 2 2 2 2 Sundays 2 2 2 2 2 2 2 2 Day before desi2nated le2al holiday 2 Z 2 2 2 , Des¡';-nated ¡e;;al holidays Le2end: 2 Two lanes open in direction of trayel No lane closure allowed REMARKS: I I I I I I I F-240201]2120JJAB · · I · · I · · · Chula Vista Contract No. STM-356 Caltrans Contract No. 11-240214 175 3-L/1 · Chart No. 6 Multilane Lane Requirements Direction: Northbound SD - 805 Location: JStOC to Bonita Rd UC )2 1 a.rn. 9 10 II l2 1 p.rn. 9 101111 FROM HOUR TO HOUR 2 3 4 5 6 7 8 2 3 4 5 6 7 8 Mondavs throu~h Thursdays 1 1 1 1 2 3 2 1 Fridays 1 1 1 1 2 Saturdays 1 1 2 3 3. Sundays 1 1 1 2 2 3 3 3 2 2 Day before desi~nated legal holiday 1 1 1 1 2 Designated legal holidays ~nd: lOne lane open in direction of travel - 2 Two adjacent lanes open in direction of travel 3 Three adjacent lanes open in direction of travel No lane closure is allowed REMARKS: !CP: 10.48/12.49 I I I I I I I I I I I I I I I I Chula Vista Contract No. STM-356 Caltrans Contract No. 11-240214 176 3- 4 '2-r. I F"240201042004HB Chart No: 7 Multilane Lane Requirements Direction: Southbound SD - 805 Location: Bonita Rd UC to JStOC I a.m 9 10 11 l2 1 p.m I FROM HOUR TO HOUR 121 2 3 4 5 6 7 8 2 345 6 7 8 9 10 11 12 Mondavs throu~h Thursdays I I 1 I I 3 2 2 Fridays 1 1 1 1 1 Saturdays 1 1 1 2 3 Sundays I 1 1 1 2 2 3 3 2 2 2 Day before designated legal holiday I 1 1 I 1 Designated legal holidays ~nd: lOne lane open in direction oftrayel ~ , 2 Two adjacent lanes open in direction oftrayel 3 Three adjacent lanes open in direction of trayel No lane closure is allowed REMARKS: KP: 10.48/12.49 II · - II · .. .. .. II .. .. · · .. · · · · · Chula Vista Contract No. STM-356 Caltrans Contract No. 11-240214 177 a... '13 F.. 240201042004HB I · I I · I I I · · · · .' · · 11 Chart No. 8 Ramo Lane ReQuirements Direction: Southbound SD - 805 \ Location: SB Off-ramp to EB East H St I a.m. I p.m. 10 l1l~ FROM HOUR TO HOUR 12 1 2 3 4 5 6 7 8 9 1011 12 1 2 3 4 5 6 7 8 9 Mondays through Thursdays R R R R R R Fridays R R R R R Saturdays R R R R R Sundays R R R R R R R R Day before desi2nated legal holiday R R R R R Designated legal holidays Legend: R Ramp maybe closed - No work that interferes with public traffic will be allowed c--- REMARKS: NOTE: When an Off-Ramp is allowed to be closed, place a PCMS (Portable Changeable Message Sign) in the direction oftrayel allowing the traffic the option to use the preceding Off-Ramp and warning them of the ramp closure ahead. KP: 11.508 Chula Vista Contract No. STM-356 Caltrans Contract No. 11-240214 178 3 ~'-IL/ F"24020¡042004HB I I I · · · · · · · · · · · · · II · · -,-- Chart No. 9 RamD Lane Reauirements Direction: Southbound SD - 805 I Lo~ation: SB On-ramp from Bonita Rd I a.UL I p.UL 10 l1l~ FROM HOUR TO HOUR 12 1 2 3 4 5 6 7 8 9 10 11 12 1 2 3 4 5 6 7 8 9 Mondays throu~h Thursdays R R R R R R R Fridays R R R R R Saturdays R R R R R R Sundays R R R R R R R R R R Day before designated le~al holiday R R R R R , Desi~nated legal holidays Legend: R Ramp may be closed -=- - No work that interferes with public traffic will be allowed - , REMARKS: KP: 12.413 F- 240201041004HB Chart No. 10 RamD Lane Reouirements Direction: Northbound SD - 805 Location: NB On-ramp frcim WB East H St I a.UL I p.UL I FROM HOUR TO HOUR 12 1 2 3 4 5 6 7 8 9 1011 12 1 2 3 4 5 6 7 8 9 101112 Mondays through Thursdays I I 1 1 1 1 I 1 1 11 Ii 1 I Fridavs 1 1 1 1 1 I 1 1 III T Saturdays , Sundays I 1 1 Day before desi~nated le~al holiday 1 1 1 1 1 1 1 1 III Desi~nated legal holidays Legend: - 1 One- ramp lane may be closed ---=- - . No work that interferes with public traffic will be allowed ~ REMARKS: This chart shall be used only to fog- seal ramp shoulders at the end of the project. KP: 11.600 Chula Vista Contract No. STM-356 Caltrans Contract No. 11-240214 179 3 .~Lf5 F- 240101070604BG II i i · ~ i · II · .. · · · · · · · · · ATTACHMENT c¡ Local Assistance Procedures Manual EXHIBIT I5-G Local Agency Bidder-OBE (Construction Contracts)-Information ~ Local Agency Bidder-DBE (Construction Contracts)-Inforrnation his infom13tion may be suhmined with your bid. (If DBE information is not submitted with the bid proposal, and you are the pparent low bidder or the second or third low bidder, it must be submitted and received as specified in the Special Provisions). Failure to submit the required information wiH be grounds for finding the bid nonresponsive. AGENCY: City of (hula Vista LOCATION: (hula Vista, California PROJECT DESCRIPTION" I-BOS/"HII Street Ramp Wi den; nq CONTRACT NUMBER, 11-240214 FEDERAL-AID PROJECT NUMBER: STM-356 TOTAL CONTRACT AMOUNT $ 2,100,496.00 FEDERAL SHARE (For loca! agency to complete): $ BID DATE: December 22. 2004 BIDDER'S NAME: Yeaqer Skanska I nc. ADVERTISED DBE CONTRACT GOAL' 14% CONTRACT ITEM OF WORK AND DESCRIPTION DBE Cerl. No. NAME OF DBEs I DOLLAR AMOlJNT ITEM NO. OR SER VICES TO BE NO EXPIRATION Must be certified on the date bids OBE) ~~BCONTRACTEO OR MATERIALS DATE re opened" include DeE address o BE PROVIDED ~ nd nhone number) 12 19 Construction Area Sinns CT-030511 11/05 ACME 5afetv & SUDol v $3 489.00 25 29 65-67 Roadside Sians. CT-000102 OS/07 Pa CD Soeci a 1 ties Ine $9 055.00 77,78 14-16,24, Striping CT-000102 08/07 P~o Speci a 1 ti es Ine $9 887.00 84-8S 44-49 Erosion Control CT-008022 07/07 Diversified Landscape $7 026.00 43 50-52 Landscape CT-008022 07/07 Diversified Landscape $113 349.00 IMPORTANT: Identify all DeE firms being claimed for credit, regardless of tier. Total Claimed $142.806.00 ~opies of the DeE quotes are required. Names of the First Tier DBE Subcontractors and heir respective item(s) of work listed above shall be consistent with tbe names and items Participation pfwork in the "List of Subcontractors" submitted wÌlh your bid pUrsuant to the þubcontractors Listing Law and the Special Provisions. .-----, 6.8 % [ Enter OaE prime and subcontractors certification number. Prime contractors shall ~..:- 4~L- indicate an work to be performed by DBEs including work perfom1ed by its own DaE forœs. Signacure of Bidder /' If 100% of item is not to be performed or Furnished by DBE, describe exact portion of December 22, 2004 (951 ) 684-5360 item 10 be performed or fumished by 08E. Date (Area Code) Tel. No . See Section "Disadvantaged Business Enterpri:>es." of the Special Provisions (construct¡on contracts): to determine !he credit al10wed for DBE finns. Ed c S. Taylor, Chief Estimator Person to Contact (Please Type or Print) CT 8idd~r - D8E IlJforrnaliolJ (R~v 8/11/04) Local Ag~l1cy Contract Officer DistributioLJ' (I) Copy - Fax immediately!o the Caltrans District Local Assistance Engineer (OLAE) upon award (2) Copy - Include in award package to CaIlrans DistriCI Loca) Assistance (3) Original- Local agency files LPP 04-07 Page 15-31 August 12,2004 ? LJc j--¡b RESOLUTION NO. 2005- RESOLUTION OF THE CITY COUNCIL OF CITY OF CHULA VISTA AMENDING COOPERATIVE AGREEMENT WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS) REGARDING CONSTRUCTION SERVICES ON THE I-80S/EAST H STREET RAMP WIDENING IMPROVEMENTS (STM-356) AND AUTHORIZIING THE MAYOR TO EXECUTE SAID AGREEMENT AMENDMENT WHEREAS, the westbound-to-northbound on-ramp at I-80S/East H Street is proposed to be widened to accommodate an additional lane; and WHEREAS, on December 16, 2003, the City Council adopted Resolution 2003- 49S approving a Cooperative Agreement with the State of California Department of Transportation ("State") Regarding Construction Contract Administration on the Westbound East H Street to Northbound I-80S Ramp Widening Project; and WHEREAS, the City has requested that the State perform construction inspection services and is willing to pay up to $SOO,OOO for such services; and WHEREAS, the City has request that the State furnish materials for the Project, estimated to be valued at $SO,OOO; and WHEREAS, in order to permit the State and the City to perform these contract functions, an amendment to the· Cooperative Agreement setting out each agency's responsibilities for the construction phase is necessary. NOW THEREFORE BE IT RESOLVED that the City Council of the City of Chula Vista hereby approves the Amendment No. 1 to the Cooperative Agreement with the State of California Department of Transportation regarding construction contract administration on the westbound East H Street to northbound I-80S ramp widening project, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of Chula Vista IS hereby authorized to execute said Amendment on behalf of the City of Chula Vista. Presented by: Approved as to form by: Jack Griffin Director of General Services H :\Attorney\STM356 ResoCOOPamend I. fxr.doc '3 /'1 7 RESOLUTION NO. RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE EASEMENTS TO SBC/P AC BELL COMMUNICATIONS AND CALTRANS AS NECESSARY FOR COMPLETION OF THE EAST H STREET RAMP WIDENING PROJECT WHEREAS, the City of Chula Vista is the fee owner of that certain real property situated in the City of Chula Vista, County of San Diego, State of California, more particularly described as Parcel No. 1 of Parcel Map No. 13006 and Lot "T" of Chula Vista Tract No. 80-15 according to Map thereof No. 10051 both filed in the Office of the County Recorder of said County, and WHEREAS, the public need and convenience require that certain public street, highway and public utility improvements and appurtenant works be constructed and placed in, on, over, under across and through portions of the above described real property, as a part of the I-805/East H Street Ramp Widening Improvements (STM-356) Project, including a Right-of- Way easement for communications facilities to Pacific Bell Company (SBC Communications) and an easement for signage and access to The California Department of Transportation (Caltrans). NOW, THEREFORE, the City Council of the City of Chula Vista does resolve as follows: The Mayor and City Clerk are hereby authorized to execute the herein described Easement Deeds on behalf of the City of Chula Vista as Grantor as necessary to complete the East H Street Widening Project. Presented by Approved as to form by Alex Al-Agha City Engineer ÆL?~ City Attorney J:\Engineer\AGENDA\Resos\East h d and s.docLast printed 2/]612005 2:21 PM 1 5-Lf'Z RESOLUTION NO. 200S- RESOLUTION OF THE CITY COUNCIL OF CHULA VISTA ACCEPTING BIDS AND AWARDING A CONSTRUCTION CONTRACT FOR THE I-80S / EAST "H" STREET WESTBOUND - NORTHBOUND RAMP WIDENING IN THE CITY OF CHULA VISTA, CALIFORNIA (STM-356) CALTRANS CONTRACT NO. 11- 240214 TO YEAGER-SKANSKA INC., IN THE AMOUNT OF $2,100,496.00 WHEREAS, the City Chula Vista desires to reconstruct the interchange at I-805/East "H" Street in order to accommodate additional lanes on the East "H" Street Westbound on ramp to 1-805 Northbound lanes; and WHEREAS, on October 22, 2004, the City Chula Vista Deputy City Engineer advertised this project with competitive bidding process; and WHEREAS, on December 22,2004 at 2:00 pm, the Deputy City Engineer received a total of three (3) bid proposals for this project as follows: CONTRACTOR BID AMOUNT % BELOW COST ESTIMATE 1.Yeager-Skanska Inc., Riverside, CA. $2,100,496.00 16.68 % 2.Archer-Western Contractors Ltd. San Diego, CA. $2,356,391.00 6.53 % 3.Erreca's Inc., Lakeside, CA. $2,394,312.00 5.03 % WHEREAS, the low bid by Yeager-Skanska, Inc. is below the Engineer's Estimate of $2,521,078.00 by $420,582.00, or 16.68%; and WHEREAS, Engineering staff has verified the references provided by the contractor and their work has been satisfactory; and WHEREAS, Yeager-Skanska Inc. is currently working on the $15 million 1-805/0range Avenue/Olympic Parkway interchange and roadway widening proj ect with satisfactory results; and WHEREAS, the proposed project has been determined by CALTRANS to be categorically exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15301 and meets the criteria for a Categorical Exclusion under NEPA, section 771.l17(d)(1); and WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determirted that the proposed project was adequately covered in the, EA 240200 and that, no further environmental review or documentation is necessary. ::::?t.1L':J ':;'>-77 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby award the contract for the 1-805 / East "H" Street Westbound - Northbound Ramp Widening in the City of Chula Vista, California (STM-356) Caltrans contract no. 11- 240214 to Yeager-Skanska Inc., in the amount of $2,100,496.00, a copy of which shall be kept on file in the Office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said contract on behalf of the City ofChula Vista. Presented by Approved as to form by Jack Griffin Director of General Services J :\Engineer\STM -356\Reso-A ward _ STM356 _ Contract.pgs.doc 3.--ÇD COUNCIL AGENDA STATEMENT I Item 4 Meeting Date: 2/22/0S ITEM TITLE: Resolution 2005- accepting bids, awarding a ¡ contract for the "Western Chula Vista Street, Sidewalk, and Dralliage Improvements (STL-313)" project, authorizing the expenditure I of all available contingencies and appropriating funds as necessarY to complete the proj ect. SUBMITTED BY: Director of General Services G~- REVIEWED BY: CityManager¿;jDI'-" (4/SthsVote: YesXNo~ On February 9, 2005, the Director of General Services received sealed bids for the "Western Chula Vista Street, Sidewalk, and Drainage Improvements (STL-313)" project. The work to be done consists of pavement rehabilitation, drainage improvements, and side\\ja1k rehabilitation at various locations in the City of Chula Vista, California. Wark for this proj¡jct also includes the preparation and application of: crack filler, removal/replacement of failed pavement, drainage improvements, sidewalk improvements, striping, traffic control, and other miscellaneous work, and all labor, material, equipment, and transportation necessary for the project. RECOMMENDATION: That Council accept bids, award a contract for the "Western Chula Vista Street, Sidewalk, and Drainage Improvements (STL-313)" project to Hanson SJH Constructi~n, of San Diego, California for $1,196,225.00, authorize the expenditure of all available, contingencies and appropriate $100,000 ITom the available balance of the Gas Tax FtÌnd for staff time reimbursement. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Through close communications with Community Develqpment staff, it was discovered that a significant amount of Community Development Block Grant (CDBG) funds needed to be expended by April 30, 2005. To accomplish this task, a pav¢ment and sidewalk rehabilitation project was developed ensuring that all areas were in eligible 1)JS Census Tracts as required. City staff has prepared specifications for the "Western Chula Vista Street, Sidewalk, and Drainage Improvements (STL-313)" project and advertised the project. . The scope of work for this project includes the pavement rehabilitation of Fourth Avenue (F Street to J Street), Fourth Avenue (Orange Avenue to the south city limit), Beyer Way (Main Street to Fourth Avenue), Guava Avenue (Park Way to the north), ;Brightwood Avenue (park Way to the north), 4-1 Page 2, Item L Meeting Date: 2/22/0S and Hedge Way (park Way to the north) and any associated drainage improvements required for the subject streets. The scope of work for this project also includes sidewalk rehabilitation within Friendship Park and Memorial Park. All locations for this project are within Community Development Block Grant (CDBG) eligible areas. Approval of tonight's resolution will authorize City staff to expend all available contingency and increasing the value of the contract as necessary due to unforeseen circumstances. Unforeseen circumstances (i.e. poor subgrade, utility conflicts, increase of dig-out quantities, increase in concrete quantities, etc.) may cause an increase in quantities beyond what was anticipated during the preparation of the project specifications. A typical "unforeseen circumstance" situation occurs during the dig-out process as pavement distress areas are repaired (dig-outs). Often times, additional areas are repaired beyond what is anticipated due to the failing area increasing in size. As a result, additional material is required to repair the areas and may lead to a necessary "Change Order" to the contract. This is a typical situation with all pavement rehabilitation proj ects. Staff received and opened bids on February 9, 2005. The City received bids ITom six (6) contractors as follows: CONTRACTOR BID AMOUNT ADDITIONAL CONTRACT BASE BID ALTERNATE CONSTRUCTION AMOUNT BID AMOUNT AMOUNT 1. Hanson SJH Construction - $1,124,785.00 $71,440.00 $1,196,225.00 San Diego, California 2. Daley-CCAC, J.V.- $1,161,841.00 $82,080.00 $1,243,921.00 San Diego, California 3. SRM Contracting & Paving - $1,216,645.66 $71,140.00 $1,290,785.66 San Diego, California 4. Frank and Son Paving- $1,166,110.00 $96,400.00 $1,298,990.00 Chula Vista, California 5. Hazard Construction Company - $1,220,010.00 $77,200.00 $1,297,210.00 San Diego, California 6. Zondiros Corp.- $1,597,625.00 $83,200.00 $1,680,825.00 San Diego, California General Services staff has verified the references and license number provided by the responsive low bidder, Hanson SJH Construction, and their work has been satisfactory and their license is current. Therefore, staff recommends awarding the contract to Hanson SJH Construction in the amount of$1,196,225.00. The estimated completion date for this project is mid-Apri12005. - M:IGeneral ServiceslGS AdrninistrationlCouncil AgendaISTL-313ISTL313 Award Al13 012405 Rev.doc 4-2 fage 3, Item ~ Meeting Date: 2/22/0S Disclosure Statement Attachment "A" is a copy of the contractor's Disclosure Statement. Environmental Status The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project qualifies for a Class 1 categorical exemption pursuant to Section 15301 of the State CEQA! Guidelines. Thus, no further environmental review is necessary. Wage Statement Contractors bidding this project are required to pay prevailing wages to persons employed by them for the work under this project. FISCAL IMPACT: FUNDS REOUIRED FOR CONSTRUCTION A. Contract Amount $1,196,225 B. Contingencies (Testing) $ 390.757 Sub-total $1,586,982 C. Staff Costs $ 100,000 TOTAL FUNDS REOUlRED FOR CONSTRUCTION $1,686,982 FUNDS AVAILABLE FOR CONSTRUCTION A. Gas Tax Funds - Addt'l Appropriation $ 100,000 B. CDBG Funds $1,586,982 TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $1,686,982 In a previous item to Council, CDBG funds were appropriated to the project At this time, staff is recommending an additional appropriation of Gas Tax funds in the amoljnt of $100,000 for estimated staff costs associated with this proj ect. Construction costs will be solely funded by CDBG funds. There are sufficient funds held by the City to fully offset all costs a~sociated with the construction ofthis project, with no impact to the General Fund. Upon completion of the subject project, the improvements will require only routine City street maintenance. Attachments: A. Contractor's Disclosure Statement M:IGeneral ServiceslGS AdministrationlCouncil Agenda1STL-3l31STL3 13 Award Al 13 012405 Rev.doc 4-3 ATT.~CHMENï".~ THE CITY OF CHULA VISTA DISCLOSURE STATEMENT Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. ¡LOll t 2. If any person" identified pursuant to (I) above is a corporation or partnership, list the names of all individuals with a $1000 investment in the business (corporation/partnership) entity. tJ.{Pr 3. If any person" identified pursuant to (1) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 1t1A- '\ 4. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. j\A ,L . \^) \ \.. ,\)f:; A-55T. Sç;"(' . I i{\(--K. K:RÄIJ.\Ä. l'i2...vJ. f\J\c;R. 48 4-4 1 G 'I, I J, I Ii "J .¡ì r ¡; . ~1 ~ ; r: ~ ' ,¡ " :1, f I, I' 'ï' ¡, .. · · · · .. I I 5. Has any person' associated with this contract had any financial dealings with~ official" of the City of Chula Vista as it relates to this contract within the past 12 months? Yes_N0A If Yes, briefly descn'be the nature ofthe fmancial interest the official" may have in tihis contract. 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? Yes No*- If Yes, which Council member? 7. Have you or any member of your governing board (i.e. Corporate Board of Directors/Executives, non-profit Board of Directors made contributions totaling more th¥1}I,OOO over the past four (4) years to a current member of the Chula Vista City Council? Yes _ No * If Yes, which Council member? 8. Have you provided more than $300 (or an item of equivalent value) to an ojfficial" of the City of Chula Vista in the past twelve (12) mon~ (This includes being a source of income"money to retire a legal debt, gift, loan, etc.) Yes _ No If Yes, which official" and what ' Vas the nature of item provided? .. -= ~/#:- Sign of Contractor/ Applicant M. . L....\tV I ~ Á¥T. 5.ec. . Print or type name ot Contractor/Applicant Date: 'L -2.. - D.5 , · Person is defmed as: any individual, finn, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, .district, or other political subdivision, -or any other group or combination acting as a, unit. .. Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. 49 4-5 RESOLUTION NO. 2005- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHiULA VISTA ACCEPTING BIDS, AWARDING A CONTRACT FOR ITHE "WESTERN CHULA VISTA STREET, SIDEWALK, AND DRAINf.-GE IMPROVEMENTS (STL-3l3)" PROJECT, AUTHORIZING THE EXPENDITURE OF ALL A V AILABLE CONTINGENCIES AND APPROPRIATING FUNDS AS NECESSARY TO COMPLETE THE PROJECT WHEREAS, on Wednesday, February 9,2005, the Director of Generlll Services received sealed bids for the "Western Chula Vista Street, Sidewalk, and Drainage Improvements (STL- 313)" project; and WHEREAS, staff received and opened bids on February 9, 2005. The City received bids ITom six (6) contractors as follows: CONTRACTOR BID AMOUNT ADDITIONAL CONTRACT BASE BID ALTERNATE CONSTRUCTION AMOUNT BID AMOUNT AMOUNT l. Hanson SJH Construction - $1,124,785.00 $71,440.00 $1,196,225.00 San Diego, California 2. Daley-CCAC, J.V.- $1,161,841.00 $82,080.00 $1,243,921.00 San Diego, California 3. SRM Contracting & Paving- $1,216,645.66 $71,140.00 $1,290,785.66 San Diego, California 4. Frank and Son Paving- $1,166,110.00 $96,400,00 $1,298,990.00 Chula Vista, California 5. Hazard Construction Company- $1,220,010.00 $77,200,00 $1,297,210.00 San Diego, California 6. Zondiros Corp. - $1,597,625.00 $83,200;00 $1,680,825.00 San Diego, California WHEREAS, General Services staff has verified the references and license number provided by Hanson SJH Construction and their work has been satisfactory and their license is current. Therefore, staff recommends awarding the contract to Hanson SJH Construction in the amount of$1,196,225.00; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project qualifies for a Class 1 categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. Thus, no further environmental review is necessary; and WHEREAS, contractors bidding this project are required to pay prevailing wages to persons employed by them for the work under this,project. 1 4-6 NOW, THEREFORE, be it resolved the City Council of the City of Chula Vista does hereby accept· bids, award a contract for the "Western Chula Vista Street, Sidewalk, and Drainage Improvements (STL-313)" project to Hanson SJH Construction, authorize the expenditure of all available contingencies, and appropriate funds as necessary to complete the project. Presented by Approved as to form by ~PIM)i ~ Moore ity Attorney Jack Griffin Director of General Services J:\attorney\reso\bids\Western Chula Vista STL 313 2 4-7 COUNCIL AGENDA STATEMENT Item .t;' Meetiing Date: 02/22/0S ITEM TITLE: Resolution Accepting informal bids, rejecti~g the lowest bid as non-responsive, awarding a contract for the Otay Par~ Renovation capital improvement project, playground installation to the þext lowest bidder; authorizing staff to expend all available contingenþy, authorizing the Mayor to execute said agreement and authorizing th~ reprogramming of grant funds ITom the "Restroom Renovation" capital ifprovement project (C~ No. PR214) to the "Otay Park Renovation" c~pit~ improvement project (CIP No. PR240) as necessary to complete the ¡proJect ·and comply with the State of California Department of Parks aIj,d Recreation grant funds requirements. SUBMITTED BY: Director of General Services ~~_ REVIEWED BY: City Manager (ßþ~¥ (4/Sths Vote: Y~s...x.ßo~ Per Section 1009 of the City's Charter, the Director of General Services, ÍI1 an effort to secure competitive prices ITom interested contractors, invited four playground equip¡nent manufacturers to submit informal bids for the construction of a children's play area at Otay Park designed for the 5-12 year old age group per City standards. The final date for submittal df informal bids was February 15'\ 2005. The provision of the playground is a component of the Master Plan for the improvement of Otay Park that was approved by City Council on May 24, 19~4. RECOMMENDATION: That Council accept informal bids, reject the lowest bid as non-responsive anGJ, award the contract to the next lowest bidder for the Otay Park playground installation (5-12 play area) to Park Specialties, Inc. in the amount of $42,848.95, authorizing staff to. dpend all available contingency, and authorizing the Mayor to execute said agreement. That Council authorize the reprogramming of grant funds ITom the "Restroom Renovation" capital improvement project (CIP No. PR214) to the "Otay Park Renovation" capital improvement project (CIP No. PR240) as necessary to complete the project and comply with the State of California I?epartment of Parks and Recreation grant funds requirements. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: City Council previously approved a master plan to improve Otay Park ;on May 24, 1994, Resolution No. 17501. Staff has been continually seeking funding for this. project for several years, including the anticipation of a bond mea~ure (Prop 180) that was not approved thus 5-1 Page 2, Item: Meeting Date: 02/22/05 delaying any work to be done until other sources were available. The fust item to have been implemented was the demolition of the old restroom and construction of a new restroom funded by non-state monies. The restroom renovation phase was completed in December 2003. In December 2001, the City received and accepted a General Fund Specified Grant ITom the Department of Parks and Recreation and was allocated $83,725.00 for Otay Park. By Resolution 2001-410 the grant was accepted and budgeted for CIP No. PR214, Restroom Renovation citywide, which included Otay Park. After further clarification of the usage of funds, it was determined and verified by the State Department of Parks and Recreation that the funds were restricted to children's playground construction. Therefore, staff recommends reprogramming the appropriation fÌom the "Restroom Renovation" capital improvement project (CIP No. PR214) to the "Otay Park Renovation" capital improvement project (CIP No. PR240) in the amount of $83,725.00 to be utilized for playground construction. The liquidation period for this grant will expire on June 30, 2005. The delay in the usage of funds by the City was in part due to recent audits and statements by the Sate Controller's Office notifYing several agencies that the funds for various projects have expired. However, a letter dated January 18, 2005 (Attachment B) was received ITom the Department of Parks and Recreation stating that "The State Attorney General issues an opinion (enclosed) that supports our (the State) position that your (the City) funds are still available" providing the City meets the time constraints mentioned earlier. On January 2i11, 2005 the City invited four playground equipment manufacturers to submit informal bids for. the design and installation of a play area for the 5-12 year old age group per City standards. The invitations went to the following companies: Landscape Structures C/O: Coast Recreation Inc 3151 Airway Avenue # -3, Costa Mesa CA 92626 Miracle Play 2764 Commerce Center Drive Suite I Temecula, CA 92590 Playworld Systems C/O: Dave Bang Associates PO Box 1088 Tustin California 92781 GameTime PO Box 22582 San Diego CA 92192 C;\Documents and Settings\Donnan\Local Settings\Temporary Int~t"::iŽs\0LK3A\Al13 Otay Play Area.doc Page 3, Item: Meeting Date: 02/22/05 Informal Bid Results Th e three contractors/manufacturers that submitted bids are follows Œids somed by bid amount': CONTRACTOR/SUPPLIER B~SE BID Game Time and Great Western $2P60,38 Park Specialties, Inc. and Coast Recreation Inc. $42,848.95 Zasueta Contracting, Inc. and Dave Bang Associates, Inc. $49,884.81 Staff thoroughly reviewed all informal bids and it was determined that Grl e Time and Great Western, although appeared to be the low bid, was not a responsive bidde. They provided an invalid license number and did not complete the bid proposal as required. City staff has verified the references provided by the Park Specialties, Inc. and their work has been satisfactory. In addition, their license number 702962 is current. Staff, therefore recommends rejecting the bid presented by Game Time and Great Western as non responsive and awarding the contract to Park Specialties, Inc. ofTemecula, California, in the amount of$42,848.95. Per the Office of Grants and Local Services, "The project must be complete and all documentation submitted no later than April 29, 2005..." process the City's reimbursement request. Therefore, staff requests authorization to expend all available contingency as necessary to complete the project prior to the April 29th deadline. The estimated completion date for this project is mid-April 2005. Disclosure Statement Attachment "A" is a copy of the contractor's Disclosure Statement. Environmental Status The Environmental Review Coordinator has reviewed the proposed project ,for compliance with the California Environmental Quality Act (CEQA) and has determined that I the project qualifies for a Class 1 categorical exemption pursuant to Section 15301 (Existing Facilities) of the State CEQA Guidelines. Thus, no further environmental review is necessary. Wal!:e Statement Contractors bidding this project are required to pay prevailing wages to persons employed by them for the work under this project. Fiscal Impact The tables below detail the funds required and the funds available for the prqj ects: FUNDS REQUIRED FOR CONSTRUCTION A. Contract AmolUlt (park Specialties, Inc.) $42,848.95 B. Contingency $8,570.00 C. City Oversight (Administration and Inspection) $6,500.00 TOTAL FUNDS REQillRED FOR CONSTRUCTION $57,918.95 - C:\Documents and Settings\Donnan\Local Settings\Temporary Int~t~i~S\OLK3A\Al13 Gtay Play Area.doc Page 4, Item: Meeting Date: 02/22/05 FUNDS AVAILABLE FOR CONSTRUCTION State Recreation Grant Funds $57,918.95 TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $57,918.95 There are sufficient funds in the approved project budget to fully offset all costs with no impact to the General Fund. Upon completion of the project, only routine City maintenance will be required. Attachment: A - Disclosure Statement B - Department of Parks and Recreation Letter J:\General Services\GS Administration\CounciI Agenda\Otay Park Pla~~4\A113 Otay Play Area.doc A TT.A¡CHMENT A ~. . City Dr Chllla Villa Dlsel.lare Slatemeal (Campi.", ,00 _m "'~~ l.r.,\nolllid) p.,r.~ant 10 Çauooil roticy J 01-0 I. priOl" 10 any Ii:IXm upon mallen tbOl..m~ d_.'I;·....1 '..Ii"" by II>c.CouoW.-flaOÞifteCoDllllÌ1Uoa.lllÀ.all u1Iu:< allicw bodÙ:. aCtbe!Cit;,', a .lIlomcnt of "i",k"""" of e.:rtam own<i.rnp or IiNnc:;,1 mtadIJ;poymom..·...~l1«I1Iro,. . . C,ty Qf~b,~~ Vi.... ..Ii..........I...1i1od. ,n. £allawiDf iofomv.tian mull II<: !fucl_d: 1. LIIII"-........' ¡'fôll p.........l..iñnï '1i"",,,"1i! ¡~'tn-¡¡"'1"apcrt¡I !hal is 1110 ,ubj,el tit W, _Whcaboo or the œntntcl. c.&,.. o'ffttCr. IPPticlont, çootra.A:\qn., IRIhCðntrac.tOf, malniol.upp¡¡ot. N/A 2. -¡;, '.Y ""....... id.,4íf..J I"'".~.t 1OiH-mw...... ....,............ F"""..,bip,.u.t-ÙIC ...."." a( &11 Indi.id>lala wilb .. UDOO 'oy......."1 in Ihc bU>ÌJl\:>S '(IiõLlitl'......b6IU·;IIII:I~ia~1 eN/A ~. . 1( any p.:.r~· .,A..n.hfird P"."'fI",t to (1} .ba.ve. t¡... J'IOCL-pl'oGt otGau.j~ at tnJ~ U.s.\. Ì1ic "ame. l>hnYl"'nm mvrn¡", 'dit«tarVf1hc l1VI1-prlif,\ "'Ol1J'Iin.1ion 'W1161n1>1tc or lKn.r";IIlY or trllSlot.<>Í!!It InISI. . filA 4. 'PJ>Joasò Identify oYf:r'J ""...n·, irietlidins any agmt.<. t4IpJol...., -wrmrltant>. "" mdependent eantrilclon Y'" Ir... a..igrn:d to Itprcocnf you befar. lbe tity in tbÚl tnaller. ,N/A INFORMAL BID REQUIREMENTS AND CONDl110NS ; 5-5 ~. Au Iny l\mOn' ..",.ia..d wil~ Ihis 0<11\....1 hod any tlnanoial deal.... with an . dffum,-,.,¡f-.m,. ~-or~ _.."""it~.,..""". ,,-..·..iIhin lh.. pod.., 12., manthl'! yd_...._ NoL- ' . _._---.- If Yes. briefly describe lhe "arureo(thc fmal\cW intcl'cd lheofficíal" Jl\2.y "ave in th(s ~.nll"CI. ---.--...-.... 6 ~)'m>m;oj"..~ Chnort.1bi:fSm._-u.e poat....lv<:·{l2}moët...tp a culTtnt member or Ih. Chula Vlsla CII}' Counoil? No !.Vcs _ Iryc.\. whll:~ Coun.il mo:nl~Î' --- 7. Hllvc)oU pnlvidcd more than 1340 (or an item orc'l\livlllcnt \'aloe) to an ~ffiQI ,t.... Oflhc ,ClI)! oC Cbul, Visla..in the-pnsl twdvc. (12).1IWIfh<1!Thi. illclwleo beinS & SOutCL. of income, money 10 reli,,· a kit! eTebt a;n: loan, ck)Yc. _'"NÐ 1L- IfY01..wruchaff\cml-" and..wtul.l w," 1h!.l\1Iture afltr.", pro";dtd.'? _"·_·__'.n_ 1).1<:--=/15/U5 ~er~~ .,... . Sl~.lurt ofControclor/ApplinoL !'ARK 51'ECIALTl¡¡5~ Robert neRi.e"x 1NfoxM:At.mnlU:QLitREMENTS ANO-CONDfTlOHS - 5-6 @,.,. '.' State of California. The Resources Agency . "~':-. e DEPARTMENT OF PARKS AND RECREATION. P.O. Box 942896. Sacramento, CA 94296.Q001 , Arnold Schwarz en egger, Governor Ruth Coleman, Director (916) 653-7423 ATTACHMENT _ ß January 18, 2005 Jack Griffin, Director of General Services City of Chula Vista, Building and Parks Construction 276 Fourth Avenue Chula.Vista, CA 9tS10 Subject General Fund Specified Grant - Project # GF-37-083 OTAY PARK Allocation $83,725 Dear Jack Griffin: The liquidation period for your General Fund Legislator's (Spe~'fied) Grant will expire on June 30, 2005. The project must be complete and all docu entation submitted no later than April 29, 2005 to ensure there is enough time 0 resolve any questions, allow for final project inspection, and to process your paYrT1ent request. i You may have been told by the State Controller's Office that M1ds for your project have expired. The State Attorney General issued an opinion (enclosed) that supports our Department's position that your funds are still available. 'You may continue to spend your grant funds on the project subject to the time constraints mentioned in the paragraph above. If you have any questions concerning your grant, please contabt your project officer, Bill Boston at (916)651-8584 or email atbbost@parks.ca.Qov. Sincerely, j7/~ John Schmill Manager i Office of Grants and Local Services I Enclosure cc: Project file 5-7 BILL LOCKYER Attorney General State of California DEPARTMENT OF JUSTICE @----. a: . ".,' ~... .,,, ..', ~<', :'. 13001 STREET, SUITE 125 P.O. BOX 944255 SACRAMENTO, CA 94244-2550 Public: ¡91j 445-9555 Telephone: 916 445-6998 Facsimile: 916 324-8835 Jennifer.Rockwell. doj .ca.gov January 5, 2005 Robert Campbell Chief Counsel Department of Finance State Capitol, Room 1145 Sacramento, CA 95814 Richard J. Chivaro Chief Counsel State Controller's Office 300 Capitol Mall, Suite 1850 Sacramento, CA 95814 RE: Deoartment if Parks and Recreations Grants Dear Messrs. Campbell and Chivaro: Tbe Department of Finance requested informal advice regarding local government grants provided by the Department of Parks and Recreation. Due to the nature of the issues involved the Department of Finance has permitted this advice to also be addressed to the State Controller's Office. QUESTIONS PRESENTED I,· If an appropriation of state funds is subject to Government Code section 16340, how long does a department have to encumber and liquidate an appropriation before it is reverted? 2. Do the local grant contracts entered into by the Department of Parks and Recreation in the 2000-2001 fiscal year create an encumbrance? SHORT ANSWERS 1. An appropriation subject to Government Code section 16340 must be encumbered within three years trom the date it becomes available. Assuming that the money is properly encumbered during the three-year period of availability, a department has a total of five years trom the date the appropriation is effective to liquidate the appropriation. 2. The form grant contract used by the Department of Parks and Recreation creates a valid encumbrance. 5-8 Robert Campbell Richard J. Chivaro January 5, 2005 Page 2 BACKGROUND Government Code sections 16340 and 16340.1 Government Code sections 16340 and 16304.1 address the period of av~ilability for appropriations. Government Code section 16340 provides in pertinent part: ¡ ...~. ..... An appropriation shall be available for encumbrance during the period specified therein, or if not otherwise limited by law, for three years after the date upon which it first became available for encumbrance. . . . An appropriation shall be deemed to be encumbered at the time and to the extent that a valid obligation against the appropriation is created. In addition, Government Code section 16340.1 provides: Disbursements in liquidation of encumbrances may be made before or during the two years following the last day an appropriation is available for encumbrance. . . . Upon the expiration of two years . . . following the period of availability, the undisbursed balance in any appropriation shall revert to and become a part of the fund ITom which the appropriation was made. . . . (Emphasis added.) ANALYSIS 1. Assumine a Timelv Encumbrance. The Department of Parks and ~ecreation Has Five Years to Liauidate the Appropriation. The meaning of the phrase "period of availability" is at the crux of the question. It is this office's belief that the "period of availability" is the thIee-year period ITom the! effective date of the appropriation to the date by which the appropriation must be encumbered. !This period is not dependent upon, nor is it affected by, the timing of an encumbrance. Therefor~, a state agency must encumber the appropriation within three years and liquidate the appropri~tion within five years from the effective date of the appropriation. ; 5-9 Robert Campbell Richard J. Chivaro January 5,2005 Page 3 The statutes support the interpretation that the "period of availability" means the period established by the statute during which the appropriation is available for encumbrance, regardless of whether it is actually encumbered before the expiration of that period. Any other reading would conflict with the first sentence in section 16340.1, which provides that encumbrances may be liquidated before, as well as during, the two years following the last day an appropriation is available for encumbrance. An appropriation cannot be liquidated before it is actually encumbered. lithe Legislature had intended for the period of availability to end once an encumbrånce was in place, it might have provided thaf the encumbered money must be liquidated "two years ftom the date upon which it was encumbered." In sum, an agency has up to three years· to encumber an appropriation subject to 16340, and then it has an additional two years to liquidate that appropriation, for a total of five years, regardless of when the appropriation was actually encumbered.' It appears that, historically, state agencies have operated in a manner consistent with this interpretation and that the Legislature has taken no action to alter this practice. 2. The Grants are Valid Encumbrances While the form grant contract used by Parks and Recreation in 200Ò is not a model agreement,' it does appear to create a valid legal obligation on the State to expend the grant proceeds and would lead a reasonable grantee to detrimentally rely on the State's commitment to provide funds. Thus, it appears that the contracts entered into by the Department of Parks and Recreation constitute an encumbrance -- "a valid obligation against the appropriation"-- as described in Government Code section 16340. If you have any question or concerns, please call me at (916) 445-6998. ~~ Deputy Attorney General For BILL LOCKYER Attorney General , A review of relevant authorities (including statutes, legislative histories, case law, Attorney General opinions, regulations, the State Administrative Manual, BudgetLetters, and Controller publications) provided no further guidance regarding the "period of avaiJability." The language in these secondary sources merely referenced the "period of availability" or similar language as the starting point for the two-year liquidation time period. , This office has been informed that the fonn. of the Department of Parks and Recreation's grant contracts has been amended and improved. - 5-10 RESOLUTION NO. 2005- RESOLUTION OF THE CITY COUNCIL OF THE CITY. OF CHltLA VISTA ACCEPTING INFORMAL BIDS REJECTING THE LOWJt;ST BID AS NON-RESPONSNE, AWARDING A CONTRACT FOR lIHE OTAY PARK RENOVATION CAPITAL IMPROVEMENT PROJE~T, PLAYGROUND INSTALLATION TO THE NEXT LOWEST BIDDßR; AUTHORIZING STAFF TO EXPEND ALL AVAILABLE CONTINGENCY, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT AND AUTHORIZING THE REPROGRAMMING IOF GRANT FUNDS FROM THE "RESTROOM RENOV ATI~N" CAPITAL IMPROVEMENT PROJECT (CIP NO. PR214) TO ~HE "OTAY PARK RENOVATION" CAPITAL IMPROVEœ PROJECT (CIP NO PR240) AS NECESSARY TO COMPLETE HE PROJECT AND COMPLY WITH THE STATE OF CALIFO DEPARTMENT OF PARKS AND RECREATION GRANT FUNDS REQUIREMENTS ¡ WHEREAS, on Thursday, January 27,2005, the City invited four playground equipment manufacturers to submit informal bids for the design and installation of a plaV area for the 5-12 year old age group per City standards. Three bids were received ITom contractÞr/suppliers; and WHEREAS, three contractors/suppliers are as follows: CONTRACTOR/SUPPLIER BA~E BID Game Time and Great Western $28,~60,38 Park Specialties, Inc. and Coast Recreation Inc. $42,~48.95 Zasueta Contracting, Inc. and Dave Bang Associates, Inc. $49,~84.81 WHEREAS, staffthoroughly reviewed all informal bids and it was determined that Game Time and Great Western, although appeared to be the low bid, was not a ¡responsive bidder. They provided an invalid license number and did not complete the bid propos~l as required; and WHEREAS, staff has verified the references provided by Park Speci~list, Inc. and their work has been satisfactory. In addition, their license number 702962 is curren!!; and I WHEREAS, staff recommends awarding the contract to Park $pecia1ist, Inc. of Temecula, California, in the amount of $42,848.95 and WHEREAS, in December 2001, the City received and accepted a Gen¢ral Fund Specified Grant from the Department of Parks and Recreation and was allocated $83,725.00 for Otay Park; and .' 1 5-11 WHEREAS, after further clarification of the usage of funds, it was determined and verified by the State Department of Parks and Recreation that the funds were restricted to children's playground construction; and WHEREAS, staff recommends reprogramming the appropriation ITom the "Restroom Renovation" capital improvement project (CIP No. PR214) to the "Otay Park Renovation" capital improvement project (CIP No. PR240) in the amount of $83,725.00 to be utilized for playground construction; and WHEREAS, staff requests authorization to expend all available contingency as necessary to complete the proj ect; and WHEREAS, the Environmental Review Coordinator reviewed the Landscape Master Plan for the park improvements for compliance with the California Environmental Quality Act and issued a 'negative declaration' on March 11, 1994; and WHEREAS, the Environmental Review Coordinator has determined no additional environmental review is necessary. NOW, THEREFORE, be it resolved the City Council of the City of Chula Vista does hereby accept informal bids rejecting the lowest bid as non-responsive and award the contract to the next lowest bidder for the Otay Park Playground installation (5-12 play area) to Park Specialties, Inc. in the amount of $42,848.95, authorizing staff to expend all available contingency, and authorizing the Mayor to execute said agreement. BE IT FURTHER RESOLVED, that City Council authorizes the reprogramming of grant funds ITom the "Restroom Renovation" capital improvement project (CIP No. PR214) to the "Otay Park Renovation" capital improvement project (CIP No. PR240) as necessary to complete the project and comply with State of California Department of Parks and Recreation grant funds requirements. Presented by Approved as to form by /:ftif Jack Griffin Director of General Services J:\attomey\reso\bids\Otay Park Renovation 2005 2 5-12 COUNCIL AGENDA STATEMENT Item~ Meeting Date 2/22/2005 ITEM TITLE: Resolution Awarding a Purchase Agreement in the amount of $120,057 for six four-wheel drive intermediate-size picJ¡:up trucks to Maita Chevrolet through a cooperative bid with the State of dalifornia (Contract , #1-05-23-20) and amending the FY05 Fire Deparunent budget to appropriate $5,120 for maintenance and replacement CO$ts. SUBMITTED BY: Director ofPu lic Works Operations I? Director of Finance f)' REVIEWED BY: CityManager~{t/ 01" (4/5Vo~e: Yes-1LNo~ µ The FY 2004-05 Budget provides for the purchase of two vehicles for the Fire Department. In addition, the Fire Department received Council authorization to purchase fouriadditional vehicles through the approval of the Strategic Plan (Resolutions 2004-313 & 2004-314~. The Chula Vista Municipal Code Section 2.56.140 and Council Resolution No. 6132 authoilize the Purchasing Agent to participate in cooperative bids with other government agencies fur the purchase of materials of common usage. The City, therefore, is participating in a current' State of California bid ITom Maita Chevrolet. RECOMMENDATION: That the City Council approve the Resolution awarding Purchase Agreement in the amount of $120,057 for six four-wheel drive intermediate-size pickup trucks to Maita Chevrolet, and amend the FY05 Fire Department budget to appropriate $5,120 for maintenance and replacement costs. DISCUSSION: In the past, the City of Chula Vista has entered into purchasing agreements with the State of California for various pieces of equipment. Staff is recommending the p1.\Ichase of six new intermediate-size pickup trucks ITom Maita Chevrolet through a cooperative bid with the State of California (Contract #1-05-23-20). Two of the trucks were budgeted in the FY 2005 Public Facilities Development Impact Fund (PFDlF) budget for two new fire inspectors added due to eastern growth. PFD1F Funds were appropriated for the additional four trucks as part of the Fire Department's Strategic Plan. The trucks are anticipated to arrive in late April. When purchasing vehicles, the State of California advertises the bid and partiFipates in proactive outreach efforts. The state also holds pre-bid conferences and invites represætatives ITOm all of the major manufacturers. Manufacturer's discounts, substantially greater thbn those offered to the general public, are offered to dealers willing to turnaround a large number of vehicles. Consequently, state bid pricing is extremely competitive. 6-1 Page 2, Item ~ Mteting Date 2/22/05 Local dealers have been invited to bid on state contracts, but have chosen nqt to participate due to the volume of vehicles involved. Sometimes, 200 - 300 vehicles may be required on a dealer's lot at any given time. FISCAL IMPACT: Sufficient funds are budgeted for the six pick-up trucks in the Public Faci ities Development Impact Fee Fund. The trucks are anticipated to arrive in late April. There is¡ an ongoing annual maintenance cost of$15,360 and annual replacement cost of$15,354 to the General Fund for the six new trucks. These annual costs will be included in the upcoming two-Y~ar budget. The net impact to the General Fund for this fiscal year is $2,560 for mainten~e and $2,560 for replacement. Staff is recommending Council amend the FY05 to appropriate the maintenance and replacement costs. C:\Documents and Settings\robertb\My Documents\Bob\equipment\Al13 Fire pickups.doc 6-2 RESOLUTION NO. 2005- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CWJLA VISTA AWARDING A PURCHASE AGREEMENT IN THE AMOUNT OF $120,057 FOR SIX FOUR-WHEEL DRIVE INTERMEDIATE-SIZE PICKUP TRUCKS TO MAlT A CHEVROLET THROUGH A COOPERATIVE BID WITH THE STATE OF CALIFORNIA (CONTRACT #1-05-23-20) AND AMENDING THE FY05 FIRE DEPARTMENT BUDGET TO APPROPRIATE $5,120 FOR MAINTENANCE AND REPLACEMENT COSTS. WHEREAS, the FY 2004-05 Equipment Replacement Budget' provides for the replacement of two vehicles for the Fire Department; and WHEREAS, the Fire Department received Council authorization to purchase four additional vehicles through the approval of the Strategic Plan (Resolutions 2004-313 & 2004- 314); and WHEREAS, the Chula Vista Municipal Code Section 2.56.140 and Council Resolution No. 6132 authorize the Purchasing Agent to participate in cooperati¥e bids with other governmental agencies for the purchase of materials of common usage; and WHEREAS, two of the trucks are being replaced in their normal re1irement cycle, four trucks are being added due to the City's growth and will be funded from the Public Facilities Development Impact Fund. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista hereby approves the award of a Purchase Agreement in the amount of $QO,057 for six four- wheel drive intermediate-size pickup trucks to Maita Chevrolet through a cpoperative bid with the State of California (Contract #1-05-23-20) and amend the FY05 Fire Department budget to appropriate $5,120 from the general fund to the Fire Department budget for maintenance and replacement costs. Presented by Approved as to form by Dave Byers Director of Public Works Operations ~Q\\~~\~~~ Ann Moore ' , City Attorney J:\Attomey\purchase agreements\Six four-wheel drive trucks 1 6-3 0lY Of 0iUI.A VlSfA ITEM TITLE: SUBMITTED BY: REVIEWED BY: Council Agenda Statement I Item: 7 Meeting Date1 Februarv 22. 2005 Resolution Approving An Aweement With The San Diego Regional Energy Office To Instéjll Energy Efficient Measures At City Facilities, Appropriating $2,~00 To The Energy Conservation Fund Budget From The Available Balance Of The General Fund Based On Unanticipated Revenuas And Authorizing The City Manager To Execute All Implementing Agreements. Director Conservation and Environmental Services ~ Director General Services f Environmenta~,Resource Manage City Manager 0/. <¡j f/;) \ (4/5ths Vote Yes X No.J The agreement requires the City to provide project management, labþr, materials and equipment to install energy efficient measures at City facilities. As a ~ubcontractor to the San Diego Regional Energy Office (SDREO), the City will receiva reimbursement of up to $182,500 to complete energy efficiency projects. The FY 2005 budget appropriated $180,000 to implement the projec~. Staff request appropriation of an additional $2,500 from the available balance of tHe general fund based on unanticipated revenues to implement the current scope of work. The agreement requires a project completion date of February 28, 2006. . The SDREO agreement with the city is contingent on the California l1'ublic Utility Commission's (Commission) approval of a "change order" from SDR!=O. SDREO is requesting a change to include the City's scope of worK in their agre~ment with the Commission. I Staff pursued funding for this project through the San Diego Region~1 Energy Partnership because energy efficiency continues to be a cost-effecti\le and logical first step in transitioning to a non-fossil fuel based renewable community. Like the development of renewables, energy efficiency contributes to the City!s commitment to C02 reduction and the prevention of global warming. To date the City has invested $1.4 million in energy efficiency projects ($400,000 of which is grant funds) to reduce energy costs by approximately $2.75 million, energy consumption by approximately 33 MW-hrs and avoid 25,000 tons of C02 emissions. 7-1 Item: 1 Page: 2 of 4 RECOMMENDATION: Staff recommends Council adopt the resolution approving an agreement with the San Diego Regional Energy Office for $182,500, appropriating $2,500 to the Energy Conservation Fund budget from the available balance of the general fund based on unanticipated revenues and authorizing the City Manager to execute all implementing agreements. BOARD AND COMMISSION RECOMMENDATION: Not Applicable BACKGROUND: Partnership Overview In October 2003, Chula Vista collaborated with Carlsbad, Escondido, Oceanside, San Diego, County of San Diego and the San Diego Regional Energy Office (SDREO) to form the San Diego Regional Energy Partnership ("Partnership"). The Partnership represents approximately 80% of the population in the region and cities with power plants within their jurisdiction. The Partnership's goal is to ensure that new energy efficiency programs serve the community's needs. In November 2003, the Partnership submitted ten applications to the California Public Utilities Commission ("Commission") with a total funding request of $20 million. Of the $15 million available for the region, the Commission approved seven of the ten applications submitted by the Partnership. The Partnership receives a total award of $11.5 million for energy efficiency programs in 2004 and 2005. Local Government Enemv Efficiencv Proaram (LGEEP) Overview One of the approved projects is the Local Government Energy Efficiency Program (LGEEP). LGEEP received $2.5 million in funding. LGEEP specifically targets assistance to City and County governments in the San Diego region. The purpose of LGEEP is to reduce the upfront cost of comprehensive energy efficiency projects in City and County owned buildings including installation of energy management systems (EMS). EMS assists in tracking and managing energy consumption and maximize electricity and natural gas savings from energy efficiency measures. DISCUSSION: LGEEP Aareement Overview To implement LGEEP, the City will be required to enter into an agreement with the SDREO (Attachment 1). The agreement reql:lires the City to provide project 7-2 Item: 7 Page: 3 of 4 management, labor, materials and equipment to install energy efficie~t measures and energy management systems at City facilities. As a subcontractor to the SDREO, the City will receive reimbursement of up to $182,500 for labor and expenses to complete energy efficiency projects. In anticipation of the LGEEP project, staff requested that $180,000 bel appropriated in the FY 2005 budget to fund the project. Based on the scope of work in the agreement, SDREO proposed a revised budget of $182,500. Appropriation of am additional $2,500 to the Energy Conservation Fund Budget for FY 2004/2005 is required!to implement the project's current scope of work. A summary of the City's LGEEP Scope of Work is presented below: City LGEEP ScolJe of Work Summary General Requirements Authorized Work · Of the total funding for LGEEP, Chula Vista has an allocation or $182,500 for Project Management and to implement energy efficiency proje4ts including installation of an energy management system. Schedule · Project implementation will begin upon notice to proceed from $DREO. . Projects have a completion date of February 28, 2006. Compensation I · Work eligible for reimbursement will be on a time plus expense~ basis based on work authorized by SDREO. . The City will receive reimbursement based on completion of wørk and submittal of invoices with supporting documentation. Task 1: Work Plan and Timeline for Proqram Implementation Proposal Generation · The City will identify and develop energy efficient projects for the LGEEP program. Staff and SDREO have audited buildings at the Johrj Lippitt Public Works Yard to identify energy efficiency projects to implement (Attachment 2). Audits of other City buildings and facilities will be performed. I · SDREO and the City will agree on the specific task activities, dßliverables, budgets and timelines of projects before commencement of wdrk. 7-3 Item: 1 Page: 4 of 4 Task 2: Provide Technical ProGram and Administrative Suooort Invoicing · Invoices with supporting documentation are required on or before the 10th day of the month. · Final invoices are required by April 1, 2006. Program Process Reporting · Monthly progress report is required on or before the 10th day of the month. · Revision reports are required as requested by SDREO. Final Program Reporting . Final reports are required by May 1, 2006. ImolementinG Aareements The City will also be required to enter into "access agreements" with the SDREO. The Technical Assistance Program (TAP) access agreement will authorize SDREO to audit City facilities to identify energy efficiency opportunities (Attachment 3). The LGEEP access agreement will authorize the SDREO to inspect and monitor completed energy efficient retrofit projects (Attachment 4). FISCAL IMPACT: Adoption of the resolution will not result in a net fiscal impact to the general fund. SDREO will reimburse the City for up to $182,500 upon completion of the project. Implementation of energy efficiency projects for City buildings outside the current scope of work will require additional expenditures. The actual cost and projected savings from these energy efficiency projects will be determined and presented to Council for consideration on a project-by-project basis. ATTACHMENTS: 1. San Diego Regional Energy Office Subcontract Agreement 2. City of Chula Vista Public Works Facility LGEEP Energy Assessment 3. Local Government Energy Efficiency Program Participation Agreement 4. Technical Assistance Program Participation Agreement - 7-4 RESOLUTION NO. 2005-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY' OF CHULA VISTA APPROVING AN AGREEMENT WITH ~ SAN DIEGO REGIONAL ENERGY OFFICE TO INSTt\.LL ENERGY EFFICIENT MEASURES AT CITY FACILrrjIES, APPROPRIATING $2,500 TO THE ENERGY CONSERV ArION FUND BUDGET TO IMPLEMENT THE PROJECT AND AUTHORIZING THE CITY MANAGER TO EXECUTE t\.LL IMPLEMENTING AGREEMENTS WHEREAS, in October 2003, Chula Vista collaborated with C<\I'lsbad, Escondido, Oceanside, San Diego, County of San Diego and the San Diego Regional Energy Office ("SDREO") to form the San Diego Regional Energy Partnership ("Partnershi~"); and WHEREAS, the goal of the Partnership was to ensure that new energy efficiency programs served the community's needs; and WHEREAS, the Partnership applied to the California Public Utility Cþrnmission and was awarded funding for the Local Gove=ent Energy Efficiency Program ("LGßEP"); and WHEREAS, LGEEP provides assistance to City and County gove~ents in the San Diego region to reduce the cost of energy efficiency proj ects in City ¡¡nd County owned buildings; and WHEREAS, to implement LGEEP, the City is required to enter into a subcontract with SDREO;and WHEREAS, as a subcontractor to the SDREO, the City will receive reimbursement of up to $182,500 to complete energy efficiency projects; and WHEREAS, the 2005 budget appropriated $180,000 to implement tbe project, and staff requests appropriation of an additional $2,500 ITom the General FUµd to the Energy Conservation Fund to implement the scope of work in the subcontract agreement; and WHEREAS, the subcontract agreement requires the City to provide project management, labor, materials and equipment to install energy efficient measures at City facilities; and WHEREAS, approval of this resolution authorizes the City Manager or a designee to enter into the subcontract agreement with the San Diego Regional Energy (þffice for $182,500 under Local Government Energy Efficiency Program, and appropriates $2,~00 of this amount ITom the General Fund to the Energy Conservation Fund to implement the finili scope of work. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve an Agreement with the San Diego Region¡¡, , Energy Office to install Energy Efficient Measures at City facilities, appropriating $2,500 ITom the General Fund to the Energy 7-5 Conservation Fund budget to implement the proj ect, copies of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the City Manager of the City of Chula Vista is hereby authorized and directed to execute all implementing agreements on behalf of the City. Presented by Approved as to form by Michael 11eacharn Director of Conservation & Environmental Services J:\Attorney\Reso\Agreeement with SDREO - 7-6 THE ATTACHED AGREEMENT HAS BEEN REVŒ1WED , AND APPROVED AS TO FORM BY THE CIT'( ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: Agreement with San Diego Regional Energy Offiqe To install energy efficient measures at City facilitifs - 7-7 ATTACHMENT 1 Subcontractor Agreement San Diego Region Local Government Energy Efficienc~ Program Subcontract No. 1301-04 - City of Chula Vista i ! , I THIS AGREEMENT ("Agreement") is made by and betweenlhe San Diego Regional Energy Office, a California 501(c)(3) Not-for-Profrt corpora on ("SDREO"), and City of Chula Vista ("SUBCONTRACTOR"). SDREO and SUBCO TRACTOR are also each individually referred to herein as "Party" and collectively as "Aarties." . , RECITALS WHEREAS, the California Public Utility Commission ("CPUC")! Decision (D.) 03-08-067 adopted policy rules and procedures for energy efficien programs for Program Years 2004 and 2005 (PY2004/5) in the text of the decision a d in the Energy Efficiency Policy Manual (Version 2) dated August, 2003 ("Policy Ma ual") posted on the Commission's Energy Efficiency website. i . ! WHEREAS, pursuant to D.03-08-067, the CPUC, requested ¡proposals from parties interested in performing energy efficiency work in the servi~e territories of Pacific Gas & Electric ("PG&E"), Southern California Edison COrPpany ("SCE"), Southem California Gas Company ("SoCaIGas") and/or San Diego ¡Gas & Electric Company ("SDG&E"); . I WHEREAS, on February 26, 2004 the CPUC selected and approved SDREO's proposal for performing work in the service territory of SDG&E an~ subsequently SDG&E and SDREO executed an agreement for such work; and; WHEREAS, SDREO now desires to subcontract for the performance of some of that work with SUBCONTRACTOR, and SUBCONTRACTOR likeWise wishes to perform that work under this Agreement; . AGREEMENT NOW THEREFORE, in consideration of the foregoing Reci~als, the mutual covenants contained herein, the Parties agree as follows: I 1. DEFINITIONS The following terms shall have the following meanings, whether caþitalized or not, singular or plural: . Subcoolracl with City of Chula Vista for 200412005 LGEE Progrmn 7-8 1.1 "Agreement": This agreement between SDREO and SUBCONTRACTOR, including the Appendices. 1.2 "Days" means calendar days, unless otherwise specified. 1.3 "Rebate, Loan, or other Financial As.sistance Program" means a program that provides rebates, loans, co-funding, or other financial assistance for the purchase of energy efficiency measures, including maintenance, repair, or optimization services but does not directly install or in some way participate in the installation at the customer's location. 1.4 "Approved Report" means a report which has been deemed final for that time period, and that has been revised to correct for any noted errors or incomplete sections. 1.5 "Program Implementation Plan" (or "Implementation Plan" or "PIP") means SDREO's proposal, including any required revisions or modifications, as approved by the CPUC. 1.6 "Direct Implementation Costs" are defined by the CPUC's Reporting Requirements M¡mual as financial Incentives/rebates, installation costs, hardware/materials costs, activity costs, and rebate processing/inspection costs. Direct Implementation shall not include costs that per the proposal and reporting requirements are to be allocated to other cost categories. 1.7 "Cost Categories" are defined by the CPUC's Reporting Requirements Manual. They are made up of the following six categories: (1) Administrative; (2) Marketing/Advertising/Outreach; (3) Direct Implementation; (4) EM&V; (5) Financing; and (6) Maximum Performance Award (formerly referred to in the proposal instructions as "Profit'} All Cost Categories have the same meaning as defined in the Budget for SUBCONTRACTOR's Scope of Work and the Reporting Instructions. 1.8 "Savings Programs:" Programs with a requirement for demonstrable energy savings. 1.9 "Information-Only Programs:" Programs with no requirement for demonstrable energy savings. 1.10 "Measures, Energy Efficiency Measure or EEM:" Products or services provided to customers that are designed to save energy and/or demand. 1.11 "Subcontractor" refers to the recipient of Project Management incentive funds received for the installation of EEM measure:;;. 1.12 "Customer" refers to the recipient of EEM incentive funds. , S.ubcontract with City of C1lulaVista for 200412005 LGEE Program 2 7-9 I 1.13 "Change Order" refers to a proposed change tal the Program Implementation Plan and Budget whereby allocating a specified dollar. amount for the purpose of this contract. . 1.14 "Public Goods Charge" or "PGC",funds refers to money ~ollected by the PUC (Public Utilities Commission) by way of the tax payers' utility bill tþ pay for public interest programs such as the Local Govemment Energy Efficiency profram. 2. ATTACHMENTS INCORPORATED BY REFERENCE The following Attachments are made part of this Agreement: Attachment A: Description of Authorized Work, the consideration to be paid for such work, and SUBCONTRACTOR's Budget Worksheet. ¡ Attachment B: CPUC Reporting Requirements, as posted on the Efficiencv website and as modified from time to time by the Division. PUC's Ener PUC's Energy Attachment C: Cost Reporting Workbook 3. SUBCONTRACTOR'S OBLIGATIONS SUBCONTRACTOR shall perform the work described in Attadhment A, which is incorporated herein by this reference, upon written notice from SD~EO to proceed. Work shall be performed in accordance with the requirements of the q:PUC decisions described in the recitals above ("Authorized Work") until such t~. e as work is determined to be complete or the terms of this contract are terminate as per Section 17 below. SUBCONTRACTOR shall communicate regularly with S REO and shall advise SDREO of significant problems. However, SUBCONTRACT R will strive to address all minor issues or problems on its own. , I ! 3.1 Professional Standards I SUBCONTRACTOR shall perform the Authorized Work, a~d shall furnish required labor, equipment and material with the degree of skill and car that is required by current professional standards, not only those fixed by law or reg lation, but also those commonly in use in the particular industry or trade. I I 3.2 Required Reports I (A) SUBCONTRACTOR shall submit all Required RepoJs listed in this section in accordance with the due dates listed below. The reports' $hall contain the information and otherwise conform to the Authorized Work (Attachlnent A), CPUC I . Subcontmct witb City of Chula Vista for 2004/2005 LOEE Program 3 7-10 reporting requirements (Attachment B), and according to the Workbook (Attàchment C). (B) Report Schedule: SUBCONTRACTOR shall submit the Required Reports listed below according to the following schedule to SDREO: Major Deliverables Due Date Monthly Report (covering prior month's On or before the 10th calendar day of activities, accomplishments and the month following performance expenditures) Invoice and Supporting Documentation On or before the 10th calendar day of the month following performance Monthly Report Revision (Revision of As requested by SDREO Report covering prior month's activities, accomplishments and expenditures) Final Report to SDREO (Report Includes On or before April 1 , 2006 cumulative documentation on all program activities and expenditures from culmination through finalization of program.) Final Invoice to SDREO On or before Mav 1, 2006 All reports shall be submitted, following the reporting protocol established by CPUC staff that may occasionally be revised, no later than the due date listed above to SDREO (as specified in the above table) for their review, comment and approval. Regardless of the above Reports and schedules, SUBCONTRACTOR shall at all times generally keep SDREO informed of the status of the Authorized Work, inclusive of significant developments in the Authorized Work arising between Monthly Reports, and shall provide additional information to SDREO if requested, consistent with the standard set forth in Section 3.12. (C) SUBCONTRACTOR's Monthly and Final Report shall be subject to review by SDREO, and SDG&E for accuracy. Inaccuracies noted in the Monthly and Final Report shall be corrected by the SUBCONTRACTOR, and receipt of full payment under section 6, below, shall be withheld pending correction of the Monthly and Final Report to the satisfaction of SDREO and SDG&E (as may be required). Such satisfaction shall not be unreasonably withheld. (D) SUBCONTRACTOR hereby agrees that providing the information and reports described in this section is an express precondition to receiving the full payments referred to in Section 6. 3.3 Stop Work Procedures : Suhcootract with City of Chula Vista for 200412005 LGEE Program 4 7-11 I I The SDREO Agreement Representative, or representatives . ith ostensible authority from SDREO, SDG&E or the CPUC, may suspend the Auth rized Work for good cause, such as safety concerns, fraud, or excessive custo er complaints. Suspension of the Authorized Work may be ordered by verball notifying the SUBCONTRACTOR's Agreement Representative to suspend the A orized Work. The SUBCONTRACTOR shall stop work immediately except as descri ed below. The SDREO Agreement Representative shall follow any verbal notificati n with written notice pursuant to Section 25 below. SUBCONTRACTOR may res me Authorized Work after receiving written notice from SDREO that it may resume the Authorized Work. 3.4 Coordination With Other Programs . SUBCONTRACTOR shall coordinate with other existin~ or selected programs, including programs targeting low-income customersj to enhance consistency in rebates and other program details, minimize duplicativ~ administrative costs, and enhance the possibility that programs can be marketed together to avoid duplicative marketing budgets. SDREO shall give SUBCONTRACT¢¡R a list of all programs in its service territory, including contact numbers, within ten ~1 0) days of the execution of this Agreement. , 3.5 Reporting SUBCONTRACTOR shall describe in each monthly rep~rt any notable coordination activities with other energy efficiency programs. -I I 3.6 Prevention of Double-Dipping THE CITY OF CHULA VISTA as SUBCONTRACTOR shalll implement the following mechanism and shall take other practicable steps to m nimize double- dipping: 1 . I . I 3.6.1. Prior to providing incentives or services to a Customet for an energy efficiency measure other than as excepted by Section 3.11.5, SUBpONTRACTOR shall obtain a signed form from that Customer stating the following: I (A) Customer has not received incentives or services for thel' same measure from another utility, state, or local program; : I (B) Customer agrees not to apply for or receive incentives orl services for the same measure from another utility, state, or local program; and ' ! , (C) Customer acknowiedges that he or she has rèceived information about the free Low-Income Energy Efficiency ("LlEE") program, which offdrs incentives or services for the same measure(s) that the customer may be eligible for! ; SubcontI1!ct with Cjty of Chula Vista for. 200412005 LGEE Program 5 7-12 SO REO shall provide the form for SUBCONTRACTOR to use with Customers. 3.6.2 SUBCONTRACTOR shall keep the Customer-signed forms for at least three years after the end of the contract term or receipt of final payment, whichever is later. In addition, SUBCONTRACTOR shall submit the Customer-signed forms to SOREO, SOG&E, or the CPUC upon request. 3.6.3 SUBCONTRACTOR, its associates or subcontractors shall not knowingiy provide an incentive to a Customer or make payment to a Subcontractor who is receiving compensation for the same product or service through any funding source. In addition, the City of Chula Vista as Customer agrees to the following: (A) not to receive incentives or services for the same measure from another utility, state, or local program; (B) not to apply for or receive incentives or services for the same measure from another utility, state, or local program; and 3.7 Responding to and Tracking Customer Complaints SUBCONTRACTOR shall track all customer complaints that it receives through the mechanism that it describes in its Implementation Plan, and shall report on all complaints in its Monthly Reports. SUBCONTRACTOR shall maintain a log of all customer complaints it receives, and shall retain that log in electronic form for at least three years after the end of the contract term or receipt of final payment, whichever is later. 3.8 Customer Disclosure Obligations (A) SUBCONTRACTOR shall prominently disclose to prospective program participants and customers, verbally and in writing, that Customers are not obligated to purchase any full fee service or other service beyond that which is funded through the Public Goods Charge funds. The text of the disclosure must be in both English and Spanish and other languages as appropriate if the program specifically targets other language groups. (B) SUBCONTRACTOR shall include the following English and Spanish disclosure text, and where appropriate a non-English or Spanish translation thereof, in all material provided to prospective program participants and Customers: . "California consumers are not obligated to purchase any full fee service or other service not funded by this program. This program is funded by California utility ratepayers under the auspices of the California Public Utilities Commission (CPUC.)" Subcontract with City ofChula Vi'ta for 200412005 LGEE Program 6 7-13 Spanish Translation: "Los consumidores en California no están obligados a comprar servicios completos 0 adicionales que no esten cubiertos bajo este programa, Este programa está financiado por los usuarios d~ servicios públicos en California bajo la jurisdicción de la Comisión de Servicios Públicos de California (CPUC.)" . 3.9 End Date for Completion of Authorized Work and Submission of Documentation I I _ SUBCONTRACTOR shall complete the' Authorized WO~' submit any required documentation not covered in Section 3.10, below, and submi documentation for any outstanding incentive obligations no later than Febru ry 28, 2006. 3.10 End Date For Administrative and Implementation Actiyities and Final Invoice I Unless this Agreement is terminated pursuant to Sec 'on 17 below, SUBCONTRACTOR shall complete all administrative and implementat on activities (as . defined by the Workbook, attached to this Agreement as Attachment C and included here by reference, and reporting requirements) by no later than April 1 2006, including submission of the Final Report. SUBCONTRACTOR's Final Invoice ust be received by SDREO by May 1, 2006. 3.11 Cost Reporting and Review 3.11.1 Actual Cost Reporting Requirements SUBCONTRACTOR's actual costs for the Authorized Work ust be reported to SDREO in each Monthly Report using the CPUC Reporting R quirements and Workbook (Attachments B and C). Both the Workbook and the PUC Reporting Requirements are subject to occasional revision by the CPUC. SUB ON TRACTOR's expenditures for administration, marketing, and outreach may not xceed the total amount for each of those categories, as agreed upon in the Authoriz d Work Budget Worksheet, without SDREO's written approval. Subcontractor may increase direct implementation expenditures for work wiihin the scope of work, js long as total expenditures do not exceed the total a. pproved compensation set f rth in Section 6 below or Subcontractor may shift up to 5% of the approved xpenditures for administration and marketing within those two categories upon DREO's written approval. I I 3.11.2 Cost Reasonableness . Subcontract with City ofChula Vista for 2004/2005 LOEE Program 7 7-14 All costs, including subcontractor costs, shall be objectively reasonable, ordinary and necessary and shall be reported at actual cost with no mark-up, e.g. profit, administrative or other indirect costs. Using the SUBCONTRACTOR's Budget Worksheet, SOREO may review all reported costs. The SOREO reserves the right to reduce costs if the costs are in excess of the total cost for that !ine item in the SUBCONTRACTOR's Budget Worksheet, and if there is a reasonable basis for the conciusion that the costs are excessive, unreasonable, or not ordinary or necessary. 3.11.3 Cost Allocation Methodology. SUBCONTRACTOR shall respond to questions or requests from SO REO, or from a representative with ostensible authority from SDG&E or the CPUC, on how it has calculated or allocated costs listed in its Budget Worksheet, and shall make any changes, . consistent with the Workbook and CPUC Reporting Requirements, requested by SOREO. 3.11.4 Subcontractor Costs/Activities Subcontractor costs shall be reported according to the format contained in Attachment Band C. 3.11.5 Supporting Documentation The following supporting documentation, as well as information listed in Attachment B, is required to substantiate contract expenditures. SDREO will provide to SUBCONTRACTOR the format to be used in providing this documentation: (A) Incentives: Submit a spreadsheet that contains the following data in the following order- For each incentive paid to customers or contractors (other than point of purchase programs) provide the 1) customer or contractor name, and address or account number, 2) the type of incentive 3) the àmount paid, and 4) the date the payment was sent. Individual completed customer applications and proof of incentive payment, as well as other supporting documentation pertaining to the performance of this Agreement or the Authorized Work, shall be retained by SUBCONTRACTOR for at least three years after the end of the contract term or receipt of final payment or receipt of performance award, whichever is later. These applications should be kept in a logical order (chronologically as a minimum standard) and provided to SOREO, SOG&E or the CPUC or their designee upon request. ; Subcontract with City of Cbuta Vista for 2004/2005 LGEE Program 8 7-15 (B) Labor: For each of the 3 categories (Admin, Marke1ing and Direct Implementation), provide a list of individuals and total hours worked 10r each person during the month. I (C) Overhead Items Other Than Travelrrraini~g/conferences: SUBCONTRACTOR does not need to provide supporting documentati n for overhead items such as rent, computer equipment, facility charge. However, SUBCONTRACTOR shall provide this information upon request by S REO, SDG&E, or the CPUC. ! (D) Travelrrraining/Conference: SUBCONTRACTOR~Shall provide supporting documentation for all travel-related expenditures. SU CONTRACTOR should provide a detailed expense report for all travef expenses, which includes airfare, mileage, meals, lodging, parking, etc. A detailed travel expense repo should include the following information:· name of person incurring expense, reas?n for expense, date(s) incurred and type of expense (e.g. Airfare, Airport Parking, R~ntal Car, Other Parking, Mileage, Meals, Hotel, or Other costs, if any) : (E) SUBCONTRACTOR's Costs: SUBCONTRACTOR shall provide a copy of all subcontractor invoices paid by it. If only a portion of the subþontractor costs applies to the program, clearly indicate the line items and/or percenta~e of the invoice amount that should be applied to the program. ' I (F) Marketing: Provide a copy of each distinct marketing mJterial produced, and note the quantity of a given marketing material produced an~ the method of distribution. I , (G) Other Expenses: SUBCONTRACTOR shall provide sUPf0rting data and documentation for all other expense items over $500. : 3.12 Responding To Requests for Information I ! During the term of this Agreement, SUBCONTRACTOR Sh~1I respond to all requests for information from SDREO, SDG&E and/or the CPUC in timely fashion, but no later than five days after the date the information is re uested, unless SUBCONTRACTOR asks for an extension of time and such exte¡SiOn of time is granted by the requesting party(ies). Parties are expected to re uest only such information that is relevant and necessary for the performance of 0 ligations of this Agreement and to meet and confer in an effort to resolve disa~reements about requests for information before seeking other conflict resolution. : 3.13 PGC Funds Mu;st Directly Benefit Customers in the ~ervice Territory from which the Funds are Collected . . Subcontract with City of Chula Vista for 200412005 LGEE Program 9 7-16 As provided for in Section 5 of the Energy Efficiency Policy Manual (available on the CPUC web site), PGC funds must directly benefit the customers in the service territory from which the PGC funds were collected. 3.14 Marketing Materials All public-facing marketing materials produced or developed by SUBCONTRACTOR shall be consistent in quality and appearance with similar materials produced by SOREO and shall adhere to certain graphics standards as determined by SOREO. SUBCONTRACTOR shall submit all marketing materials to SDREO for review and approval prior to their release. SUBCONTRACTOR shail submit ail source files, both print and electronic, to SDREO upon completion of ail marketing deliverablesand tasks.· In the event that SDREO determines that SUBCONTRACTOR's marketing materials are substandard, fraudulent, misleading, do not contain the customer disclosure required in Section 3.8, or the funding disclosure required in Section 9.1, or have used the name of SOREO, SDG&E or the CPUC without permission as required by Section 9.2, it shail require SUBCONTRACTOR to cease distribution of such marketing materials until the problems are corrected. 3.15 Requirements for Collection of Customer Information SUBCONTRACTOR must obtain the names and either SDG&E account numbers or addresses from ail customers, except for customers who receive point of purchase rebates or customers who receive measures that cost in total less than $20, twenty (20) doilars per customer. 3.16 San Diego Regional Energy Partnership To facilitate energy program development and implementation, the San Diego Regional Energy Office (SOREO) and the City and County of San Diego, and the Cities of Carlsbad, Chula Vista, Escondido, and Oceanside formed the San Diego Regional Energy Partnership (SOREP) to implement public goods charge energy efficiency programs during 2004-2005. SUBCONTRACTOR shail to the extent possible provide information, services, and rebates to the partner cities first before other jurisdictions in the SDG&E service territory. SUBCONTRACTOR also shail to the extent possible conduct marketing activities in cooperation with partner cities. 4. UTILITY OBLIGATIONS 4.1 Summary of SDG&E Administrative Duties Subcontract with City of Chula ViS1a for 20041200::1 LGEE Program 10 7-17 SDG&E has executed an Agreement with SDREO as t e designated administrator for the CPUC for the limited purpose of administe ing the Local Government Energy Efficiency Program Agreement. SDG&E sha I oversee the administration of SDREO's and SUBCONTRACTOR's Authorized Wo as set forth in D.04-02-059 - February and applicable CPUC decisions and rulings. S G&E's primary administrative responsibilities are to oversee the work of SDREO and SUBCONTRACTOR, receive and complete a timely review of all required documents and other pertinent program information, serve as a liaison between the CPUC and SDREO, and timely transfer PGC payments to SDREO for Authqrîzed Work in accordance with the applicable CPUC-approved payment schedule(sj as set in the agreement between the above mentioned parties. . 4.2. SCREO Review of Required Reports and Payment Oblipations (A) SUBCONTRACTOR shall ensure that monthly reports ane delivered on time and according to the most recent reporting protocol established Iby the CPUC. SDREO shall make all efforts to notify SUBCONTRACTOR of any CPl(JC revisions or changes to the reporting protocols, but this shall not relieve SUBCONT~CTOR of the duty to independently ascertain if such revisions or changes hav, been made. SUBCONTRACTOR shall provide as much advance notice as possibl~ to SDREO of any delay in reporting, provide the reason therefore, and provide a r~vised delivery date for the report which is acceptable ·to SDREO. In no e~ent shall the SUBCONTRACTOR's delay cause SDREO to fail to meet the reporting obligations set forth in the SDG&E/SDREO Agreement. All reports subm tted by the SUBCONTRACTOR which do not follow the reporting protocol esta1liShed by the CPUC as per this section shall be immediately revised and r submitted by SUBCONTRACTOR, following the then-current reporting protocol, pon SDREO's request. ¡ . I (B) All SUBCONTRACTOR reports are subject to review by ~DREO and by SDG&E to determine whether they (i) contain the information r . uired by this agreement and that the information is in the format specified herein; (ii omply with the Authorized Work as set forth in Attachment A; (iii) comply with CPU requirements (e.g., CPUC's Policy Manual, Chapter 6, Reporting Requirements), an (iv) include all information reasonably necessary to allow SDREO, SDG&E and the C UC to monitor the progress of the Authorized Work. If there is a disp ted amount, SUBCONTRACTOR shall submit a revised invoice once the issues are esolved. , _ (C) Circumstances that may cause SDREO, SDG&E and/o the CPUC to dispute an invoice include but are not limited to: SUBCONTRACT R fails post- installation inspections; SDREO and/or SDG&E finds that work as not been completed as reported; SDREO, SDG&E and/or the CPUC is/are not s tisfied with the quality of SUBCONTRACTOR's work; or documentation supporting a invoice does not match the monthly report. - Subcontract with City of Chula Vista fur 200412005 LOEE Program 11 7-18 (0) If SOG&E determines monthly report and/or invoices are incomplete or not in the proper format, SO REO shall notify SUBCONTRACTOR of any additional and/or revised documentation needed as soon as possible. SUBCONTRACTOR shall strive to respond to requests for additional information within 5 days. (E) Upon receipt of an invoice from SUBCONTRACTOR, SOREO will remit payment to SUBCONTRACTOR for the labor costs and expenses reflected on the invoice. The invoices will be submitted pursuant to the schedule set forth in section 3 of this Agreement and will be submitted in conjunction with monthly or final reports. SOREO will pay all invoices within 45-60 days of report approval. (F) If the SUBCONTRACTOR invoice and supporting documentation meet the requirements of this Agreement, but the monthly report is incomplete or deficient, SOREO shall pay the invoice for that month, but shall not be required to pay the next month's invoice until the monthly report is revised to SOREO's satisfaction. Such satisfaction shall not be unreasonably withheld. 4.2.1 Process of Re-Submitting Revised Reports (A) Revisions to SUBCONTRACTOR's reports shall be handled as follows: i) Workbook: Subcontractor must submit an updated workbook if there are changes to the workbook. ii) Narrative Report: If there are major changes to the narrative, the Subcontractor should submit a revised report. SUBCONTRACTOR may submit errata describing the changes to the report, unless the changes are major as determined by SOREO Agreement Representative, in which case the Subcontractor shall submit a revised report. (B) Submittal: All submissions relating to revised reports should follow the same submittal requirements as the original submittal. (C) If SOREO, SOG&E, Subcontractor, or the CPUC find that a previously approved report requires substantive changes to the content previously reported (e.g. 10 measures were found to be installed, but 12 were reported), such revisions shall be made by way of a "True-Up" to subsequent monthly reports. Any such True-Ups will need to be clearly noted and identified in the report that makes the corrections, substantiated by any necessary documentation, and agreed-to by the SOREO Agreement Representative. 4.3 Refund of Overpayment of PGC Funds With respect to any amount subject to refund to the CPUC pursuant to any subsequent CPUC decision or ruling, should the CPUC determine that a refund is due and seeks to recover such refund, SUBCONTRACTOR shall fully cooperate with , Subcontract with City of Cbula Vista for 200412005 LGEE Program 12 7-19 SDREO and return the amount due to IOU (SDG&E) within thirty (30) dalendar days of the date SUBCONTRACTOR receives written notice that the payment i$ owed. 5. AGREEMENT REPRESENTATIVES SUBCONTRACTOR designates the following individual asl its Agreement Representative for all matters relating to performance of the Authori~ed Work under this Agreement: . Willie Gaters, Environmental Resources Manager SDREO designates the following individual as its Agreement Representative for all matters relating to performance of the Authorized Work pursuant to this ~~~~ I I Dave Weil, Director of Programs ! i The Parties may change their respective Agreement Representative\at any time by providing written notice of the change to the other parties following . he protocol set . forth in Section 25, below. I 6. COMPENSATION SDREO shall compensate SUBCONTRACTOR as provided in s ction 4.2(E) and Attachment A of the Agreement. SUBCONTRACTOR understand that compensation is contingent on CPUC approval of the proposed Chang Order. Should the proposed Change Order not be approved, compensation s all stop and SDREO will notify SUBCONTRACTOR to stop work as per the Termin tion procedures set forth in Section 17. SDREO will compensate SUBCONTRACTOR ~or all authorized work performed prior to the effective date of the termination I . i SUBCONTRACTOR agrees to accept the fees set f;h herein per Attachment A as full compensation for all of SUBCONTRACTOR's ex enses incurred in the performance of the Authorized Work, including profit and applicable taxes, unless otherwise expressly so provided. . ¡ APPROVED TOTAL AMOUNT FOR AUTHORIZED WORK: $182,500j· . . I . 7. TIME IS OF THE ESSENCE ! The Parties hereby acknowledge that time is of the essence~' performing the duties under this Agreement. Failure to comply with stated deadlin s or milestones may result in termination of this Agreement, payments being . hheld, or other program modifications. . . . . . Subcontract with City of Chu1a Vista for 200412005 LGEE Program 13 7-20 8. EFFECTIVE DATE This Agreement shall become effective on the later of the date that is signed by both SDREO and SUBCONTRACTOR. 9. RESTRICTIONS ON MARKETING 9.1 Use Of CPUC's Name Except for the required disclosure language per Section 3.8, SUBCONTRACTOR may not use the name of the CPUC on marketing materials for its program unless SUBCONTRACTOR obtains the prior written approval from the CPUC, through SDREO. In order to obtain this written approval, SUBCONTRACTOR must send a copy of the planned materiais to SDREO for forwarding to the CPUC Agreement Representative, requesting approval to use the CPUC name and/or logo. Notwithstanding the above, the SUBCONTRACTOR shall disclose its source of funding by stating prominently that its prograrTl is "funded by Califomia ratepayers under the auspices of the California Public Utilities Commission' in all materials distributed. 9.2 Use of SDG&E's Name Except as approved in writing by SDG&E, SUBCONTRACTOR may not use SDG&E's name or logo on marketing materials for its program. SUBCONTRACTOR further agrees not to state or imply to third parties that SDG&E has endorsed or approved SUBCONTRACTOR or its work. 10. COMPLIANCE WITH APPLICABLE LAWS Each Party shall comply with all applicable federal, state and local laws, rules and regulations, and SUBCONTRACTOR shall obtain all applicable licenses and permits for the conduct of the Authorized Work. 11. WARRANTY ·SUBCONTRACTOR warrants to SDREO that (A) SUBCONTRACTOR has any license(s) required under State or local laws for the performance of the Authorized Work; (B) the Authorized Work shall be performed with the degree of skill and care that is required by current, good and sound professional procedures and practices, and in conformance with generally accepted professional standards prevailing at the time the Authorized Work is performed so as to ensure that the services performed are cqrrect and appropriate for the purposes contemplated in this Agreement; and (C) SUBCONTRACTOR in fact possesses the necessary qualifications and skills to perform the Authorized Work in the manner warranted here. , Subcontract with City of Chula Vista for 200412005 LGEE Program 14 7-21 12. SAFETY PRECAUTIONS AND PROTECTION OF PROPERTY SUBCONTRACTOR shall plan and conduct the Autho 'zed Work to safeguard persons and property from injury. SUBCONTRACT R shall direct performance of the Authorized Work in compliance with reasonable afety and work practices and applicable federal, state and local laws, rules and regul tions, including but not limited to, "Occupational Safety and Health Standards" pro ulgated by the U.S. Secretary of Labor and the California Division of Occupational Saf ty and Health. 13. INSURANCE ! SUBCONTRACTOR shall maintain the following insurance C~erage or self- insurance coverage at all times during the term of th s Agreement. SUBCONTRACTOR is also responsible for its subcontractors aintaining the insurance coverage listed in this Agreement. Failure to mainta n the required insurance shall be grounds for termination of this Agreement. Workers' Compensation and Employers' Liability: statutory minimu~. Commercial General Liability: $1 million minimum. I Coverage shall: i) By "Additional Insured" endorsement a d as insureds SDREO and SDG&E, their affiliates, subsidiaries, parent comp nies, directors, officers, agents and employees with respect to liability arising out of 0 connected with the Work performed by or for the SUBCONTRACTOR. (ISO F rm CG2010 or equivalent is preferred.) In the event the Commercial General Liabili policy includes a "blanket endorsement by contract," the following language added to he certificate of insurance will satisfy the additional insured requirement: "The affiliat s, subsidiaries, parent companies, directors, officers, agents and employees of he San Diego Regional Energy Office and of San Diego Gas and Electric Com pan with respect to liability arising out of the work performed by or for the SUBCO TRACTOR are additional insureds under a blanket endorsement." and ii) Be endorse to specify that the SUBCONTRACTOR's insurance is primary and that any in urance or self- insurance maintained by SDREO or SDG&E shall not contribute with itl Business Auto (if applicable): $1 million minimum. i i Professional Liability Insurance (if applicable): $1 million minimum. ! Upon request, SUBCONTRACTOR shall fumish SDREO, SDG&E, ot the CPUC with certificates of insurance and endorsements of all required ~I insurance for SUBCONTRACTOR and its subcontractors. The documentation shall state that .coverage shall not be canceled except after thirty (30) days prior witten notice has been given to SDREO. The documentation must be signed by a person authorized by that insurer to bind coverage on its behalf. i o Subcontract with City of Chula Vista for 2004/2005 LGEE Program 15 7-22 13.1 Self Insurance. If SUBCONTRACTOR is self-insured, before commencing the Authorized Work SUBCONTRACTOR must forward documentation to SDREO that demonstrates to the SDREO's satisfaction that SUBCONTRACTOR self-insures as a matter of normal business practice. SDREO will accept reasonable proof of self-insurance which shows reserves and other adequate planning meeting the above requirements. 14. INDEMNIFICATION SUBCONTRACTOR shall indemnify, hold harmless and defend SDREO, SDG&E and the CPUC, their affiliates, subsidiaries, parent companies, officers, managers, directors, agents, and employees, from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise) which arise from or are in any way connected with this agreement, including: (A) injury to or death of persons, including but not limited to employees of SDREO or SUBCONTRACTOR; (B) injury to property or other interests of SOREO, SDG&E, the CPUC, SUBCONTRACTOR, or any third party; (C) violation of a local, state or federal common law, statute or regulation, including but not limited to, environmental laws or regulations; or (D) strict liability imposed by any law or regulation; so long as such injury, violation, or strict liability (as set forth in (A) - (C) above) arises from or is in any way connected with SUBCONTRACTOR's performance of, or failure to perform, this Agreement, however caused, regardless of any strict liability or negligence of SDREO, SDG&E or the CPUC, whether active or passive, excepting only such loss, damage, cost, expense, liability, strict liability, or violation of law or regulation that is caused by the sole negligence or willful misconduct of SOREO, SDG&E or the CPUC, their officers, managers, or employees. SUBCONTRACTOR shall, on the request of SDREO, SDG&E, or the CPUC, defend any action, claim, or suit asserting a claim which might be covered by this indemnity. SUBCONTRACTOR shall pay all costs and expenses that may be incurred by SDREO, SDG&E or the CPUC in enforcing this indemnity, including reasonable attorney's fees. 15. SUBCONTRACTS (A) SUBCONTRACTOR shall contractually require each subcontractor retained to perform the Authorized Work, to be bound by the terms and conditions in this , Subcontract with City ofChula Vista for 200412005 LGEE Program 16 7-23 Agreement protecting SDREO, SDG&E and the CPUC which a~e substantially equivalent to the terms and conditions of this Agreement. ¡ (B) SUBCONTRACTOR shall, at all times, be entirely liable and responsible for the work, and acts and omissions, of its subcontractors and of pe ons directly or indirectly employed by them in connection with the Authorized Work. his Agreement shall not constitute a contractual relationship between any of SUBC NTRACTOR's subcontractors and SDREO, SDG&E or the CPUC, nor any obligation for payment to any of SUBCONTRACTOR's subcontractors. SUBCONTRACT R expressly indemnifies, defends and holds harmless SDREO, SDG&E and the PUC from any and all claims made by SUBCONTRACTOR's subcontractors, inclusi e of any made for nonpayment of wages or compensation. 16. DISPUTE RESOLUTION The Parties shall first make a good-faith attempt to resolve ¡ informally any dispute arising from this Agreement between them. In tht event that resolution attempt is unsuccessful, no suit or arbitration shall be brough against SUBCONTRACTOR, unless a claim has first been presented in writing 0, filed with, and acted upon by, the City of Chula Vista, in accordance with the proc dures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from t me to time be amended, the provisions of which are incorporated by this reference as if fully set forh herein, and such policies and procedures used by the City of Chula Vist in the implementation of same. If the parties are still unable to resolve the dis ute after the procedures are followed, the parties agree to submit their dispute to bin ing arbitration in San Diego County, The arbitrator's award may include costs and rea onable attorneys'fees, and shall be immediately enforceable before a court of ompetent jurisdiction. The parties acknowledge and agree that this provision shal nevertheless not limit a party's right to seek a preliminary injunction or other provisional remedy in order to preserve the status quo or to avoid irreparable damage. Each arty shall continue the performance of their obligations under this Agreement whl h are not related to the dispute or dependent on its resolution, during the pendenfY of the dispute resolution process. I i 17. TERMINATION ¡ (A) SDREO may terminate this Agreement for any reason y providing 30 days advance written notice 10 SUBCONTRACTOR. U on su h termination SUBCONTRACTOR shall immediately provide a Final Report and submit a final invoice, and olherw'se c m lete its re uirements for all reimbursab e ork erformed under the terms of this A reement u on conclusion of the Authorized Work. SDREO shall within thirty (30) days pay all amounts owed under the Agreemen for undisputed work performed prior to the effective date of the terminati n notice. If SUBCONTRACTOR's actual costs are materially less t an payments SUBCONTRACTOR received before effective date of termination notice, SUBCONTRACTOR shall refund unspent dollars to SDREO. ' . " Subcontract with City of ChuIa Vista for 200412005 LGEE Program 17 7-24 (B) The CPUC may direct SDREO to terminate this Agreement or the Agreement between SDG&E and SDREO for cause, or upon depletion of the amount of funding authorized by the CPUC for the Agreement between SDREO and SDG&E, In the event the Agreement is so terminated an Administrative Law Judge C'ALJ") shall direct the final disposition of payments under the SDG&E-SDREO Agreement. SDREO shall, upon receipt of SDG&E's ALJ-approved payment, pay SUBCONTRACTOR all amounts owed under the Agreement for undispLrted work performed prior to the effective date of the termination notice. If SUBCONTRACTOR's actual costs are materially less than payments SUBCONTRACTOR received before effective date of termination notice, SUBCONTRACTOR shall refund unspent dollars to SDREO. (C) In all cases, termination shall become effective on the last day of the 30- day notice period. 17.1 Termination For Cause If SUBCONTRACTOR fails to perform a material term or condition of this Agreement, and fails to cure such default within twenty-five (25) business days after receipt of written Notice of Default and Termination from SDREO, SDG&E or the CPUC, the ALJ, SDREO or SDG&E may declare this Agreement terminated, effective on the last day of said notice period ("Termination Date"). Subject to ALJ approval, as per section 17(B), above, SUBCONTRACTOR shall be paid for all undispLrted work performed prior to the Termination Date, which payment shall not be unreasonably withheld. Grounds for termination for cause include, but are not limited, to the following situations: (A) the failure, refusal or inability of the SUBCONTRACTOR to perform any material aspect of the Authorized Work (except as specified in Section 20, "Force Majeure"); or (B) SUBCONTRACTOR has become insolvent, has exhibited a pattern of failure to pay its bills, or has had checks for payment of its bills returned from suppliers and subcontractors due to insufficient funds; Or (C) a court of law has enjoined SUBCONTRACTOR from performing the Authorized Work; or (D) In the reasonable judgment of SDREO, SDG&E, or the ALJ, the Authorized Work will not be completed in the specified time and SDREO has reasonably requested SUBCONTRACTOR to take steps necessary to accomplish the required progress and completion, and SUBCONTRACTOR has failed to do so; or (E) misuse of name or logo in violation of Section 9 of this Agreement. 17.2 Termination for Loss of SDREO-SDG&E Agreement - Subcontract with City ofChula Vista for 200412005 LGEE Program 18 7-25 Should SOG&E terminate its agreement with SDREO, SOR 0 in turn may terminate this Agreement, upon written notice to SUB ONTRACTOR. SUBCONTRACTOR shall take whatever action will minimize its claim gainst SO REO. Upon such termination SUBCONTRACTOR shall not be entitled to a y payment far lost or anticipated profits or overhead on uncompleted portions of the uthorized Work and SUBCONTRACTOR shall be paid as per section 17(B), above. Any reports, drawings or other documents prepared as part of the Authorized W rk prior to the effective date of termination shall be delivered by SUBCONTRACTOR 0 SOREO prior to releasing any final payments to SUBCONTRACTOR. 17.3 CPUC Jurisdiction If the Agreement is terminated, any reports, drawings, specifications, software programs, or other documents required to be prepared and delivered as part of the Authorized Work prior to the effective date of such termination s all be delivered to the SOREO Agreement Representative by SUBCONTRACTOR P or to SOREO's release of the final payment owed to SUBCONTRACTOR. In no eve t shall SOREO, SDG&E, or the CPUC be liable for lost or anticipated profits r overhead on uncompleted portions of the Authorized Work. 18. NON-WAIVER None of the terms, covenants or conditions of this Agreement shal be considered waived by either Party unless such waiver is specifically stated in writin . 19. ASSIGNMENT i ¡ (A) SOREO may be required by the CPUC to assign its ridhts, duties and obligations under this Agreement to the CPUC and/or 1 its designee. SUBCONTRACTOR hereby consents to such assignment. ¡ (B) SUBCONTRACTOR shall not assign its rights, dUties,~land obligations under this Agreement without the prior written approval of the PUC. Unless otherwise expressly agreed by the assignee, SUBCONTRACTO shall remain responsible for the quality and timeliness of performance notw thstanding any assignment, or òther delegation. I ! 20. FORCE MAJEURE. i (A) Neither Party shall be liable to the other for any dela~ in or failure of performance, nor shall any such delay in or failure of performance co stitute default, if such delay or failure is caused by 'Force Majeure." As used in thi Section, Force Majeure is defined as: Acts of war and acts of god such as earthqu kes, floods and other natural disasters, or actions of others, including but not limited tolstrikes, lockouts I . Subcontract with City of Chula Vista for 200412005 LGEE Program 19 7-26 or other industrial disturbance, not within the control or arising from the fault of the Party claiming Force Majeure. (B) The Party affected by a Force Majeure Event ("Affected Party") shall be excused from performing its obligations under this Agreement to the extent that such performance is prevented or delayed due to the delay occasioned by a Force Majeure event; provided, however, that the suspension of performance is of no greater scope and of no longer duration than is required by such Force Majeure event. If a Force Majeure Event excuses the SUBCONTRACTOR from performing its obligations under the Agreement, the SUBCONTRACTOR will not be paid for the obligations that were excused because of the Force Majeure Event and must refund unspent dollars to SDREO. 21. NON-DISCRIMINATION CLAUSE SUBCONTRACTOR and its subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medica! condition (cancer), age (over 40), marital status, and denial of family care leave. SUBCONTRACTOR and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. SUBCONTRACTOR and subcontractors shall comply with the applicable provisions of the Fair Employment and Housing Act (Government Code Section 12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. SUBCONTRACTOR and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other similar agreement. SUBCONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in all subcontracts related to this Agreement for the Authorized Work. 22. RIGHT TO AUDIT 22.1 SUBCONTRACTOR agrees that SDREO, SDG&E, and/or the CPUC, or their designated representatives, shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement or the Authorized Work. SUBCONTRACTOR agrees to maintain such records for possible audit for at least three (3) years after the end of the contract term or receipt of final payment or receipt of any performance award, whichever is later. SUBCONTRACTOR agrees to allow the auditor(s) reasonable access to such records during normal business hours and to allow interviews of any employees who might reasonably have , Subcontract with City of Chula Vista for 200412005 LGEE Program 20 7-27 i information related to such records. Further, SUBCONTRACTOR ag~ees to include a similar right of SDREO, SDG&E, and/or the CPUC to audit records a~d intelView staff in any of SUBCONTRACTOR's subcontracts related to performance qf the Authorized Work or this Agreement. 22.2 In addition, SUBCONTRACTOR agrees that: (A) SDREO, SDG&E, and/or the CPUC, or their designated representatives, shall have the right to inspect and ensure that installed EEMs m et the product specifications and installation standards required by the CPUC, as c mmonly utilized in the industry and as may be outlined in SUBCONTRACTOR's sco e of work. This right of inspection may be utilized as many times as deemed neces ary. In order to accommodate the inspection process, SUBCONTRACTOR shall, u on request, (1) provide the most current installation schedule showing date and localon where EEM installations have been scheduled, (2) submit the EEM installation an Customer data electronically in Excel or Access, and (3) ensure that SDREO, SDG& ,and the CPUC has access to the Customer site(s) for all verification inspections. I (B) SDREO and SDG&E may utilize the following methods 0 verify that the rebated EEMs are installed and operating: post installation on-site veri Ication, work-in- progress on-site verification, product invoices, or other verificatio procedure, as appropriate. If an inspection reveals discrepancies between SUB ONTRACTOR's reported EEMs and actual EEMs found, SUBCONTRACTOR will be g en 15 calendar days to make on-site corrections and to revise and resubmit the info mation provided to SDREO. SDREO and SDG&E reselVes the right to conduct as any inspections as needed to ascertain that EEMs are installed as reported. SU CONTRACTOR understands and agrees that up to 5% of the EEM installations may be inspected by SDG&E at no charge to SDREO or the SUBCONTRACTOR. If SO &E determines that more than 5% of inspections are needed to ascertain satisfacto completion of SUBCONTRACTOR'S work, SOG&E will at its sole discretion increas the number of inspections and charge SDREO for the additional inspections above 5 Yo, as well as for SOG&E costs associated with re-inspecting failed inspections. Any S G&E inspection charges shall be deducted from the SUBCONTRACTOR'S payment. n the event that additional inspections are required, SOREO will make every eff rt to notify the SUBCONTRACTORsubcontractor prior to the inspections being cond cted. SOG&E, SOREO, and SUBCONTRACTOR may develop alternate inspection procedures that accomplish the goal of this paragraph. . i (C) Any inspection or review of the design, constructioh. operation, or maintenance of SUBCONTRACTOR's installation of EEMs shall nc1t constitute any representation as to the economic or technical feasibility, operatio~al capability, or reliability of the EEMs. SUBCONTRACTOR shall in no way repre~ent to any third party that the inspection or review of the EEMs is a representat on by SDREO, SOG&E, or the CPUC as to the economic or technical feasibility, oper tional capability, or reliability of such EEMs. SDREO is expressly relying on the repre~ented expertise, professional capability and know-how of SUBCONTRACTOR for th~ economic and , Subcontract with City of Chul. Vista for 200412005 LGEE Progr>m 21 7-28 technical feasibility, operational capability, and reliability of SUBCONTRACTOR's EEM installations. 23. INDEPENDENT CONTRACTOR SUBCONTRACTOR, and its representatives, agents and employees, in the performance of the Authorized Work, shall act in an independent capacity and not as officers, employees or agents of SDREO, SDG&E, or the CPUC. Nothing in this Agreement shall be construed so as to render SUBCONTRACTOR, or any persons hired by SUBCONTRACTOR, an employee, agent, representative, joint venturer or partner of SDREO, SDG&E, or the CPUC, and neither SUBCONTRACTOR nor its employees or subcontractors shall hold themselves out to others in such capacity. 24. INTELLECTUAL PROPERTY RIGHTS 24,1 Ownership Of Deliverables The CPUC shall own all data, reports, information, manuals, computer programs, works of authorship, designs or improvements of equipment, tools or processes (collectively "Developments") or other written, recorded, photographic or visual materials, or other deliverables produced in the performance of this Agreement. Developments do not include equipment or infrastructure purchased for research, development, education or demonstration related to energy efficiency. SUBCONTRACTOR shall retain no ownership, interest or title in the Developments except as may otherwise be provided in Attachment A. SUBCONTRACTOR shall submit to SDREO all source documents and files, both electronic and print, upon completion of deliverables and tasks. . 24.2 Use And Reproduction Rights If and to the extent that SUBCONTRACTOR retains any preexisting rights to any materials fumished under this Agreement, including Developments, SUBCONTRACTOR hereby grants to the CPUC the irrevoç;abJe, perpetual, non-' exclusive, worldwide, royalty free right and license to make, use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based on such preexisting rights and derivative works thereof. Any claims of SUBCONTRACTOR to proprietary rights in materials furnished under this Agreement must be explicitly set forth in this Agreement. 24.3 Infringement Protection SUBCONTRACTOR represents to IOU and CPUC that the material prepared under this Agreement will not infringe on the copyright, patent, or license, or otherwise violate the proprietary rights, including trade secret rights, of any person or entity. SUBCONTRACTOR agrees to indemnify, defend and hold SDREO, SDG&E, its parent company, and the CPUC harmless from and against all liabilities, costs and damages - Subcontract with City of ChuIa Vista for 2004/2005 LGEE Program 22 7-29 anslng out of such infringement, as ~ell as claims of I infringement. SUBCONTRACTOR further agrees to pay any judgment or reasonable ~ettlement offer resulting from a suit, demand or claim, and pay any reasonable ~ttorney's fees incurrent by SOREO, SOG&E or the CPUC in defense of such a suit. I 24.4 Claims Substantiation (A) SUBCONTRACTOR represents that It has adequately S!' bstantiated all claims made as part of the Authorized Work according to the r quirements of California and federal law. SUBCONTRACTOR shall substantiate cia ms made in all program materials, including but not limited to: program dèscriptions, web sites, fact sheets, brochures, and advertisements ("Program Materials"). Claims i clude, but are not limited to, statements about the energy efficiency, safety, reliability, þr perfO!lTlance of a piece of equipment or category of energy efficiency measures. ' (B) For each Program Material, SUBCONTRACTOR shall idertify all claims, and shall have written evidence and data to substantiat~ the claim. SUBCONTRACTOR shall provide the claims and claims sUbstantiati01' to the SDREO Agreement Representative within three (3) business days of a requ st. If SDREO determines that the evidence or data that SUBCONTRACTOR ha submitted is inadequate to substantiate the claim, then SUBCONTRACTOR Sha1 either provide additional' evidence or data, that in SDREO's sole discretion i adequate to substantiate the claim, or redraft or eliminate the claim so that the dat and evidence, in SOREO's sole discretion, adequately supports the claims made. I (C) SUBCONTRACTOR agrees to indemnify, defend and~hOld SOREO, SOG&E, its parent company, and the CPUC, harmless from and agai st all liabilities, costs and damages arising out of' or related to claims that ar inadequately substantiated. In fulfiiling this agreement to defend a d indemnify, SUBCONTRACTOR shall, at its discretion, pay any judgment, reason~ble settlement offer resulting from such a suit or demand, or reasonable attorneys' fßes incurred by SOREO, SOG&E and/or the CPUC in defending such a suit. ¡ i 25. NOTICES OR DEMANDS Any written notice, demand or request required or authorize~ in connection with this Agreement, shall be deemed properly given if delivered in p~rson or sent by facsimile, nationally recognized overnight courier, or first class mail, pþstage prepaid, to the address specified below, or to another address specified in wrfing by a Party. Notices shall be addressed as follows: i I I - Sllbcon1I>.ct with City of Chula Vista for 200412005 LGEE Program 7-30 23 SUBCONTRACTOR AG REEMENT REPRESENTATIVE Name: City of Chula Vista Attention: Willie Gaters Mailing Address: 276 Fourth Avenue Chula Vista, CA 91910 Street Address: Telephone: Fax: e-mail: (619) 409-5918 (619) 585-5716 willieg@cl.chula-vista.ca.us SDREO AGREEMENT REPRESENTATIVE Name: San Diego Regional Energy Office Attention: Dave Weil Mailing Address: 8520 Tech Way, Suite 110 San Diego, CA 92123 8520 Tech Way, Suite 110 (858) 244-1177 (858) 244-1178 dave.weil@sdenergy.org Street Address: Telephone: Fax: e-mail: Notices shall be deemed received by the Agreement Representative (A) if personally or hand-delivered, upon the date of delivery to the address of the person authorized to receive such notice if delivered before 5:00 p.m., or otherwise on the business day following personal delivery; (8) if mailed, three business days after the date the notice is postmarked; (C) if by facsimile, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing Party; or (D) if by overnight courier: on the business day following delivery to the overnight courier within the time limits set by that courier for next-day delivery. 26. UNENFORCEABLE PROVISION In the event that one or more of the provisions contained in this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement. 27. GOVERNING LAW This Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law ruies that may direct the application of the laws of another jurisdiction. 28. SECTION HEADINGS Section headings appearing· in this Agreement are for convenience only and sha II not be construed as interpretations of text. . Subccutract with City ofChula Vista for 200412005 LGEE Program 24 7-31 29. SURVIVAL Notwithstanding completion or termination of this Agre~ent, or any ame~dment to this Agreement, the Parties shall conti~ue to. be bound b th.e pr~visions of this Agreement and subsequent Amendment(s), including the Inde nlficatlon and insurance provisions, which by their nature shall survive such I completion or termination. 30. ATTORNEYS' FEES , In the event of any legal action or other proceeding betw~en the Parties arising out of this Agreement or the transactions contemplated herei~, the prevailing Party in such legal action or proceeding shall be entitled to have and r~cover from the other Party all costs and expenses incurred therein, including reasonablle in-house and outside attorneys' fees. ! 31. I I I , (A) No modification or change to this Agreement shall be bin~'ng or effective unless expressly set forth in writing and executed by the Pa les. No oral understanding or agreement not incorporated in this Agreement is inding on any Party. Moving up to 5% of the amount budgeted for marketing an administrative expenses between those two categories do not require an amend, ent, but does require SOREO's written approval (as per Section 3.11.1, above). I AMENDMENT; MODIFICATION i , (B) Any change in this Agreement sought by SUBCONTRACrOR must be in writing and must state the following: I · Original approved program design or target , · Requested program design change or target change ! · Reason for change ' · How the revised program will remain consistent with CPUC g~als 31.1 Contingency of SDG&E or CPUC Approval SUBCONTRACTOR's proposed change(s) may require aptval by SOG&E or the CPUC, in addition to that of SDREO. If sO, SUBCONTRACTO recognizes and agrees to the contingency of obtaining such approval, and shall .ooperate in all respects with SDREO in the process of seeking the approval. ' 32. COMMISSION AUTHORITY TO MODIFY/REGULATORY REVIFW I This agreement shall at all times be subject to such review ard modifications as the Commission may direct from time to time in the exercise of its jurisdiction. - Subcontract with City of Chula Vista for 2004/2005 LGEE Program 25 7-32 33. COMPLETE AGREEMENT This Agreement, as defined herein, constitutes the complete and entire agreement between the Parties and supersedes any previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. There are no additions to, or deletions from, or changes in, any of the provisions hereof, and no understandings, representatio"ns or agreements concerning any of the same, which are not expressed herein, unless stated below. Neither Party has relied upon any representation, warranty, projection, estimate or other communication from the other not specifically identified in this Agreement. The Parties hereby agree that no trade usage, prior course of dealing or course of performance under this Agreement shall be a part of this Agreement or shall be used in the interpretation or construction of this Agreement. 34. COUNTERPARTS This Agreement may be executed in counterparts which, taken together, shall constitute a single instrument. 35. AUTHORITY TO EXECUTE Each individual executing this Agreement on behalf of SOREO and SUBCONTRACTOR represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said Party, and that this Agreement is binding upon said Party in accordance with its terms and conditions. 36. CONSTRUCTION OF AGREEMENT The terms and conditions of this Agreement shall not be construed against either party as the drafting party. 37. CONFLICT OF TERMS Should a conflict exist between the main body of the Agreement and the Attachments, the main body of the Agreement shall control. Varying degrees of stringency among the terms of the main body of this Agreement and the Attachments are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon identification of any conflict or inconsistency in this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date last written below. City of Chula Vista San Dieao Reaional Eneray Office Subcontract with City ofChuia Vista for 200412005 LGEE Program 26 7-33 "SUBCONTRACTOR" "SORE" By: Print name: David D. Rowlands. Jr. Title: Citv Manaqer Date: , 2005 By. Print name: Irene ~. S llinqs Title: Executive Diþgg.r Date: ~ I D'¡' , 2005 Approved as to form: Ann Moore, City Attorney Date: 2005 Attest: Susan Bigelow, City Clerk IN WITNESS WHEREOF, SDREO and City have executed thils Agreement thereby indicating that they have and understood, same, and indicate their full and complete consent to its t~rms. . Subcontract with City of Chula Vista for 200412005 LGEE Pfõ~.ßn 27 ATTACHMENTS Subcontract with City of Chula Vista for 2004/2005 LGEE Pro1;;J 5 1 ATTACHMENT A to Subcontractor Agreement No. 1301-04 - City of Chula ~ista I Authorized Work Work Statement No.: 1301-04 I Project Title: San Diego Region Local Govemment Energy Efficiency P~ogram (LGEEP) . r ! Contractor: City of Chula Vìsta Contract Project Manager: Willie Gaters SDREO Program Manager: Lynne Olson A. Background The purpose of this Work Authorization is to provide administrative, tee nical, and direct implementation support to the San Diego Local Govemment Ene y Efficiency Program (Program). The Program is funded through the Califomia Pub ic Utilities Commission Energy Efficiency program and part of the San Diego Regi nal Energy Partnership's (SDREP) comprehensive portfolio of energy efficiency pr grams. The Program is designed to reduce the upfront cost of comprehensive ener yefficiency retrofit projects in city- and county-owned buildings in the San Diego re ion by offering project incentives for traditionally calculated energy-efficiency measure and energy- management information systems; in addition, the Program will subsidi2!e project management expenses to offset implementation costs. ! I Under the provisions of this work authorization, City of Chula Vista is aLjthorized to conduct the work outlined below: I I Scope of Work This work authorization will provide funding for the tasks identified belo . The San Diego Regional Energy Office's and City of Chula Vista's contract and reject managers shall agree to specific task activities, deliverables, budgets, nd timeiines prior to the commencement of work. These tasks include labor and ex enses. Work eligible for reimbursement will be on a time plus expenses basis based only on work authorized by the SDREO Program Manager. . TASK]: WORK PLAN AND TIMELINE FOR PROGRAM J1vIPLEMENTATION. . I City of Chula Vista will be responsible for identifying and developingl energy- efficient projects for the Program. Proposed projects will include in$tallation measures, expected rebates and energy savings, work plans, timeli¡'es, and projected budget expenses. These proposals must be submitted in!a ~ Subcontnct with City of ChuJa Vista for 200412005 LGEE Program 2 7-36 predetermined format provided by SDREO. All proposals will be reviewed by SDREO to determine project eligibility in accordance with the requirements outlined in the CPUC-approved Program Implementation Plan prior to approval and commitment of funds. TASK 2: PROVIDE PROGRAM TECHNICAL AND ADMINISTRATIVE SUPPORT. City of Chula Vista will provide technical and administrative support to help ensure the success of the San Diego Region Local Government Energy Efficiency Program. Technical and administrative support activities will include: monthly invoicing, monthly reporting, and other technical and administrative assistance as needed. This task includes labor and expenses. Work eligible for reimbursement will be on a time and materials basis based only as directly related to tasks authorized by the SDREO Program Manager. 2.IIn voicin!! City of Chula Vista will prepare monthly invoices for all labor and expenses incurred during the prior month's reporting period. These invoices will itemize labor hours and expenses, and must be submitted in conjunction with the monthly report. Invoices shall be paid within 45 to 60 days of report approval. 2.2Proe-ram Pro!!ress Renortin!! City of Chula Vista will prepare monthly reports consisting of program progress activities relevant to all Tasks referenced in this Work Authorization, including those outlined in each project proposal, and budget documentation as required by the CPUC and SDREO to document program status and activities. Monthly Reports are due by the 10th of every month and must include relevant progress and percent complete on each task detailed above and shown in Table 2.2.1 below, in addition to the requirements in Attachment B of subcontract, as well as to budget expenses as detailed in Attachment C of subcontract. In addition, City of Chula Vista will prepare a Final Program Report. The Final Report is due by April 1 , 2006 and must provide detailed, updated, and accurate information according to the CPUC format contained in Attachment B of subcontract. . Subcontract with City ofCbula Vista for 200412005 LGEE Program 3 7-37 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILl1Y ENERGY EFFICIENCY IMPLEMENTERS Attachment 81 - Monthly Report Instructions and Deliverables 2004 - 2005 CPUC Energy Efficiency Programs Monthly Report Instructions and Deliverables Monthly Report Instructions The 2004 - 5 Agreement for Non-Utility Energy Efficiency Implementer~ requires monthly reports from all Implementers to be submitted on the 21 st calend~ day of the month following perfo=ance. This document describes the process for :jubmitting reports to the Utility Contract Representative and the CPUC Representatiive. . I , Due to non-convergent project schedules, there will be a different proc~s for reports due on February 21st and March 21 stthan for the remaining months. By Apri 2004, Energy Division is expecting to implement a web-based, work-flow tool (curren y known as the Energy Efficiency Groupware Application, or EEGA) to simplify repo . g procedures, approval of reports and corresponding payments, requests for changes to pontracts, and gathering of aggregate energy efficiency program data. Until Apri121 st'1 is expected that all Implementers will submit reports via e-mail (some attachments b mail), with the exception of a few who may be asked to participate in beta-testing EEG . i Prior to April 1 st Implementers will be given traiiJing materials on EEG~ and will have an opportunity to ask questions of the EEGA development team and/or alJministrator. Implementers will be notified of their registration with EEGA and given specific instructions by the EEGA administrator prior to April 1 st. Report Submission Process: January 2004 and February 2004 Monthly Reports - Due February 21 st and March 21 st respectively - Deliver reports and supporting documentation via e-mail (some attachments by mail, if necessary) as r~-~uested in "Delivery Instructions" under each numbered item below. A list of IOrlContract Representatives and CP UC Representatives for each program will be derivered to program implementers before February 21$'. . I March 2004 through end of program term - I First report due April 21 st - Deliver reports via EEGA (some attaChmentr by mail, if necessary) with exceptions as noted in "Delivery Instructions" under ea h numbered item below. I I EEGA will track report submissions through the approval process, archijve and version reports and associated documentation, and extract data from the report -..torkbook to a database. A more detailed users guide and opportunities for Q&A will ~e available to program implementers when EEGA goes live. Below is a simplified de$cription of the work-flow process for submitting reports to EEGA: i Submitting Reports with EEGA: 2/9/2005 Page 1 of8 7-38 Q-! l: .....'_ .~---_. 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS Attachment 81 - Monthly Report Instructions and Deliverables · Once EEGA is set up, each program implementer will be given access privileges and can add users within their organization. Each program will need to have one person who is responsible for submitting reports and supporting documents on a monthly basis. EEGA will create a task (expected monthly report) for each expected submittal at the beginning of the month for which the report is due. When the user logs on to EEGA, they can view and take action on the assigned tasks, dOWIÙoad documents and add COmments and supporting documentation to previously executed tasks. For each monthly report, the user must dOWIÙoad the most recently approved monthly report workbook ITom EEGA and enter the data for the report month. For each monthly report, users will upload the completed workbook, narrative and supporting documentation and submit the task to the assigned IOU Contract Representative. If the budgets or goals in the report workbook have been changed the submittal will be rejected. (A separate process will be provided for budget and goal modifications, See Change Requests below) The IOU Contract Representative will dOWIÙoad and review the report. The IOU Contract Representative may request additional documentation or reject the report if changes are required in the workbook or narrative. If the report is rejected the IOU Contract Representative may attach COmments discussing why the report was rejected. If additional documentation is needed, the user may upload it to EEGA (or in some cases email or mail it directly to the IOU Contract Representative). If the report is rejected, EEGA will notify the assigned person and the assigned person will need to upload a revised report. If the report is accepted, the IOU Contract Representative will begin processing payments for the implementer, the report documents will be archived, and data will be extracted ITom the report workbook to the database. · · · · · · · · · · Change Requests with EEGA: All changes to the approved contract will be made through EEGA. Change requests are initiated by the program implementer and may be made in, but not limited to, the following cases: o Changes to the budget beyond what is allowed in Commission Decision 03-12-060 and any subsequent Commission orders governing 2004-2005 Energy Efficiency programs o Changes to the mix of measures or other program ·offerings o Changes to the goals as stated in the Program Implementation Plan o Changes to rebate levels o Changes to energy savings assumptions The work-flow for change requests will be similar to the work-flow for report submittals, but will be tracked separately. All reports in the process of review will be automatically rejected if the program implementer initiates a change request. Reports rejected due to a 2/9/2005 Page 2 of8 7-39 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS i Attachment 81 - Monthly Report Instructions and Deliverables ~ change request must be resubmitted after the change request is processe~. Program implementers will use the same workbook to make a change request as ilused for monthly reports. Change requests will not be considered until the functi nality for handling the change request workflow in EEGA is completed (projected June 2004). ~ WJlI!I Filling out the Report Workbook: Prior to the submitting the first monthly report, the implementers will ne~d to transfer data ITom the approved PIP Workbook to the Monthly Report W orkboo~ and complete additional field in the "Program Summary" tab. Failure to do the follo~g will delay the first monthly payment. ' · Program Summary - In the First Tab, "Program Summary": , o Make sure that the program number without the "-04" ap*endix shows in cell B1. . o Make sure the "Implementer Name" field is filled out cortectly and is consistent across all program workbooks for the implemejJ.ter. o Make sure that "Program Name" in entered correctly. ; o Indicate the month for which you are making a report by ~electing ITOm the drop down list in cell E3. o Indicate the program type by selecting from the drop dowh list in cell F3. · Program Budget - Copy and Paste the following data from the pip workbook, Second Tab, "1 - Budget Worksheet" to the Monthly Report WO~bOOk, Second Tab, "1 - Budget Worksheet": All Un-shaded cells (Specifically, ells B16:P29, B32:P53, B56:P71, B74:Pl19, B125:P146, B154:P161, B165:P1 8, B171:P180, , B183:P190, B196:P198, B201:P210, C214:P214) · Measures and Energy Savings Assumptions - Copy and Paste th~ following data ITom the PIP workbook, Third Tab, "2 - MeasurableEEActivitiesl' to the Monthly Report Workbook, Fourth Tab, "2 - ProjectedEEActivities": All Un-shaded cells (Specifically B11:N310) . · All Other Tabs - Copy and Paste data entered in the un-shaded c~lls of the PIP workbook to the corresponding cells in same-named tabs in the n!J.onthly report workbook. , , · . It is recommended that the "Paste Special - Values" feature be wjed. Monthly Data - It is the implementers responsibility to ensure that the ljser entered data are accurate and the workbook is completed without modifying formula~ or formats. On a monthly basis the implementer must complete the following: · Program Summary - In the First Tab, "Program Summary", Ens1ITe that the . month for which you are making a report is selected using the dr?P down list in cell E3. . · Program Expenditures - In Third Tab, "lA - Expenditures Wor*heet", fill out the costs incurred by the program for which you are invoicing thf utility. Make sure that committed expenditures reflect committed expenditure~ for the current month only. . 2/9/2005 Page 3 of8 7-40 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS Attachment 61 - Monthly Report Instructions and Deliverables . Energy Measures - In Fifth Tab, "2A - RecordedEEActivities", fill out the unit count achieved during the month. Make sure that committed units reflect committed units for the current month only. . All Other Tabs - Fill out the requested monthly data. : 2/9/2005 Page 4 of8 7-41 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTlLll'Y ENERGY EFFICIENCY IMPLEMENTERS Attachment 81 - Monthly Report Instructions and Deliverables Monthly Report Deliverables 1. In the Monthly Report Workbook (format prescribed by Energy Divi~ion staff and modified as needed) Implementer shall record the following data: I · Tab '1A - Expenditures Worksheet" - Record detailed expenditur$s per month and commitments to date. I · Tab '2A - RecordedEEActivities" - Record measure/activity quanr·ty per month and commitments to date. · Tab "3 - ProjectedNONEEActivities" - Record activity quantity pe month. · Tab '4 - Other Performance Goals" - Record goal quantity or esti ated percent complete per month. i · Tab "5 - Marketing Activities" - Record quantity or estimated percfnt complete per month. ~ · Tab "6 - EM&V Activities" - Record estimated percent complete p r month. · Tab "7 - Subcontractor Activities" - Record subcontractor costs p r month. · Tab "8 - Labor" - Record total hours worked by each staff per m nth per cost cateoorv. I Delivery Instructions: Deliver the January and February Monthly Report Work~ooks via e-mail to the IOU Contract Representative and the CPUC Representative. Afterwards ~ubmit the Monthly Report Workbooks via EEGA. I Jan 04 - Feb 04 March 04-endoffenn Delivery Method Via E-mail Via EEGA i Deliver To IOU & CPUC Representative ToEEGA I 2. In the Monthly Report Narrative (following the format prescribed byl Energy Division staff and modified as needed) Implementer shall provide brief discu~sion of the following: I · Program Status · Program Challenges · Customer Disputes · Compliance Items · Coordination Activities · Changes to Subcontractors or Staffing · Additional Items Delivery Instructions: Deliver the January and February Monthly Report Narr ative via e-mail to the IOU Contract Representative and the CPUC Representative. Afterwards St bmit the Monthly Report Narratives via EEGA. i Jan 04 - Feb 04 March 04 - end o/rterm Delivery Method ViaE-mail Via EEGA i Deliver To IOU & CPUC Representative To EEGA I , 2/9/2005 Page 5 of8 7-42 ~...~. 4'" . '.~:,..,,' 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS Attachment 81 - Monthly Report Instructions and Deliverables 3. Supporting Documentation (format may vary and may be prescribed by IOU Contract Representative and modified as needed) Implementer shall provide the following documentation as applicable, using table format where appropriate. Supporting documentation may be provided in separate files if appropriate. A. Marketing Materials - Provide samples of all marketing materials produced during the month. Delivery Instructions: Deliver the January and February Supporting Documentation A via e- mail or mail to the IOU Contract Representative and the CPUC Representative. Afterwards submit Supporting Documentation A via EEGA if it can be delivered electronically, otherwise deliver to the IOU Contract Representative and the CPUC Representative via mail. Jan 04 -Feb 04 March 04-endofterm Detivery Method Via E-mail if possible or mail if necessary Via EEGA if possible or mail if necessary Deliver To IOU & CPUC Representative To EEGA or IOU & CPUC Representative B. Expense Documentation - Provide expense documentation for the following: a. Travel Expense - Provide detailed expense report (originals or copies of receipts to be provided upon request) for ali travei related expenses, including airfare, mileage, meals, lodging, parking etc. Format should include the foliowing: i. Name of person incurring expense Ii. Reason for expense iii. Date of expense iv. Type of Expense (i.e. airfare, parking, car rental, mileage hotel, etc) v. Doliar amount b. Subcontractor Costs - Provide copies of all subcontractor invoices. If only a portion of the subcontractor costs applies to the program, clearly indicate the line items and/or percentage of the invoice amount that should be applied to the program. c. Other Expenses - Provide supporting documentation for ali expenses over $500. Delivery Instructions: Deliver Supporting Documentation B via e-mail or mail to the IOU Contract Representative. Jan 04 - Feb 04 March 04 - end of term Delivery Method Via E-mail or mail Via E-mail or mail Deliver To IOU Representative IOU Representative C. Customer Information - (use spreadsheet format if appropriate) Provide the foliowing information on customers served directly by program during the month (i.e. Customers who receive direct incentives or services): Audits/Site Surveys a. Customer name b. Customer address or account number c. Customer telephone number 2/9/2005 7-43 Page 6 of8 ~... ~ 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS Attachment 81 - Monthly Report Instructions and Deliverables d. Energy efficiency measures recommended I e. Estimated demand and energy savings potential if recommerded measures were to be implemented by customer I f. Amount of co-pay by customer g. Indicate which hard to reach category described in Section 1 of the Agreement for Non -Utility Energy Efficiency Implementers nd Appendix C of the Enerov Efficiencv Policy Manual. Version 2 that the cu tomer falls into. Direct Installations, Rebates, Equipment Maintenance aDd Op . tioD a. Customer name b. Customer address or account number c Customer telephone number d. Energy efficiency measures installed or repaired e. Estimated demand and energy savings potential f. Amount of co-pay by customer g. Customer Eligibility (per proposal/PIP) .h. Amount of incentive (if any) paid to the customer i. Date payment was sent j. Indicate which of the hard to reach categories described in S ection 1 of the Agreement for Non -Utility Energy Efficiency Implementers ! nd Appendix C of the Energy Efficiencv Policv Manual, Version 2 that the cu stomer falls into. Delivery Instructions: Deliver Supporting Documentation C via e-mail or ma '[ to the IOU Contract Representative. Jan 04 - Feb 04 March 04 - end oJ term Delivery Method Via E·mail or mail Via E-mail or mail Deliver To IOU Representative IOU Representative D. Point of Purchase Program Documentation - Provide the following information: ! a. Number of products sold I , b T e f d t Id . yp o pro uc s so c. Cost per discount or incentive d. Date of transactions (invoice payment to retailer) e. Location(s) where the [Joint of purchase products were s Id Delivery Instructions: Deliver the January and February Supporting Docume rztation D via e- mail or mail to the IOU Contract Representative. Afterwards submit Supporti, g Documentation D via EEGA, if it can be delivered electronically, or by mail to the IOU Contra ct Representative. Jan 04 -Feb 04 March 04 - end oJ term Delivery Method Via E-mail if possible or mail if necessary Via EEGA if possible 0 mail if necessary Deliver To IOU & CPUC Representative To EEGA or IOU & C UC Representative I E. Free Measure Distribution Documentation -For events at . vhich products are given away free of charge, provide the following: ! a. Description of event b. Date or event c. Location of event d. Number of participants (if applicable) e. Type of product given away . 2/9/2005 Page 7 of8 7-44 e~··.·:"..· .' . . '~.' 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS Attachment 81 - Monthly Report Instructions and Deliverables f. Number of products given away q. Total value of distributed eroducts Delivery Instructions: Deliver the January and February Supporting Documentation E via e- mail or mail to the IOU Contract Representative and CPUC Representative. Afterwards submit Supporting Documentation E via EEGA, if it can be delivered electronically, or by mail to the IOU Contract Representative and CPUC Representative. Jan 04 - Feb 04 March 04 - end of term Delivery Method Via E-mail if possible or mail if necessary Via EEGA if possible or mail if necessary Deliver To IOU & CPUC Representative To EEGA or IOU & CPUC Representative F. Upstream Incentive Documentation - For upstream incentives paid to manufacturers, distributors, or retailers, provide the following: a. Recipient's name b. Recipient's address c. Amount of payment d. Date of payment e. Total incentives paid for each type of product, if more than one f. Cost eer incentive for each tvee of eroduct, if more than one Delivery Instructions: Deliver Supporting Documentation F via e-mail or mail to the IOU Contract Representative. Jan 04 -Feb 04 March 04 - end of term Delivery Method Via E-mail or mail Via E-mail or mail Deliver To IOU Representative IOU Representative G. Training Documentation - For each training conducted, provide the following: a. Brief description of the training b. Delivery method c. List of materials provided to attendees d. List and number of attendees e. Copies of materials provided to attendees (Materials need only be submitted once) f. Date and location of traininQ Delivery Instructions: Deliver the January and February Supporting Documentation G via e-mail or mail to the IOU Contract Representative and CPUC Representative. Afterwards submit Supporting Documentation G via EEGA. Jan 04 - Feb 04 March 04 - end of term Delivery Method Via E-mail or mail Via EEGA if possible or mail if necessary Deliver To IOU Representative To EEGA or IOU & CPUC Representative 2/9/2005 Page 8 of8 7-45 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS Attachment 62 - Monthly Report Narrative TOC 2004 - 2005 CPUC Energy Efficiency programs Monthly Report Narrative TOC A. Insert a header that shows the Implementer Name, Program Name, IOU S rvice Area in which the program operates, Program Number, Program Type (IOU, vs. N n-IOU), and Report Month. (An automated table is provided in the "Program Summary" Tab of the Monthiy Report Workbook - Copy and paste cells B60:L65 into the narrati e document) 1. Program Status 1.1. Insert a table that shows the following, by service territory as well as ggregated (An automated table with the required information for budget & expenditur s and energy savings goals is provided in the "Program Summary" Tab of the Mont Iy Report Workbook - Copy and paste cells B67:L80 into the narrative docume t. You will need to create your own table for performance goals. If the program operates in multiple service areas, you will need to create a table with aggregated data on your 0 n following the format in the "Program Summary" worksheet.): ! 1.1.1. Comparison of budget, current month's expenditures, cumulative expe~ditures, commitments, and remaining budget in the four categories (admin, m keting, direct implementation, EM& V) , 1.1.2. If applicable, comparison of energy savings goals, current month's acWevements, cumulative achievements, commitments and remainder. ! 1.1.3. If applicable, comparison of performance goals, current month's achie~ements, cumulative achievements, commitments and remainder. ! I 1.2. Describe program activities and accomplishments during the month felr each of the following types of activities: i 1.2.1. Administrative 1.2.2. Marketing 1.2.3. Direct Implementation ! 1.2.3.1. For Audits and Site Surveys - ! · Aggregated number of audits/surveys completed, type of audit, Þnd cost per audit. (specify components of audit cost, such as auditor's time, trave~ costs, cost to develop audit reports, etc.) ! · Summary of type and number of energy efficiency measures re40mmended · Estimated total demand and energy savings potential if recoIlliI1fnded measures were to be implemented by customer I 1.2.3.2. For Direct Installations, Rebates, Equipment Maintenance and ~timization - · Total number of customers sites served ¡ · Cost per customer site (specify components of cost, such as labpr, travel costs, equipment costs, etc.) ! · Summary of type and number of measures installed orrepaire~' 1.2.3.3. Iftotal month's rebates paid or direct install costs differ rrom t tal calculated in report workbook, provide discussion of difference. (i. e. if summ tionformula for Financial Incentives and Installation and Service [cells G 150:A 150 and G162:AD162 respectively] is overwritten in tab "IA - Expendi res Worksheet" of the report workbook) ! 1.2.4. EM&V ! 2. Program Challenges . i Describe problems encountered during the month, including how the proqlem will/may be resolved . 3. Customer Disputes , Describe all customer disputes including how disputes were, or will be re$olved. , '. 2/9/05 lof2 7-46 ~.:.'.". - 2004 - 2005 CPUC Energy Efficiency Programs AGREEMENT FOR NON- UTILITY ENERGY EFFICIENCY IMPLEMENTERS Attachment 82 - Monthly Report Narrative TOC 4. Compliance Items Provide an update on compliance with direction provided by the Commission or IOU Contract Representative (via Decisions, Rulings, Energy Division communications, IOU contract representative communications etc.) 5. Coordination Activities Describe efforts at coordination with other programs during the month. 6. Changes to Subcontractors or Staffing Describe changes to staffing and subcontractors 7. Additionalltems Use this section to report items not included in the main body of the report or report workbook, but deemed reievant and important by the program impiementer. Do not include confidential customer information. 2/9/05 20f2 7-47 Table 2.2.1 Tasks, Deliverables, and Due Dates TASKS CELIVERABLES CUE CATES 1. WORK PLAN and TIMEUNE for PROGRAM IMPLEMENTATION , 1.1 Proposal Generation 1.1 1.1 · Proposal submission · -r-~ dependent pon project's estimated d te at completion. · Proposal Completion · No later tha February 2B. 20ce. i 2. PROGRAM ADMINISTRATIVE SUPPORT I Tech.nlcal and Administrative Support i 2.1 Invoicing 2.1 2.1 I · Invoicing shall Include all · Ongolng- mþnthly. 10· of the labor and expenses Incurred month ! during the prior month's I reporting period I 2.2 Program PI'9C8SS ReJlorttng 2.2 2.2 , · Monthly Program Reports · Ongoing- m~nthly, 10lh of the · Direct Implementation month Activities · Expenses 0 Administrative 0 Incentives 0 Documenlation · Report on progress and accomplishments 2.3 Final Program Report 2.3 2.3 AprU 1, 20~. · ~jnal Report · : Subcontract with City of Chula Vista for 200412005 LGEE Program 4 7-48 Compensation DMIN1STRATIVE Human Resources Labor $19,390 Overhead (G&A) . Labor & Materials $62,325 Total Administrative Costs $81,71 DIRECT IMPLEMENTATION tivity - Labor Hardware and Materials $56,785 $44,000 Total Direct Implementation Costs $100,785 TOTAL PROJECT BUDGET $182,500 TOTAL FOR AUTHORIZED WORK NOT TO EXCEED: $182.500 Compensation is expressly based in part on the SUBCONTRACTOR's Work Budget, shown in Attachment C. - Subcontract with City of Cbula Vista for 200412005 LGEE Program 5 7-49 , A IT ACHMENT 8 J to Subcontractor Agreement No. 1301-04 - City of ChUI, Vista CPUC Reporting Requirements I Notwithstanding Section 3.2, SUBCONTRACTOR shall meet CPUC RfPorting Requirements, as posted on the an as modified from time to time by the CPUC's Energy Division, located at: ! , httc://www.ccuc.ca.aov/staticlindustrv/eledriC/enerav+efficiencv/rulemakina/irdex.htm - Subcontract with City ofChnla Vista for 2004/2005 LGEE Program 7-50 6 ATTACHMENT C to Subcontractor Agreement No. 1301-04 - City of Chula Vista Excel Workbook (Attached as a computer file) - END- Subcontract with City afChula Vista for 2004/200.5 LGEE Program 7 7-51 """'''' 0 0 0 0 0 0 0 0 0 0 0 0 0 00 0 .U 0 0 0 0 0 0 0 0 0 0 0 0 0 gg 0 c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j ... ... ... ... ... ... ... ... ... ... tA- tA- ... ... 0 0 0 0 g 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j ... ... ... ... ... ... ... ... ... ... tA- tA- ... ... ... ... 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j tA- ... tA- ... ... '" tA- ... ... ... tA- ... ... ... ... ... 0' ., ¡ ;::. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ~ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ,', c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j c;j .~ ... ... ... ... ... ... ... ... ... tA- tA- ... ... ... ... .¿¡¡, 0 0 c;j I ~... 0 'i':" RftJ,( :'~ $.'- ~ II I ~. .;i; !if¡) @i; ~'t tJjj 01$. '1I:íI! ," / , 'I "".. . ,~ ~ . 0 , II) C "C - 0 '" , 0 ¡¡:: ..,~ ~ Q) ,;; Q) I ~ :¡:; c c ~ '~ CO Q) Q) ~ Q) a::: '" a. > W" 0 ;O;~ .... ~'Q' U 0 ';0' ~ ~Cd 52 ..c ',,"' , CO ::('¡;'j s ^\i) 0. 1--_ L- -l -- m Attachment 2 City of Chula Vista Public Works Facility LGEEP Energy Assessment Prepared by: Ben Erpelding, P.E., C.E.M. Senior Energy Engineer San D¡~g() RIGIOUl (IERn ðHIU December 2004 : 7-53 DISCLAIMER This report was prepared as .a result of work sponsored by the California Public Utilities Commission (Commission). It does not necessarily represent the views of the Commission, its employees, or the State of California. The Commission, the State of California, its employees, contractors, and subcontractors make no warranty, express or implied, and assume no legal liability for the information in this report; nor does any party represent that the use of this information will not infringe upon privately owned rights. This report has not been approved or disapproved by the Commission nor has the Commission passed upon the accuracy or adequacy of the information in this report. Mention of trade names or commercial products does not constitute endorsement or recommendation of use . Ben Erpelding, P .E., C.E.M. SDREO Senior Energy Engineer (858) 244-1189 Jason Knight SDREO Energy Engineer (858) 244-1179 ACKNOWLEGEMENTS The San Diego Regional Energy Office would like to extend special thanks to the following individuals for their assistance in making this energy report possible. Rick Matkin - Building Services Manager, Public Woks Operations Willie Gaters - Environmental Resource Manager Dennis Burlason - Construction and Repair Division HV AC Jack Dickens - Public Woks Operations Andy Trujillo - Public Woks Operations 1 7-54 TABLE OF CONTENTS 1.0 ENERGY CONSERVATION OPPORTUNITIES ............................. .................................... 5 ECO No.1 Install VFDs on AH-2 .................;......................................1.................................... 5 ECO No.2 hnplement an all variable speed central plant ...................i.................................... 6 ECO No.3 Install OSA lockout controls.............................................. .................................... 8 ECO No.4 Install vending machine controls ....................................... .................................... 9 ECO No.5 Install VFDs on heating pumps ........................................ .................................. 11 ECO.No. 6 Install additional skylights.................................................. ..................................12 ECO No.7 Replace the metal halide lamps..........................................I.................................. 14 ECO No.8 Install new T-8lighting ......................................................1'..................................16 ECO No.9 Install VFDs on ventilators ................................................ .................................. 17 ECO No. 10 Install packaged AlC units ...............................................j.................................. 18 ECO No. 11 Install VFDs on fans........................................................I.................................. 19 ECO No. 12 Tum off ventilators and exhaust systems ........................1.................................. 20 ECO No. 13 Redesign shop heating system .........................................1.................................. 21 ECO No. 14 Demand Response ............................................................1.................................. 22 ECO No. 15 Install a natural gas compressor ....................................... ..................................23 , ECO No. 16 Install PV systems ............................................................i.................................. 24 , 2.0 SDG&E UTILITY ..DATA....................................................................¡................................ 27 3.1 Electric utility data ...................................................................1.................................. 27 3.2 Daily energy demand curves ...................................................f.................................. 29 - 2 7-55 INTRODUCTION Ben Erpelding, SDREO's Senior Energy Engineer, performed the investigation of the Public Works facility during the months of March and December 2004. This investigation was performed to identify energy-related measures that should be considered for the campus. A summary of the energy conservation opportunities are listed below: Inst;lllVFDson AH-2 10,742 ". 1,609 S,].$(] $1,504 4.50 2 Implement an all vllri.ble 95,200 10.9 10,787 124,500 $13,32.5 10.33 spHdcantratptlnl L¡¡d;outchillerandboi!8r plal1t systems based en 15,309 ,., 4,294 10,000 $5,500 US cUÚlideair-tempel1ltul1l 4 !r1stell sodll machine 5,492 ,., 50' 1,040 $439 1.19 contnlls Il'IltallVFDsanhuting 9,802 1.1 1.109 4,550 $1,372 2.87 hotwaterpl.lmps Install addlllonal skylights , and add photccell 202,904 48.8 21.423 85,000 510,145 3.49 control. R8p~C. HID lamps with 194,662 49.3 32,012 119,200 $9,733 3.42 T·8Iampflxti.jre. Install high efficiency 25,500 7.' 3,732 26,250 $1,275 8.69 lampsandballa.1s Install VFDs on 201,146 26 23,220 22,750 $16,092 0.29 ventilators 10 [nstall II t./TIall unit to 40,28. '.0 8,592 25,600 $9,340 2,92 s.Netnlns!tofficearwas Table continues. -- 3 7-56 11 ::~~~~ on HV·M3 4!1,74!1 a.a 4,209 7,ge3 ..,~. 0.37 12 TumotlV8n~lator3i1ncl extur.UlltiltnJght 143,344 a.a 13,188 2,,,a 0.00 Remo....incll~ 13 hycIronle tlelleB. Install tleatlngcall!in W"-B 16,919 0.0 1.557 25,000 15,18 14 OlmlnclRasponse 150,0 27,720 2,000 12.0\0 a.oo 15 IMWUln~l'IIlgu camprusor(forCNG) 3311,700 134.3 23,3704 130,000 1 ,." 115 InslillllllFVsyslem 156,000 a.D 22.77& 425,000 I .. I 115.815 T.... 1,4118,7,w 431 198,086 1,023,603 .+ .., ! There are 16 Energy Conservation Opportunities (ECOs) conSider¡ for the Public Works facility. Should these ECO's be implemented, without having neg tive impacts on the facility's operations and quality, energy reduction can be accompli hed. The total savings are estimated at $198,086/yr with a total implementation cost of $ 42,101 (taking into account SDREO rebates). This equates to a 4.8 year payback or al21 % return on investment (ROI). ' It should be noted that a "law of diminishing returns" applies to the total energy and cost savings. That is, the figure of 1,498,749 kWh per year is based 0 the sum of the energy savings for each ECO, as if they were independent, however ey are not. For example, if ECO No. 12 was implemented, the hours of operation would be reduced and therefore, the cost savings to be realized by implementing ECO No. 11 w uld be less than indicated. .' 4 7-57 ECO No.1 INSTALL VFDs ON AH-2 Recommended Action Install variable ITequency drives (VFDs) on air-handler #2. Estimated Energy Savings Estimated Demand Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 10,742 kWh/yr = 3.4 kW = $1,609/yr = $1,504 = $7,246 (afterrebate) = 4.5 years = $5,421 With a discount rate of 4.50% and a span of 10 years, your projected cash flows are worth $14,170.80 today, which is greater than the initial $8,750.00 paid. The resulting positive NPV of the above project is $5,420.80, which indicates that pursuing the above project may be optimal. Backr!round AH-2 serving the office area has a 20 hp supply and 5 hp return fan. The variable air volume unit still uses guide vane control. Remove the guide vanes and install variable frequency drives. The VFD will be used to maintain a constant static pressure in the system as airflow changes. Energy savings are possible due to reduced average power drawn by the fan motors; as the system flow requirements are reduced, the power can ,., be reduced by an amount significantly greater than can be achieved with the existing controls. Currently the unit operates from 4:30 am to 5 pm (Mon-Fri). This equates to about 3,200 hrs/yr. Implementation Cost The implementation considered is the cost to install two variable ITequency drives (20 hp and 5 hp). It is estimated to cost $350Ihp. We will estimate the cost to be at $8,750 for the entire project (before rebate). The SDREO LGEEP rebate would amount to $0.14/kWh saved or about $1,504. With the rebate, this gives a simple payback of 4.5 years. - 5 7-58 ECO No.2 IMPLEMENT AN ALL VARIABLE SPEED CENTRAL PLANT Recommended Action Install new oil-less centrifugal compressors on the chiller and con~ert the plant to an all variable speed system. Control the plant using the Hartman LOOP. Estimated Energy Savings Estimated Demand Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period = 95,200 kWh/yr = 10.9 kW = $10,767/yr = $13,328 = $111,172 (afterreb te) = 10J years Even though your projected capital project returned a negative NP ,it may still be worth pursuing. The valuation of real options (i.e. maintenance savings, Ipursuing green projects, etc) in a capital budgeting decision could increase the NPV o~ a project. For example, NPV could be negative also because the required rate of return may be unrealistically high, or the cash flows projected may be too conservative. . Back2round The Public Works office has one 146.9 ton Trane screw chiller (air cooled) with two equally sized compressors (about 70-tons each). Retrofit the chiller unit with two new Turbocor compressors. The oil-less centrifugal compressors result in 0.22 to OJ kW/ton savings over screw compressors. We also suggest installing VFDs on the 10 x 1.5 hp condenser fans. The condenser fans are currently controlled on/off based on load. We suggest installing a variable frequency drive on the ondenser fans. Installing the VFD· will save maintenance costs (less hard starts = lo~ger motor life), provide better head pressure control, and reduce compressor energy usa~e. We suggest installing one drive to control all ten fans at once. . 6 7-59 Imolementation Cost The implementation requires the installation of two Turbocor compressors, variable ftequency drives (VFDs) on the condenser fans, VFDs on all the primary pumps, Hartman LOOP license, labor and engineering consulting (if possible convert the plant to primary only pumping). This is estimated to cost about $124,500. The SDREO LGEEP rebate would amount to $0.14/kWh saved or about $13,328. With the rebate, this gives a simple payback of 10.3 years. : 7 7-60 ECO No.3 INSTALL OSA LOCKOUT CONTROLS Recommended Action Install outside air lockout controls on the HV AC systems. Estimated Energy Savings = 15,309 kWh/yr Estimated Gas Savings = 3,700 therms/yr Estimated Total Cost Savings = $4,294/yr SDREO LGEEP Rebate = $5,500 I Estimated Implementation Cost = $4,500 (after rebat~) Simple Payback Period = 1 year I 10 yr Net Present Value = $29,240 . With a discount rate of 4.50% and a span of 10 years, your proj~lcted cash flows are worth $39,240.37 today, which is greater than the initial $10,0 0.00 paid. The resulting positive NPV of the above project is $29,240.37, which indica s that pursuing the above project may be optimal. . BacIæround . All air-handlers are equipped with full economizers. The chilled water pumps (10 hp + 5 hp), heating hot water , pump (5 hp) and boiler is enabled continuously regardless of outside air temperature. Tbe pumps continue to run even during no load situations. We suggest locking out the equipment when the outside air- temperatures drops below a given threshold. Lockout chilled water. pumps at 58-60"F and below. Lockout boiler pump at nOF and above. Tie this control into your existing energy management system. Implementation Cost I Tbe implementation considered is the cost to program the E~S and add new control points if necessary. It is estimated to cost $1,000 per point. W d~ill estimate the cost to be at $10,000 for the entire project (before rebate). The SDREO LGEEP rebate would amount to $5,500. With the rebate, this gives a simple payback of 1.0 year. : 8 7-61 ECO No.4 INSTALL VENDING MACIDNE CONTROLS Recommended Action Install occupancy controls on the soda and candy vending machines. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 5,492 kWhlyr = $SOS/yr = $439 = $600 (after rebate) = 1.2 years = $3,376 With a discount rate of 4.50% and a span of 10 years, your projected cash flows are worth $4,416.02 today, which is greater than the initial $1,040.00 paid. The resulting positive NPV of the above project is $3,376.02, which indicates that pursuing the above project may be optimal. Back!!round There are at least 4 soda machines located in the Public Works facility. Install a Vending Miser on each of the soda machines. The "VendingMiser" control device powers down a vending machine when the area surrounding it is unoccupied and automatically repowers the vending machine when the area is reoccupied. VendingMiser's intelligent controller uses fuzzy logic to learn ITom the habits of the occupants, and modifies the time-out period accordingly. Additionally, VendingMiser monitors the ambient temperature while the vending machine is powered down. Using this information, the control automatically powers up the vending machine at appropriate intervaIs, independent of occupancy, to ensure that the vended product stays cold. Vending Miser has been tested by The Coca-Cola Company and The Pepsi-Cola Company and they have concluded that the VendingMiser has no impact on product quality or on the vending machine. For more information go to http://www.bavviewtech.com/. Based on a study done by SDREO and Rutgers University the average savings per machine is about 1,300 to 1,900 kWhlyr (about 46% saving). 9 7-62 Implementation Cost The implementation requires the installation of four V ending Mi~er devices and one Snack Miser. This is estimated to cost about $1,040 total. The SJþREO LGEEP rebate would amount to $0.08/kWh saved or about $439 total. The simplf payback with the incentive would be about 1.2 years. I . 10 7-63 ECO No.5 INSTALL VFDs ON HEATING PUMPS Recommended Action Install variable ITequency drives on the heating hot water pumps. Estimated Energy Savings Estimated Demand Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 9,802 kWh/yr = 1.1 kW = $1,109/yr = $1,372 = $3,178 (afterrebate) = 2.9 years = $5,538 With a discount rate of 4.50% and a span of 10 years, your projected cash flows are worth $10,088.12 today, which is greater than the initial $4,550.00 paid. The resulting positive NPV of the above project is $5,538.12, which indicates that pursuing the above project may be optimal. Back!!round The heating hot water loop for the facility is served by 2 x 5 hp circulation pumps (one runs at a time). A common, efficient control of hot water pumps is to install variable ITequency drives (VFDs). Variable volume pumping systems typically result in a 20-50% savings over fixed-speed pumps. Implementation Cost The implementation considered is the cost to retrofit the two 5 hp hot water pumps with variable ITequency drives. It is estimated to cost $455/hp. We will estimate the cost to be at $4,550 for the entire project (before rebate). The SDREO LGEEP rebate would amount to $0.14/kWh saved or about $1,372. With the rebate, this gives a simple payback of2.9 years. . 11 7-64 ECO No.6 INSTALL ADDmONAL SKYLIGHTS Recommended Action Install additional natural daylight fIxtures and controls. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value := 202,904 kWh/yr = $21,423/yr = $10,145 = $74,855 (after reb~e) = 3.5 years = $92,148 With a discount rate of 4.500/.. and a span of 10 years, your proj9cted cash flows are worth $177,147.98 today, which is greater than the initial $85,OqO.00 paid. Tbe resulting positive NPV of the above project is $92,147.98, which indicat~s that pursuing the above project may be optimal. Back!!round A report was written by Baker Electric outlining the savings and a$sociated cost of expanding the daylighting capabilities at the facilities. The opportunitie* will save both electricity and maintenance costs as well (reduced bum times of lamps). We suggest going forward with the opportunities listed below. I. Add controls to automatically turn off lighting m the Shop Bldg 2. Add controls to automatically turn off lighting in the Maintenance Bldg 3. Extend light shaft on 19 existing daylight units in Maintenance Bldg 4. Add 30 new 4x4 daylight units in Maintenance Bldg , We suggest not going forward with the Receiving Building con1lrols. Based on conversations with personnel in this building, the lamps are off most of the time already. ; 12 7-65 Implementation Cost The implementation requires the installation of lighting controls, extending the light shaft on 19 existing daylight fIxtures to prevent light loss ITom the AlC ducts, and addition of 30 new 4x4 daylighting fixtures. This is estimated to cost about $85,000 total. The SDREO LGEEP rebate would amount to $0.05/kWh saved or about $10,145 total. The simple payback based on energy savings alone is about 3.5 years. ~ 13 7-66 ECO No.7 REPLACE THE METAL HALIDE LAMPS Recommended Action . Retrofit the metal halide fIxtures with T -8 lamps and fixtures. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 194,662 kWh/yr = $32,012/yr = $9,733 = $109,467 (afterreb_te) = 3.4 years = $143,416 With a discount rate of 4.50% and a span of 10 years, your proje¢ted cash flows are worth $262,615.81 today, which is greater than the initial $119,20þ.00 paid. The resulting positive NPV of the above project is $143,415.81, which indicat¢s that pursuing the above project may be optimal. Baclæround The Shop and Receiving Building are lit by 141 x 400- W att metal halide lamps. The Maintenance Building is lit by 157 x 175- Watt lowbay metal halide lamps. The total lighting power for all warehouses is estimated at 97.55 kW. ~. Retrofit the metal halide fIxtures with 3 rd generation T- 8 lamps (these fixtures have enhanced aluminum reflectors with three or six 86-CRl, 5000 K, F32T8s). Replace the 175- Watt lamps with three T-8s and replace the 400- Watt lamps with six T-8s. The recommended combination of six 32-Watt T-8's and instant start electron c ballasts with a high (1.15) ballast factor will give a combined output of21,390 lumens, co sume 220- Watts and will last 24,000 hours. Light quality and maintenance will improve whi e saving energy. Further savings will be realized by instant on/off capabilities. Daylight harvesting is very easy with fluorescents, because they have instant on with ~o restrike time. Inboard/Outboard fIxture switching is another good way to save electricity. Instead of having all the lamps on when minimal lights are required, only half of the lamps can be turned on during daylight hours. , 14 7-67 Implementation Cost The implementation requires the purchase of 141 six lamp T-8 fixtures, 157 three lamp fixture, disposal fees and labor. This is estimated to cost $400 each or $119,200 for the entire retrofit. The SDREO LGEEP rebate would amount to $0.05/kWh saved or about $9,733 total. The simple payback is about 3.4 years. Note: There are four advantages of using T-8 lamps vs. T-5 lamps: (1) T-8 lamps last longer - 4,000 hrs longer, (2) T-8 lamps are cheaper to purchase, (3) T-8 lamps are more efficacious and (4) T -8 lamps operate better at lower temperatures than do T -5 lamps. Example of a 6 lamp T -8 fixture " 15 7-68 ECO No.8 INSTALL NEW T-8 LIGHTING Recommended Action I I I Install3'd generation T -8 lamps and high efficiency instant start b~lasts. , Estimated Energy Savings . Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 25,500 kWblyr I = $3,732/yr t' = $1,275 = $24,975 (after reba e) = 6.7 years . = $4,500 I With a discount rate of 4.50% and a span of 10. years, your prOje~ed cash flows are worth $30,750.36 today, which is greater than the initial $26,25 .00 paid. The resulting positive NPV of the above project is $4,500.36, which indicat s that pursuing the above project may be optimal. i Back!!round Install high efficien(T-8lamps and ballasts. Currently, Advance ransformer Co. Standard VEL-2P32-sè ballasts are used with 741 T-8 lamps. The existing lamps consume about 29 Watts each. We suggest retrofitting these ballasts wit 0.77 BF extra efficient instant start ballasts and 3100 lumen 24,000 hour rated 32-Watt 8s. This lamp ballast combination will consume 24-Watts each lamp. There will be a -Watt per lamp savings plus an increase in lighting quality. If you assume the facility as 1,500 lamps, the savings can be estimated at 7.5 kW. The lights operate about 3,400 fyr. ~~'é.~.~\"1tÓ\..~~'~'~ Implementation Cost The implementation requires the installation of new lamps (F32~f841) and 0.77 BF instant start ballasts. This is estimated to cost about $26,250 tot 1. The SDREO LGEEP rebate would amount to $0.05/kWh saved or about $1,275 to 1. The simple payback based on energy savings alone is about 6.7 years. . 16 7-69 ECO No.9 INSTALL VFDs ON VENTILATORS Recommended Action Install variable ITequency drives on the ventilators of the maintenance shops. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 201,146 kWh/yr = $23,220/yr = $16,092 = $6,658 (after rebate) = 0.3 years = $176,382 With a discount rate of 4.50% and a span of 10 years, your projected cash flows are worth $199,132.36 today, which is greater than the initial $22,750.00 paid. The resulting positive NPV of the above project is $176,382.36, wbich indicates that pursuing the above project may be optimal. Baclæround The exhaust fans are equipped with variable frequency drives (VFD) controlled using CO sensors. We suggest installing VFDs on the ventilators as well (HV 1, 2, 4, and 5. Tie and match the VFD control to the exhaust fans. The fans are rated at 10 hp, 15 hp, 10 hp, and 15 hp respectively. Significant savings are possible. Imvlementation Cost The implementation requires the installation offour VFDs totaling 50 hp. This is estimated to cost about $22,750 total. The SDREO LGEEP rebate would amount to $0.08/kWh saved or about $16,092 total. The simple payback after the rebate is about 0.3 years. 17 7-70 ECO No. 10 INSTALL PACKAGED AlC UNITS Recommended Action day. Install small packaged units to serve the office areas that operatf 24 hours per Estimated Energy Savings Estimated Gas Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yrNet Present Value = 40,284 kWhlyr = 3,700 therms/yr = $6,592/yr = $9,3401 = $19,260 (afterreba,e) = 2.9 years . = $39,098 i , With a discount rate of 4.50% and a span of 10 years, your projefted cash flows are worth $61,098.44 today, which is greater than the initial $22,00 .00 paid. The resulting positive NPV of the above project is $39,098.44, which indicat s that pursuing the above project may be optimal. Back¡¡round There is a 25.ton air-handler (AH-1) that serves the Transit office areas, Gym, bathrooms, and computer room. The V A V air-handler has a 10 hp supply and 5 hp return fan. The motors are equipped with variable ITequency drives (VFDs). The air-handler operates 24/7 and thus the chilled water plant and boiler operates 24/7. The peak night load is approximately 7.5-tons. The HV AC techs have suggested installing a small 5-ton gas pak to serve this area at night and i on weekends (VA V boxes: Gym = 950 cfm, Computer room = 880 cfnj, Lockers = 950 cfm, and Bathrooms). Install an additional 3-ton unit for the Gym (install a ~ind-up timer to control this unit). Run these packaged units after hours only. Implementatiou Cost The implementation requires the installation of two packaged Nq units (5 ton and a 3 ton) and controls to switch between the two AlC systems during 0," hours. This is estimated to cost about $22,000 total. The SDREO LGEEP rebate vfould amount to $0.14/kWh plus $1.00/therm saved or about $9,340 total. The simple wayback with the rebate is estimated at 2.9 years. 18 7-71 ECONo.ll INSTALL VFDs ON FANS Recommended Action Install variable fiequency drives onHV-M3 and EF-M5. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 45,745 kWhlyr = $4,209/yr = $7,963 = $1,558 (after rebate) = 0.37 years = $32,962 With a discount rate of 4.50% and a span of 10 years, your projected cash flows are worth $40,924.73 today, which is greater than the initial $7,963.00 paid. The resulting positive NPV of the above project is $32,961.73, which indicates that pursuing the above project may be optimal. Baclæround Variable fiequency drive (VFD) controlled fans allow for decreased energy use in ventilation-only mode, when neither heating nor cooling is needed. Lower energy use will occur during fall, spring, and mild winter days. Also, the drives can be progranuned to reduce to 30Hz when the area is sparsely visited (nights and weekends). The VFD can be controlled based on exhaust air-temperature and/or by an occupancy sensor. The units are bn 8,760 hrs/yr (24/7). Install variable fiequency drives on HV-M3 and EF-M5. Implementation Cost The implementation requires the installation of two VFDs (10 hp and 7.5 hp). This is estimated to cost about $7,963 total. The SDREO LGEEP rebate would amount to $0.14/kWh saved or about $6,404 total. The simple payback after the rebate is about 0.37 years. -- 19 7-72 ECONo.12 TURN OFF VENTILATORS AND EXHAUST SYSTEMS Recommended Action Turn off the ventilators and exhaust fans when the shop is unoccuJied. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 143,344 kWh/yr = $13,188/yr = $11,468 = $0 (after rebate) = 0 years = $104,353 With a discount rate of 4.50% and a span of 10 years, your pro~' cted cash flows are worth $104,352.93 today, which is greater than the initial $0.00 pai . The resulting positive NPV of the above project is $104,352.93, which indicates at pursuing the above project may be optimal. Back!!:round Implementation Cost Based on conversation with maintenance shop personnel, they did not feel that the ventilators and exhaust fans need to be on during nights and weekends when the area is vacated. Detennine if the units can be turned off at night (all except transit shop - this shop is 2417). This can save significant costs. The implementation requires the installation of time C10Cks'iEMS points or programming to create a time schedule for the exhaust and supply s stems. This is estimated to cost about $2,000 to $30,000 total. The SDREO LGE P rebate would amount to $0.08/kWb saved or about $11,468 total. The simple paybacklbased on energy savings alone is immediate. . 20 7-73 ECO No. 13 REDESIGN SHOP HEATING SYSTEM Recommended Action Retrofit the shop heating system. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period = 16,919 kWh/yr = $1,557/yr = $2,369 = $23,631 (afterrebate) = 15.1 years Even though your projected capital project returned a negative NPV, it may still be worth pursuing. The valuation of real options (i.e. increased productivity and improving the workers' environment, etc) in a capital budgeting decision could increase the NPV of a project. For example, NPV could be negative also because the required rate ofretum may be umealistically high, or the cash flows projected may be too conservative. Baclæround The existing hydronic heaters in the shops do not adequately heat the areas. The units are loud and employees are cold. We suggest de-commissioning these units and adding heating coils to the four ventilators. Hot air can then be blown in ITom the units. Implementation Cost The implementation requires the installation of heating coils in the four ventilators. This is estimated to cost about $26,000 total. The SDREO LGEEP rebate would amount to $0. 14lkWh saved or about $2,369 total. The simple payback based on energy savings alone is about 15.1 years. 21 7-74 ECO No. 14 DEMAND RESPONSE Recommended Action Implement a demand response program. Estimated Energy Savings Estimated Demand Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period = 0 kWb/yr = 150 kW = $27,720/yr = $2,000 = $0 (after rebate) = immediate Back!!round I If possible do not operate the CNG unit (125 hp compressors) betweþ the hours of 11 am and 6 pm during the 5 summer months and between 5 pm and 8 pm d¡p-ing the winter months. Wednesday (3-3-04) 500 450 400 350 300 ~ 250 200 150 100 50 o o 2 4 6 8 10 12 14 16 18 20 22 24 Hours Implementation Cost The implementation requires a strict schedule be negotiated with the users of the CNG station. All filling up should be done during off peak periods. This is estimated to , . cost about $2,000 total. The SDREO LGEEP program would cover thellabor Involved with this negotiation process. The simple payback based on demand s~vings alone is immediate. - 22 7-75 ECO No. 15 INSTALL A NATURAL GAS COMPRESSOR Recommended Action Install a natural gas compressor for the CN G facility. Estimated Energy Savings Estimated Total Cost Savings SDREO LGEEP Rebate Estimated Implementation Cost Simple Payback Period 10 yr Net Present Value = 335,700 kWhlyr = $23,374/yr = $0 = $130,000 (after rebate) = 5.6 years = $54,952 With a discount rate of 4.50% and a span of 10 years, your projected cash flows are worth $184,951.87 today, which is greater than the initial $130,000.00 paid. The resulting positive NPV of the above project is $54,951.87, which indicates that pursuing the above project may be optimal. Baclæround Install a 200 hp rich burn natural gas compressor for the CNG facility. Imolementation Cost The implementation requires the installation of a natural gas driven compressor for the CNG facility. This is estimated to cost about $130,000 total. There are no rebates available for. fuel switching. The simple payback based on energy costs savings is about 5.6 years. 23 7-76 ECO No. 16 INSTALL PV SYSTEMS Recommended Action Install photovoltaic systems throughout the Public Works roofs. Estimated Electrical Production Estimated Total Cost Savings Estimated Implementation Cost Simple Payback Period = 156,000 kWh/yr = $22,776/yr = $450,000 = 19.8 years Back!!round I Photovoltaic (PV) systems have solar cells that convert sunlig~t directly into electricity. PV technology produces electricity by collecting electron ITeed by the interaction between sunlight and the semiconductor materials in a PV cel. PV cells are assembled into arrays that can be mounted on rooftops, carports or other s y areas. PV has no moving parts, operate quietly with no emissions and require littl maintenance. We suggest installing 100 kW worth ofPV systems at the Public Works f1 ility. 24 7-77 PV Rules of Thumb In general, the following rules of thumb apply to PV systems: . NeededArea-l kWrequires 100 sq. ftofcrystalline modules . Estimated Electricity Production - 1 kWdc generates - 1500 kWh annually PV Proiect Options Combining photovoltaics with the other energy efficiency options proposed in this report improves project economics. Also, integrating a solar electric generating system into an energy management system (EMS) can improve the project economics. Photovoltaics produce most electricity during peak times and offer a potential for demand charge reductions. By combining photovoltaics with EMS technology, the building owner can ensure some level of peak demand reductions, therefore reducing demand charges. 25 7-78 Incentives for PV The SDREO's SELFGEN Incentive Program offers rebates of$4.5$/watt or 50% of project cost (whichever is less) for systems between 30 kW and 1 MW. For more infonnation on the program, see www.sdener!1:V.org/selfgen. The Cali ornia Energy Commission offers a rebate of$3.00/watt for systems 0-30 kW. For more' ormation on the CEC program, see www.consumerenercenter.orerebate/index.htm . For more infonnation on photovoltaics, see our I website at www.sdener!1:V.org/uvweborcontactAshleyWatkinsat858-244.1195 or at awa@,sdener!1:V.org. W Array (usuaJlybulldJ;ng mounted) AC matns supply . 26 7-79 SDG&E UTILITY DATA Electric Account # 4969451834 able 1: Electrical Usage Customer Block Usage Maximum Demand Miscellaneous Taxes Total Cost Usage Charge Demand Charge Charges (kWh> I$} IkW} f$} f$} f" f$} Mar..Q3 173,100 14,998 .68 5,238 -451 " 19,870 Apr..Q3 173,788 15,056 .76 5,368 -47. 89 20,039 May-03 186,388 16,975 650 9,479 ~2,145 95 24,404 Jun-03 220,332 20,796 728 13,324 -3,850 112 30,382 Jul-03 204,664 19,371 712 13,037 -3,734 104 28,779 AU9-03 224,023 21,163 750 13,371 -3,822 11. 30,827 Sep-{J3 213,753 20,208 766 14,016 -4,034 10. 30,299 Od-03 191,820 17,727 66. 10,142 -2,390 .8 25,576 Noy..()3 193,569 17,415 530 6,823 ·1,139 .. 23,198 Dec:-03 175,472 15,824 60. S,395 -1,337 8. 22,971 Jan-04 189,357 16,867 812 8,680 -2,519 87 23,115 Feb-Q4 189,245 14,901 .36 6,052 ~2,821 71 18,203 2,315,509 211,299 7402 113,925 28,717 1156 297,863 Table 2: Cost Summary Electricitv Total Usage Average Usage Max/mum Tolal Demand Average Dèmand Tolal Total Electricity T olal Usage Miscellaneous Cost Cost Demand Billed Charges Charge and Tax Cost Co," (kWhI '" (S/kWh) fkW) f$l ($/kW-month\ f$1 f$} 2,315,509 211,299 0.0918 7""2 113,925 15.39 27,561 297,663- Tolal Overall Electricity Cost I$!kWh} 0.129 250,000 225,000 200,000 175.000 150,000 ~ 125.000 ~ 100,000 75,000 50.000 25.000 o Energy Usage ~r..o3 Apr-03 May..o3 JI.jMl3 JI.j '03 AI.jg-03 8ep-03 Oct-03 Nov..Q3 Dec-03 JeMl4 Feb-04 27 7-80 800 760 720 680 640 600 560 620 480 := 440 '" 400 360 320 280 240 200 160 120 80 40 o Maximum Demand Measured Mllr..Q3 . Apr..Q3 May..Q3 Jun-.Q3 Jul-Q3 Aug-C3 Sep..CI3 Qd-03 Nov-a3 Dec..Q3 Jan-04 ¡FIb44 3S.000 32,500 30,000 27.500 25.000 22.500 20,000 .,. 17,600 15.000 12.500 10.000 7,500 5,000 2.500 o Energy Cost Mar..Q3 Apr-ü3 May..Q3 JuMJ3 Jul-03 Aug-03 Sep-03 Oct-03 Nov-03 Dee-03 Jan-04i Feb-04 28 7-81 Daily Energy Demand Curves - Based on 15-minute interval data: These curves represent the energy usage throughout the day at the facility (one 24 hour period). The graphs start at 0 (Midnight) and end at 24 (Midnight the next day). From these graphs one can see when equipment and lighting is turned on (especially the CNG compressors). Friday (1-09-04) 600 550 500 450 400 350 ~ 300 250 200 150 100 50 o o 1 A _I I^ i v 1 = . --Ì 1\ I ./ 'J 2 4 6 8 10 12 14 16 18 20 22 24 Hours Saturday (5-31-03) 500 450 400 350 300 ~ 250 200 150 100 50 o o J\^ \ ^ \ r \I I ( v \,J\..J \ ^ I I. ^ .^ I - ~ . v 2 4 6 6 10 12 14 16 16 20 22 24 Hours 29 7-82 Tuesday (9-30~3) 600 550 500 -^ 450 400 ./ \ 1\ 350 / \ 1'1 ^ ~ 300 '" ~ 250 -.N 200 '-f'o/ ,,- 150 100 50 0 0 2 4 5 8 10 12 14 16 18 20 22 24 Hours Sunday (9-28-03) 600 550 500 450 400 ~ 350 . , '\ 300 250 200 I... ^ . I I. 150 J\/V" 100 50 0 0 2 4 6 8 10 12 14 16 18 20 2 ! 24 Hours ; 30 7-83 ATTACHMENT 3 ACCESS AGREEMENT FOR THE 2004/200S LOCAL GOVERNMENT ENERGY EFFICIENCY PROGRAM THIS AGREEMENT is made this ~ day of .200_ between ("Owner") and the SAN DIEGO REGIONAL ENERGY OFFICE ("SDREO"), the California Public Utilities' ("CPUC") third party contractor and implementer of the Local Government Energy Efficiency Program ("Program"). This Agreement covers Owner's builcling(s) listed in Attachment 1- ("Premises"). lithe Premises are under lease, the Owner's tenant shall execute this Agreement and shall assume the rights and obligations of the Owner as described below. BACKGROUND WHEREAS the Owner is interested in participating in an energy efficiency project (hereinafter "Project") under the Program, which includes installation of energy efficiency measures detailed in the program Scope ofWark to be conducted by the Owner, its contractors or subcontractors at the Premises. WHEREAS SDREO (or its contractors and subcontractors) are hereby granted all necessary rights for accessing the Premises in connection with the Project which includes inspection of wholly or partially installed measures or systems as well as future monitoring of the Project. NOW THEREFORE the Parties agree as follows: 1.0 SDREO (and its contractors and subcontractors) allree: 1.1 To comply with all federal, state, and municipal laws, ordinances rules, orders and regulations, ("Laws and Regulations"), which apply to Project, including licenses or fees, if any. 1.2 Not to use the names or identifying characteristics of the Owner for advertising, sales promotion or other publicity without prior written approval. 2.0 OWNER a.rees: 2.1 To allow the Project to be performed, SDREO (or its contractors and subcontractors) may enter the Premises to: (a) install all necessary performance measurement equipment on the Project in order to accomplish performance evaluations; (b) demonstrate, inspect, monitor, and photograph the Project; and (c) view past, present, and future energy bills for determining eligibility and evaluation of the Project 2.2 Owner is solely responsible for the costs or corrections of conditions already existing in the Premises that fail to comply with applicable Laws and Regulations. 2.3 To waive all claims against the CPUC, SDREO (its contractors and subcontractors), and/or San Diego Gas & Electric Company ("SDG&E), except for claims arising from the Project and caused by the negligent acts of the CPUC, SDREO (its contractors and subcontractors), and/or SDG&E, or any oftheir respective employees, contractors, subcontractors, or agents during the term of this Agreement. 2.4 SDREO (or its contractors and subcontractors) may collect and use Project data for public reports, studies and marketing purposes provided that the Owner is notified prior to release of such information. 2.5 Not to use the names, logos, or identifying characteristics of the CPUC. SDG&E, or SDREO (or its contractors) for any advertising, sales promotion, or other publicity of any kind. 2.6 To comply with all federal, state, and municipal laws, ordinances rules, orders and regulations, C"Laws and Regulations"), which apply to Project, including licenses or fees, if any. SDREO Local Government Energy Efficiency Program 1301-04 . 7-84 3.0 ALL PARTIES alITee: 3.1 The term of this Agreement shall continue until the later of (a) February 28, 2006, (b) 24i-months from the Effective Date or (c) the date which is six months after the termination of the Program. i This Agreement shall be construed and interpreted in accordance with the laws of the &tate of California, I excluding any choice of law rules which may direct the application of laws of another jtriSdiCtiOn. SDG&E and the CPUC are third party beneficiaries to this Agreement. Neither SDG&Enor the CPUC are parties to any contracts executed between SDREO (including its contractors or subc01tractors) and Owner. Neither SDG&E, SDREO, nor the CPUC shall have any liability hereunder, including, without limitation, for consequential, special, indirect. or punitive damages. SDG&E, SDREO, and CPUC make no warranty or representation of any kind regarding¡ the Project or the benefits to be derived from the Project. The Recitals hereof shall be a part of the terms of this Agreement. This Àgreement co*stitutes the entire agreement and understanding between the Parties as to the subject matter of the Agre~ment. 3.2 3.3 3.4 3.5 3.6 AGREED AND ACCEPTED BY: OWNERJ OWNER'S REPRESENTATIVE PROJECT IMPLEME~R (SDREO) Signature: Signature: Printed Name: Printed Name!Title: Date: Date: If "Owner's Representative" Print Title: ATTACHMENT 1- LIST OF PREMISES SDREO Local Government Energy Efficiency Program 1301-04 . 7-85 ATTACHMENT 4 ACCESS AGREEMENT FOR THE 2004/200S TECHNICAL ASSISTANCE PROGRAM THIS AGREEMENT is made this _ day of ,200 between ("Owner") and the SAN DIEGO RBGlONAL ENERGY OFFICE (SDRBO), the California Public Utilities' ("CPUC") third party contractor and implementer of the Technical Assistance Program, (referred to collectively as the "Parties"). This Agreement covers Owner's building(s) listed in Attachment 1 - ("Premises"). If the Premises are under lease, the Owner's tenant shall execute this Agreement and shall assume the rights and obligations of the Owner as described below. BACKGROUND The Owner is interested in participating in an energy audit or feasibìlìty study ("Projec!") and in receiving technical assistance services under the Program to be conducted by SDREO (and/or its contractors) at the Premises. In consideration of the above, the Parties agree to the foUowing: 1.0 J.J SDRBO (and its contractors and subcontractors) alITee: To comply with aU federal, state, and municipal laws, ordinances rules, orders and regnlations, ("Laws and Regnlations"), which apply to Project, including licenses or fees, ifany. 1.2 Not to use the names or identifjring characteristics of the Owner for advertising, sales promotion or other publicity without prior written approval. OWNER agrees: To allow the Project to be performed by SDREO (or its contractors) in accordance with the provisions set forth herein, including providing necessary access to the Premises for the purposes of the Project, or subsequent site inspection/verification, evaluation or monitoring activities. In addition, SDREO's employees and contractors may view past, present, and future energy bills for determining eligibility and evaluation for the Project. 2.2 Owner is solely responsible for the costs or corrections of conditions already existing in the Premises that fan to comply with applicable Laws and Regnlations. 2.3 To waive aU claims against the CPUC, SDRBO (its contractors and subcontractors), and/or San Diego Gas & Electric Company ("SDG&E), except for claims arising from the Project and caused by the negligent acts of the CPUC, SDREO (its contractors and subcontractors), and/or SDG&E, or any of their respective 2.0 2.1 employees, contractors, subcontractors, or agents, during the term ofthis Agreement. 2.4 SDREO (or its contractors) may collect and use Project data for public reports, studies and marketing purposes provided that the Owner is notified prior to release of such information. 2.5 Not to use the names, logos or identifjring characteristics ofthe CPUC, SDG&E, SDREO (or its contractors) for any advertising, sales promotion, or other publicity of any kind. 2.6 To comply with all federal, state, and municipal laws, ordinances rules, orders and regulations, ("Laws and Regulations"), which apply to Project, including licenses dr fees, if any. 3.0 ALL PARTIES alITee: SDREO Technical Assistance Program 1304-04 ~ 7-86 3.1 The term of this Agreement shall continue until the later of (a) February 28, 2006, (b) ~4-months from the Effective Date or ( c) the date which is six months after the termination of the Technic~ Assistance Program. 3.2 This Agreement shall be construed and interpreted in accordance with the laws of the ~tate of California, excluding any choice of law rules which may direct the application of laws of another ilurisdiction. 3.3 SDG&E and the CPUC are third party beneficiaries to this Agreement. Neither SDG~ nor the CPUC are parties to any contracts executed between SDREO (including its contractors or SUb~OI'itractOrs) and Owner. 3.4 Neither SDG&E, SDREO, nor the CPUC shall have any liability hereunder, including) without limitation, for consequential. special, indirect, or punitive damages. 3.5 SDG&E, SDREO, and CPUC make no warranty or representation of any kind regardijig the Project or the benefits to be derived from the Project. 3.6 The Recitals hereof shall be a part of the terms of this Agreement. This Agreement COII-stitutes the entire agreement and understanding between the Parties as to the subject matter of the Agree¡nent AGREED AND ACCEPTED: OWNER! OWNER'S REPRESENTATIVE PROJECT IMPLEME~ (SDREO) Signature: Signature: Printed Name: Printed Namerritle: Date: Date: If "Owner's Representative" Print Title: ATTACHMENT 1- LIST OF PREMISES SDREO Technical Assistance Program 13 04-04 7-87 COUNCIL AGENDA STATEMENT Item:.!; MeØting Date: 02/22/0S , I ITEM TITLE: Resolution Approving an agreement between th~ City ofChula Vista and the Sweetwater Union High School District f«>r the provision of middle school after-SC{@OOlrogramsandaUthOriZingt\1eMayortoexecute said agreement. I SUBMITTED BY: Director of Recreatio VIE . M (91f I RE WED BY: CIty anager~ (}I" (4/Sths V~te: Yes _ No X ) The Sweetwater Union High School District (District) has awarded ~ City, through its Recreation Department, a $75,169 contract for the provision of after-school I programming at six Chu1a Vista MIddle Schools. , RECOMMENDATION: That Council adopt the resolution approving thd agreement between the City and the District for the provision of middle school after-school sþrŸices at six Chula Vista middle schools, in the amount of $75,169, and authorizing the M<tyor to execute said agreement. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: The Recreation Department and the District jointly fund the Middle School ¡ú'ter-school program (Club Teen Connection or Club TC). The program is additionally funded'ITom Critical Hours Grants and Safe Neighborhood, Safe Schools Grants received by the I individual schools. Collaborative partners in the program include the YMCA and South Bay Gommunity Services, as well as the individual schools. Activities include sports, crafts, homework help, games, special events, field trips, specialized classes and much more. The program is ITee to all participants. The City provides recreational programming during non-school hours at the s~ middle schools designated below. Programming under the agreement will be provided as follþws: Chula Vista Middle School: two (2) hours/day, five (5) days/week, for thijty-eight (38) weeks when school is in session; Castle Park Middle School: two (2) hours/day, five (5) days/week, for thirlty-eight (38) weeks when school is in session; Hilltop Middle School: two (2) hours/day, five (5) days/week, for thirty-qight (38) weeks when school is in session; Rancho Del Rey Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Bonita Vista Middle School: two (2) hours/day, two (2) days/week, for thirty-eight (~8) weeks when school is in session (staff is working withcthe school to increase the program to five days per week); 8-1 Page 2, Item: Meeting Date: 02/22/05 Eastlake Middle School: two (2) hours/day, five (5) days/week, for thirty-eight (38) weeks when school is in session; Three (3) hours/day, (5) days/week for eight (8) weeks for summer sessions at two designated schools. As part of the agreement the City also contracts with the South Bay Family YMCA to provide additional and supplemental programming at Castle Park, Hilltop, Rancho Del Rey and Chula Vista Middle Schools. Attendance has grown ITOm 1,500 annually to a projected 100,000 thru the 2004-05 school year. The success of the program has been brought about by various factors including expansion of days of programming, increased staff, on-site coordinators ITom each school, and maturation of the cooperation between the participating agencies. FISCAL IMPACT: The District funds one-half of the cost of the middle school program, or $75,169. Expenditures and revenues for this program are currently included in the Recreation Department budget. The District will reimburse the City quarterly for expenses following the submittal of invoices for services rendered. Attachment: "A" - Agreement between the Sweetwater Union High School District and the City of Chula Vista 8-2 RESOLUTION NO. 2005-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY. OF CHULA VISTA APPROVING AN AGREEMENT BETwEEN THE CITY OF CHULA VISTA AND THE SWEETWA1ER UNION mGH SCHOOL DISTRICT FOR THE PROVISION! OF MIDDLE SCHOOL AFTER-SCHOOL PROGRAMS AiND AUTHORIZING THE MAYOR TO EXECUTE SND AGREEMENT WHEREAS, the Recreation Department and the Sweetwater Union High School District (District) jointly ii.md the Middle School after-school program (Club Teen Connþction of Club TC); and WHEREAS, the program is additionally ii.mded ITom Critical Hours Grants and Safe Neighborhood, Safe Schools Grants received by individual schools; and WHEREAS, the Sweetwater Union High School District (District) h~ awarded the City, through its Recreation Department, a $75,169 contract for the provisiG>n of after-school programming at six Chula Vista Middle Schools. NOW, THEREFORE, BE IT RESOLVED the City Council of the City pfChula Vista does hereby approve an agreement between the City of Chula Vista and the Swe~twater Union High School District for the City for the provision of middle school after-sclloo1 programs and authorizing the Mayor to execute said agreement. Presented by Approved as to form by Buck Martin Recreation Director ~~ Ann Moore City Attorney J:AttomeylResolAgreemenVSUHSD Agmt 2005 8-3 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY! ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~y~~~\\ Ann Moore City Attorney Dated: \ \\::,- OQS" Agreement between the Ci of Chula Vista and ¡ Sweetwater Union High School District for the City for the Provision of Middle School After-School program$ - 8-4 A-!¡tachment A pAN 1 9 200~ MIDDLE SCHOOL RECREATION PROGRAMS Memorandum of Understanding Between City of Chula Vista And Sweetwater Union High School !Jistrict THIS AGREEMENT is by and between the City of Chula Vista, (hereinafter ref,.rred to as "City") and the Sweetwater Union High School District (hereinafter referred to as "DistpCf'). , RFCIT At S WHEREAS, the City and District currently provide after school programb at the middle schoois in the City of Chula Vista, and , I WHEREAS the Parties wish to continue that programming for the benefit of the community, 1 . i NOW, THEREFORE, it is agreed by and between District and City as f~IIOWS: 1. TFRM - The term of this Agreement shall be for a period of twelve (12) mqnths, commencing on July 1, 2004, and ending June 30, 2005. This Agreement may be terminate~ by either party with or without cause upon thirty (30) days written notice. 2. PROr,RAM - City shall provide recreational programming during non-scho?1 hours at middle schools designated below. Programming will be provided as follows: ' I Chula Vista Middle School: two (2)hours/day, five (5) days/week, for thirty-¢ight (38) weeks when school is in session; Castle Park Middle School: two (2)hours/day, five (5) dayslweek, for thirty-~ight (38) weeks when school is in session; Hilltop Middle School: two (2)hours/day, five (5) dayslweek, for thirty-eightl (38) weeks when school is in session; , Rancho Del Rey Middle School: two (2)hours/day, five (5) dayslweek, for t~irty-eight (38) weeks when school is in session; Bonita Middle School: two (2)hours/day, five (5) days/week, for thirty-eight 1(38) weeks when school is in session; . Eastlake Middle SchOOl: two (2)hours/day, five (5) days/week, for thirty-eig~t (38) weeks when school is in session; and three (3)hours/day, (5) days/week for eight (8) weeks for summer ses~ions at two SUHSD MOU 04-1JS FINAL 8-5 designated schools. In addition, City shall contract with the YMCA of San Diego County to provide additional and supplemental programming at the middle schools named above. The majority of programs shall be conducted and provided on middle school sites. Special Events may occur and take place in other areas of City during the time period of the Agreement. 3. FUNniNG - It is agreed that the District will provide $75,169 ("Funds") to partially offset the cost of staffing, supplies, and supervision of the programs during the period of this Agreement. Funds shall be disbursed to City on a time and materials basis following receipt of a City invoice for payment. Funding shall be distributed and utilized as follows: On-Site Programmatic Staff Supervisory Oversight - A Supervisory Oversight - B Supplies and Services Contract Costs with YMCA TOTAL $31 ,689 $ 5,779 $26,228 $ 3,968 $ 7,505 $75,169 It is also agreed that the City will match District funding, and will absorb other necessary additional expenses (at its discretion) which are needed to provide the programs outlined in this agreement. 4. NOTICF - Any notice required or permitted pursuant to this Agreement, shall be given by personal service or by deposit of the same in the U.S. Mail, postage prepaid and addressed to the parties as follows: City: Buck Martin, Director Recreation Department City of Chula Vista P.O. Box 1087 Chula Vista, CA 91912 District: Dr. Edward Brand, Superintendent Sweetwater Union High School District 1130 Fifth Avenue Chula Vista, CA 91911 5. INnFMNIFICATION District agrees to defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense SUHSD MOU 04-05 FfNAL ? 8-6 (including without limitation attomeys fees) arising out of or alleged by third parities to be the result of the negligent acts, errors or omissions or the willful misconduct of the Distridt, and District's employees, agents, subcontractors or other persons, agencies or firms for wh~m District is legally responsible in connection with the execution of the duties covered by this Agreßment. City agrees to defend, indemnify, protect and hold harmless the District, its eleþted and appointed officers and employees, from and against all claims for damages, liability, cost land expense (including without limitation attorneys fees) arising out of or alleged by third parjties to be the result of the negligent acts, errors or omissions or the willful misconduct of the City, and City's employees, agents, subcontractors or other persons, agencies or firms for whQm City is legally responsible in connection with the execution of the duties covered by this Agre~ment. ¡ The Parties' obligations under this Section shall survive the termination of this Agreement. I) COOPFRATIVF II~F AGRFFMFNT- The Terms and provisions of the exis~ng Cooperative Facilities Use Agreement between the City and the District shall be in full force I and effect throughout the term of this Agreement. A copy of this agreement is attached Hereto as Exhibit "A", and is incorporated by reference. 7. PFRMIT~ - City shall complete and submit District's Application and Permit for Use of School Facilities and Grounds as required by each school site administrator. 8. FINGFRPRINT CI FARANCF - Each party is responsible for fingerprintinq its employees who will be working with students. If the City or District discover that an individual in their respective employment is placed at the school site who has a serious or violent felony qonviction as defined by the Education Code, Section 44830.1, or a sex offense conviction or controlled substance conviction as defined by the Education Code, Section 44011, thatl individual's employment status and/or duties will be altered (to the extent allowed by law~ to comply with all local, state, and federal laws/regulations. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day indicated in the terms of the Agreement. Dated: ,2004 úU9 Stephen C. Padilla, Mayor Dr. Edward Brand, Superintendent THE CITY OF CHULA VISTA Sweetwater Union High ßchool D' Approved as to form by: SUHSD MOU 04-05 FINAL 1 8-7 Ann Moore City Attorney Attest: Susan Bigelow, City Clerk Exhibit List to Agreement: Exhibit A (Cooperative Facilities Use Agreement) SUHSD MOU 04-05 FINAL 4 8-8 - -f Exhi bit A CtøEAATIYE FACILITIES US[ NìREEIOT BEtwEEN TIlE CIn r; I iCHULA VISTA MIl 'I1tE SllEEnlATER IØIICIIItIIiII SCHOOL DISTRICT! THIS AGREEMEIIT. ..de Ind eIItereel into tilts· 17th ell)' of .1&IWar)' . 191t 111 and bttllHn till CITY iif1 tHULA VISTA, I _IClpa1 corporluoA. lIerelnlfur ca11ed 'CI\)'", and till ISWEETWATER UNIœI HIGH SCHOOL DISTRItT. herefnlftef' ca11ed "School Distrfct." , WIT U E SSE T N: VHEREAS, Chlpter Ii of DlvfslO11 12 of the EcklCltfon~' ode of tile StlU of CatHonIla lutllorfzes counties, cltie. nel school dlst cts to cooperate wl~ each o~er fn the d."lo....nt Ind uecut10n of ad te pro;ra.. of ~It,y recreation, and .; HREAS. 1111 School DIstrict pravldes th8 liS. of fts facl1 Itl.. for specllt eit,}' recr..tfon&l acthU1... Ind ! 'iHEllEAS. the eit,}' pra'llllt. till use of ft. flcl1l~flS for .pecial Schoot Dfstrlct Icti'lftfl', Ind IlHEREAS, ~e ei\)' IlId School District now wish to .nter fllto f_l Ig..-nt d.ffnlng c:ertlia responsllll1itfls of both parties f~ connectIon with ~e IIse of elcll other's facnitl..s, and ' HRW, this I!lre_nt IS Intended to supers.dl I\", Hold Hal'lllless, IndellnffiC:ltlon and InsurlllC' lugulgt cOIItllnecI fn Sc:llool! DIstrIct P01fcy '1300 Ind rellted App11cation and '1I'IIIt for USI of SchOQl Fact1fties and Grounds. NOW, THEREFORE, in consfderatlon of the IIItIIIt covenants and conditfons contllned IIere1n, the parties hereto agree as follc1ws: I. GENERAL PROVISIONS i A. 11Ie eft,y and the School DIstrict agree i to cooperate fn provIding use of nell a~er·. facnftfn durIng tII. una J ~is agree.ent. Facl1fties win Inc:lude. but not II. tt.fted to ØIIIIIslums, CICII'nlt,y centers.· lIanflele1s. tricks, audftorf&m, _tflli I'OOIIS. class I'OOIIS d ~"o1s. B. It fs undentood that the parties to thf~ agrellllllt sllln ..lte their respective flcnftiu Inndlle fQr special event. or recrelUallll pro¡¡rlllls and other sucll tilDes as 1\ Is IMltual IJ beneficIal to !e.ch part,y. C. The Clt,}' sIIl11 furnfsh. It no expense 'to the District, persoMel to conduct and supenl.. recreation activfties !conc!ucted by the Cit,y. These personnel are not eçlayees of the DI.tMct. R-'393~ ,'1('~tt ", ,? 8-9 - ..- r..- . . o· TIle Dfstr~ct shan tvrnfsll, at no -expense to tII. C~4-, personnel to conduct Iild supe"fll specfal lvent Icthf tfes conducted by tII. Dfstrfct. TIlt.. persOllfttl Ire not ..,101ft' of tilt Cf4-. D. Upon lIeII otllers approval, tilt Cfty Ind tilt Dlstrfct -.y pllCI lllterfals 1114 equf...nt for conductfng I'ICreaUon Dr spedal lvent: ICtfy1tles on tilt otll.r's pro~. . E. tile Cft;y ad tII. Dfstr~ct asree to obey an rul.s assocflted With till use of tiel! otlltr', propertll', F. Sfnce School Dfstr~ct propert~.. Ind facl1ftfes Ir. fntended prfurny for scIIooI purposes Ind for the benefit of louth of school age, fn sdledu1tng ~tfvftfes on Ic:hool VOUIIds, Dfstrfct's requl/'1111nts Win hllVI priori t1. Sfnc:t Cfty properties Ind facUftfes Ire fntended prhNlrnl for City purposes and for the IlMefft of tile pub1tc, In SChedu11ng activftfes on CIt;y.propert;y, Cfty's requ1r.ents win MV' prlorft;y, . U. MAINTENAIIC[ A. tile CfCy Igrees to fuun. replir Ind IIIfnufn- III CfCy-owned Iqufpllent IIsed for I'ICl'tltfon JII'OF" conducted bl Cft;y. 8. The School Distrfct IgreeS to fnsull repafr and ..fnuln In Så1oo1-owned equf...nt IIsed for progr.. or specfal eVlnts conclucted II)' the School D~strlct. C. The City and School Dhtrfct agree to repafr Dr replace, Dr refllbl/rse each other for tile cost of r'rafr or replac_nt of any cI....ged structures. equiplllent. vegetation, or fad ftles owned by tile other party when slIch cluage Is a dfrect relult of that part;y'I use. . " In. moo Of" AGREEI£NT This Agre_t IUpersedes I/IJ' Hold Hal'llle5l. Zndell1l1fffcltfon and Insurance language conufned fn Scho01 Dfstrfct Po11cy ,,300 and relatH Application and perJrtt fOr Use School Fac111tfes Ind Grounds. n. TERM DI' AGRWENT Thts agreen!nt s!lal1 be annual and autollNltfcal1y renewed each year unless wrftten notice In accordance wlta Section Y fl given by efther part;y. Y. TERMINATION This agTelRnt 1111 be tel'lllnated by eftller part;y, at any tl., by gtvl ng 30 days wf tten notice of suelt. -2- - . 8-10 .. - -- c· n. IIITÐIDED USES i , lIithi" 60 days of the Ifgninl of th1l AII"le.tllt. lnd .fur IlCh lutoutic Innuat I"In_', tit. "1'\11' III,)' lubllft to ..ch other the ,"Uel )d" liS IS of the otller partlls flcU ftllS for the IIpcOIIfng 1flr. These subatssfons slll11 not "11 out 11\1 unantlcfpated requlsts fOI1 fKnltiel use tIIlt III,)' 'I'lse dUI'l"g tII. 'yolr. . i YU. tNDEIOIJFICATIOII - HOlD KARK.ESS A. 'Ole ScI\oOl District IgnllS to fndewllfy I:n; lIolel IIITIIIll.. till CI~ of Chul1 Yfsu 19afnst .nd f~ al\1 Ind 111 4... s to pl'operv equfpllent Ind Ip IIII'tenancll or fnJ"I'I.. to 01' dlltll of 11\1 pe Ion or persons, Including .,lO)'IIS, agentl, I'IfI"s.ntnfvlS 01' offiCiI's of,tII. Cfty, and shl11 defend, Inclønff" Ind 11014 hlralll' thl Cft;y, fts O~IClr., IglnU, I'tpresenutlns and e.plO111I, froa 11\1 and an cl II.. , _nds, sufU, Ictfons 01" proceedIngs of 11\1 kind 01' nature, of 01' by 11\)'0111 lIIIcnsoever, fn 11\1 WI,Y resul tlng fl''' or .rislllg out of tII. lIIg1fglnt 01' I tentlonal acU, errors .01' ..fulons of tII. School Dfstrfct 01' all ' of fts 0 flCel's, IIents, I'tpl'esenUttves 01' 1III )1oyees In thl per.f01'lllncl of tIIf I avo- t. B. The City of Cllull UsU IgretI to Inr1nlf¥ and hold lIarallls the School Dfstrlct aplllst ancl fraI &IIY and a11 d ltl to propel'ty e1¡ui pllent Ind IPpuI'tenances or fnJurftS to or delth of In,y pe on or Pll'Son'i Including employees, I"Ipreselltatlnl, offIcI'" 01' agents of the Schoo DistrIct. Ind shll1 defend, fndemlff" In4 hold hll'lllllss the choal District, Its afflcers, Igents, represenUtf"1 Inll employeeS, frOl In,y ,and 111 Cllias, dellllnds, suits, IctlO11s 01' prOCeedings af 1111 kind or nlture,~' f 01' b¥ In,yO"" whomsoever, .In an,y ~ resultIng '-1'011 01' Irfsing out of e negltgent. 01' OIltentfona1 ICts, errors 01' aafss10ns of tile Cit;y of Chul1 Vis or all,)' of fts officers, agents, represenUt1Yes 01' eq¡lO)'H' in the pe"'~l'IIIInce of this agreement. VII I. INSURANCE A. 'Ole Schoo1 District sban, throughout the 411rltfoll of this Ag~nt. IIIIfnuln comprehensive general public liabilitY Ind! propel'tY d81ge Insurlnce coyel'fng 111 . "perltions hereunder, fts Ilts, offlcel's. represenUtlves and 1IIp10)'ees, including but not limited to lrI'5an1 fnjul')'. bodi1, 1njul')'. p!'flltses Ind luw.ob11e, with IIlnl_ covel'l of S1 IIInl1on. In tile foJ'll of . CerUffclte of InSUI'lnce Mil Pol iC¥ [ndors nt which nIMs the CItY IS Addlttolll1 Insured, IYldenct of which sl1l11 b. .ullllltted to the CItY C1erk It 276 Fourth Avenue. Slid po1fC¥ or po1fcies shl1~ provide thirty 130) da,ys written notfce to the C1I;y C1erk of cancelllt10n 01' .t.el'fl1 change. B. The City sl1Ill, tllroughout tile duratfon of! tilts Agr_nt, Nfnt..ain cCllllprehensfve general pub1fc HabU1ty and property :\lU1Itge fnsurance covering a11 operations hereunder, its agents, officel's. repr~.' sellt&tl'es and "'PloyteS, including but øot Ullfted to Pl'lll1ses¡ personal! fnJul')', bodn)' 1njul')' .lId lutCllObn., vith .fnl_ covel'I II of S .Utton,· in thl foJ'll of -3- 8-11 . . .. Certif1cate of Insurance a.d PGtfq Elldon..llt 11111ell II_I tile Scll001 Dllt1"1ct II Mdft101111 lasUNd. e"fdence of 11111cll 111111 ... IlDIftted to tile SdIoo1 District It 1130 'Uti! A_a. Sl1d JIC1Uq or' ,o11c111 shll1 pnwfdl tIIlrt,y . (30) dqI w1t_ not1ce to tM Scllool D11tr1ct of clnel11lt1011 or ..œr1ll chnge. TIle Sch001 Dfltr1et and tile tftr røtrft till r1g11t to mi. lpeclflc eftflts or Pf'OII"- and dtttra1111 tIIlt h1 11er or 10wr 1nl1ll"IIIO. 'I.its lIlY IPp1y. IX. For purposes of 1t811111tr1t1011 of tilts 1are-lIt. tile D1rector of PlrkS Ind Recl"IIt1on 1b111 Ict for ud N II'ISllt till CItl' at Cllu11 V1 sta and the D1rector of SUpport Se"1c;es 111111 act for ud Npresent tII. Scllool District. III VITllESS WHEREOf'. the ,.rtl.s IIereto hlv, clused thts AV....nt to be Ðeçuted the dQ' and "'1' ffrlt lleT't1111Þoft SIt forth. CIn of CHULA YISTA ~~.A,.&..~ 'llPC Q1211( . . j . 1 '; . ; .. -4- ., , ~~, 8-12 COUNCIL AGENDA STATEMENT ! Item: ct Mee~ing Date: 02/22/05 ITEM TITLE: Resolution Amending the FY05 Recreation Department budget by appropriating $ 9,672 based on unanticipated revenue ITom the Youth Services Network, funded by Community Development Block Grant funds for the Wiz Kidz program SUBMITfED BY' D,""IM Ofë,f0<!3 REVIEWED BY: City Manager¡¡.. D¡>/ (4/Sths Vote; Y es ~ No ~ The Youth Services Network, a collaborative comprised of six local ageJ!lcies, including the Recreation Department, was awarded $113,039 in Community Development Block Grant (CDBG) funds for FY2004-05. The Recreation Department is requesting an! appropriation of its share of the funds, or $9,672 to its operating budget to fund the Wiz Ki4z program at Otay Recreation Center for the fiscal year. RECOMMENDATION: That Council adopt the resolution amending the FY05 Recreation Department budget by appropriating $8,526 in Personnel Services and $1,146 in Supplies and Services based on unanticipated revenues ITom the Youth Services Network, ITom Community Development Block Grant funds for the Wiz Kidz program. BOARDS/COMMISSION RECOMMENDATION: N/A DISCUSSION: The Wiz Kidz program is an afterschool program that offers scheduled and ~upervised activities designed to be educational and healthful, and designed to build social skills! and sportsmanship. The two and one half hour program operates Mondays through Fridays at the Otay Recreation . . Center ITom September through June. Activities include: arts and crafts, field trips, nutrition classes, guest speakers, group discussions, snacks, board games, sports tourn¡uI1ents, contests and other special activities.The program serves approximately 50-60 youth partic~pants per day. The stated obiectives of the prOl!ram are the folløwinl!: · Increase the availability of positive alternatives to high-nsk behaviors th* can cause harm to oneself or others. · Provide opportunities to learn skills that improve the ability of children to make positive life choices. · Provide safe social and recreational activities for children who would otQerwise be home alone. · Provide safe and healthy options for children of working parents after scbool. · Provide educational opportunities to help children experience success in school. 9-/ Page 2, Item: í Meeting Date: 02/22/0S FISCAL IMPACT: The City and the Youth Services Network approved the agreement regarding the expenditure of $113,039 in CDBG funds. As a partner of this collaborative, the Recreation Department's share of the funding is $9,672 for the Wiz Kidz program. The FY05 budget for the Recreation Department must be amended, by appropriating $8,526 for personnel services and $1,146 for office and recreation supplies, with no net impact to the General Fund. í'/ .-- v -,L RESOLUTION NO. 2005- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FY 05 RECREATtON DEPARTMENT BUDGET BY APPROPRIATING $9,762 BASED ON UNANTICIPATED REVENUE FROM THE YOUTH SERVICES NETWORK FUNDED BY COMMUNITY· DEVELOPMENT BLOCK GRANT FUNDS FOR THE WIZ KIDZ PROGRAM WHEREAS, the Youth Services Network, a collaborative comprised or six local agencies, including the Recreation Department, was awarded $113,039 in Corµmunity Development Block Grant (CDBG) funds for FY04-05; and WHEREAS, the Recreation Department is requesting an appropriation¡ of its share of the funds, or $9,672 to its operating budget to fund the Wiz Kidz program at Ota~ Recreation Center for the fiscal year; and WHEREAS, the Wiz Kidz program is an afterschool program that off¡,rs scheduled and supervised activities designed to be educational and healthful, and designed td build social skills and sportsmanship. NOW, THEREFORE, BE IT RESOLVED that the City Council o( the City of Chula Vista does hereby amend the FY 05 Recreation Department budget by a~propriating $9,672 based on unanticipated revenue ITom the Youth Services Network funded by Community Development Block Grant funds for the Wiz Kidz program. Presented by Approved as to form by Buck Martin Director of Recreation <~'~,,\~,Q,* Ann Moore . City Attorney J:\attorney\reso\finance\Amend FY 05 Rec Dept Wiz Kidz 0-3 COUNCIL AGENDA STATEMENT ITEM TITLE: I , Item: / ¡J Meeting ~ate: 02/22/05 I RESOLUTION OF THE CITY ¡COUNCIL OF THE CITY OF CHULA VISTA I ACCEPTING UNANTICIPATED STATE HOMELAND SECURITY GRANT PROGRAM FUNDS AND AMENDING THE RY 05 BUDGET TO APPROPRIATE SAID FUNDS SUBMITTED BY: REVIEWED BY: Fire Chief "1)~ City Manage'Î'QÝ (4/5ths Vote: Yes Xi No -! I , ¡ The City of Chula Vista is the recipient of several State Homelandi Security Grant Program (SHSGP) allocations. These grants are administered by the County of San Diego Office of Emergency Services and distributed on a fqrmula basis to participating agencies. As stipulated by the grant, the funds IJjIill be used to purchase specified first responder personnel protective clothing amd related tools and equipment. RECOMMENDATION: That the City Council accept unan~icipated State Homeland Security Grant funds and amend the FY 05 budget, to appropriate $275,544 to the Fire Department services and supplies bUdget¡ and operating capital budget. I BOARDSICOMMISSIONS RECOMMENDATION: N/A BACKGROUND: As part of the State Homeland Security Grant allocation for FY01 the Fire Department received $48,978.51 for purchase of chemical resi~tant personnel protective equipment. An additional $135,130.51 was received from the FY03 Part I grant allocation to purchase chemical resistant persqnal protective equipment (level C) for every fire fighter, level C masks for Pu~lic Works, two thermal cameras, emergency communication software for tMe Emergency Operations Center and triage tags and tarps. A total of $21 ,541 of the FY03 Part I grant allocation was specifically designated for the Police Department and was used to purchase 80 MSA Millennium masks for police officers. All of the above purchases have been made and funds expended. Reimbursement claims were submitted to the County Office lof Emergency Services following completion of each project. 10-1 DISCUSSION: The State Homeland Security Grant Program funds allocated to the County of San Diego under FY03 Part II and FY04 SHSGP are being released to the 19 San Diego Urban Area jurisdictions for expenditure. Chula Vista will receive the following allocations on a reimbursement basis: · FY03 Part II SHSGP funds in the amount of $115,660 for first responder clothing and equipment; and, · FY03 Part II SHSGP funds in the amount of $34,654 for homeland security administration, training and emergency plan updates; and, · FY04 SHSGP grant funds in the amount of $125,230 for first responder equipment. Per grant stipulations, the funds will be used to purchase specified first responder personnel protective equipment (PPE), emergency equipment and reimburse staff time for homeland security activities. The proposed purchases are part of the authorized equipment purchase list stipulated by the grant. The Fire Department is recommending the grant funds be used to in the following manner: FY03 Part II SHSGP- $115.660 · Purchase 18 Mobile Radios, 18 chargers and 100 batteries for Police and Fire; and, . Purchase two heavy-duty generators for Fire. FY03 Part II SHSGP - $34.654 · Reimburse Police and Fire for staff time incurred. for homeland security administration, training and emergency plan updates. Reimbursement not to exceed $34,654. FY04 SHSGP Equipment Grant - $125.230 . Purchase 24 Self Contained Breathing Apparatus for the Police Department's SWAT Team. 10-2 FISCAL IMPACT: Acceptance of this grant will provide funding for needed 1Iirst responder equipment for Fire, EMS and Police. The total amount allocate~ to the City of Chula Vista is $275,544. Purchase of the mobile radios will result in an ongoing annual cost to the General Fund of approximately $6,500 (approx.I$30/month per radio activated on the County RCS system). Fire and Police staff will work with the Office of Budget and Analysis to include the ongoing cost for t~e activation of the portable radios in the upcoming two-year budget. There is also an ongoing maintenance and replacement cost for the two generators of $1,600, which will be included in the FY05/06 budget. No additional General Fund impact is projected. 10-3 RESOLUTION NO. 200S- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED STATE HOMELAND SECURITY GRANT PROGRAM FUNDS! AND AMENDING THE FY 05 BUDGET TO APPROPRIATE SAID FtmDS WHEREAS, The County of San Diego is the designated coord~ator for State Homeland Security funds; and, . WHEREAS, the Fire Department is the designated agency coordi~ator for the City of Chula Vista for State Homeland Security grant funds; and, ' I WHEREAS, the City of Chula Vista is eligible to receive the fO'lowing allocations on a reimbursement basis: · FY03 Part II SHSGP funds in the amount of $115,660 for first re$ponder clothing and equipment; and, · FY03 Part II SHSGP funds in the amount of $34,654 for hoþ1eland security administration, training and emergency plan updates; and, I · FY04 SHSGP grant in the amount of $125,230 for fust re~ponder equipment. WHEREAS, The grant funds be used to in the following manner: FY03 Part II SHSGP- $115.660 · Purchase 18 Mobile Radios, 18 chargers and 100 batteries for Police and Fire; and, · Purchase two heavy-duty generators for Fire. FY03 Part II SHSGP - $34.654 · Reimburse Police and Fire for staff time incurred for homeland s~curity administration, training and emergency plan updates. Reimbursement not to exceed $34,654. FY04 SHSGP Equipment Grant - $125.230 · Purchase 24 Self Contained Breathing Apparatus for the Police Department's SWAT operations. 10-4 WHEREAS, Grant funds in the amount of $275,544 will be appropriated to the Fire Department budget for State Homeland Security equipment purchases; and, WHEREAS, there is an ongoing cost for activation of the portable radios on the County RCS system; and, WHEREAS, Police and Fire will work with the Office of budget to include the ongoing cost estimated at $6,500 in the budget; and, WHEREAS, There is an ongoing maintenance and replacement cost for the two generators of$I,600, which will be included in the FY05/06 budget; and, NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby accept unanticipated State Homeland Security Program grant funding and amends the Fire Department grant budget by $275,544 allocating the FY 03 Part II grant in the amount of $115,660 to the Fire Department's operating capital and $34,654 to personnel and allocating the FY 04 grant in the amount of$125,230 to the Fire Department's operating capital. Presented by: ~~J uglas A. Perry, Fire Chief Approved as to form by: ~\WQ{ì~\\\:À~ \\ Ann Moore City Attorney H:/shared/attomey/SHSPG Grant reso 10-5 COUNCIL AGENDA STATEMENT , litem: Meeting ~ate: } 1 02/22/05 ITEM TITLE: ¡ RESOLUTION OF THE CITY ¡COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED URBAN AREA INITIATIVE SECURITY GRANT PROGRAM FUNDS AND AMENDIIjJG THE FY 05 BUDGET TO APPROPRIATE SAID FUNDS RESOLUTION OF THE CITY I COUNCIL OF THE CITY OF CHULA VISTA AWARDING AjPURCHASING AGREEMENT TO FISHER SAFETY SCIIENTIFIC FOR PERSONNEL PROTECTIVE EQUIPMENT SUBMITTED BY: Fire Chief \) ¡\ ç REVIEWED BY: City Manage~ 0'" i (4/5ths Vote: Yes.4..No _) The City of Chula Vista is the recipient of several Urban Area S~curity Initiative (UASI) grant allocations. These grants are administered by the City of San Diego Office of Homeland Security and distributed on a fo{mula basis to participating agencies. The Fire Department is the administratorlof UASI grants funds for the City of Chula Vista. As stipulated by the grant, $310,026 from the FY 03 part II UASI equipment grant and $189,351 from trye FY04 UASI equipment grant will be used to purchase specified first respopder protective clothing and related tools and equipment for Fire, EMS and Polic~. An additional $211,195 from the UASI FY03 &FY 04 UASI grants will be usþd to train and prepare Police, Fire and City personnel on emergency preparedn~ss. RECOMMENDATION: That the City Council: · Accept unanticipated Urban Area Security Initiative funds; ~nd, · Amend the FY 05 budget to appropriate $383,717 to the ffire Department UASI services and supplies and operating capital budget; ¡¡ind, · Amend the FY05 budget to appropriate $211, 19S to the Fire Department's UASI personnel and services and supply Ibudget for Fire, Police and Citywide emergency preparedness training. BOARDSICOMMISSIONS RECOMMENDATION: N/A 11-1 BACKGROUND: On September 2004, Council accepted and appropriated FY 03 UASI Part II grant funds in the amount of $115,660. These funds were used to complete the purchase of chemical resistant personnel protective equipment for Police Officers - estimated cost $97,124; and, purchase radiation detection equipment for Fire and Police - estimated cost $18,536. An additional $194,366 is available to meet PPE requirements for a total FY 03 UASI Part II grant allocation of $310,033. The above purchases have been made and funds expended. Reimbursement claims were submitted to City of San Diego following completion of each project. DISCUSSION: The discretionary equipment funds allocated under FY03 UASI-II are being released to the 19 San Diego Urban Area jurisdictions for expenditure. Per grant stipulations, these funds will be used to purchase specified first responder personnel protective equipment (PPE) for the Police Department, Emergency Medical Services and Fire Department. The funds are distributed based upon the jurisdictions number of public safety personnel for the purchase of first responder PPE and equipment. Once PPE needs are met at the established UASI standard, jurisdictions can use funds designated for PPE on other equipment in the high criticality categories of the San Diego Urban Area Security Strategy. The other equipment must be part of the authorized equipment purchases stipulated by the grant. The Fire Department is recommending: · The additional FY03 Part II funds in the amount of $194,366 will be used to complete the outfitting of first responders: Police, Fire and EMS with chemical resistant personnel protective equipment (PPE) and purchase radiation detection devices for Fire, Police and Public Works Operations. PPE includes a chemical resistant suit with hood, chemical resistant gloves, booties, and tape, a MSA Millennium Mask with carrying case, cartridge and canister, equipment bag and self contained breathing apparatus where applicable. · The FY04 UASI-II equipment grant funds be used to in the following manner: 11-2 FY04 UASI Equipment Summary Description of Proposed Grant Purchases Estimated !Cost Chemical resistant personnel protective equipment for Police i$ 66,085.28 and EMS including 10 self contained breathing apparatus for Fire I i Self Contained Breathing Apparatus fit test equipment & $ 17,473.16 software to conduct flow testing for Police and Fire i , Search camera (Thermal) !$ 9, 697.50 Tech Search Camera i$ 3,232.50 Hydraulic Tool $ 4,310.00 Two Liftinq devices - low pressure for Fire !$ 3,448.00 Two Multi qas Meters i$ 4,292.05 Three equipment trailers for chemical resistant PPE - Police, ~ 48,487.50 Fire and Citywide use Decontamination System for individual and mass application with ~ 32,325.00 environmental control, water heating systems, showers, lights and transport trailer $189,351.00 Award of the Purchasinq Aqreement The City of Chula Vista Municipal Code Section 2.56.140 ~uthorizes the Purchasing Agent to participate in cooperative arrangements with other governmental agencies for the acquisition of equipment purchased through a competitive process. The County of San Diego has awarddd purchasing I agreements to Fisher Safety Scientific for first responder personlnel protective equipment based on the State of Idaho's contract with the vendoL' The State of California has recently announced a new procurement program using Fisher Scientific as their vendor of choice. The program is said to! offer shorter procurement times and online ordering. Staff will be attendiing upcoming meetings to learn more about the State of California's program. In the interim, the Fire Department is recommending award to Fisher Scientific to ensure compatibility of previously purchased personnel protective equipment and· compatibility with Federal and State bio-terrorism and homeland security equipment. ' The FY03 UASI grant requires all personnel protective equipment burchases be made by the end of March 2005. Both Police and Fire have purch$sed previous personnel protective equipment from FisheI Scientific. Awarding! a purchasing 11-3 agreement to Fisher Scientific would expedite the purchasing process and maintain equipment uniformity. UASI FY03 & FY04 Traininq Grants The Fire Department is recommending the FY03 II ($110,163) and FY04 UASI ($101,032) training funds totaling $211,195 be used to train and prepare Police, Fire, Public Works and City personnel on emergency preparedness. The training funds pay for overtime, backfill and travel costs related to homeland security training. The Fire Department has been working closely with the Citywide Disaster Preparedness Manager and the Police Department to identify first responder and citywide training needs. The training courses must be part of the approved UASI training module for all agencies in the County of San Diego. The majority of these funds will be used to cover backfill expenses and overtime for Police and Fire. Some funds will be used for travel expenses and to pay instructors in accordance with grant provisions. The following is a partial list of training courses, which will be scheduled using UASI training funds. The First Responder Awareness and Operations training for Police, Fire, PWO and other City staff has been scheduled between March and May 30, 2005. Most of this training will be conducted on an overtime basis in order to minimize disruption to daily operations. The overtime will be reimbursed by the UASI training grants. A total of $184,491 of the UASI training grants will be used for this purpose. The remaining $26,704 has been earmarked for individual Rescue System I and II and Law Enforcement WMD and terrorism courses for Police and Fire to be completed by September 30th as stipulated by the grant. Additional courses may be scheduled if sufficient funds are available. Training Courses Rescue Systems 1 - Heavy Rescue Haz Mat ICS Rescue Systems 11- Advanced Law Enforcement WMD ICS First Responder Awareness Terrorism: First Response for LE Supervisors First Response Operations Terrorism I: Understandinq the Treat SEMS EOC Terrorism I: Meeting the Treat ICS CBRNE Confine Space Rescue HM First Responder Grant Requirements The FY 03 grant funds end June 30, 2005. The City of San Diego has requested an extension. The FY04 grant funds ends June 30, 2006. There are no 11-4 matching funds required. The grant funds will be distributed on a reimbursement basis. Before grant funds can be expended the UASI grant stipulates a N1emorandum of Understanding (MOU) between the City of San Diego Office¡ of Homeland Security and the participating agency be effective. The MOU is required to ensure compliance with the grant assurances for the San Diego Urban Area Security Initiative. Council approved the MOU on September 14, 2004. FISCAL IMPACT: Acceptance of this grant will provide funding for needed ñrst responder equipment and citywide first responder training. The total UASI FY 03 and FY04 equipment grant allocation to the City of Chula Vista is $499,37t of this amount $115,660 from the UASI FY03 allocation was previously ,approved and appropriated by the City Council. Staff is recommending Courlcil accept and appropriate $383,717 at this time. The total UASI FY03 and FY04 Training Grant· allocation is $211,195. There is an ongoing annual impact to the General Fund of $3,030 for the 3 equipment trailers and the decontamination, trailer and an annual replacement cost of $3,695. The Fire Department will work with the Office of Budget and Analysis to include the ongoing cost in the upcoming two- year budget. 11-5 RESOLUTION NO. 200S- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED URBAN AREA INITIATIVE SECURlTYiI· GRANT PROGRAM FUNDS AND AMENDING THE FY os. , BUDGET TO APPROPRIATE SAID FUNDS ' WHEREAS, The City of San Diego is the designated Urban Are~ Security Initiative Grant (VAS!) Coordinator for San Diego Region; and, I WHEREAS, the Fire Department is the designated agency coorc\lnator for I UASI grant funds; and, i WHEREAS, the City of Chula Vista is eligible to receive $310,026 ITOm the UASI FY03 Part II equipment grant; and, I WHERAS, a total of $115,660 was previously accepted and appropriated by the City Council for personnel protective equipment for Police and radiation devices for Police and Fire; and, WHEREAS, the additional FY03 Part II funds in the amount of $194,366 will be used to complete the outfitting of first responders: Police, Fire <þd EMS with chemical resistant personnel protective equipment (PPE) and þurchase radiation detection devices for Fire, Police and Public Works Operations; land, WHEREAS, PPE includes a chemical resistant suit with hood, ¢hemical resistant gloves, booties, and tape, a MSA Millennium Mask with carry1ng case, cartridge and canister, equipment bag and self contained breathing aPparatus where applicable. I WHEREAS, The FY04 UASI Part II equipment grant in the roiount of $189,351 be used to in the following manner: . 11-6 ¡J. FY04 UASI Equipment Summary Description of Proposed Grant Purchases Estimated Cost Chemical resistant personnel protective equipment for Police $ 66,085.28 and EMS including 10 self contained breathing apparatus for Fire Self Contained Breathing Apparatus fit test equipment & $ 17,473.16 software to conduct flow testing for Police and Fire Search camera (Thermal) $ 9,697.50 Tech Search Camera $ 3,232.50 Hydraulic Tool $ 4,310.00 Two Lifting devices -low pressure for Fire $ 3,448.00 Two Multi gas Meters $ 4,292.05 Three equipment trailers for chemical resistant PPE - Police, $ 48,487.50 Fire and Citywide use Decontamination System for individual and mass application $ 32,325.00 with environmental control, water heating systems, showers, lights and transport trailer $189,351.00 WHEREAS, the FY 05 budget will be amended to appropriate the equipment grant funds to the Fire Department; and, WHEREAS, The City of Chula Vista is scheduled to receive $110,163 for FY 03 and $101,032 for FY04 for homeland security training from UASI; and, WHEREAS, The Fire Department is recommending these funds be used to train and prepare Police, Fire, Public Works and City personnel on emergency preparedness; and, WHEREAS, a total of $211,195 will be appropriated for this purpose to the Fire Department; and, WHEREAS, There is an ongoing annual impact to the General Fund of $3,030 for the three equipment trailers and the decontamination trailer and an annual replacement cost of $3,695; and, WHEREAS, The Fire Department will work with the Office of Budget and Analysis to include the ongoing cost in the upcoming two-year budget. 11-7 NOW, THEREFORE, BE IT RESOLVED THAT the City C01.jncil does hereby accept unanticipated Urban Area Security Initiative (UASI) graqt funding and amends the Fire Department UASI overtime budget by $184,491, and $26,704 services and supplies budget for training and amend the Fire D¢partment services and supplies budget for personnel protective equipment ITom the FY 03 Part II and FY04 UASI equipment grant by $210,451.28 and operatÏ11g capital budget ITom the FY 04 UASI equipment grant by $173,265.72. Presented by: ~\S;dd-- Fire Chief Approved as to form by: ~~\~~\~~~ Ann Moore City Attorney H:/shared/attorney/UASI 04 Fisher Grant reso (1) 11-8 {3 RESOLUTION NO. 200S- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AWARDING A, PURCHASING AGREEMENT TO FISHER SAFETY SCIENTIFIC FOR PERSONNEL PROTECTIVE EQUIPMENT! WHEREAS, The City of San Diego is the designated Urban Are~ Security Initiative Grant (UASI) Coordinator for San Diego Region; and, WHEREAS, the Fire Department is the designated agency coor&nator for UASI grant funds; and, WHEREAS, the City of Chula Vista is eligible to receive $310,026 ITom the UASI FY03 Part II equipment grant; and, WHEREAS, a total of$115,660 was previously accepted and appropriated by the City Council for personnel protective equipment for Police and'radiation devices for Police and Fire; and, WHEREAS, the additional FY03 Part II funds in the amount of$194,366 will be used to complete the outfitting of first responders: Police, Fire imd EMS I with chemical resistant personnel protective equipment (PPE) and ¡purchase radiation detection devices for Fire, Police and Public Works Operations; and, WHEREAS, PPE includes a chemical resistant suit with hood, ,chemical resistant gloves, booties, and tape, a MSA Millennium Mask with carr)\ing case, cartridge and canister, equipment bag and self contained breathing ~pparatus where applicable; and, WHEREAS, The City of Chula Vista Municipal Code Section 2.56.140 authorizes the Purchasing Agent to participate in cooperative arrangements with other governmental agencies for the acquisition of equipment purchased through a competitive process; and, WHEREAS, The County of San Diego has awarded pm-chasing agreements to Fisher Safety Scientific for purchase of fust responder personnel protective equipment; and, WHEREAS, the purchasing agreements were based on the State of Idaho's contract with Fisher Scientific; and, 11-9 WHEREAS, The State of California has recently announced a new procurement program through Fisher Scientific; and, WHEREAS, The program will offer shorter procurement times and online ordering; and, WHEREAS, The FY03 UASI grant requires all personnel protective equipment purchases be made by the end of March 2005; and, WHEREAS, Both Police and Fire have purchased previous personnel protective equipment from Fisher Scientific; and, WHEREAS, Awarding a purchasing agreement to Fisher Scientific would expedite the purchasing process and maintain equipment uniformity. NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby award a purchasing agreement to Fisher Safety Scientific for personnel protective equipment. Presented by: ~A~I Fire Chief Approved as to form by: ~~'J~~'{~"'~. Ann Moore City Attorney H:/shared/attorneyfUASI 04 Fisher Grant reso (2) 11-10 COUNCIL AGENDA STATEMENT , Item I~ Metjting Date 2/22/05 ITEM TITLE: Resolution authorizing the purchase ofTree Trimming Services on an as-needed basis ITom Great Scott Tree Service in accordance with terms and conditions of a cooperative agreement with the qity of San Diego, through June 30, 2005, with options to renew for three ~dditional one-year periods. SUBMITTED BY: Director of Public Works Operation~ Director of Finance REVIEWED BY: CitYManager~r" (4/5 Vote: Yes_No..xJ The City of San Diego has put out a bid for Tree Trimming Services. The City of Chula Vista has an opportunity to participate in the contract for favorable terms and pricing. RECOMMEDATION: That Council adopt a resolution authorizing the purch3$e of Tree Trimming Services on an as-needed basis ITom Great Scott Tree Service in accordance with terms and conditions of a cooperative agreement with the City of San Diego, through June 30, 2005, with options to renew for three additional one-year periods. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: Chula Vista Municipal Code Section 2.56.140 and Council Resolution No. 6132 authorize the Purchasing Agent to participate in cooperative bids with other govetrnment agencies for the purchase of materials and services of common usage. The City has an opportunity to participate in a current City of San Diego bid for favorable terms and pricing. In accordance with City of San Diego Bid #6297-04-H, tree service for the Carmel Valley Assessment District was bid out on a time and material basis. Fifteen (15) potential bidders were contacted and the bid was locally advertised. Six (6) bidders responded. The San Diego specifications were structured to allow for maximum flexibility in a high visibility assessment district. From a contract management standpoint, crews are easily cijspatched and billing is simplified. Should follow-up work be required, work assignment is not problematic. The City of Chula Vista has obtained tree service on a cost per tree and time, and material basis. While both methods are effective, prices available on the San Diego contract are beneficial. The City has used Great Scott Tree Service previously and their performance was lrigbly satisfactory. 12-1 Page 2, Item Meeting Date 2/22705 FISCAL IMPACT: There is no direct fiscal impact ITom approving this resolution in that funds expended for current and subsequent fiscal years will have been approved through the normal budget or appropriation process. Purchase orders will be issued as authorized departmental requests are received. 12-2 RESOLUTION NO. 2005- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE PURCHASE OF TREE TRIMMING SERVICES ON AN AS-NEEDED BASIS FROM GREAT SCOTT TREE SERVICE IN ACCORDANCE WITH TERMS AND CONDITIONS OF A COOPERATIVE AGREEMENT WITH THE CITY OF SAN DIEGO, THROUGH JUNE 30, 2005, WITH OPTIONS TO RENEW FOR THREE ADDITIONAL ONE-YEAR PERIODS WHEREAS, the City of San Diego has put out a bid for Tree 1I"rimming Services. The City of Chula Vista has an opportunity to participate in the contract for favorable terms and pricing; and WHEREAS, the Chula Vista Municipal Code Section 22.5(5.140 and Council Resolution No. 6132 authorize the Purchasing Agent to participate in cooperative bids with other govemment agencies for the purchase of materials of common usage; and WHEREAS, the City of Chula Vista has obtained tree service 0111 a cost per tree and time and material basis. Prices available on the San Diego contract are beneficiW and Great Scott's past performance has been highly satisfactory; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby authorize the purchase of Tree Trimming Services on an as-needed basis ITom Great Scott Tree Service in accordance with terms and conditions of a coq>perative agreement with the City of San Diego, through June 30, 2005, with options to renew for tluee additional one- year periods. BE IT FURTHER RESOLVED that the Purchasing Agent is hereby authorized and directed to execute said Purchasing Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Dave Byers Director of Public Works Operations ~~:~~~~ City Attorney J :\attorney\reso\bids\tree trimming Great Scott 12-3 MONICA A. LADD 161 I STREET CHULA VISTA, CA 91910 CHULA VISTA ANIMAL CARE FACILITY I30BEYER WAY CHULA VISTA, CA 91911 February 15;~Q005 To Whom It May Concern: On 2/9/05, I was asked by my brother to pick up his two dogs that were located at the animal shelter because he could not get out of his job before the shelter's closing time. On 2110/05 at 2:30pm, I went to identify the dogs at the shelter and was prepared to pay the necessary costs for their release. At this time I was thankful for the service of animal control. As I prepared to pay and explained that I was not the owner but had the vaccine certificate for the dogs, the up-front assistant notified me that the officer who picked up the dogs put a note in the computer simply stating that the dogs were not to be r.eleased until the officer spoke to the owner. I inquired as to what the problem may be but was told that nothing was written in the computer. The assistant told me to come back at 4:30pm when the officers came back to the facility. When I returned at 4:45pm, I was told that the officer was never on duty that day. An officer standing in the front reception was asked ifhe would talk to me but he declined stating he did not know anything. At this point I was upset because no one was able to give me answers. I asked why someone couldn't tell me that the officer was not on duty. All I got was blank faces. I asked the assistant why I would have to pay extra boarding charges if! am here to pick up the dogs today. She said she would put in the notes to freeze boarding costs. I also asked how I was going to get the dogs out tomorrow if the officer was going to be out tomorrow. The assistant told me she would leave a voice message for the officer stating that I would be at the office at 1 0:00am the next morning to speak to him and to call me ifhe was unable to be at the office. I left the office very bewildered as to what kind of communication is going on at the facility. Why with the state of the art computers that a simple note letting anyone who read it know exactly what was going on with these two dogs was not done? Are other dog's records this grossly underwritten? Are these officers more concerned with driving around the city than sitting down and completing paper work or do they feel that no one can interfere with their case so why bother writing it down. On 2/10/05 at 9:30am, I arrived at the facility after receiving no call. While outside in the facilitie's parking lot, I received a call from my work stating that a Cindy from animal control wanted to talk to me. I tried the number she gave several times but all I got was a message system. So I left a message. At 1 0:00am, I went inside the facility only to be greeted by a gruff T officer asking what my problem was. I told him to talk with the assistants at the desk because they knew why I was there. Well he didn't like that and starts telling me that I was not authorized to pick up the dogs, that the dogs were not vaccinated and there was going to be a yard check. So he obviously knew why I was there. I glanced at his name tag which read, J Estrada. The only one wearing a name plate. I asked him why all of a sudden I was not authorized to pick up these dogs. He could not give me an answer. No one had a problem with me picking up the dogs until then. I showed him the vaccine certificate and he gave it to the assistant who I thought might record the vaccine information for their records but I found out later did not do so. Mr. Estrada starts ranting about getting tags for the dogs and having the owner pick up the dogs after the yard inspection. I told him no one was home and I did not have access to the house. I left at that point thinking what kind of business is this? What was the big deal? Did the dogs do something? Who was this individual anyway? Was he a supervisor? Introducing himself and politeness apparently is not high on his to do list. Two hoursrhter, I received a call from Cindy stating that now I was authorized to pick up the dogs and an officer went to the residence but no one was at home. I asked why all of a sudden was I given authorization? Who was making the rules because this just did not feel right. Instead I got an answer of "I don't know". I picked up the dogs soon after. I had to argue about the boarding costs because no notes were placed in the records about a freeze on boarding. I also received a ticket because I did not have the vaccine certificate with me at this time even though I brought the records with me in the morning, no one wrote anything in the records. I never disputed the fees except for the one day boarding. I was prepared to pay whatever fines there were. What I disagree with whole heartedly is the way I got the run around. Why couldn't the initial officer write a report? Does anyone supervise these officers to make sure everything is completed correctly? Why aren't the assistants informed about procedures? They always seen to be asking someone else what to do? Who made the decision that I could not pick up the dogs then two hours later change their mind? Who gave them the authority? I don't believe it was right to tell me to come to the facility four times. Because I written this letter does this mean I'll get a visit from animal control? Can you address my questions and give me some answers? Sincerely, Monica A. Ladd COUNCIL AGENDA STATEMENT Item J $ Mteting Date 2/22/05 ITEM TITLE: Report on Chula Vista Transit (CVT) Funding and Op~rations SUBMITTED BY: Director of Public Works operations~ : REVIEWED BY: City Manager&frr ')¡1./ (4/5ths Votej Yes_No...K.l At the Council meeting of February 11,2003, staff was directed to return to Council with an annual report on CVT's Funding and Operations. RECOMMENDATION: That Council accept this report BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: BACKGROUND At the Council meeting of January 13,2004, Transit staff presented the seconfi report to Council on the City ofChula Vista's transit system, Chula Vista Transit (CVT). Thi~ is an updated report on CVT's funding and operations. I CVT is an independent municipal transit system with the Council as its gove¡jrnng board. CVT forms part of the Metropolitan Transit System (MTS), which is a network ofJocal and regional transit operators. The MTS provides a seamless transit system composed oflocal, regional and ADA paratransit services. MTS coordinates fares, transfers, routes and information services to the region. Transit staff also works closely with the San Diego Association of Governments (SANDAG) the region's transit funding, planning and policy setting agency. FUNDING CVT operating funds come ITom a combination of State Transportation Development Act (TDA) funds (a Y. of 1 percent of the State Sales Taxes) and passenger fares, which !ire used for operations and for capital programming. Prior to July 2001, the City would r~ceive a direct allocation of its TDA funds, but in 2001 regional transit funds were consolid~ted under the Metropolitan Transit Development Board (MTDB), now the MTS. I CONSOLIDATED TRANSPORTATION AGENCY Effective July 7, 2003, the new consolidated transportation agency under SA1!IDAG was initiated consistent with Senate Bill 1703. The first phase incorporated the planning arid programming sections and the second transferred the development and constructions sectioI1ls. The transit operations section will remain under the Metropolitan Transit System (MTS) board. The new MTS Board is a consolidation of the MTDB, San Diego Transit and San Diego Trolley Boards. 13-1 Page 2, Item L3 Meeting Date 2/22/05 OPERATING BUDGETS FY 04 Budget The FY 04 CVT budget fInished the year on the positive side. Transit operations' expenditures ended the year $178,900 under budget and revenues were $47,050 above projections. Transit staff's goal is to maximize the effectiveness of transit funds while recognizing the revenue constraints facing the region. The following line items had the most signifIcant savings: .:. Engine and Transmissions Rebuilds .:. Public Liability and Property Insurance (No Claims) .:. Electricity (Usage and cost lower than projected) .:. CNG Fuel Station Maintenance .:. City Staff Support Services (As needed basis) The increase in fare revenues can be attributed to higher Regular Monthly Pass revenues. Additionally, Miscellaneous revenues and interest earned totaling $102,031.69 and $18,484 respectively were gained, but have not been included in the Table 1 below. Service Bud!!et Actual' Difference Chula Vista Transit - Expenditures $6,497,535 $6,318,635 $178,900 Chula Vista Transit - Revenues $2,455,000 $2,492,050 $47,050 Bavftont Visitor Information Center $110,435 $85,568 24,867 Southwestern Colle"e Transit Stop $11,200 $4,200 $7,000 Net Variance +$257,817 Table 1 * Unaudited FY 05 Budget Since the funding consolidation, Transit staff actively participates in the SANDAG/MTS budget process. Along with the region's other Transit agencies, City Transit staff presents its proposed operating budgets. Various budget meetings are held and budgets are adjusted according to the available funds and SANDAG Board funding policies. The following are the current FY 05 operating budgets for CVT: Service Total Budl'et Fare Revenue Net Subsidy Chula Vista Transit - Expenditures $6,719,386 $2,550,000 $4,169,386 Chula Vista Transit Centers: BayftontIE Street $113,853 $0 $113,853 H Street Southwestern Colle"e Total $6,833,239 $2,550,000 $4,283,239 Table 2 The budget includes approximately $235,117 for Non-Transit City Staff charge-backs, Specialized Services and Risk Management, see Table 3. These funds reimburse the City's General Fund. The Non-Transit City Staff support Transit operations on an as-needed basis. 13-2 Page 3, Item /3 M¢eting Date 2/22/05 Table!3 Available Fundin $132,85 $15,85 $62,700 $23,71 $235 11 MIS conducts a mid-year review of all budgets to determine if actual costs and revenues are reflecting estimates. Based on the review, budgets are adjusted according to ¡jetual expenditures and revenues. MTS Transit Operating Deficit Since 1993, MTS has been managing a structural deficit, whereby recurring e:¡¡penditures exceed recurring revenues. MTS has been able to manage the deficit by using non-repurring funds. In order to address this structured deficit, the MTD Board developed a Sustainal:11e Level of Service , Plan. This is a fiscally constrained plan that sets forth a strategy to provide seJ!vices within the ITamework of recurring revenues and phases out the use of nomecurring reve~ues. The Sustainable Level of Service Plan consists of the following: · Shifting of federal capital funds to operating purposes · Reducing the level of Contingency Reserves and Capital Replacement Reserves . Increasing Fares · Reducing non-productive transit services Comprehensive Operational Analysis Related to the last bullet point, the MTS Board has approved a regional ComJ1rehensive Operational Analysis (COA) to be conducted by an outside consultant. The objective of this analysis is to take a comprehensive look at all MTS routes, see what the dem¡jr¡ds are in the region, and look realistically at the markets we can serve. MTS wants to redesign the system to better meet those markets within the local operating and fiscal constrains. MIS wants to achieve a $10-$13 million dollar savings in annual subsidies with this analysis. The consultant working on the COA has been asked to provide a phasing plan for their recommendation for a possible partial implementation in Fiscal Year 05-06 FEDERALLY FUNDEDCAPITAL PROJECTS FY 04 Projects The funding consolidation has also allowed the City to participate in available Federal Transit Administration (FTA) capital funds programs. CiíÝ Transit staff has submitted various capital project funding requests to MTS. These request are then ranked by the Capital projects committee that is composed of staff ITom the various transit agencies. The requests are ranked 13-3 Page 4, Item /3 Meeting Date 2/22/05 according to: safety, replacement value, operating cost benefit, travel time savings and customer benefit. Fiscal year 2004 capital purchases totaled $77,047 and consisted of the following: .:. Multi-Use City Transit Staff Truck .:. Bus Engine Parts .:. Bus Schedule Rack Holders .:. Security Monitoring Equipment for Fare Recovery Room .:. Maintenance Shop Lockers .:. Multi-Use Heavy Duty Trailer .:. ADA Bus Stop Pads and Improvements .:. Miscellaneous Equipment FY 05 Projects For the current fiscal year CVT has a total of$398,000 in capital funds available for the following: Table 4 Pro· ect Transit Shop Fork Lift Amount Notes $35,000 $27,658 has been spent for this project 13-4 Page 5, Item /3 Meeting Date 2/22/05 ADA Bus Stop Improvements Security Cameras $23,000 Funds to be shifted to Chula Vista Transit Stations CCTV ro'ect $164,000 Originally these funds were programmed for bus security cameras. Fund~ to be shifted to Chula Vista Transit Stations CTV ro'ect $26,000 Partial transfer of funds to CCTV ro'ect $150,000 Project managed by SAG's Department of Mobility Management !\Ild Project Implementation. A FY 106 capital claim for an additional $50,000 has ~een submitted by City Transit Staff to com Ie' the ro' ect. Misc. 0 erational Ca ital H Street Transit Center Resurfacing FY 06 Project Requests All FY06 projects submitted by City Transit Staff to MTS are being recommended for approval to SANDAG. Capital projects total $110,000: Proiect Amount Notes H Street Transit Center Resurfacing $50,000 Additional funds ~o complete project' Transit Facilities Improvements $25,000 i Misc. Operational Capital $30,000 Minor Bus Stop Hardware $5,000 , Table 5 TDA UNALLOCATED FUNDS i I ¡ Part of the terms of the transit flllancing consolidation was to allow the respedtive agencies to keep control of any unallocated balance and capital reserves. These funds CaI\ be used for a variety of transit projects or placed in a discretionary fund for future opportunities. The City's current unallocated transit funds total $1,000,277. These funds are available to the City for its discretion to spend on Transit related capital projects and/or operations. 13-5 Page 6, Item J:3 Meeting Date 2/22/05 Table 6 Unallocated TDA Funds S Total Funds Available Unallocated IDA Reserves Capital Reserve Account - Southwestern College Driveway U ades Pre-Consolidation Credits Notes $868,123 A roved and Antici ated Ex enditures Nature Center Shuttle Bus Match er Council Reso. 2004-019 Operator/ServicerlMechanic Retention Incentive per Council Reso. 2004-303 $165,000 $220,500 Distribution of Funds Contingent on Ratification of Labor Agreement by Transit Contractor Employees Nature Shuttle Bus Additional Funds per Council Reso. 2005-006 Street Swee er - Pendin Council A roval IStreetView: GIS Orthophotography/Topography Project- A roved b Council $30,000 'T;Jfd!ªÎ.~si~tij¥~Mä-«1Ì7~fjçj~J-}.'i~atÉ~~~ñðfift¡1~~-~~~r~;¡;:~~;(;~A;i~1t(~~:~~0t~f*~;~is5i~:5Qœ~ $18,000 $80,000 :~~_jí¡t:':~!-_-~-';qøjl!i¥ªú!i1{t~~~~]ýiiil\s~$~~t~~~I~jTlI~~i;~~~~1?~;~~'!~0~ ~~k1:~1(t(i_fg~ Pro osed Creation of Ca ital Reserve Account '\j;~i~'ì'~C BUS STOPS FACILITIES & MAINTENANCE Transit staff has implemented a project to upgrade existing transit facilities in all areas of the City. Due to funding limitation, priority is given to requests by citizens, improved wheelchair access and high ridership bus stops. In addition to the Federal Transit Capital funds, City Transit staff has access to over $310,000 in developer fees to install and upgrade transit facilities in the Eastlake and Otay Ranch areas of the City. City Transit staff has coordinated with the Planning and General Services Departments in the creation Qf Developer transit capital deposit accounts. The Developers deposit an estimated amount of monies based on future transit services in their respective areas. 13-6 Rage 7, Item /3 Meeting Date 2/22/05 The following is a summary of some of the projects of significance: · Bus Shelter at the Chula Vista Veterans Home · Installation of new Steel Mesh Bus Benches with Back and Arm restsl vs. the flat concrete benches. Over 19 new benches have been installed throughout the Ci~ . Various ADA Bus Pads in the City's Westside 13-7 Page 8, Item /3 Meeting Date 2/22/05 · Sample Bus Stop in New Developed Areas (Eastlake Parkway @ Affordable Housing Complex Bus Stop Maintenance Transit staff has tried to be responsive to the community by addressing issues related to trash, graffiti, and weed abatement at or near our bus stops. Transit funds half the salary of a Public Works Senior Maintenance Worker to respond to bus stop maintenance issues. In our efforts to be pro-active the Transit Division continues to contract with the County of San Diego Probation Department for bus stop maintenance services. At a cost of only $364 per day probation crews target specific route segments for maintenance as directed by Transit staff. To date we have seen significant improvements to the appearance of our bus stops at an outstanding cost benefit. Additionally, the new Staff Truck provides the opportunity for City Transit Staff to directly respond to bus stop maintenance issues immediately as they survey the City's transit routes on a daily basis. OPERATIONS The City Of Chula Vista's Department of Public Works Operations, Transit Division, manages CVT. Two full-time City employees, the Transit Coordinator and the Assistant Transit Coordinator, administer the transit system. The Department of Public Works Operations and Transit Division also share two full-time employees: a Senior Public Works Specialist and a Senior Maintenance Worker. Transit also employees a part-time Temporary Expert Professional staff person to help monitor customer service and performance of our Transit Contractor (ghost- rider type program). Other City staff provides additional support on an as-needed basis. Service planning, scheduling, contract monitoring (operational and maintenance), community relations, budget preparation and monitoring, funds programming, transit facilities monitoring (bus stops, shelters, buildings), regional coordination and operations/capital procurements are among some of the duties and responsibilities ofth,e City's Transit staff. 13-8 I1age 9, Item /.:is Meeting Date 2/22/05 The actual operation of CVT is privatized and operated by A TCN ancom. TIle service was procured through a two-step, competitively bid process. The Transit Contractor is responsible for the daily operations of the system and the maintenance of the fleet. All the personnel associated with the direct operations of CVT are employees of the Contractor; i.e. management, road supervisors, mechanics, and bus operators. A TCN ancom employs approxim~te1y 96 Full-Time Equivalent employees. ATCNancom is currently under a 5-year contract v.jith the City, which terminates on June 30, 2007. The contractor is compensated monthly, based bn the number of Revenue Miles operated. The following Table outlines the agreed upon per Rlevenue Mile rates: Period Per Revenue Mile Rate July 1, 2002 - June 30, 2003 $3.1518 July 1, 2003 - June 30, 2004 $3.2461 July 1, 2004 - June 30, 2005 $3.3432 July 1, 2005 - June 30, 2006 $3.4433 July 1, 2006 - June 30, 2007 $3.5464 Table 7 Route Descriptions Chula Vista Transit service is designed to serve the residents of the City ofcjlUla Vista and its visitors. Routes have been planned to serve all trip types. Ten of the 11 rout~s have transfer connections with the San Diego Trolley system at BayftontÆ Street, H Stree~. and Palomar Trolley Stations. Additionally, CVT has transfer connections to two regional bus routes and one Local Transit System: MTS Route 929 via 3rd Avenue and MTS Route 932 v a Broadway; and National City Transit at Plaza Bonita. CVT routes are presently operated wi the following destinations: ! 13-9 Route 701 702 703 704 705 706 706A 707 709 711 712 Page 10, Item 13 Meeting Date 2/22/05 Table 8 CHULA VISTA TRANSIT ROUTES Descri tion Serves the H Street Trolley Station and the Palomar Trolley Station via F Street, Hilltop Drive and Main Street Serves the H Street Trolley Station and the Palomar Trolley Station via 4 Avenue, 2" Street, Melrose Avenue and Palomar Street Serves the H Street Trolley Station and the Palomar Trolley Station via 3' Avenue, J Street, Crest Street, Oleander Avenue and Oran e Avenue Serves the H Street Trolley Station and Southwestern College via H Street, 4 Avenue, Naples Avenue and E. Palomar (Otay Ranch Village 1). This Route also provides express service between Southwestern College and H Street Trolley Station on a limited basis Serves the BayftontÆ Street Trolley Station and Southwestern College via E Street, Bonita Road, and Ota Lakes Road "Downtowner", is a clockwise loop route serving the H Street Trolley Station and business district via 4th Avenue and 3'd Avenue "Downtowner" is a counterclockwise loop route serving the Bayftont Trolley Station, the Chula Vista Marina, KOA Campgrounds and the Chula Vista downtown business district Serves the H Street Trolley Station, Sharp Chula Vista Medical Center and Rancho Del Re Plaza via East H Street, Paseo Ranchero, and Paseo Ladera Serves the H Street Trolley Station, Southwestern College, Eastlake and Otay Ranch via H Street, E. Palomar (Otay Ranch Village 5), Olympic Parkway and Eastlake Parkway. This Route also provides express service between Southwestern College and H Street Trolle Station on a limited basis Serves Plaza Bonita Shopping Center, Southwestern College and Eastlake via Bonita Mesa Road, Bonita Road, Central A venue, COITal Canyon Road, East H Street and Otay Lakes Road Serves the Palomar Trolley Station and Sharp Chula Vista Medical Center via Palomar Street, Melrose Avenue and Na les Street. 13-10 Pa¡ge 11, Item /2 Meeting Date 2/22!05 Transit staff continues to adjust schedules and routes as dictated by passenger demand, new developments and traffic patterns. Since the last report to Council the following service changes have been implemented: Service Route Chanl!e Date Descrintion Objective 701 September 5, 2004 Reduced evening ITequency of Reallocate resources to serve service due to low ridership unmet needs in eastern Chula Vista (Route 709 change) 709 September 5, 2004 Deleted service on unproductive To serve new Transit Oriented portion of Otay Lakes Road and Developments (TOD) and gain rerouted to Otay Ranch Village 5 & access ~o new heavy transit trip Eastlake Parkway via Olympic generatprs in Otay Ranch & Parkwav Eastlake. 707 January 31, 2005 Schedule adïustments Improve on-time nerformance 709 January 31, 2005 Schedule adjustments and additional Improve on-time performance AM peak service and address full and passing loads in the AM 712 January 30, 2005 Schedule adjustments and trip Improve on-time performance segment reduction during and reaÜocate resources to unproductive times of the day Route 709 in the AM neak Table 9 Operational Statistics CVT operates approximately 1.4 million revenue miles per year and carried over 3.1 million passengers in FY 04. As part of MTS, CVT is classified as a Suburban Feeder Transit System. CVT's system productivity exceeds the region's Suburban Feeder average prøductivity in three of the five categories. Passengers! Average Operating Subsidy! Farebox FY04 Revenue Mile Fare! Cost! , Passenger Recovery Ratio Passenger Revenue Mile Suburban Feeder AVI!. 1.63 $0.82 $4.20 $1.66 32.9% Chula Vista Transit 2.24 $0.79 $4.46 $1.20 39.6% % Change 37.4% (3.7%) 6.2% , (31.4%) 19.3% , . Table 10 Transit Contractor (A TC) Fiscal year 2004 was ATC's second year as the City's transit contractor. Alt1j.ough, we have a contractual relationship with A TC, City Transit staff considers A TC an equal! partner in our mutual goal to providing safe, reliable and efficient transportation to the visitors and residents of Chula Vista. We emphasize to ATC that their employees provide and represent a City service that must be delivered with the highest level of professionalism. The following is a 13-11 Page 12, Item /3 Meeting Date 2/22/05 list of accomplishments by transit as part of this team effort: Accomnlishment Description Safety A TC reduced by 46.0% the number of both personal and property accidents by focusing on safety and improved training. ATC Nationwide has honored CVT as only one of four transit properties that maintained a safety rating of "A" for the entire year. DriveCam - Visual and audio digital camera system that records any sudden movement while the bus is in motion or stationary. The documentation recorded can help identify problem drivers, cut down on false claims, reduce liability and improve driver performance. Performance .:. On-Time Performance - Regional Goal 90.0% 95.66% .:. Trip Completion- 99.90% Regional Goal 99.8% .:. ADA Bus Stop Call-Outs- Region Average 75.0% 94.58% .:. Total Miles per Road Call- Industry Standard 9-12K Miles per 9,600 Roadcall .:. Wheelchair Passenger Boarding - +159.0% Customer Service .:. 24 hour information telephone line; Postage paid comment cards on board buses; Staff has been available to make Transit education presentations to Veterans Home, Norman Park Senior Center, Chula Vista H.S., etc. .:. RiderlST customer service program. Stand-By Buses To better serve our riders Stand-By buses have been staged at the H Street Transit Center and at Southwestern College to meet passenger peak-load demands. Stand-By buses can quickly respond to service quality issues. Bus Roadeo Hosted the Local Bus Roadeo for the second time. Clean shop Award In conjunction with the City Maintenance Shop, CVT received the "Model Pollution Prevention Shop" Award Maintenance Audits Received best to date independent maintenance audit report RiderlST Because Transit staff emphasizes the highest standards in the delivery of service, City Transit Staff has created a customer service based orientation program for all ATC employees called "Rider1ST". RiderlST emphasizes the importance of providing the highest quality of service to our transit users and details what the City expects from CVT staff. RiderlSTelevates the word "PUBLIC" in "Public Transit" and connects the word "SERVICE" to "Transit". Public Transit is a Public Service. All new A TC employees are made aware of the "Human Element" connected to the service they provide to our community. The following bullet points summarize some of the main topics presented: 13-12 Page 13, Item /3 Meeting Date 2/22/05 . Public Service . Human Element of Service · Serving our Riders rather than Processing Them · Bus Operators connect the Service to the Rider · Not Only Meet but Exceed Our Riders' Expectations · Emphasis on "Exceptional Service" · Bus Operator has the Responsibility to Make Things Better for the Riders · Make the City's Values their Own: Professionalism, Accountability, Respect, Teamwork, and Integrity · "Riders' Needs ---. CVT Makes the Connection" The City's Transit Coordinator conducts the Rider1STpresentations. An ATC employees attended the first session and consequently all new employees are presented tfue RiderlST program. To date in FY 05 Transit has received 47 compliments on the service providetl by CVT bus operators versus 31 complaints. Organized Labor Activities On November 21, 2003 A TC employees voted in favor oflabor representatiOJµ by the Amalgamated Transit Union (A TV), Local 1309. On October 9, 2004 the first labor contract failed to be ratified by A TC employees. On December 14, 2004 a revised version of the labor contract failed ratification for the second time. These two labor contracts incJuded the City's performance based incentives. As stated in last year's report, based on the fiJded-cost, five-year contract we have with A TC and the regional transit funding deficit, negotiati ns between A TC and A TU for an initial agreement may be lengthy, but the negotiations betwe n the two parties continue in good faith. In addition, Mr. Jerry Butkiewicz, Secretary Treasure and Chief Executive Officer, of the San Diego/Imperial Counties Labor Council has be involved in all aspects of organization and negations I i I V chicles ~ The Table below shows the current CVT bus fleet. The next CVT order ofb es consists of seven CNG, 30 foot, low-floor buses and delivery is expected in June of2005. One of the seven buses will provide service exclusively to the Nature Center. The new buses win replace two 1990 and four 1991 Orions. The complete transition of the fleet ITom Diesel to CNP should be completed within the next four years.: I TRANSIT RELATED CAPITAL ASSETS 13-13 Page 14, Item /3 Meeting Date 2/22/05 Table 13 CVT VEmCLE FLEET INVENTORY Manufacturer Model Yr Quantity Lenlrth (Ft) Fuel Status New Flyer 2001 10 40 CNG Active New Flyer 2000 15 40 CNG Active Gillig 1995 2 35 Diesel Active Orion 1991 6 35 Diesel ActivelReplace (4) by New CNG Buses Orion 1990 2 35 Diesel ActivelReplace by New CNG Buses Chance Trolley 1989 4 26 Diesel Active (2)/Inactive (2) Total 39 . By the start ofFY 06, the CVT fleet will consist of31 CNG buses and four Diesel buses. Two of the four Chance Trolley buses will be turned over to the Nature Center as back-up vehicles to their CNG bus. The remaining Trolleys will be taken off the Transit Division's fleet inventory. The CNG buses are owned by MTS and leased to the City for one dollar a year per bus via an agreement approved by Council on January 12, 1999. New Regional Bus Design MTS has started on the road to a unified bus graphic design. Currently, all transit operators, San Diego Transit, San Diego Trolley, East County Transit, MTS Contract Services, National City Transit and CVT have distinct graphic designs and logos. MTS goal is to unify all transit providers under one regional appearance in order to achieve uniformity and name branding. On August 17,2004, in the spirit of regional cooperation, Chula Vista City Council approved the new MTS graphic design for all new bus deliveries. Six buses with the new regional graphic design are scheduled for delivery to the City in June 2005. 13-14 Page 15, Item 13 M~eting Date 2/22/05 Fixed Assets Public Works Center - Transit I The City's Transit Division participated in the construction of a new joint Pu~lic WorkslTransit Maintenance Yard. Using the City's Transit Development Act (TDA) reservts, CVT contributed $7.8 million dollars to the construction of the new Public Works/"fransit Maintenance Yard at 1800 Maxwell Road. The specifications of the new MaÍJ!J.tenance Yard are as follows: . 25 acre facility I · Yard security includes full 24-hour digital camera coverage as well as gate and door card access systems for all employees · Dedicated office space for transit contractor management personal . Locker equipped driver area I · Dedicated office space for City Transit staff and extended storage space · Dedicated parking space for 45 buses (current CVT fleet is 37 buses) · Comprehensive fleet management system utilized for both City Public Works Operations and City Transit fleets . · Two compressor CNG fueling Station for CVT's fleet of25 CNG buses · Dedicated public access CNG fueling island · CNG de-fueling Station · Main fueling island equipped with three (3) CNG dispensers, three (3)ldiesel fuel dispensers, two (2) high capacity vacuum hoses, and multiple fluid disþensers to service the buses while they are being fueled · Fully equipped Fare Recovery Room located adjacent to the fuel island · Three bay, state of the art, enclosed vehicle wash building with both bJ[ush and brusbless fully automated wash bays as well as a hand wash bay for deep cleaniIig and power washing · Six bay bus maintenance building which includes: o Two parallelogram lift bays o Two, two post, in-ground axle lift bays o One portable lift bay o One pit inspection bay o Chassis wash bay with parallelogram lift o Brake Shop o Tire Shop o Two story Parts Storage Room o Mechanics Room o Maintenance Foreman's Office on the floor o Computer Stations throughout for a future paperless shop 13-15 Page 16, Item 13 Meeting Date 2/22/05 Bayfront/E Street Visitor Information Center The City's Public Information and Transit personnel manage the Bayftont/E Street Visitor Information Center (BVIC). This facility was built in cooperation with the County of San Diego to better serve both the visiting public and permanent residents. The City contributed $3.4 million toward the construction of this facility. Regional IDA funds are allocated for the operation and maintenance of the BVIC. The City's responsibilities include: · Administration of visitor information center leases · Operation and maintenance of the Information Center and grounds · Administer portion of the budget Southwestern College Transit Stop (SWCTS) The SWCTS was built in 1995 by the County of San Diego with the City agreeing to the responsibility for major maintenance and repairs. Transit staff ensures the City's maintenance responsibilities are met. RIDERSHIP GROWTH CVT has been experiencing a decline in ridership since the Third Quarter ofFY 02. This decline continued into FY 04, but Staff expects ridership to rebound during FY 05 if service levels remain where they are currently. Keeping current levels of service intact, however, is not likely given the transit deficit. Conflicting with the reality of a transit deficit is the fact that the City is still growing and there are an increasing number of unmet transit needs to go along with this. The next few years will be very challenging as we attempt to satisfy this growing need with the shrinking transit funding. As mentioned in the funding section the balancing of the funding deficit may require regional service reductions over the next few years. CONCLUSION Although FY 04 showed a negative ridership trend, the productivity data still shows solid and above average numbers. As mentioned before, the Comprehensive Operational Analysis study will be the blueprint for future transit services in the region. City Transit staffwill continue to work closely with MTS and SANDAG staff to minimize the impacts on Chula Vista Transit services FISCAL IMPACT: CVT operations and capital programming contains no General Fund contribution. The CVT's operating and capital programming costs are funded by SANDAG Consolidated TDA Article 4.0 funds. File: DS-027/035 H:\Public Works OperalionslAl13's 20051A113 CVT Report on Operations and Funding -FY 05.doc 13-16 PAGE 1, ITEM NO.: (if MEETING DATE: 02/22/05 CITY COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF CHULA VISTA APPROVING A LOAN AGREEMENT AND RELATED RESTRICTIVE COVENANTS AND AFFORDABLE HOUSING AGREEMENT AND TRANSFERING AVAILABLE HOME FUNDS FROM EXISTING PROJECTS TO PROVIDE FINANCIAL ASSISTANCE TO SENIORS ON BROADWAY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, FOR THE DEVELOPMENT AND OPERATION OF THE SENIORS ON BROADWAY AFFORDABLE HOUSING DEVELOPMENT RESOLUTION OF THE CITY COUNCIL OF CHULA VISTA APPROVING A WAIVER OF THE PARKLANDS AND PUBLIC FACILITIES FEES PURSUANT TO MUNICIPAL CODE SECTION 17.10 TO FACILITATE THE CONSTRUCTION OF LOW INCOME HOUSING SUBMlnED BY: COMMUNITY DEVELOPMENT DIRECTO~r,..... v.,r- REVIEWED BY: CITY MANAGER/EXECUTIVE DIRECTOR 4/5THS VOTE: YES 0 NO D PURPOSE The intent of this stoff råport is to request two opprovols. Firstly, thot the City Council approve financial assistance to the Seniors on Broadway development in an amount not to exceed $1,043,850, an increase fram the $300,000 canditionally approved by City Council Resolutian Na. 2003-442, and to apprave all agreements and dacuments related ta this assistance. And secondly, ta approve a resolutian autharizing a waiver of the Parklands and Public Facilities fees pursuant to Municipal Code Section 17.10 to facilitate the construction of low-income housing. This project is consistent with the City's Housing Element of the General Plan and the regulations of the HOME Investment Partnership Program. ENVIRONMENTAL REVIEW In accordance with the requirements of the California Environmental Quality Act (CEQA) the Environmental Review Coordinator reviewed the proposed project for compliance with CEQA and determined that the project was adequately covered in Negative Declaration 15-03-008, approved on October 14, 2003. The proposed financing through HOME funds also requires environmental review through the National Environmental Policy Act (NEPA). In accordance with this requirement, Environmental Planning Division staff assessed the proposed use of HOME funds and determined it to be a Categorically Excluded Activity per CFR 58.35(b) Category 6, which allows for affordable housing pre-development costs including legal, consulting, develaper and other costs related to obtaining site options, project financing, administrative costs and fees for loan commitments zoning approvals, and other related activities which do not have a physical impact. The Categorical Exclusion was prepare:d on January 21,2005, and is shown as Exhibit D. 14-1 PAGE 2, ITEM NO.: MEETING DATE: (4 02/22/05 RECOMMENDATION It is recommended that the City Council take the following actions: 1) Reallocate $1,043,850 of HOME funds from existing projects to Seniors on Broadway a Limited Partnership, a California limited Partnership, for the development and operation of the Seniors on Broadway apartments and approve and execute the loan Agreement and Related Restrictive Covenants and the Affordable Housing Agreement in accordance with such reallocatian, and 2) Apprave a resolution authorizing a waiver of the Parklands and Public Facilities fees pursuant to Municipal Code Section 17.10 to facilitate the construction of low-income housing. BOARDS/COMMISSIONS RECOMMENDATION The Housing Advisary Commission reviewed and recommended approval of the MAAC development and financial assistance for the praject on February 26, 2003 and on April 23, 2003 respectively. The Resource Conservation Commission recommended adoption of the Negative Declaration on April 7, 2003. The Design Review Committee (DRC) provided comments at two informal reviews of the project conducted on November 18, 2002 and March 3, 2003. The DRC recommended approval of the project on April 21, 2003. The Planning Commission recommended approval of the project on May 14,2003. The City Council initially approved the project on October 14, 2003, and subsequently approved additional changes to the project on December 9, 2003. DISCUSSION THE PROPOSED PROJECT On October 14, 2003, through Resolution No. 2003-442, the City Council approved the development of the Seniors on Broadway project, a 42 unit development for very low income seniors. The project site is located at 825 Broadway between Sierra Way and 'K' Street. The site is owned by the Chula Vista Elementary School District and will be leased for a period of 75-years to MAAC for the development. The project is a combined Rezone and Precise Plan proposal for an urban in-fill mixed-use project. The Seniors on Broadway development is in the final permitting stages with the City and the graded, fully improved site, is expected to be available for lease to very low income seniors by Winter 2005. ARTICLE XXXIV This project is nat exempt under Article XXXIV of the State Constitution. Article XXXIV of the California Constitution (Article 34) requires that voter approval be obtained before any "state public body" develops, constructs or acquires a "low rent housing project". The restriction of the 41 units will be allocated through the 67 remaining units per Proposition C, which authorized the development, construction and acquisition of 400 units of housing for persons of low-income (Article XXXIV of the State Constitution) passed April 11, 1978. 14-2 PAGE 3, ITEM NO.: MEETING DATE: 14- 02/22/05 INCOME AND RENT RESTRICTIONS As a conditian of the City's financial assistance, the Developer is to enter into a loan and regulatory agreement with the City specifying the terms of the financial assistance and use of the project as an affordable housing development for very low-income seniors for a period of fifty-five (55) years. The required Affordable Housing Agreement and Loan Agreement and Related Restrictive Covenants have been prepared and are attached as Exhibits Band C. The affordability of the units, as dictated by the City and the State Tax Credit program is illustrated in the chart below: Unit Description No. of Uni1s Income Group 5 30% AMI 1 Bdrm/1 Ba 16 45% AMI 20 50% AMI TOTAL 41 The project is assisting very low-income seniors at rental rates priced well below market rental rates. The maximum incomes and rents, allowed by percentage of Area Median Income (AMI), and based upon one person per household, are illustrated below: Unit Description No. of Uni1s Income Group Annual Income Monthly Income Maximum Rent 5 30% AMI $14,400 $1,200 $360 1 Bdrm/1 Ba 16 45% AMI $21,600 $1,800 $540 20 50% AMI $24,000 $2,000 $600 TOTAL 41 PROPOSED FINANCING OF PROJECT Financing and development of this project is a joint private-public partnership. It is estimated that the proposed total project cost will be $8,207,171. The proposed financing sources are illustrated below: Financial Entjiy Amount Red Capitol Group Itax credit investor) $5,937,520 City of Chula Vista $1,043,850 US Bank $928,000 State Affordable Housina Proaram $266,500 Deferred Develooer Fee $31,301 TOTAL $8,207,171 CITY ASSISTANCE As part of the City Council's approval of October 14, 2003, a loan of $300,000 from HOME Investment Partnership Program funds was conditionally approved. Staff is recommending financial assistance in an amount not to exceed $1,043,850, an increase of $743,850. This request is based on increased costs since the original approval. The ariginal development budget, from November 2002, was estimated at $5,461,594. Currently, the total project budget is estimated at $8,207,171, an increase of $2,745,577. Those main factors that have contributed to the increase include the following: 14-3 PAGE 4, ITEM NO.: MEETING DATE: 14 02/22/05 · Increased construction costs of $2.3 million · Denial of State Affordable Housing Program (AHP) funding, due to the State's emphasis on special needs proieds, which resulted in the loss of $200,000 in grant funding · Decrease of $214,000 in the maximum permanent loan amount that MAAC can qualify for City staff has reviewed and verified these factors and concurs with the Developer's justification for the increase in City assistance. The recommended City financing amount is a not to exceed amount and is based upon information as provided by the Developer and the City's availability of financial assistance for the development of low income units. MAAC has been able to cover a majority of the increased costs by increasing the amount of their Tax Credit Equity by $2,141,291 and deferring $31,301 of their development fee. In additian, MAAC intends to apply for the March 2005 round of Affordable Housing Program (AHP) grant funds. However, even if AHP funds are received, there remains a funding gap of $743,850. The terms of the City financial assistance are as follows: 1. Tenant income shall be certified at occupancy and each year thereafter. Compliance reports shall be submitted to the City on a semi-annual basis. 2. Loan repayment will be secured by a Deed of Trust and Promissory Note (Exhibits E and F) for the property on behalf of the City and recorded against the Project property. The loan will be subordinate to the US Bank loan, deferred developer fee, and the leasehold payment. 3. The loan shall be fifty-five (55) years. 4. The outstanding balance shall accrue simple interest at 3 percent per annum. 5. Payment of principal and interest on the City loan shall be made out of a fund equal to fifty percent (50%) of the "Residual Receipts", defined as the income which remains after the payment of the debt service on the permanent loan, payment of the deferred developer fee, payment of the leasehold, and reasonable operating expenses. 6. Developer will be required to operate the Project consistent with the Regulatary Agreement required by the Proiect's tax credit financing, the covenants imposed by the Loan Agreement, the Affordable Housing Agreement and any other project requirements. 7. The City assistance is based upon the assumptions presented by the Developer. The City assistance is a maximum level of participation. The above terms are incorporated into the attached Loan Agreement. HOME funds have been appropriated for the development of affordable housing. Staff is requesting that these funds now be reallocoted specifically for the MMC's Senior on Broadway project. PARKLANDS AND PUBLIC FACILITIES Chapter 17.10 of the Municipal Code relates to Parklands and Public Facilities fees. This section was revised in 2004 to require that developments that do not necessitate a final subdivision or parcel map satisfy the obligation through land dedication or payment of an in-lieu fee. The Seniors on Broadway development did not require a subdivision or parcel map and is therefore subject to the aforementioned requirement. 14-4 PAGE 5, ITEM NO.: MEETING DATE: 14 02/22/05 Chapter 17.10.070 also allows that the City Council may by resolution waive all or any portion of the dedication of land or in-lieu fee requirement in the interest af stimulating the construction of housing for low and moderate-income hauseholds. The Seniors on Broadway development pravides 41 units of affordable rental housing and therefore meets this intent. In addition, due to the project's location, directly adjacent to the Chula Vista learning Charter School, a pragram known as "Generations Together," is being established to cultivate the intergenerational exchange of experience between the senior residents and the students of the adjacent Charter School. This includes the sharing of facilities, including playground facilities, which through an agreement with the Charter School, may be used as open-space for the Seniors on Broadway residents. Therefore, the waiver of the Parklands and Public Facilities fee for this development should not significantly impact the provision of services to the community at large. If the Parklands and Public Facilities fees were assessed, the additional cost to this project would be $273,420. Based upon the financial constraints of this project, as discussed earlier, staff is requesting that these fees be waived to ensure the construction of this project. FISCAL IMPACT The loan of $1 ,043,B50 will be reallocated from existing HOME funded projects as specifically detailed in Exhibit H to this Staff Repart. . HOME Investment Partnership Program funds are allocated annually from the U.S. Department of Housing and Urban Development to the City of Chula Vista. The City is also required to set aside a minimum of fifteen percent (15%) of those funds for investment in housing to be developed, sponsored or owned by a Community Housing Development Organization (CHDO). As of this date, the City of Chula Vista has $1 .2 million in HOME funds and $535,409.28 in HOME CHDO funds that must be committed to a praject by FY 2004-2005, otherwise the U.S. Department of Housing and Urban Development will require that the funds be surrendered. Any repayment of the loan will be deposited into the HOME funds for further use in providing affordable housing programs. The waiver of the Parklands and Public Facilities fees will result in a loss to this pragram of approximately $273,420. It is not being proposed that this waiver be offset, but its approval will ensure the construction of 41 units of affordable housing for very low-income households. EXHIBITS The followi ng exhibits are attached: A. location Map B. City Affordable Housing Agreement C. City loan Agreement and Related Restricted Covenants D. NEPA Categorical Exclusion E. leasehold Deed of Trust F. Promissory Note G. Subordination Agreement H. HOME Reallocation of Funds Detail Sheet 14-5 Õ>' .~ ~ (f) o "tJ ::J s.:.. .. . *.... a.~~8 ü s.... c:::: . <!m c.o <!LOb~ -=::::('\/0<.0 .c::::CX>I.ØO ~~. .---r \ ~ \ ~ Iþ \:\--~:-\ \ \ \.. 14-6 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Chula Vista 276 Fourth Avenue Chula Vista CA 91910 Attn: Community Development Dept. No fee for recording pursuant to Government Code Section 27383 (Space above for Recorder's Use) AFFORDABLE HOUSING AGREEMENT TIDS AFFORDABLE HOUSING AGREEMENT (the "Agreement") is entered into as of February 21, 2005, between the CITY OF CHULA VISTA, a municipal corporation ("City") and Seniors on Broadway Limited Partnership, a Califomia Limited Partnership ("Devel.oper") and/or its successors or assignees. ARTICLE 1 - Recitals 1.1 Authoritv. City is a municipal corporation, organized and existing under the laws of the State of California. The City is authorized to enter into binding agrèements for the purpose of protecting public health, safety, and welfare. 1.2 Developer. Developer is the holder af a 75-year lease to the real property located at 825-841 Broadway in the City of Chula Vista, which is described in the attached Exhibit A, which is hereby incorporated herein ("the Real Property"). The Real Property is currently unimproved. 1.3 Loan Agreement. Developer and City have entered into a Loan Agreement and Related Restricted Covenants dated as of February 21, 2005 (the "Loan Agreement"), whereby the City has agreed to make a loan to the Developer, and the Developer has agreed to develop, construct, and.operate the Project as an affordable housing project for seniors. The execution and recording of this Affordable Housing Agreement is a requirement of the Loan Agreement. Unless defined otherwise herein, all capitalized terms used herein shall have the same meaning as such term is defined in the Loan Agreement. 1.4 Proi ect. Developer proposes to construct a multifamily housing project with 42 apartment units. The residential units will consist of 5 units affordable to very-low income households at or below 30 percent of the Area Median Income ("AMI), 16 units affordable to very-low income households at or below 45 percent of the AMI, and 20 units affordable to very low households at or below 50 percent of the AMI, DOCSOC\989729v2\24036.0030 14-7 and one unit made available to an on-site manager. The number of units required to be restricted to a particular level of income, by bedroom count of the units, shall be in accordance with the following: Unit Description No. of Units Income Group 5 30% AMI 1 Bdrm/l Ba 16 45% AMI 20 50% AMI TOTAL 41 1.5 Agreement. The City Council established in Council Resolution 2003-442 as a condition to approval of the fmancial assistance, a requirement that an agreement be entered into between City and Developer providing for the creating and maintaining of a specified percentage of the dwelling units on the Real Property for low income housing. 1.6 Intent. These parties intend that this Agreement constitute the agreement referred to in Paragraphs 1.3 and 1.5 in the Loan Agreement. CITY AND DEVELOPER HEREBY AGREE AS FOLLOWS: ARTICLE 2 - Development Standard 2.1 Standards. The permitted uses of the Project, the density of use thereof, the maximum height and size of buildings thereon, and provisions for reservations or dedication of land for public pwposes and all other standards of development of the Project will be governed by each of the following as presently constituted ("the Development Standards"): 2.1.1 Zone Regulations: The regulations for Central Commercial, Precise Plan (C-C-P) with a Precise Plan. 2.1.2 Design Review: The Design Review Committee's approval ofthe project as referenced in DRC PCM-03-2 I and any exhibits referred to therein at its meeting on April 21, 2003. 2.1.3 Parking: Developer shall provide no less than 45 parking spaces, a reduction from the 74 parking spaces requirement as specified in Section 19.62.050 (13) of the City ofChula Vista Municipal Code. 2.1.4 ()Pen Space: Developer shall provide a total of 6,100 square feet of open space, including a private balcony or patio area for each housing unit, common courtyard, community room, lounge area, library and recreation room consistent witþ the approved Design Review Committee 2 DOCSOC\989729v2\240J6.00JO 14-8 application (DRC PCM-03-21). The project is aIlowed a reduction in the usable open space requirement for multi-family projects as specified in Section 19.28.090 of the City of Chula Vista Municipal Code. 2.2 Low and Moderate Incame Housing. All of the 42 dwelling units shall be continuously occupied only by and affordable to households of very low income seniors as set forth in Section 1.5 hereof (other than the unit which may be made available to an on-site manager). ARTICLE 3 - Low Income Housin!! 3.1 Definitions. For the purposes of this article, the following defmitions apply: 3.1.1 "Area Median Income" means the latest median income from time to time determined by the United States Department of Housing and Urban Development (pursuant to Section 8 of the United States Housing Act of 1937) for the San Diego Standard Metrapolitan Statistical Area, and as established by regulation of the State of Cali fomi a pursuant to Health and Safety Cade Section 50093. 3.1.2 "Very Low Income Tenants" means individuals or families with an income which does not exceed the applicable limits for very low income households, adjusted for household size, which are established by regulation of the State of California pursuant to Health and Safety Code Section 50093, and as more particularly set forth in Section 1.4 above. 3. 1.3 "Very Low Income Apartment" means any of the forty one (41) apartment units on the Project, which shaIl be continuously occupied only by and affordable to a Very Low Income Tenant. 3.1.4 "Affordable Apartment" means anyone of the apartments defined in Paragraph 3.1.3. 3.1.5 "Manager's Unit" means that unit on the Project occupied by a resident property manager which may be exempt from occupancy restrictions. 3.1.6 "Rent" means the total of monthly payments for all of the foIlowing: (a) use and occupancy of the apartment unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by the Developer which are required of all tenants, other than security deposits, and (c) a reasonable allowance for utilities not included in the above costs, excluding telephone service, which takes into consideration an adequate level of service. 3.1.7 "Community Development Director" means the Director of the Community Development Department of the City. 3.2 Qualification of Ten ants. As to the Affordable Apartments, the foIlowing will apply: 3.2.1 I BR Verv Low Income Apartments. Each one bedroom Very Low Income Apartment wiII be leased to a household of up to 2 persons who qualify as a Very Low Incame Tenant. 3.3 Monthlv Rent. As to the Affordable Apartments, the following will apply: DOCSOC\989729v2\24036.0030 3 14-9 3.3.1 Verv Low Income Apartments. The monthly rent charged for all the Very Low Income Apartments shall not exceed one-twelfth of the amount obtained by multiplying 30 percent times the Area Median Income for 5 units, 45 percent of the Area Median Income for 16 units and 50 percent of the Area Median Income for 20 units, as adjusted for household size appropriate to the unit as specified in paragraph 3.3 .2. 3.4 Proof ofOualification. Developer will obtain from each person(s) to whom Developer rents an Mfordable Apartment a "Supplemental Rental Application" ("the Application") in the fonn of Exhibit B attached hereto and incorporated herein (or such other fonn as City may from time to time adopt and of which City shall natify Developer in writing). Developer will be entitled to rely on the Application and the supporting documents thereto in determining the eligibility of such person(s) to rent such Affordable Apartment. Developer will retain the Application and supporting docwnents for a period of at least three years after the applicant thereof ceases to occupy such Mfardable Apartment. Copies of the most recent Supplemental Rental Application for Very Low Income Tenants commencing or continuing occupancy of an Mfordable Apartment shall be attached to the semi-annual report to be filed with the City in compliance with Section 3.6 of this Agreement. An Affordable Apartment occupied by a qualified tenant who at the commencement of the occupancy qualifies as a very low income household shall be treated as occupied by a Very Low Income Tenant until a recertification of such tenant's income in accordance with Section 3.4.1 below demonstrates that such tenant no longer qualifies as a Very Low Income Tenant in accordance with the standards set forth in this Article 3. 304.1 Recertification of Income. Immediately prior to the first anniversary date of the occupancy of an Affordable Apartment by a qualified tenant, and on each anniversary date thereafter, the Developer shall re-certify the income of the occupants of each Mfordable Apartment by obtaining a completed Supplemental Rental Application based upon the current income of each occupant of the· Affordable Apartment. In the event the re-certification demonstrates that such household's income exceeds the income at which such household originally qualified, but such household remains qualified as a Very Low Income Tenant such tenant shall not be required to vacate the unit, and the Developer will rent the next available unit of comparable or smaller size to a household that qualifies with the income level originally designated for the unit. In the event the re-certification demonstrates that such household's income exceeds the income at which such household originally qualified, and such hausehold does not qualify as a Very Low Income Tenant such tenant may be required to vacate the unit after further review by Developer and City. 3.5 Waiver. Developer may apply in writing to the Community Development Department for a waiver, as to a specifically designated Affordable Apartment. Each such application will be accompanied by written data or other evidence relied upon by Developer to show that, for the near future, there will be no reasonable demand for such Mfordable Apartments(s). Within 30 days after receipt of any such application, the Community Development Department will, in writing, either grant or disapprove the requested waiver. If such waiver is granted, Developer may lease the Affordable Apartment(s) affected by the granted waiver to such person(s) and at such rental as Developer detennines, subject to each of the following: 4 DOCSOC\989729v2\240J6.00JO 14-10 3.5.1 Month-to-Month Tenancv. Anything in Paragraph 3.5 to the contrary notwithstanding, the lease or rental agreement will create only a month-to-month tenancy. 3.5.2 Tennination of Waiver. At any time after granting any such waiver, the Community Development Department may, by writing delivered to Developer, terminate such grant. Within five days after such delivery, Developer will appropriately notify the tenant (s) and occupant (s) (of the Affordable Apartment (s) for which the grant of waiver has been terminated) that the month-to-month tenancy thereof will be and become tenninated one month after delivery of such notification by Developer. Developer will take reasonable steps to effectuate such termination, including diligent commencement and prosecution of an unlawful detainer action. 3.6 Records. Audits. Developer will submit to City semi-annual certified rent rolls, disclosing with respect to each Affordable Apartment (i) the monthly rent rate, (ii) the number of occupants for which the Affordable Apartment is rented, and (iii) the income of such occupant(s). Such submission shall be in the fann of Exhibit C attached hereto and incorporated herein (or such other fonn as City may ITom time to time adopt and of which City notify Developer in writing). If City reasonably believes that violations of the rent, occupancy and/or income requirements of this Agreement have occurred, and that an audit is necessary to verify a submitted rent roll, it will so notify Developer in writing thereof. Within ten days after delivery of said notice, Developer will deliver to City the names of three certified public accountants doing business in the metropolitan San Diego area. City will promptly deliver to Developer the fonner's approval of one or more of said names. The audit will be completed by an approved certified public accountant, at Developer's cost, within 60 days after the delivery to Developer of City's said approval. The certified public accountant will promptly deliver a copy of the written audit to City. 3.7 Term. The term during which this Article 3 applies commences on the date hereof. Said tenn ends on the date which is fifty-five (55) years after the date of issuance of a final certificate of completion for the Project is issued pursuant to the Loan Agreement. 3.8 Subordination of Affordabilitv Covenants. In the event that the City fmds that an economically feasible method of fmancing for the construction and operation of the Project, without the subordination of the affordable housing covenants as may be set forth in this Agreement, is not reasonably available, the City shall make the affordable housing covenants set forth in this Agreement junior and subordinate to the deeds of trust and other documents required in connection with the construction and pennanent financing for the Project approved pursuant to the Loan Agreement, and the TCAC Regulatory Agreement. Any subordination agreement entered into by the City shall contain written commitments which the City finds are reasonably designed to protect City's investment in the event of default, such as any ofthe following: (a) a right of City to cure a default on the loan prior to foreclosure, and (b) a right of City to negotiate with the lender after notice af default ITom the lender and prior to foreclosure. ARTICLE 4 - Uses Of The Proiect 4.1 Condition of the Proiect. a. Developer shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials which may be located in, on or under the Project. Such precautions shall 5 DOCSOC\989729v2\24036.0030 14-11 3.4.1 Month-to-Month Tenancv. Anything in Paragraph 3.5 to the contrary notwithstanding, the lease or rental agreement will create only a month-to-month tenancy. 3.4.2 Termination of Waiver. At any time after granting any such waiver, the Community Development Department may, by writing delivered to Developer, terminate such grant. Within five days after such delivery, Developer will appropriately notify the tenant (s) and occupant (s) (of the Affordable Apartment (s) for which the grant of waiver has been tenrrinated) that the month-to-month tenancy thereof will be and become tenrrinated one month after delivery of such notification by Developer. Developer will take reasonable steps to effectuate such termination, including diligent commencement and prosecution of an unlawful detainer action. 3.5 Records. Audits. Developer will submit to City semi-annual certified rent rolls, disclosing with respect to each Affordable Apartment (i) the monthly rent rate, (ii) the number of occupants for which the Affordable Apartment is rented, and (iii) the income of such occupant(s). Such submission shall be in the form af Exhibit C attached hereto and incorparated herein (ar such other form as City may from time to time adopt and of which City notify Developer in writing). If City reasonably believes that violations of the rent, occupancy and/or income requirements of this Agreement have occurred, and that an audit is necessary to verify a submitted rent roll, it will so notify Developer in writing thereof. Within ten days after delivery of said notice, Developer will deliver to City the names of three certified public accountants doing business in the metropolitan San Diego area. City will promptly deliver to Developer the former's approval of one or more of said names. The audit will be completed by an approved certified public accountant, at Developer's cost, within 60 days after the delivery to Developer of City's said approval. The certified public accountant will promptly deliver a copy of the written audit to City. 3.6 Term. The term during which this Article 3 applies commences on the date hereof. Said term ends on the date which is fifty-five (55) years after the date of issuance of a final certificate of completion for the Project is issued pursuant to the Loan Agreement. 3.7 Subordination of Affordabilitv Covenants. In the event that the City finds that an economically feasible method of fmancing for the construction and operation of the Project, without the subordination of the affordable housing covenants as may be set forth in this Agreement, is not reasonably available, the City shall make the affordable housing covenants set forth in this Agreement junior and subordinate to the deeds of trust and other documents required in connection with the construction and permanent financing for the Project approved pursuant to the Loan Agreement, and the TCAC Regulatory Agreement. Any subordination agreement entered into by the City shall contain written commitments which the City finds are reasonably designed to protect City's investment in the event of default, such as any of the following: (a) a right of City to cure a default on the loan prior to foreclosure, and (b) a right of City to negotiate with the lender after notice of default from the lender and prior to foreclosure. ARTICLE 4 - Uses Of The Proiect 4.1 Condition of the Pro¡ect. a. Developer shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials which may be located in, on or under the Project. Such precautions shall 5 DOCSOC\989729v2\24036.0030 14-12 include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, Developer shall install utilize such equipment and implement and adhere to such procedures as are consistent with commerciaIly reasonable standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials. b. Developer shaIl indemnify, defend and hold City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, withaut limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Project, no matter when such claim, action, suit or proceeding is first asserted or begun and no matter how the Hazardous Materials came to be released, used, generated, discharged, stored or disposed of on, under, in or about, to or from the Project, or by whom or how they are discovered, or (ii) the violation, or aIleged violation, of any statute, ordinance, order, rule, regulation, pennit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Project. This indemnity shall include, without limitation, any damage, liability, fme, penalty, parallel indemnity after closing, cost or expense arising from or out of any claim, action, suit or proceeding, including injunctive, mandamus, equity or action at law, for personal injury (including sickness, disease ar death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment. c. For purposes of this Agreement, "Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local governmental authority, San Diego County, the State of California, regional governmental authority, or the United States Government, including, but not limited to, any material or substance which is (i) defmed as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 251 IS, 251 17 or 25122.7, or listed pursuant to Section 25130 of the Califomia Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article I I of Title 22 of the California Code of Regulations, Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (xi) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, etseq. d. For purposes of this Agreement, "Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the County of San Diego, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction aver the City, the Developer or the Property. 4.2 Marketing and Selection of Ten ants. DOCSOC\989729v2\24036.0030 6 14-13 Developer shall submit for the approval of the City, which approval shall not unreasonably be withheld, a plan for marketing the rental of the apartment units in compliance with federal and state fair housing law. Such marketing plan shall include a plan for publicizing the availability of the apartment units within the City, such as notices in any City sponsored newsletter, newspaper advertising in local newspapers and notices in City offices. The marketing plan shall require Developer to obtain from the City the names of low-income seniorswho have been displaced by the City's or the Redevelopm~nt Agency of the City of Chula Vista s redevelopment projects, and to notify persons on such list of the availability of units in the Project prior to undertaking other forms of marketing. The marketing plan shall provide that the persons on such list of displaced persons be given not fewer than ten (10) days after receipt of such notice to respond by completing application forms for rental of apartment units, as applicable. All tenants of each Affordable Apartment shall meet the income requirements set forth herein, and shall be in conformance with the standards set forth in the approved Management Plan. Selection of residents shall be made randomly within the following levels of priority, rather than on a first come-frrst serve basis: a. First Prioritv. Households which are displaced from their primary residence as a result of an action of City or the Redevelopment Agency of the City of Chula Vista, a condominium conversion involving the household's residence, expiration of affordable housing covenants applicable to such residence, or closure of a mobilehome or trailer park community in which the household's residence was located, and the household resided in such housing as the household's primary place of residence for at least two years prior to such action or event. b. Second Prioritv. Households which meet one of the following criteria: (i) households which are displaced from their primary residence as a result of an action of City or the Redevelopment Agency of the City ofChula Vista, a condominium conversion involving the household's residence, expiration of affordable housing covenants applicable to such residence, or closure of a mobilehome or trailer park community in which the household's residence was located, and the household resided in such housing as the household's primary place of residence for at least one year but less than two years prior to such action or event, (ii) households with at least one member who has resided within the City, as that person's primary place of residence, for at least two years prior to the date of application for such housing, or (iii) households with at least one member who has worked within the City, as that person's principal place of full-time employment, for at least two years prior to the date of application for such housing. c. Third Prioritv. Other Very Low Income Households who do not meet the criteria for frrst priority or second priority above. 4.3 Maintenance ofProiect. Developer agrees for itself and its successors in interest to all or any portion of the Project, to maintain the improvements on the Project in conformity with applicable provisions of the City Municipal Code, and shall keep the Project free from any accumulation of debris or waste materials. During such period, the Developer shall also maintain the landscaping planted on the Project in a healthy condition. Developer shall participate in the City's Crime-Free Multi-Hausing Program (or similar program which is adopted by the City) which has been adopted to facilitate strong property management, screening of applicants, and maintenance of multifamily rental properties. If at any time Developer fails to maintain the Project and such condition is not corrected within five days after written notice from City with respect to graffiti, debris, waste material, and general maintenance, or thirty days after written notice from City with respect to landscaping and building improvemen!s, then City, in addition to whatever remedy it may 7 DOCSOC\989729v2\24036.0030 14-14 have at law ar at equity, but subject to the rights of the Permanent Lender, shall have the right to enter upon the applicable portion of the Project and perfonn aU acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Project, and to attach a lien upon the Project, or to assess the Project, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by City and/or costs of such cure, including a fifteen percent (15%) administrative charge, which amount shall be promptly paid by Developer to City upon demand. 4.4 ProPerty Management. The parties acknowledge that the City is interested in the long tenn management and operation of the Project and in the qualifications of any person or entity retained by the Developer for that purpose (the "Property Manager"). Therefore, during the period of the effectiveness of the affordability covenants set forth herein, the City may from time to time review and evaluate the identity and performance of the Property Manager as it deems appropriate. If the City determines that the performance of the Property Manager is materially deficient based upon the standards and requirements set forth in this Section 4.4 and the approved Management Plan (as defined below), the City shall provide notice to the Developer of such deficiencies and the Developer shall use its best efforts to correct such deficiencies within a reasonable period of time. Upon the failure of the Property Manager to cure such deficiencies within the time set forth herein, the City shall have the right to require the Developer to immediately remove and replace the Property Manager with another property manager or property management company who is reasonably acceptable to the City, who (if required in the reasonable discretion of the City) is not related to or affiliated with the Developer, and who has not less than five (5) years experience in property management, including experience managing multifamily residential developments of the size, quality and scope of the Proj ect. In addition, the Developer shaU submit for the reasonable approval of the City a detailed "Management Plan" which sets forth in reasonable detail the duties of the Property Manager, the tenant selection process, a security system and crime prevention program in compliance with the City's Crime- Free Multi-Housing Program (or similar program which is adopted by the City), the procedures for the collection of rent, the procedures for manitoring of occupancy levels, the procedures for eviction of tenants, the rules and regulations of the Project and manner of enforcement, a standard lease fonn, and other matters relevant to the management of the Praject. The management plan shaU require the Property Manager to adhere to a fair lease and grievance procedure and provide a plan for tenant participation in management decisions. The management of the Project shall be in compliance with the Management Plan which is approved by the City, subject, however, to any requirements of the Permanent Lender pursuant to the Permanent Loan Documents. The Management Plan may be revised from time to time upon the reasonable approval of the City and the Developer. 4.5 Insurance. Within ten (10) days after the Developer's acquisition of the leasehold interest in the Real Property, Developer shall furnish to the City duplicate originals or appropriate certificates of insurance coverage evidencing that Developer has obtained, or cause to be obtained, insurance coverage with respect to the Project in type, amount and from insurers with Best's ratings as are reasonably acceptable to City (or have been approved by the Pennanent Lender), naming the City and its officers, agents, employees, representatives and their respective successors, as named or additional insureds by appropriate endorsements. Such policy shall include, without limitation "all risk" property casualty insurance and comprehensive general liability insurance. Without limiting the generality of the foregoing, such policy shall also include coverage to insure Developer's indemnity obligations provided herein; unless Developer can demonstrate to the City's reasonable satisfaction that such coverage is not available, or is not available at a commercially reasonable cost consis.tent with the Project Budget. Developer covenants DOCSOC\989729v2\240J6.00JO 8 14-15 and agrees for itself and its successors and assigns that Developer and such successors and assigns shall keep such liability policy in full force and effect until the date that is fifty-five (55) years from the date of the City's issuance of the final certificate of completion for the Project. In addition to any other remedy which City may have hereunder for Developer's failure to procure, maintain, and/or pay for the insurance required herein, City may (but without any obligation to do so, and subject to the rights of the Permanent Lender under the Permanent Loan Documents) at any time or from time to time, after thirty (30) days written notice to Developer, procure such insurance and pay the premiums therefor, in which event Developer shall immediately repay City all sums so paid by City together with interest thereon at the rate of ten percent (10%) per annum or the maximum legal rate, whichever is less. 4.6 Proceeds of Insurance. Should the Project be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured against by Developer, Developer shaIl pramptly proceed to obtain insurance proceeds and take all steps necessary to promptly and diligently commence the repair or replacement of the Project to substantially the same condition as the Project is required to be maintained in pursuant to this Agreement if (i) the Developer agrees in writing within ninety (90) days after payment of the proceeds that such repair or rebuilding is economically feasible, and (ii) the Pennanent Lender permits such repair or rebuilding, provided that the extent of Developer's obligation to restore the Project shall be limited to the amount of the insurance proceeds actually received by the Develaper. If the Developer is unable or is not permitted to repair, replace, or restore the Project, Developer must give notice to City (in which event Developer wiII be entitled to all insurance proceeds, subject to any outstanding lien obligations, but Developer shall be required to remove all debris from the Real Property) and Developer may construct such other improvements on the Real Property as are consistent with applicable land use regulations and approved by the City and the other govemmental agency or agencies with jurisdiction. 4.7 Taxes. Assessments. Encumbrances. and Liens. Developer shall pay prior to delinquency all real estate taxes and assessments properly assessed and levied on the Project. Until the payment in full of all amounts owing under the City Note, Developer shall not place or allow to be placed thereon any mortgage, trust deed, encumbrance, or lien (except mechanic's liens prior to suit to foreclose the same being filed) not authorized by the Loan Agreement or otherwise approved by the City. Developer shall remove or have removed any levy or attachment made on the Project, or assure the satisfaction thereof, within a reasonable time, but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit Developer trom contesting the validity or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available to Developer in respect thereto. 4.8 Hold Harmless. Developer agrees to indenmify, protect, defend and hold harmless City, and their officers, agents, employees, representatives and successors, from and against any and all claims, damages, actions, costs, demands, expenses or liability, including without limitation, reasonable attorneys' fees and court costs, which may arise from the direct or indirect actions or inactions of the Developer or those of its contractors, subcontractors, agents, employees or other persons acting on Developer's behalf which relate DOCSOC\989729v2\24036.0030 9 14-16 to the Project. This hold harmless agreement applies, without limitation, to all damages and claims for damages suffered Dr alleged to have been suffered by reason of the operations referred to in this paragraph, regardless of whether Dr not the City prepared, supplied or approved plans or specificatiDns, or both, for the Property or Project. This inderrmity by Developer, and all other indemnities set forth herein shall survive any foreclosure of the Project by the City pursuant to the terms of the City Trust Deed. 4.9 Further InderrmificatiDn DfCitv. It is understood and agreed that the parties hereto have entered the Loan Agreement as a method .of providing necessary assistance to DevelDper in connection with the construction of very low income housing and construction of the Project pursuant to all applicable laws and that by contributing public funds to assist in the accomplishment of such construction, or by otherwise contributing or assisting with the accomplishment of such construction, the City assumes no responsibility for insuring that the same is adequately undertaken (including, without limitation, the existence and/or remediation of any hazardaus or toxic substances on the Real Property) and as a material consideration to City for entering into the Loan Agreement (and not by way of limiting the generality of Section 4.8 abDve) Developer agrees to inderrmify, protect, defend and hold harmless City and all its representatives, officers, employees and their respective successors from and against any and all claims, damages, actions, demands, liabilities, obligations, expenses, losses or costs, including without limitation, reasonable attorneys' fees and court costs, which may arise in any manner connected with the construction of the Project pursuant to the Loan Agreement; excluding, however, from Developer's indemnity any such liability, losses, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, expenses (including out- of-pocket litigation costs and reasonable attorneys' fees) arising out of the sDle negligence .of City Dr its employees, cDntractors, subcDntractors or agents. 4.10 ObligatiDn tD Refrain from Discrimination. There shall be no discriminatiDn against, or segregatiDn .of, any persDns, Dr grDUp .of persons, on aCCDunt .of race, cDlor, creed, religiDn, sex, marital status, ancestry, Dr national origin in the enjoyment .of the Project, nDr shall DevelDper itself, or any persDn claiming under Dr thrDugh it, establish or permit any such practice or practices .of discrimination Dr segregation with reference tD the selection, lDcation, number, use, Dr .occupancy .of tenants, lessees, subtenants, sublessees, or vendees of the Praject Dr any pDrtiDn thereof. Developer shall further comply with all the requirements .of the Americans with Disabilities Act. 4.11 Form ofNDndiscriminatiDn and NDnSegregatiDn Clauses. Developer shall refrain frDm restricting the rental, sale, Dr lease .of any portiDn .of the Project, or cDntracts relating to the PrDject, on the basis of race, colDr, creed, religiDn, sex, marital status, ancestry, Dr national .origin .of any persDn and shall cDmply with all the requirements for the ADA. All such deeds, leases or cDntracts, shall cDntain Dr be subject to substantially the fDllowing nDndiscrimination Dr non- segregatiDn clauses: . a. In deeds: "The grantee herein CDvenants by and fDr himself or herself, his Dr her heirs, executors, administratDrs, and assigns, and all persons claiming under or thrDugh them, that there shall be nD discriminatiDn against or segregation ofanypersDn Dr grDUp .of persons on account of race, colDr, creed, religiDn, sex, marital status, ancestry, or natiDnal arigin in the sale, lease, sublease, transfer, use, .occupancy, tenure, or enjoyment of the land herein conveyed, nDr shall the grantee himself, Dr any persons claiming under Dr thrDugh him, establish Dr permit any such practice Dr practices of discrimination Dr segregation with reference tD the selection,locatiDn, number, use, Dr .occupancy .of tenants, lessees, subtenants, sublessees, or vendees in the land herein cDnveyed and further covenants that 10 DOCSOC\989729v2\240J6.00JO 14-17 all such individuals and entities shall comply with all requirements of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42 D.S.C. § 12101, et seq.). The foregoing covenants shall run with the land." b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: 'That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, locatian, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein lease and the lease shall be carried out in compliance with all requirements of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42 V.S.C. § 12101, et seq.).''' c. In contracts: "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of land and all such activities shall be conducted in compliance with all the requirements of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42 D.S.C. §12101, et seq.)." ARTICLE 5 - Breach 5.1 Breach bv City. If City breaches any of its covenants contained in this Agreement, Developer will have available to it all legal and equitable remedies afforded by the laws of the State of California. 5.2 Breach bv Developer of Rent Limit Reauirements. If, with respect to any Affordable Apartment, Developer breaches this Agreement by charging higher rent than that herein pennitted, Developer will, immediately upon City's demand, (i) reduce the rent to that pennitted herein and (ii) refund to any tenants who theretofore paid such higher rent the amount of the excess, together with interest hereon at the rate of 10 percent per annum, computed from the date(s) of payment of the excess by said tenants to the date of said refund. The provisions of this paragraph constitute a third-party beneficiary contract in favor of such tenants. Further, City is hereby granted the power (but not the duty) to act as attorney-in-fact of such tenants in enforcing this paragraph. 5.3 Breach bv Developer of Leasing Reauirements. If, with respect ta any Affordable Apartment, Developer breaches this Agreement by leasing to tenants who are not qualified pursuant to paragraph 3.2, Developer will, immediately upon City's written demand, and at Developer's sole cost, take all lawful steps to tenninate such leasing. 5.4 Breach bv Developer of Other Reauirements. 11 DOCSOC\989729v2\24036.0030 14-18 If the Developer breaches any af its covenants contained in this Agreement, the City will have available to it all legal and equitable remedies afforded by the laws of the State of California. 5.5 Remedies Not Exclusive. The remedies set forth in Paragraphs 5.2 and 5.3 are not exclusive, but are in addition to all legal or equitable remedies otherwise available to City. ARTICLE 6 - General Provisions 6.1 Assignment. The rights and obligations of Developer under this Agreement may be transferred or assigned, pravided such transfer or assignment is made as a part of the conveyance of the leasehold interest of all or a portion of the Real Praperty. Any such transfer or assignment will be subject to the provisions af this Agreement. During the term of this Agreement, any such assignee or transferee will observe and perform all of the duties and obligations of Developer contained in this Agreement as such duties and obligations pertain to the portion of said Real Property so conveyed. 6.2 Amendment or Cancellation of Agreement. This Agreement may be amended from time-to-time or cancelled by the mutual consent of the parties hereto but only in the same manner as its adoption. The term "this Agreement" includes any such amendment properly approved and executed. 6.3 Enforcement. Unless amended or cancelled as provided in Section 6.2, this Agreement is enforceable by any party to it despite a change in the applicable general or specific plans, zoning, subdivision or building regulations adopted by City which alter or amend the rules, regulations or policies gaverning permitted uses of the land, density and design. 6.4 Binding Effect of Agreement. The burdens of this Agreement bind and the benefits of the Agreement inure to the parties' successors or assignees in interest. 6.5 Relationship of Parties. It is understood that the contractual relationship between City and Developer IS such that Developer is an independent contractor and not an agent of City. 6.6 Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands or requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered ar certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. DOCSOC\989729v2124036.0030 12 14-19 City: City ofChula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attn: Commw1ity Development Director Developer: Seniors on Broadway Limited Partnership, a Califomia Limited Partnership c/o Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc. 22 West 35th Street, Suite 200 National City, CA 91950 With a copy to: SCDC, LLC c/o Red Capital Markets, Inc. Two Miranova Place, 12th Floor Columbus, Ohia 43215 Attention: Tax Credit Asset Management A party may change its address by giving notice in writing to the other party. Thereafter, notices, demands and requests shall be addressed and transmitted to the new address. ARTICLE 7 - Conflicts of Law 7.1 Conflict of City and State or Federal Laws. In the event that state or federal laws or regulations enacted after this Agreement has been entered into prevent or preclude compliance with one or more provisions of this Agreement, or require changes in plans, maps or permits approved by the City, the parties will: 7.1.1 Notice and Copies: Provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy and statement of conflict with the provisions of this Agreement. 7.1.2 Modification Conferences: The parties will, within 30 days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. 7.2 City Council Hearings. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this Agreement, the matter will be scheduled for consideration by the governing board of the City Council. The City Council, at such meeting, will detennine the exact modification or suspension which shall be necessitated by such federal or state law or regulation. Developer, at the meeting, will have the right to offer oral and written testimony. Any modification or suspension will be taken by the affirmative vote of not less than a majority of the authorized voting members of the governing board of the City Council. DOCSOC\989729v2\24036.0030 13 14-20 7.3 Cooperation in Securing Permits. The City shall cooperate with the Developer in the securing of any permits which may be required as a result of such modifications or suspensions. ARTICLE 8 - Miscellaneous Provisions 8.1 Rules of Construction. The singular includes the plural and the neuter gender includes the masculine and the feminine. Any terms used herein which are not defined herein shall have the meaning given to such terms in the Loan Agreement. . 8.2 Severability. The parties hereto agree that the provisions are severable. If any provision of this Agreement is held invalid, the remainder of this Agreement will be effective and will remain in full force and effect unless amended ar modified by mutual consent of the parties. 8.3 Entire Agreement. Waivers and Amendments: Regulatory Agreement to Control. This Agreement, together with any other written document referred to or contemplated herein, embodies the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived, or discharged except by an instrument in writing executed by the party against which enforcement or such amendment, waiver, ar discharge is sought. 8.4 Capacities of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resalutions or other actions have been taken so as to enable it to enter into this Agreement. 8.5 Governing LawNenue. 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 anly 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, and perfonnance hereunder, shall be the City of Chula Vista. [NEXT PAGE IS SIGNATURE PAGE] 14 DOCSOC\989729v2\24036.0030 14-21 IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed as of the day and year first written above. "CITY" CITY OF CHULA VISTA, a municipal corporation of the State of California By: Its: Mayor ATTEST: Susan Bigelow, City Clerk APPROVED AS TO FORM: City Attorney 5-1 DOCS00989729v2124036.0030 14-22 "DEVELOPER" S~ORSONBROADWAYLThITŒD PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP By: Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc., a California nonprofit public benefit corporation, its general partner By: By: By: DOCS0C\989729v2\24036.0030 5-2 14-23 STATE OF CALIFORNIA ) ) ss. ) COUNTY OF SAN DIEGO On , before me, (Print Name of Notary Public) , Notary Public, personally appeared o o personally known to me -or- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. :SIgnature VI Notary OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent rraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT o Individual o Corporate Officer Title Or Type Of Document Title(s) o Partner(s) 0 o Attomey-In-Fact Trustee( s) Guardian/Conservator Other: Limited General o o o o Number Of Pages Signer is representing: Name OfPerson(s) Or Entity(ies) Date Of Documents Signer(s) Other Than Named Above DocsoœS9729v2l24036.0030 14-24 STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) On , before me, , Notary Public, (Print Name of Notary Public) personally appeared D personally known to me -or- D proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. signature VI Notary OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and cauld prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 Individual 0 Corporate Officer Title(s) Title Or Type Of Document 0 Partner(s) 0 Limited 0 General 0 Attomey-In-Fact 0 Trustee(s) 0 Guardian/Conservator Number Of Pages 0 Other: Signer is representing: Name OfPerson(s) Or Entity(ies) Date Of Documents Signer(s) Other Than Named Above DOCSOC\989729v2\240J6.00JO 14-25 EXHIBIT A LEGAL PROPERTY DESCRIPTION All that certain real property situated in the City of Chula Vista, County of San Diego, State of California, described as follows: Exhibit A-I 14-26 EXHIBIT B (COUNCIL RESOLUTION - ) - Exhibit B-1 14-27 EXHIBIT C DOCSOC\989729v2\24036.0030 Exhibit C-l 14-28 » !::~ Uo ~'" 0", ¡;.,;::¡ " (.) <= <= .~ osg -;.::::: .- p.. :5se:. o U - '" ~ ~ "S " 0 " 0 Q a. w ¡; It: 1<í "$. 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'" » ¡:;i Uo ~~ 000 ¡"'þ " " ¡::: ¡::: .- '"g -;..!:: .- 0. 88e:. o u " ~ M ~ Q) .c E ~ Q) Ü Q) 0 0 c.. w Q: C) 0 z ~~¡f! ~~ ii2 0 I- ~¡ šª z 0 u == C) z iñ ::I ...: 0 CIJ J: Q) W >. .r:: ...J () CJ] CIJ <I: Q) 0 "- Q: 0 0 ;; u.. L() u.. ~ <I: .?:> ...J ::J <I: -, ::I "0 Z C Z CIJ <I: .co . -L() == 0 ~ M W Q) ~ II) c CIJ :::¡ ::J -, C CIJ -, 0 - '" CIJ", ~'" .- '" E<ó .c~ ::J;1¡ (J)¡;j CD ~ð; E Q) E~ m - '" z CIJ Q)", e. c!<> Ü ~ .- Ü Q) ..... '60 .e- 0 CIJ<n <n - - Q)Ü !l. <I: .~ 08 = þ .., ... l() \0 \0 \0 ~I~ -Tl- 01Y OF CHUIA VISfJl SEMI-ANNUAL AFFORDABLE HOUSING MONITORING REPORT Owner's Certification I am the owner or owner's representative for an affordable housing development in the City of Chula Vista, which is bound by a Housing Agreement with the City. I certify under penalty or perjury that the attached rent roll for affordable units at my project is true and correct to the best of my knowledge and complies with the tenns and conditions stipulated in the Affordable Housing Agreement, or any agreement that implements the same, with the City of Chula Vista. Name Title Signature Date 14-39 DOCSOC\989729v2\24036.0030 O1YOf CHUIA VISrA SUPPLEMENTAL RENTAL APPLICATION The rental unit for which you are applying has received governmental assistance under programs to encourage more affordable housing. As a result, the unit carries a rent level restriction and is restricted to occupancy by very low income households. The information required on this form is necessary to detennine you income eligibility to accupy the unit. You must report all household income. Infonnation provided will be confidential and not subject to public disclosure pursuant to State Government Code Section 6254(h). 1. Rental Unit Address 2. Head of Household Name 3. Household Members Household Name Date af Birth Age Member No. I (Head a/Household) 2 3 4 5 4. Total Current Annual Household Income from all Sources: Household Source Income Member No. I (Head of Household) TOTAL $ 5. Total Gross Annual Household Income shown on most recent Federal Tax return (attach copies of most recent Federal Tax returns for all household members receiving income). Total Gross Annual Income $ 6. Unit Size: I Bedroom 7. Monthly Rental Rate: $ 14-40 DOCSOC\989729v2\24036.0030 Supplemental Rental Application Page 2 of 2 APPLICANT'S STATEMENT I certify, under penalty of peIjury, that the foregoing infonnation is true and correct to the best of my knowledge. I understand that any misrepresentation of the infonnation contained herein may be cause for eviction. Signature Date Applicant Signature Date Applicant OWNER'S STATEMENT Based on the foregoing infonnation, I certify, under penalty of pe:rjury, that the applicant is eligible to accupy this restricted affordable unit. Eligibility is based on fmding that the applicant hausehold's current annual income is $ and does not exceed the current maximum household income of $ allowed under the terms of the Affordable Housing Agreement with the City of Chula Vista regarding this residential development. Name Title Signature Date 1 4-41 DOCSOC\989729v2\24036.0030 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY . THE CITY COUNCIL :!f,ddL lc~bJ !/,de AnnM e City Attorney Dated: d-../ ('8 (0 ~ Loan Agreement and Related Restrictive Covenants Between the City of Chula Vista and Seniors on Broadway Limited Partnership 14-42 LOAN AGREEMENT AND RELATED RESTRICTIVE COVENANTS/ HOME PROGRAM P ARTICll' ATION AGREEMENT by and between THE CITY OF CHULA VISTA, a Municipal Corporation, and Seniors on Broadway Limited Partnership, a California Limited Partnership DOCSOC\989728v5\24036.0030 14-43 LOAN AGREEMENT AND RELATED RESTRICTED COVENANTS THIS LOAN AGREEMENT AND RELATED RESTRICTED COVENANTS (the "Agreement") is entered into as of , 2005 by and among the CITY OF CHULA VISTA, a municipal corporation ("City"), and Seniors on Broadway Limited Partnership, a California Limited Partnership ("Borrower"), and/or its successors or assignees. ARTICLE 1 - Recitals 1.1 Authoritv. City is a mWlicipal corporation, organized and existing under the laws af the State of California. City is authorized to enter into binding agreements for the purpose of protecting public health, safety, and welfare. 1.2 Available Funds. City has been allocated funds from the United States Department of Housing and Urban Development ("HUD") pursuant to the federal government's HOME Investment Partnerships Pragram (42 U.S.C. Section 1274, et seq.) which can be used for the purposes of funding certain City obligations under this Agreement in accordance with HOME regulations (24 C.F.R. Section 92, et seq.). 1.3 The Propertv. Borrower has entered into a Ground Lease and Operating Agreement with the Chula Vista Elementary School District, for a period of 75 years, for the real property located at 825-841 Broadway in the City of Chula Vista, as described in the attached Exhibit A, which is incorporated herein (the "Property"). 1.4 Pro; ect. Borrower proposes to construct on the Property 42 multifamily apartment units for seniors, consisting of 41 affordable housing units and one manager's unit (the "Project"). The residential units will consist of 5 units affordable to very low households at or below 30 percent of the Area Median Income ("AMI"), 16 units affordable to very low households at or below 45 percent of the Area Median Income ("AMI"), and 20 units affordable to very low-income households at or below 50 percent of AMI (the "Project"). 1.5 Agencv Financial Assistance to Borrower. Through the development and operation of the Proj ect, City and Borrower desire to provide very - income seniors with affordable housing opportunities within the City in accordance with the Cammunity Redevelopment Law and the Housing Element of the City General Plan. In order to accomplish this goal, the City desires to make a loan from its HOME funds to Borrower for a portion of the costs of the leasing, construction and equipping of the Project, subject to certain conditions designed to assure the implementation of the Project in accordance with the redevelopment plans, the General Plan, state and federal law, HOME program regulations, and as otherwise provided herein. 1.6 Interests of the City and the Public. DOCSOC\989728v5\24036.0030 2 14-44 The leasing, canstruction, equipping and operation of the Project pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of the City and the welfare of the residents of the City of Chula Vista, and in accordance with the public purposes and provisions of applicable federal, state, and local laws and requirements. 1.7 Housing Obiectives and Goals. The Project accommodates several of the City's Comprehensive Housing Plan Objectives, which are expressly noted in the Housing Element as priorities for the City. The objectives this Project serves are: (I) Achievement of a balanced residential community through integration of low and moderate income housing throughout the City, and the adequate dispersal of such housing to preclude establishment of specific low-income enclaves. (2) The pravision of adequate rental housing apportunities and assistance to households with low and ver:y low incomes. WHEREFORE, based upon the foregoing recitals and in consideration of their mutual and prospective promises and subject to the terms and conditions hereinafter set forth, the parties do hereby agree as follows: ARTICLE 2 - Definitions The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary: 2.1 "Affordable Housing Agreement" means that certain agreement, in substantially the fonn set forth in Exhibit F attached hereto and incorporated herein, which sets forth Borrow~r's obligations to maintain the Project as an affordable multifamily housing project for very low income households, and other obligations related to the operation and management of the Project, which shall be recorded in the order of priority set forth in this Agreement. 2.2 "Agreement" means this Loan Agreement and Related Restricted Covenants. 2.3 "Bank Loan" means the loan agreement of even date herewith by and between U.S. Bank, N.A. and the Borrower, and the promissory note, deed of trust and other documents entered into pursuant to such loan agreement, with respect to the Bank Loan. 2.4 "Borrower" means Seniors on Broadway Limited Partnership, a California Limited Partnership. The term "Borrower" includes any legally pennissible assignee or successor to the rights, powers, and responsibilities of Borrower hereunder, following such assignment and succession, in accordance with Section 12.10 of this Agreement. . 2.5 "Certificate of Completion" shall have the meaning ascribed in Section 10.8 of this Agreement. The fonn of the Certificate of Completion shall be as set forth in Exhibit J to this Agreement, which is incorporated herein. 2.6 "City" shall mean the City of Chula Vista, a municipal corporation, organized under the laws of the State of Cali fomi a and having its offices at 276 Fourth Avenue, Chula Vista, California 91910. 2.7 "City Loan" means the loan for an amount of One Million Forty Three Thousand Eight Hundred and Fifty Dollars ($1,043,850) by the City to Borrower, which loan is the subject of this Agreement. 3 DOCSOC\989728v5\24036.0030 14-45 2.8 "City Note" shall mean the promissory note, in substantially the form set forth in Exhibit D attached hereto and incorporated herein, in the principal amount of One Million Forty Three Thousand Eight Hundred and Fifty Dollars ($1,043,850), evidencing the City Loan. 2.9 "City Trust Deed" shall mean that certain leasehold deed of trust, in substantially the form set forth in Exhibit E attached hereto and incorporated herein, which secures Borrower's obligations pursuant to the City Note, which shall be recorded in the order of priority set forth in this Agreement. 2.10 "Development Fee" and "Deferred Development Fee" shall have the meaning ascribed in Section 8.1. 2.11 "Effective Date" means the date first appearing in this Agreement above. 2.12 "Gross Revenue" shall have the meaning ascribed in Section 4.6. 2.13 "Community Development Director" means the Director of the Community Development Department of the City. 2.14 "Housing Quality Standards" means the housing quality standards promulgated by the U.S. Department of Housing and Urban Development which are set forth in 24 CFR 982.401, or a successor regulation. 2.15 "Permanent Lender" means U.S. Bank, N.A. as lender of the Permanent Loan. 2.16 "Permanent Loan" means the loan or loans to be made by U.S. Bank, N.A. to the Borrower subject to the Pennanent Loan Documents. 2.17 "Permanent Loan Documents" means the Bank Loan Documents as such documents are amended and restated at the Conversion, as defined therein. 2.18 "Project" shall have the meaning ascribed in Section 1.4 of this Agreement. 2.19 "Project Budget" means that certain budget referred to in Section 4.12 of this Agreement and attached hereto as Exhibit H, which is incorporated herein by this reference, which budget may not be materially changed without the prior approval of the Community Development Director, which approval shall not be unreasonably withheld (a material change is a change that causes the total Project cost to increase or decrease by three percent (3%) or more ITom what is shown in Exhibit H). 2.20 "Project Pro Forma" means that certain Project Pro Forma referred to in Section 4.12 of this Agreement and attached hereto as Exhibit I, which is incorporated herein by this reference, which pro forma Borrower represents to be a good faith projection of the information set forth therein. 2.21 "Property" means that certain real property legally described in Exhibit A which is attached hereto and incorporated herein. 2.22 "Property Manager" means the property management company managing the Project, whether or not the Project is managed by Borrower. The term Property Manager shall not mean the on-site property manager. 2.23 "Reasonable Operating Expenses" shall have the meaning ascribed in Section 4.6 2.24 "Residual Receipts" shall have the meaning ascribed in Section 4.6. DOCSOC\989728v5\240J6.00JO 4 14-46 2.25 "Restricted Units" means the residential units in the Project whose rent levels and occupancy are to be restricted as set forth in Section 10.2 of this Agreement. 2.26 "Schedule of Perfonnance" means that certain Schedule of Perfonnance attached hereto as Exhibit L and incorporated herein, as the same may be modified or extended pursuant to Sections 9.4 and 13.3 hereof. 2.27 "TCAC" means the California Tax Credit Allocation Committee. 2.28 "TCAC Regulatory Agreement" means the regulatory agreement to be executed and recorded in favor of the California Tax Credit Allocation Commission. 2.29 "Title Insurer" means First American Title Insurance Company. ARTICLE 3 - Financing of the Project 3.1 Summarv of Financing. Borrower's current sources and uses of funds summary for the Project is attached hereto as Exhibit G, which is incorporated herein. Borrower contemplates a total project budget of approximately $7,345,635. Borrower will receive approximately $5,937,520 from Red Capital Group through the state low income housing tax credit program and will also obtain additional permanent financing from US Bank in an approximate amount of $928,000. In addition, Developer is deferring $31,301 in development fees. City shall loan to Borrower the amount of $1,043,850, secured by the City Trust Deed, which shall be subordinate to the Permanent Loan, City acknawledges that the foregoing amounts (other than the amount of the City Loan) are approximations and may change. ARTICLE 4 -City Loan 4.1 Amount. Subject to the terms and conditions set forth herein, the City hereby commits ta loan to Borrower the sum af $1,043,850 (the "City Loan"), to be applied solely for payment of a portian of the casts of the construction and equipping of the Project. 4.2 Interest. The outstanding principal amount of the City Loan shall each accrue simple interest at the rate of three (3%) percent per annum. 4.3 Borrower's Obligations. The following conditions must be fully satisfied as reasonably determined by the City in order to obligate the City to make the City Loan: a. Borrower shall have submitted a complete application for a preliminary allocation of "9%" low-income housing tax credits from the California Tax Credit Allocation Committee in the amount set forth in the Sources and Uses attached hereto as Exhibit G, or such greater or lesser amount as may be mutually agreed to by the parties. b. Borrower shall have acquired a leasel?-old interest in the Property, or shall be acquiring a leasehold interest in the Property concurrently with the first disbursement of the City Loan. DOCSOC\989728v5\24036.0030 5 14-47 c. Borrower shall have received a firm commitment for an equity contribution from an investor Limited Partner, also known as Red Capital Markets, Inc. ("Limited Partner") in Borrower of approximately $5,593,500, which number is subject to adjustment pursuant to the partnership agreement or funding agreement between Borrower and Borrower's Limited Partner investor, or such lesser amount as may be mutually agreed to by the parties. The City shall not unreasonably withhold or delay their consent to Borrower's request to approve such a lower amount. d. Borrower shall have obtained a firm commitment for the Construction Loan in the amount of $1,000,000 or such greater or lesser amount as may be mutually agreed to by the parties, and shall have closed or be ready to close concurrently with the City Loan. e. Borrower shall have duly executed (and acknowledged, if applicable) the City Note, the City Trust Deed, and the Affordable Housing Agreement, and shall have submitted the same to the City. City Trust Deed and Affordable Housing Agreement shall be ready to be recorded as an encumbrance to the Property, subordinate only to Bank Loan and other non-monetary encumbrances approved by the City. f. Borrower shall have submitted to the City, and City shall have reviewed and approved, in its reasonable discretion, any and all loan documents, regulatory agreements or grant contracts to be executed by or otherwise to be binding upon City or Borrower in connection with its acquisition of a leasehold interest in the Property, its construction, equipping and operation of the Project and/or its financing thereof, including without limitation the Permanent Loan Documents, ,and the partnership agreement of the Borrower and documents executed pursuant thereto, such as guaranties and funding agreements. g. The Title Insurer or another title insurance company reasonably acceptable to the . City shall have unconditionally committed to issue the Lender's Policies to the City in accordance with Section 4.9 hereof. h. Borrower shall have submitted to the City a copy of an executed property management agreement for the Project with an experienced property manager which is reasonably acceptable to the parties, in accordance with Section 10.8 hereof. i. Borrower shall have satisfied all other obligations under this Agreement required to be performed prior to the closing on the City Loan, and shall not be in default in any of its obligations under the terms of this Agreement. All representations and warranties of Borrower contained herein shall be true and correct in all material respects on and as of the date of the disbursement of the City Loan as though made at that time. 4.4 Source of City Loan. The source of the City Loan is funds allocated to City by HUD pursuant to the federal government's HOME Investment Partnerships Program (42 U.S.C. Section 12741, et seg.). Pursuant to the HOME Investment Partnerships Program requirements, out of the total of forty-two (42) units in the Project, eleven one-bedroom units are being assisted with HOME Investment Partnerships Program funds (the "HOME-assisted units") and must meet all of the HOME Investment Partnerships Program requirements for the term of the affordability restrictions on the units. The specific units to be designated HOME-assisted units may change from time to time in Developer's sole discretion, provided that the aggregate number and category of said units remains the same. 4.5 Repavment. Payments under the City Loan shall be made ás follows: DOCSOC\989728v5\24036.0030 6 14-48 a. Commencing on the Initial Payment Date (defined below), payment of principal and interest on the City Note shall be made, on an annual basis, in an amount equal to fifty percent (50%) of the "Residual Receipts" (defined below) derived from the Property and/or the operation of the Project. Such amounts shall be paid on a priority basis to all other debt service on the Property. Residual Receipts shall be calculated by Borrower each and every year commencing with the first anniversary of the issuance of the Certificate of Completion by the City. The fifty percent (50%) Residual Receipts payments, if any, shall be made on or before thirty (30) days after the later of (i) May 1 after the first year anniversary of the issuance of the Certificate of Completian by the City or (ii) the first year anniversary of the date on which the Deferred Development Fee, if any, has been paid in full (the "Initial Payment Date"), and on or before 30 days after each subsequent yearly anniversary of the Initial Payment Date. b. "Residual Receipts" is specifically defined as the "Gross Revenue" (as defmed below) from the Project minus the "Reasonable Operating Expenses" (as defmed below) for the same period. (i) "Gross Revenue" shall mean all revenue, income, receipts, and other consideration actually received from aperatian and leasing of the Praject. Gross Revenue shall include, but not be limited to: all rents, fees and charges paid by commercial and residential tenants, Section 8 payments or other rental subsidy payments received for the dwelling units, all cancellation fees; proceeds from vending and laundry room machines; the proceeds of business interruption or similar insurance to the extent not applied to the Pennanent Laan; the proceeds of casualty insurance to the extent not utilized to repair or rebuild the Project or applied to the Pennanent Loan; and condenmation awards for a taking of part or all of the Project for a temporary period to the extent not applied to the Pennanent Loan or used to repair ar restore the Project. Gross Revenue shall not include tenants' security deposits, loan proceeds, capital contributions or similar advances or payments from reserve funds. (ii) "Reasonable Operating Expenses" shall include any and all reasonable and actually incurred costs associated with the leasing, operation, use or maintenance of the Property, calculated in accordance with generally accepted accounting principles. Such expenses may include, without limitation, rent under ground lease, property and other taxes and assessments imposed on the Project; premiums for property damage and liability insurance; utilities not directly paid for by the tenants including water, sewer, trash collection, gas and electricity, maintenance and repairs including pest control, landscaping and grounds maintenance, painting and decorating, cleaning, general repairs, and supplies; tenant relocation costs and expenses; license fees or certificate of occupancy fees required for operation of the Project; general administrative expenses directly attributable to the Property including advertising and marketing, security services and systems, and professional fees for legal, audit and accounting; property management fees and reimbursements including on-site manager and assistance manager expenses; asset management fees payable to the investor Limited Partner of the Borrower in an amount which does not exceed the amount set forth therefor in the Sources and Uses, Project Budget and Pro Fonna attached hereto; a reasonable partnership management fee, cash deposited into a reserve for capital replacements of the Project improvements and an operating reserve in such amounts as are required by the Pennanent Lender and as may be reasonably required by Project equity investors; tenant services costs; debt service payments (excluding debt service due to City from Residual Receipts of the Project) on financing for the Project; reasonable supplemental management fees; and payment of the Deferred Development Fee. In no event shall expenditures, including attorneys' fees or litigation costs, nonnally required to be paid out of the Replacement Reserve, be treated as Reasonable Operating Expenses unless specifically approved in writing by the City. For purposes of the foregoing definition of "Reasonable Operating Expenses," any property management fee or partnership management fee, which is paid to Borrower, shall at no time exceed an amount as is custamary and standard for affordable housing projects similar in size, scope and character to the Project. Notwithstanding the foregoing, for purposes of this calculation, Reasonable Operating Expenses shall not include the following: principal and interest payments on any debt subordinate ta the :City Note, depreciation, amortization, depletion or ather non-cash expenses, incentive partnership asset management fees payable to the Borrower or its DOCSOC\989728v5\24036.0030 7 14-49 affiliate (other than the supplemental management fee described above), or any amount expended from a reserve account. d. The fifty percent (50%) of Residual Receipts remammg after the annual Residual Receipts payments on the City Note may be retained and used by Borrower in Borrower's sole discretion. e. Except as otherwise expressly provided hereunder, Borrower's obligation to repay the City Loan shal1 be limited to Borrower's annual payment, until the City Loan is repaid in ful1, of fifty percent (50%) of the Residual Receipts as described above for a period from the completion of the Project until the date which is fifty-five (55) years fol1owing the date of the City's issuance of the final Certificate of Completion for the Project (but in no event later than sixty (60) years from the date of execution of the City Note) (the "Conditional Maturity Date"). Upon the Conditional Maturity Date, City shal1 have the option, at any time, in its sole discretion, but after good faith discussions with Borrower as to available options, upon ninety (90) days' written notice to Borrower, to (a) declare the remaining balance of all amounts owed under the City Note immediately due and payable, or (b) to require instal1ment payments under the City Note based upon (i) a restated principal balance comprised, in the aggregate, of any and all outstanding principal and interest under the City Note (as applicable) existing as of the date of its election, (ii) a prospective fixed interest rate per annum equal to the prime rate then in effect for U.s. Bank, San Diego office, or such other rate mutually agreed to by the City (as applicable) and Borrower, and (iii) monthly installments of principal and interest paid over the course of an amortization schedule to be determined by the City (as applicable) in its sole discretion, not to be less than ten (lO) years. In the event that City elects repayment approach (b), Borrower agrees to execute an amendment to the Note in favor of City (as applicable) reflecting the amended repayment terms described above. f. Notwithstanding the foregoing, in the event that Borrower, or any successors thereto, is in default under this Agreement pursuant to Section 12.1 hereof, the City shall have the right in its sole discretion, upon ten days notice to Borrower, to declare immediately due and payable all outstanding principal, interest and other sums due under the City Note (as applicable), or to pursue any and al1 other remedies provided herein, under the City Note or City Trust Deed, or the Affordable Housing Agreement, or as otherwise provided at law or in equity. 4.7 PreDavrnent. Borrower may prepay the principal and any interest due under the City Note prior to or in advance of the time for payment thereof as provided in such note, without penalty; provided, however, that Borrower acknowledges that certain provisions hereof and the provisions of the Affordable Housing Agreement will be applicable to the Project even though Borrower may have prepaid such City Note. 4.8 AssumDtion. In the event the Project is sold or transferred as approved by the City or otherwise permitted pursuant to Section 11.10 hereof, the City Loan shall be fully assumable by the approved or permitted transferee. The City Loan shall not be assumable by any other transferee. 4.9 Use of Loan Proceeds. Borrower shal1 use City Loan proceeds only to pay for a portion of the costs of the construction and equipping of the Project, as mutual1y agreed upon by City and Borrower. 4.10 Lien Priority. Title Insurance. 8 DOCSOC\989728v5\24036.0030 14-50 As a condition to the obligations of City to fund the City Loan, there shall be no liens or encumbrances upon the Property having priority over the City Trust Deed, other than: (a) the deed of trust securing the Bank Loan; (b) the Mfordable Housing Agreement, and (c) those existing non-monetary encumbrances which are disclosed in title reports delivered ta City and which have not been objected ta by the City in writing. Such priority shaIl be evidenced by an AL T A lender's insurance policy to be issued to City, including title endorsements reasonably requested by the City with liability equal to the amount of the City Loan, or such other amount as may be mutuaIly agreed to by the parties (the "Lender's Policy"), to be issued by Title Company at the close of escrow for the Borrower's acquisition of the Property. Borrower shall be responsible for the cost of the Lender's Policy, which may be paid for from the proceeds of the City Loan. Notwithstanding anything to the contrary set forth herein, the City acknowledges that the City Loan is subordinate to §42(h)(6)(E)(ii) of the Internal Revenue Code of 1986, as amended. 4.11 Subordination: Refinancing. City agrees to take such actions as may be necessary to subordinate the City Trust Deed to the Bank Loan or any future refinancings thereof, provided, however, that any such subordination to the Bank Loan shall be evidenced by a recorded subordinatian agreement containing such notice, cure, loan purchase or assumption and Project purchase rights as may be reasonably required by the City in a form to be approved by the City's attorneys, which approval shaIl not be unreasonably withheld or delayed. 4.12 Borrower's Evidence of Financial Capability. The anticipated sources and uses of funds for acquisition of the leasehold interest in the Property and construction and equipping of the Project are set forth in the Project Budget (Exhibit H). The fmancial projections for the Project are set forth in the Project Pro Forma (Exhibit I). The City acknowledges that the numbers in the foregoing exhibits may change, subject to reasonable City approval of such changes. Upon request but in na event later than the disbursement of the City Loan proceeds, Borrower shall submit to the City Community Development Director evidence reasonably satisfactory to the City Community Development Director that Borrower has the fmancial capability necessary for the acquisition of the leasehold interest in the Property and the construction and equipping of the Project thereon in accordance with this Agreement, the Project Budget, and the Project Pro Forma. Such evidence of financial capability shall include the following: a. Copy of the partnership agreement and other documents evidencing commitments for equity financing. b. Copy of the construction contract between Borrower and its general contractor for all of the improvements required to be constructed by Borrower hereunder, which shall be deemed to be certified by Borrower to be a true and correct copy thereof. c. Verifiable documentation that Borrower will receive an allocation of "9%" low income housing tax credits with respect to the Proj ect. 4.13 Reports and Accounting of Residual Receipts. a. In connection with the annual repayment of the City Loan, commencing upon the Initial Payment Date, the Borrower shall furnish the City with an audited statement duly certified by an independent firm of certified public accauntants approved by the City, setting forth in reasonable detail the computation and amount of Residual Receipts dur:iÎ1g the preceding calendar year. DOCSOC\989728v5124036.0030 9 14-51 b. The Borrower shall keep and maintain in accordance with Section 13.4 hereof full, complete and appropriate books, records and accounts necessary or prudent to evidence and substantiate in full detail Borrower's calculation of Residual Receipts. All such books, records, and accounts shall be open to and available for inspection by the City, and their auditors or other authorized representatives in accordance with Section 13.4 hereof. ARTICLE 5 - Notes and Deeds of Trust 5.1 Security for Loans. a. City Loan. Borrower's obligations to pay the City Loan shall be evidenced by the City Note, and shall be subject to the tenns and conditions contained therein. The City Note shall provide for simple interest at the rate of three percent (3%) per annum. Among other things, the City Note shall further provide that the City Nate is non-recourse to the Borrower and the partners of Borrawer and that payments of principal and interest shall be made only from fifty percent (50%) of the Residual Receipts. The City Note shall be secured by the City Trust Deed encumbering the Property as a second priority leasehald deed of trust. Prior to the close of escrow for the Borrower's acquisition of a leasehold interest in the Property, Borrower shall execute and deliver to City the City Note and the City Trust Deed. The City Trust Deed shall be recorded with the Office of the San Diego County Recorder in accordance with City's instructions to escrow. Borrower shall be responsible for any and all of City's escrow, title and recording costs arising in connection with the City Loan, such costs to be paid by Borrower through escraw. 5.2 Nonrecourse Obligation. Nothing herein contained shall be deemed to cause Borrower (or any of its partners, or any of their respective directors, officers, employees, partners, principals or members) personally to be liable to payor perform any of its obligations evidenced hereby, and the City shall not seek any personal or deficiency judgment on such obligations, and the sole remedy of the City with respect to the repayment of the City Loan, shall be against the Property; provided, however, that the foregoing shall not in any way affect any rights the City may have (as a secured party or otherwise) hereunder or under the City Note or City Trust Deed, or any other rights the City may have to: (a) recover directly from the Borrower any funds, damages or costs (including, without limitation, reasonable attorneys' fees and costs) incurred by the City as a result of fraud, intentional misrepresentation or intentional waste by Borrower; or (b) recover directly from the Borrower any condemnation or insurance proceeds, or other similar funds or payments attributable to the Property which under the terms of the City Trust Deed should have been paid to the City, and any costs and expenses incurred by the City in connection therewith (including, without limitation, reasonable attorneys' fees and costs). ARTICLE 6 -Disbursement of City Loan 6.1 Disbursement. The proceeds of the City Loan shall be disbursed on behalf of Borrower in two installments. The first installment of loan proceeds shall be disbursed upon receipt of evidence of expenditures for predevelopment-related costs submitted to the Director of Community Development. The second installment of the City Loan shall be disbursed upon receipt of evidence of expenditures and after the first construction draw for the Project. ' 10 DOCSOC\989728v5\24036.0030 14-52 ARTICLE 7 -HOME Requirements 7.1 Reauirements. Because the source of the City Loan is funds allocated to City by HUD pursuant to the federal government's HOME Program, Borrower is required to construct and operate the Project in compliance with all requirements of the HOME Program and the HOME Regulations (24 C.F.R. Section 92 et ~.), as said regulations may be amended or suspended from time to time. Not by way oflimitation of the foregoing, in compliance with 24 C.F .R. Section 92.504( c), from the Effective Date of this Agreement through the end af the term that the HOME-assisted 1mits are required to remain affordable pursuant to the HOME Regulations, Borrower, as the operating entity, shall comply with all of the following requirements: a. Use of the HOME F1mds. HOME funds shall be used only for eligible costs (see, e.g., 24 C.F.R. Sections 92.206 and 92.214) in accordance with the Project Budget and Project Pra Forma; all pre- construction and construction activities shall be completed within the times referenced in the Schedule of Perfonnance attached hereto, as said times may be extended in accordance with Section 9.4 and Section 13.3 hereof. b. Affordabilitv. The HOME-assisted 1mits shall meet the affordability requirements of the HOME Regulations (24 C.F.R. Section 92.252), the TCAC Regulatory Agreement or this Agreement, whichever is more restrictive, as more particularly set forth in Section 10.2 herein. c. Proiect Reauirements. Borrower shall comply with all project requirements set forth in Sections 92.250-92.258 of the HOME Regulations, as applicable in accordance with the type of project assisted, or with the provisions of this Agreement, whichever requirements are more restrictive. d. Davis-Bacon Reauirements. Borrower shall comply with all project requirements set forth in Title 29 CFR Parts I, 3, 5, 6 and 7 regarding the establishment of wage determinations and instructions on how to use the detenninations, the Copeland Act requirements for payroll deductions and the submission of weekly certified payroll reports, and the labor standards provisions that relate to Davis-Bacon Act wage rates and the responsibilities of contractors and contracting agencies to administer and enforce the provisions, administrative proceedings enforcing Federal labor standards on construction and service contracts, and parameters for practice before the Administrative Review Board. e. Housing Oualitv Standard. Borrower shall maintain HOME-assisted 1mits in compliance with applicable Housing Quality Standards and local housing code requirements or the provisions of this Agreement, whichever requirements are more restrictive. f. Affinnative Marketing. Borrower shall perfonn those affirmative marketing responsibilities set forth in 24 C.F.R. Section 92.351 or in the marketing plan described in Section 10.6 of this Agreement, whichever are more restrictive. g. Records and Revorts. In addition to the other provisions of this Agreement, including without limitation Section 10.3 hereof, Borrower shall provide to City all records and reports relating to the Project that may be reasonably requested by City in order to enable it to perfonn its record keeping and reporting obligations pursuant to Sections 92.508 and 92.509 of the HOME Regulations. DOCSOC\989728v5\24036.0030 II 14-53 h. Enforcement of Agreement. In addition to the other provisions set forth herein, City shall have the authority to enforce Borrower's obligation to comply with the HOME Investment Partnerships Program and the HOME Regulations as set forth in this Agreement. 1. Duration of Covenants HOME-Assisted Units. In accordance with 24 C.F.R. Sections 92.252(e) and 92.504(c)(3)(ix), the covenants in this Section relating to Borrower's compliance with the HOME Investment Partnerships Program and the HOME Regulations shall remain in effect for a period of at least twenty (20) years after Project completion. j. Monitoring. Not less than once every two years during the period covered by this Section 7, City may review Borrower's activities and operations under this Agreement and Borrower's compliance with the requirements of the HOME Investment Partnerships Program and the HOME Regulations, including, but not limited to, Borrower's compliance with the requirements of this Section. Such review may include an on-site inspection of the Project (including unit interiors). If such an on-site inspection of the Project is to be undertaken, City shall coordinate such inspection with Borrower and/or the Property Manager. The monitoring required pursuant to this paragraph shall be in compliance with the requirements of24 C.F.R. Section 92.504(d). ARTICLE 8- Development Fee 8.1 Development Fee. Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc., a California nonprofit public benefit corporation ("Developer"), also known as Seniors on Broadway Limited Partnership, a California Limited Partnership, shall be entitled to a development fee, which includes general overhead and profit, in the amount which does not exceed the amount set forth therefor in the Sources and Uses, Project Budget and Pro Forma attached hereto, and in no event greater than the maximum amount permitted by TCAC (the "Development Fee"). It is anticipated that a portion of the Development Fee shall be paid by Borrower from the proceeds of the finåncing for the construction and equipping of the Project upon the close of such fmancing, with the balance of the Development Fee (the "Deferred Development Fee") to be paid from Gross Revenue of the Project and equity contributions to Borrower made after the closing. The Borrower's obligation to pay the Deferred Development Fee shall be evidenced by a promissory note (the "Deferred Development Fee Note"). In the event there are any cost savings realized in the construction of the Project, all available funds attributable to such cost savings shall also be applied to the Deferred Development Fee. Regular payments on the Deferred Development Fee Note shall be made on an annual basis out of the Gross Revenues of the Project. Such amounts shall be paid to Developer on a priority basis to all other debt service on the Property except for the Permanent Loan. Developer shall specifically be entitled to payment of the Deferred Development Fee before payment ofthe amounts due to City pursuant to the City Note. The Deferred Development Fee Note shall not be secured by any liens upon the Property. ARTICLE 9 -Development of the Project 9.1 Work to be Performed. Borrower agrees to develop the Property so that it consists of a mixed use multi-family residential project consisting of 42 apartment units contained in one two-story wood-rramed, garden-style residential apartment buildings, and to operate the Project for occupancy by very income seniors, subject to the terms of this Agreement, the Scope of Work attached hereto as Exhibit K and incorporated herein, the Permanent Loan Documents, and the Affordable Housing Agreement. The Project shall consist of 41 one-bedroom/one bathroom units, 1 two bedroom/I bathroom unit, and a community center, which includes a multi-purpose community room, computer room, kitchen, rental office, laundry room and storage space, and other common area facilities in 12 DOCSOC\989728v5\24036.0030 14-54 accordance with the plans approved by the City in connection with issuance of the building permit(s), and with the terms of and conditions of all land use pennits and approvals required by the City to the extent such permits and approvals are required by applicable law. The Project's units and occupancy shall be restricted in accordance with the terms of this Agreement. If Borrower desires to make any change in any construction or building plans after the same have been approved, Borrower shall submit the proposed change to the appropriate body for approval, if and to the extent required by applicable law. Borrower shall be responsible for all construction and installation and for obtaining all the necessary permits. 9.2 Compliance with Permits and Laws. Borrower and its contractors shall carry out the development of the Project and operation of the Project in conformity with all applicable laws, regulations, and rules of the governmental agencies having jurisdiction, including without limitation all legally applicable conditions and requirements of California Community Redevelopment Law (Health and Safety Code, Division 24); all conditions and requirements of the HOME Investment Partnerships Program and HOME Regulations referred to in Section 7.1; all legally applicable prevailing wage requirements, if any, the applicability of which is for Borrower to determine, pursuant to federal and state law, including California Labor Code § 1770 et seq.; all legally applicable conditions and requirements imposed by the Low Income Housing Tax Credit Program; all legally applicable labor standards; the legally applicable provisions of the City zoning and development standards, building, plwnbing, mechanical and electrical codes, and all other provisions of the City Municipal Code, and all legally applicable disabled and handicapped access requirements, which may include, without limitatian, the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., the Unruh Civil Rights Act, Civil Code Section 51, et seq., and the California Building Standards Code, Health and Safety Code Section 18900, et seq., and City policies adopted pursuant to said federal standard regulations and requirements, and applicable MBEIWBE regulations and City policies adopted pursuant to said federal standard regulations and requirements. The work shall proceed only after procurement of each permit, license, or other authorization that may be required under applicable law by any governmental agency having jurisdiction, and the Borrower shall be responsible to the City for procurement and maintenance thereof, as may be required of the Borrower and all entities engaged in work on the Project. 9.3 Costs of Development. Subject to the terms and conditions of this Agreement, Borrower shall be responsible for all costs of developing the Project, including but not limited to predevelopment costs incurred for items such as planning, design, engineering, and environmental remediation; all development and building fees; the cost incurred to demolish and clear any and all existing improvements, furnishings, fixtures, and equipment from the Property; costs for insurance and bonds (as required); costs for financing; preparation of the Property for construction; and all on-site construction costs. Borrawer shall be responsible for verifying the adequacy and availability of all utilities. If at any time during the course of the development of the Project, Borrower exhausts fifty percent (50%) or more of the contingency amounts set forth in the Project Budget, City shall have the right, but not the obligation, to approve any additional cost overruns (unless such approval has been obtained from the Permanent Lender), which approval shall not be umeasonably withheld. 9.4 Schedule of Performance: Progress Reports. Subject to Section 13.3, Borrower shall begin and complete all construction within the times specified in the Schedule of Performance, subject to any extension granted by City, which extension shall 13 DOCSOC\989728v5\24036.0030 14-55 not lliJIeasonably be withheld upon the written request of the Borrower. Once construction has commenced, it shall be continuously and diligently pursued to completion, and shall not be abandoned for more than fifteen (15) consecutive business days, except when due to causes beyond the control and without the fault of Borrower, as set forth in Section 13.3 of this Agreement. During the course of the construction, and prior to the completion of the Project, Borrower shall keep City infonned of the progress of the construction on the Property and, if requested, shall provide City with monthly written progress reports and meet with City staff as appropriate. If requested, Borrower shall fumjsh a construction schedule to City indicating completion dates for each portian of work showing progress toward completion of the Project. After completion of construction of the Project and within the time set forth in the Schedule of Performance (as it may be revised as provided above), Borrower shall provide the City Community Development Director a true and correct copy of the [mal cost certification submitted to TCAC concerning the construction of the Project on the Property. Borrower shall provide additional cost infonnation as may be reasonably requested by the City Community Development Director to permit the City Community Development Director to make such detenninations as is reasonably required for City to verify Borrower's conformance to this Agreement and the Scope of Work, as it may be revised by mutual agreement of the parties from time to time during the course of the construction. 9.5 Anti-discrimination. Borrower, for itself and its successors and assigns, agrees that Borrower will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, ancestry, or national origin in connection with activities undertaken pursuant to this Agreement. 9.6 Right of Access. For the purpose of assuring compliance with this Agreement, representatives of City, upon reasonable prior notice of no less than 24 hours, shall have the reasonable right of access to the Property, without charges or fees, at nonnal construction hours during the period of construction for the purposes of this Agreement, including but not limited to the inspection of the work being perfonned by Borrower in constructing the Project. Such representatives of City shall be those who are so identified in writing by the Community Development Director. City shall indemnify, defend, and hold hannIess Borrower and Borrower's officers, employees, and agents from any damage caused or liability arising out of the sole negligence or willful misconduct of City or their officers, officials, employees, volunteers, agents, or representatives in their exercise of this right of access; provided that it is understood that City do not by this Section 9.6 assume any responsibility or liability for a negligent inspection or failure to inspect. Any inspection by City pursuant to this section shall be conducted so as not to interfere or impede the construction or operations of the Project. 9.7 Mechanics Liens. Stop Notices. and Notices of Completion. a. Subject to Borrower's right to contest set forth in Section 11.4 of this Agreement, if any claim or lien is filed against the Project or a stop notice affecting the City Loan is served on the City or any other lender or other third party in connection with the Project, then the Borrower shall, within forty- five (45) days after such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the City a surety bond in sufficient fonn and amount, or provide the City with other assurance satisfactory to the City that the claim of lien or stop notice will be paid or discharged. 14 DOCSOC\989728v5124036.0030 14-56 b. If Barrower fails to discharge any lien, encumbrance, charge, or claim in the manner required in this Section 9.7 (a), then in addition to any other right or remedy, the City may (but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at the Borrower's expense. Altemately, the City may require the Borrower to immediately depasit with the City or title company the amount necessary to satisfy such lien or claim and any costs pending resolution thereof. The City shall use such depasit to satisfy any claim or lien that is adversely determined against the Borrower. c. The Borrower shall file a valid notice of cessation or notice of completion upon cessation of construction on the Project for a continuous period of thirty (30) days or more, and take all other reasonable steps to forestall the assertion of claims of lien against the Project. The Borrower authorizes the City, but without any obligation, to recard any notices of completion or cessation of labor, or any other appropriate notice that the City deems necessary or desirable to protect its respective interest in the Proj ect. 9.8 Certificate of Completion. Upon Borrower's satisfactory completion of construction of the Project, City shall furnish Borrower with a Certificate of Completion upon written request therefor by Borrower. Such Certificate of Completian shall be in a fonn so as to permit recordation in the Office of the Recorder of the County of San Diego as set forth in Exhibit J, which is incorporated herein. The Certificate of Completion shall be, and shall so state, a conclusive determination of satisfactory completian of the construction of the Project and of full compliance with the terms of this Agreement relating to such construction. After the date of the issuance of the Certificate of Completion, and notwithstanding any other provisions of this Agreement to the contrary, any party then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Property shall not (because of such ownership, purchase, lease, or acquisition) incur any obligation ar liability under this Agreement for the construction of the Project. City shall not unreasonably withhold the Certificate of Completion. If City refuses or fails to furnish the Certificate of Completion after written request ftom Borrower, it shall, within fifteen (15) days after such written request, provide Borrower with a written statement of the reasons it refused or failed to furnish such Certificate of Completion. The statement shall also contain its opinion of the action Borrower must take to obtain such Certificate of Completion. If the reason for such refusal is confmed to the immediate availability of specific items .or materials for landscaping, it shall issue its Certificate of Completion upon the posting of cash deposit or an irrevocable letter of credit in favor of the City in an amount representing the fair value of the work not yet completed and in a fonn reasonably acceptable ta the City's attorney. A Certificate af Completion is not a notice of completion as referred to in California Civil Code Section 3093. 9.9 Estoppels. At the request of Borrower or any holder of a mortgage or deed of trust, City shall, from time to time and upon the request of such holder, timely execute and deliver to Borrower or such holder a written statement of City that no default or breach exists (or would exist with the passage of time, or giving of notice, or both) by Borrower under this Agreement, the City Note, the City Trust Deed and/or the Affordable Housing Agreement, if such be the case, and certifying as to whether or not Borrower has at the date of such certification complied with any obligation of Borrawer hereunder ar under such of those documents as to which such holder may inquire. The fonn of any estoppel letter shall be prepared by the holder or Borrower. DOCSOC\989728v5124036.0030 15 14-57 ARTICLE 10 Uses Of The Property 10.1 Summary. Borrower covenants and agrees for itself and its successors and assigns to its interest in the Property that Borrower and such successors and assigns shall devote the Property to uses consistent with the HOME Investment Partnerships Program and HOME Regulations referred to in Section 7.1, the Permanent Loan Documents, the Affordable Housing Agreement, the City Trust Deed and this Agreement, whichever is most restrictive, for a period ending fifty-five (55) years fÌ"om the date of the City's issuance of the final Certificate of Completion for the Project. Without City's prior written consent, which consent may be withheld in City's sole and absolute discretion, Borrower shall not consent to any amendment of or modification to the TCAC Regulatory Agreement which (i) shortens the term of the affordability restrictions on the units in the Project to a term of less than fifty-five (55) years after the date of the issuance of the fmal Certificate of Completion for the Project or (ii) modifies the number of units required to be rented at affordable housing costs to persons of specified incomes. 10.2 Affordable Housing. Borrower covenants and agrees for itself and its successors and assigns to its interest in the Property that commencing upon the completion of the Project and continuing thereafter for a period of fifty-five (55) years from the date of the issuance of the final Certificate of Completion far the Project, Borrower and such successors and assigns shall devote forty one (41) of the forty twa (42) residential units on the Property (hereinafter the "Restricted Units") to the continuous use as affordable rental housing for very low income households in accordance with the terms of this Agreement (the remaining unit may be occupied by the on-site property manager), subject to the occupancy restrictions contained in this Section 10.2. Five (5) Restricted Units shall be made available to very low income households at or below 30 percent of the Area Median Income ("AMI"), Sixteen (16) Restricted Units shall be made available to very low-income households at or below 45 percent of AMI, and Twenty (20) Restricted Units shall be made available to very low income households at or below 50 percent of AMI, all at an affordable rent.. One of the Restricted Units may be rented or provided at an affordable rent to operational or maintenance employees of the Property Manager who otherwise meet the income requirements hereof which are applicable to their Restricted Units. In determining income eligibility for a particular Restricted Unit, Borrower shall be entitled to rely upon the documentation provided by the prospective tenant as required pursuant to the HOME Investment Partnerships Program procedures, TCAC Regulatory Agreement, Affordable Housing Agreement. Borrower shall not be required to perform further investigations into the household income other than those which are required pursuant to such agreements. Throughout this Agreement, wherever it is stated that Borrower must comply with the affordability requirements and/or verify such compliance, Borrower shall be entitled to rely upon the tenant documentation discussed in this paragraph. In addition to the foregoing, to the fullest extent allowed by law the lease agreement for each Restricted Unit in the Project shall restrict occupancy of the Restricted Unit to a total of three (3) persons for one bedroom units and five (5) persons for two bedroom. Any violation of such restrictions shall constitute a default by the tenant, unless such occupancy restriction is found invalid by a court of competent jurisdiction in a final non-appealable judgment in a lawsuit in which the Project's occupancy restriction is at-issue, or in an applicable and binding published appellate opinion, or by statute, regulation or other binding court order. 10.3 Reports. DOCSOC\989728v5\24036.0030 16 14-58 Borrower, at its expense, shall submit, or cause the Property Manager to submit, to the appropriate entities any and all reports required to be submitted by Borrower pursuant to the HOME Investment Partnerships Program and HOME Regulations. lOA Subordination of Affordabilitv Covenants. In the event that the City finds that an economically feasible method of fmancing for the construction and operation af the Project, without the subordination af the affordable housing covenants as may be set forth in this Agreement, is not reasonably available, the City shall make the affordable housing covenants set farth in this Agreement junior and subordinate to the deeds of trust and other docwnents required in connection with the construction and permanent financing for the Project approved pursuant to this Agreement. Any subordination agreement entered into by the City shall contain written commitments which the City finds are reasanably designed to protect City's investment in the event of default, such as any of the following: (a) a right af City to cure a default on the loan prior to foreclasure, (b) a right af City to negotiate with the lender after notice of default from the lender and prior ta foreclosure, (c) an agreement that if prior to foreclosure of the loan, City takes title to the property and cures the default on the loan, the lender will not exercise any right it may have ta accelerate the loan by reason of the transfer of title to City, and (d) a right of City to acquire the leasehold in the Property from the Borrower at any time after a material default on the loan. 10.5 Condition of the ProPertv. a. Borrower hereby represents that to the best of its knowledge, except as otherwise disclosed to the City in writing, it is not aware of and has not received any notice or communication from any government agency having jurisdiction over the Property notifying Borrower af the presence of surface or subsurface zone Hazardous Materials in, on, or under the Property, or any portion thereof. "Best knowledge," as used herein, shall mean the actual knowledge of the Borrower and its officers, directors, employees, agents and representatives, as based upon the documents and materials in the possession of Borrower, and its officers, employees, agents and representatives, including the site investigation report or study referred to in Section 1 O.5(b) herein. b. In addition to the foregoing, the Borrower has, at its sole cost and expense, engaged its own environmental consultant to conduct a Phase 1 investigation of the Property and produce a report thereof, a copy af which has been provided to the City by Borrower. Such report concludes that no Hazardous Materials have been detected on the Property. c. Borrower shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials which may be located in, on or under the Property. Such precautians shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, Borrower shall install and utilize such equipment and implement and adhere to such procedures as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials. d. Borrower shall indemnify, defend and hold City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Praperty, no matter when such claim, action, suit or proceeding is first asserted or begun and no matter how the Hazardous Materials came to be released, used, generated, discharged, stored or disposed of on, under, in or about, to or from the Property, or by whom or how they are discovered, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, Judgment or license relating to the use, generation, DOCSOC\989728v5\24036.0030 17 14-59 release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Property. This indemnity shal1 include, without limitation, any damage, liability, fme, penalty, paral1el indemnity after closing, cost or expense arising from or out of any claim, action, suit or proceeding, including injunctive, mandamus, equity or action at law, for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to. the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment. e. For purposes of this Agreement, "Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local governmental authority, San Diego County, the State of California, regional governmental authority, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25130 of the Califorma Health and Safety Code, Divisian 20, Chapter 6.5 (Hazardous Waste Control Law», (ii) defmed as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the Califomia Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article II of Title 22 of the Califorma Code of Regulations, Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (xi) defined as a "hazardaus waste" pursuant to Section I 004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq. The term hazardous materials shall not include any material commonly used in the operation and/or occupancy of a multifamily housing project. 10.6 Marketing Plan. Borrower shal1 submit for the approval of the City, which approval shal1 not unreasonably be withheld, a plan for marketing the rental of the apartment units in compliance with federal and state fair housing law. Such marketing plan shal1 include a plan for publicizing the availability of the apartment units within the City, such as notices in any City sponsored newsletter, newspaper advertising in local newspapers and notices in City offices. The marketing plan shall require Borrower to obtain from the City the names of very low-income seniors who have been displaced due to an action by the City or Redevelopment Agency's of the City of Chula Vista's, and to notify persons on such list of the availability of units in the Project prior to undertaking other forms of marketing. The marketing plan shal1 provide that the persons on such list of displaced persons be given not fewer than ten (10) days after receipt of such notice to respond by completing application forms for rental of apartment units, as applicable. 10.7 Maintenance of ProPertv. Borrower agrees for itself and its successors in interest to al1 or any portion of the Property, to maintain the improvements on the Property in conformity with applicable pravisions of the City Municipal Code, and shal1 keep the Property free from any accumulation of debris or waste materials. During such period, the Borrower shal1 also maintain the landscaping planted on the Property in a healthy condition. If at any time Borrower fails to maintai'1 the Property and such condition is not corrected within ten days after written notice from City with respect to graffiti, debris, waste material, and general POCSOC\989728v5\24036.0030 18 14-60 maintenance, or thirty days after written notice ftom City with respect to landscaping and building improvements, then City, in addition to whatever remedy it may have at law or at equity, but subject to the rights of the Permanent Lender, shall have the right to enter upon the applicable portion of the Property and perfonn all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien upon the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by City and/ar costs of such cure, including a fifteen percent (15%) administrative charge, which amount shall be promptly paid by Borrower to City upon demand. 10.8 ProPerty Management. The parties acknowledge that the City is interested in the long tenn management and operation of the Property and in the qualifications of any person or entity retained by the Borrower for that purpose (the "Property Manager"). Therefore, during the period of the effectiveness of the affordability covenants set forth herein, the City may from time to time review and evaluate the identity and perfonnance of the Property Manager as it deems appropriate. If the City determines that the performance of the Property Manager is materially deficient based upon the standards and requirements set forth in this Section 10.8 and the approved Management Plan (as defined belaw), the City shall provide notice to the Borrower of such deficiencies and the Borrower shall use its best efforts to correct such deficiencies within a reasonable period of time, subject to the requirements of the Permanent Lender and the terms and conditions of the Borrower's Limited Partnership Agreement. Upon the failure of the Property Manager to cure such deficiencies within the time set forth herein, the City shall have the right to require the Borrower to immediately remove and replace the Property Manager with another property manager or property management company who is reasonably acceptable to the City, who is not related to or affiliated with the Borrower. In addition, the Borrower shall submit for' the reasonable approval of the City a detailed "Management Plan" which sets forth in reasonable detail the duties of the Property Manager, the tenant selection process, a security system and crime prevention program, the procedures for the collection of rent, the procedures for monitoring of occupancy levels, the procedures for eviction of tenants, the rules and regulations of the Property and manner of enforcement, a standard lease fonn, and other matters relevant to the management of the Property. The management plan shall require the Property Manager to adhere to a fair lease and grievance procedure and provide a plan for tenant participation in management decisions. The management of the Property shall be in compliance with the Management Plan which is approved by the City, subject, however, to any requirements of the Permanent Lender pursuant to the Permanent Loan Documents. The Management Plan may be revised from time to time upon the approval of the City and the Borrower. 10.9 Affordable Housing Agreement. Certain requirements with respect to the affordable housing obligations and other operational and maintenance obligations ofthe Project are set forth in the Affordable Housing Agreement. The execution and recordation of the Affordable Housing Agreement is a condition precedent to the disbursement of the City Loan, as set forth in Section 4.3 hereof. ARTICLE 11- Continuing Obligations of Borrower 11.1 Applicabilitv. For the entire term of the requirements set forth in Section 11.1 hereof, the Borrower shall comply with the provisions of this Article 11. DOCSOC\989728v5\24036.0030 19 14-61 11.2 Insurance. Within ten (10) days after the Borrower's acquisition of a leasehold interest in the Property, Borrower shall furnish to the City duplicate originals or appropriate certificates of insurance coverage evidencing that Borrower has obtained, or cause to be obtained, insurance coverage with respect to the Property and Project in type, amount and from insurers with Best's ratings as are reasonably acceptable to City (or have been approved by the Permanent Lender), naming the City and their officers, agents, employees, representatives and their respective successors, as named or additional insureds by appropriate endorsements. Such policy shall include, without limitation "all risk" property casualty insurance and comprehensive general liability insurance. Without limiting the generality of the foregoing, such policy shall also include coverage to insure Borrower's indemnity obligations provided herein. Borrower covenants and agrees for itself and its successors and assigns that Borrower and such successors and assigns shall keep such liability policy in full force and effect for the term of the Loan. In addition to any other remedy which City may have hereunder for Borrower's failure to procure, maintain, and/or pay for the insurance required herein, City may (but without any obligation to do so, and subject to the rights of the Permanent Lender under the Permanent Loan Documents) at any time or from time to time, after thirty (30) days written notice to Borrower, procure such insurance and pay the premiums therefor, in which event Borrower shall immediately repay City all sums so paid by City together with interest thereon at the rate of ten percent (10%) per annum or the maximum legal rate, whichever is less. 11.3 Proceeds òfInsurance. Should the Project be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required to be insured against by Borrower, Borrower shall promptly proceed to obtain insurance proceeds and take all steps necessary to promptly and diligently commence the repair or replacement of the Project to substantially the same condition as the Project is required to be maintained in pursuant to this Agreement if (i) the Borrower agrees in writing within ninety (90) days after payment of the proceeds that such repair or rebuilding is economically feasible, and (ii) the Permanent Lender permits such repair or rebuilding, provided that the extent of Borrower's obligation to restore the Project shall be limited to the amount of the insurance proceeds actually received by the Borrower. If the Borrower is unable or is not permitted to repair, replace, or restore the Project, Borrower must give notice to City (in which event Borrower will be entitled to all insurance proceeds, subject ta any outstanding lien obligations, but Borrower shall be required to remove all debris from the Property) and Borrower may construct such other improvements on the Property as are consistent with applicable land use regulations and approved by the City and the other governmental agency or agencies with jurisdiction. 11.4 Taxes. Assessments. Encumbrances. and Liens. Borrower shall pay prior to delinquency all real estate taxes and assessments properly assessed and levied on the Property. Until the payment in full of all amounts owing under the City Note, Borrower shall not place or allow to be placed thereon any mortgage, trust deed, encumbrance, or lien (except mechanic's liens prior to suit to foreclose the same being filed) not authorized by this Agreement. Borrower shall remove or have removed any levy or attachment made on the Property, or assure the satisfaction thereof, within a reasonable time, but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit Borrower from contesting the validity or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available to Borrower in respect thereto. . DOCSOC\989728v5\24036.0030 20 14-62 11.5 Hold Harmless. Borrower agrees to indemnify, protect, defend and hold harmless City and their officers, agents, employees, representatives and successors, from and against any and all claims, damages, actions, costs, demands, expenses or liability, including without limitation, reasonable attorneys' fees and court costs, which may arise from the direct or indirect actions or inactions of the Borrower or those of its contractors, sub-contractors, agents, employees or other persons acting on Borrower's behalf which relate to the Property or Project. This hold harmless agreement applies, without limitation, to all damages and claims for damages suffered or alleged to have been suffered by reasons of the operations referred to in this paragraph, regardless of whether or not the City prepared, supplied or approved plans or specifications, or both, for the Property ar Project. This indemnity by Borrower, and all other indemnities set forth herein shall survive any foreclosure of the Property by the City pursuant to the terms of the City Trust Deed. 11.6 Further Indemnification ofCitv. It is understood and agreed that the parties hereto have entered this Agreement as a method of providing necessary assistance to Borrower in connection with the construction of very low income housing and development of the Property pursuant to all applicable laws and that by contributing public funds to assist in the accomplishment of such development, or by otherwise contributing or assisting with the accomplishment of such development, the Agency and City assume no responsibility for insuring that the same is adequately undertaken (including, without limitation, the existence and/or remediation of any hazardous or toxic substances on the Property) and as a material consideration to City for entering into this Agreement (and not by way of limiting the generality of Section 11.5 above) Borrower agrees to indemnify, protect, defend and hold harmless City and all of their representatives, officers, employees and their respective successors from and against any and all claims, damages, actions, demands, liabilities, obligations, expenses, losses or costs, including without limitation, reasonable attorneys' fees and court costs, which may arise or in any manner connected with the development of the Project pursuant to this Agreement; excluding, however, from Borrower's indemnity any such liability, losses, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, expenses (including out- of-pocket litigation costs and reasonable attorneys' fees) directly or indirectly arising out of the actions of City or their emplayees, contractors, subcontractors or agents. 11.7 Oblieation to Refrain from Discrimination. There shall be no discrimination against, or segregation of, any persons, or group of persons, on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the enjoyment of the Property, nor shall Borrower itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property or any portion thereof. Borrower shall further comply with all the requirements of the Americans with Disabilities Act. 11.8 Form of Nondiscrimination and Nonse¡¡reeation Clauses. Borrower shall refrain from restricting the rental, sale, or lease of any portion of the Property, or contracts relating to the Property, on the basis of race, color, creed, religion, sex, marital status, ancestry, or national origin of any person and shall comply with all the requirements for the ADA. All such deeds, leases or contracts, shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons' claiming under or through them, that there shall be 21 DOCSOC\989728v5\24036.0030 14-63 no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any persons claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed and further covenants that all such individuals and entities shall comply with all applicable requirements of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42 U.S.C. § 12101, et seq.). The foregoing covenants shall run with the land." b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: 'That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy oftenants, lessees, sublessees, subtenants, or vendees in the land herein lease and the lease shall be carried out in compliance with all applicable requirements of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42 U.S.C. § 12101, et seq.).''' c. In contracts: "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees ofland and all such activities shall be conducted in compliance with all applicable requirements of the Americans with Disabilities Act af 1990, as the same may be amended from time to time (42 U.S.C. §12101, et seg.)." 11.9 Effect of Covenants. a. Unless sooner terminated by City as provided for herein, all covenants contained herein shall run with the land and shall be extinguished and of no further force and effect upon the fifty-fifth anniversary of the issuance of the Certificate of Completion for the Project, with the exception of the non- discrimination and non-segregation covenants which shall run in perpetuity. The covenants established herein shall, without regard to technical classification and designation, be binding on the part of Borrower and any successors and assigns to the Property or any part thereof, and the tenants, lessees, sublessees and occupants of the Property, for the benefit of and in favor ofthe Property and the City, their successors and assigns and any successor in interest thereto. City are deemed the beneficiaries of such covenants for and in their own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit of such covenants running with the land have been provided, without regard to whether City has been, remained, or are owners of any particular land or interest therein. City shall have the right to unilaterally terminate the covenants at any time (subject to the TCAC Regulatory Agreement) or, if such covenants are breached (subject to any cure rights provided herein) to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and the covenants may be entitled, including specific performance (it being recognized that the breach of such covenants cannot be adequately compensated by monetary damages), and any and all remedies provided in the their respective Trust Deed-i'nd Note including, without limitation, foreclosure proceedings against the Property. 22 DOCSOC\989728v5\24036.OQ30 14-64 b. Withaut limiting the generality of the foregoing, in the event that there is a breach of the terms of this Agreement or any covenants provided herein, the City shall have the right, but not the obligation, to take any and all actions it deems necessary, to cure such breach, including, without limitation, taking possession of the Property for management and/or repair pwposes, and to obtain reimbursement ITom Borrower for any reasonable costs incurred by the City in the exercise of such remedy. Furthermore, Borrower hereby covenants by and for itself, its successors and assigns and every person acquiring an interest in the Property, or any part thereof, that City and other public agencies at their sole risk and expense, and subject to the rights of tenants in possession, shall have the right to enter the Property or any part thereof at all reasonable times and with as little interference as possible for the pwposes of construction, reconstruction, maintenance, repair or service of any public improvements or public facilities lacated on the Property and to ensure compliance with the restrictians and covenants contained herein. Any such entry shall be made only after reasonable notice to Borrower (provided, however, that entry to ensure compliance with any restrictions may be without notice to Borrower) and, any damage or injury to the Property resulting ITom such entry shall be promptly repaired at the sole expense of the public agency responsible for the entry except to the extent any such damage or injury arises as a result of the negligence or willful misconduct of the Borrower ar its officers, employees, agents, invitees ar contractors. c. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument; provided, however, that any successor of Borrower to the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. Failure to comply with the covenants, conditions, restrictions, provisions or the limitation contained in this Agreement within the time period required by Section 12.1 shall constitute a material default hereunder permitting the City to exercise any of its rights or obligations provided hereunder, including, without limitation, those provided under the City Note or the City Trust Deed, or otherwise provided at law or in equity. 11.10 Prohibition Ae:ainst Assignment and Transfer. The qualifications and identity of Borrower are of particular concern to City. It is because of those qualifications and identity that City has entered into this Agreement with Borrower. Accordingly, for the term of the City Loan, Borrower, without City's prior written approval, shall not, whether voluntarily, involuntarily, or by operation of law, and except as permitted in this Section 11.10, (1) undergo any significant change in ownership (including the sale or conveyance of any of the general partnership interests in the Borrower), or (2) assign all or any part of this Agreement or any rights hereunder, or (3) sell, lease, assign or otherwise convey all or any part of the Property or Project, whether voluntarily, involuntarily, or by operatian of law. Notwithstanding the foregoing, the following shall not be considered a significant change in ownership or an assignment or transfer and shall not require City approval for purposes of this Section 11.10: (i) all of its partners. Transfers to any entity or entities wholly owned and controlled by Borrower or (ii) Transfer of any ownership of any Limited Partner or General Partner of Borrower. (iii) Transfer of any Limited Partner Interest or General Partner Interest in the Borrower pursuant to the tenns of the Borrower's Partñership Agreement. 23 DOCSOC\989728v5\24036.0030 14-65 (iv) The conveyance or dedication of portions of the Property to the City or Agency or other appropriate governmental agency for the formation of an assessment district, or the granting of easements or permits to facilitate the development of the Property. (v) A sale or transfer of some or all of the lirrrited partnership interests in the Borrower. (vi) The leasing of all or any apartment units to tenants in the ordinary course of business. (vii) The leasing of furniture, fIxtures or equipment in the ordinary course of business, including, without limitation, laundry equipment and facilities, cable televisian equipment and facilities, and vending machine equipment and facilities. (viii) Transfers of property management responsibilities in accordance with Section 11.8 hereof, provided, however, that Borrower shall provide City thirty (30) days prior written notice of any such management change, and that this exception shall be lirrrited to transfers to property managers with signifIcant experience in managing projects similar to the Project. Any such assignee shall be subject to all terms and conditions of this Agreement, including, without limitation, all affordability restrictions concerning the occupancy of the Property. Borrower shall deliver written notice to City requesting approval of any assignment or transfer requiring City approval hereunder. Such notice shall be given prior to Borrower entering into a formal written agreement with the proposed assignee. In considering whether it will grant approval to any assignment by Borrower of its interest in the Property or any portion thereof, which assignment requires City approval, City shall consider factors such as (i) the fInancial strength and capability of the proposed assignee to perform Borrower's obligations hereunder and (ii) the proposed assignee's experience and expertise in the planning, fInancing, construction, development, and operation of similar projects. No assignment, including assignments which do not require City approval hereunder, but excluding assignments for fInancing purposes, shall be effective unless and until the proposed assignee executes and delivers to City an agreement, in form satisfactory to the City's attorney, assuming the obligations of the assignor which have been assigned. Thereafter, the assignor shall be relieved of all responsibility to City for performance of the obligations assumed by the assignee. No lender approved by City pursuant to Section 3 shall be required to execute an assumption agreement and such lender's rights and obligations hereunder shall be as set forth in Section 3. 11.11 Secured Financing; Right of Holders. a. Permitted Encumbrances. Mortgages, deeds of trust, conveyances, and leases-back or any other form of conveyance required for any fmancing permitted and/or approved by the City pursuant to Section 3 hereof are permitted. before City's issuance of the Certificate of Completion. b. Holder Not Obligated to Construct hnDrovements. The holder of any mortgage or deed of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; provided, however, that nothing in thi~ Agreement shall be deemed or construed to permit or authorize any such holder to devote the Property òr any part thereof to any uses, or to construct any 24 DOCSOC\989728v5\24036.0030 14-66 improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. c. Notice of Default to Mortgage. Deed of Trust or Other Secured Instrument Holders: Right to Cure. Whenever City shall deliver any notice or demand to Borrower with respect to any breach or default by Borrower hereof, such party shall at the same time deliver a copy af such notice ar demand to each approved holder of record of any mortgage, deed of trust, or other security instrument which has previously requested such notice in writing. Each such holder shall (insofar as the rights of City are concerned) have the right, at its option within ninety (90) days after the receipt for the natice, to commence and thereafter to diligently proceed to cure or remedy such default and add the cost thereof to the security interest debt and the lien on its security interest. d. Right of City to Cure Mortgage. Deed of Trust. or Other Security Instrument Default. In the event of a default or breach by Borrower of a mortgage, deed of trust, or other security instrument or lease-back or canveyance for financing prior to the issuance of the Certificate of Completion far the Project, City may cure the default prior to completion of any foreclosure. In such event, such party shall be entitled to reimbursement ITOm Borrower of all costs and expenses reasonably incurred by such party in curing the default, which right of reimbursement shall be secured by a lien upon the Property to the extent of such costs and disbursements. Any such lien shall be subject to: (i) Any mortgage, deed of trust, or other security instrument or sale and lease-back or other conveyance for fInancing pennitted by this Agreement; or (ii) Any rights or interests provided in this Agreement for the protectian of the holders of such mortgages, deed of trust, or other security instruments, the lessor under a sale and lease- back, or the grantee under such other conveyance for fInancing; provided that nothing herein shall be deemed to impose upon City any affIrmative obligations (by the payment of money, construction, or otherwise) with respect to the Property in the event of its enforcement of its lien. 11.12 Right of City to Satisfy Liens. Prior to the issuance of the CertifIcate of Completion for the Project, and after Borrower has had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the Property, City, after sixty (60) days prior written notice to Borrower, shall each have the right, but not the obligation, to satisfy any liens or encumbrances on the Property; provided, however, that nothing in this Agreement shall require Borrower to payor make provision for the payment of any tax, assessment, lien, or charge so long as Borrower in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Property to forfeiture or sale. ARTICLE 12 - Defaults, Remedies, And Termination 12.1 Defaults - General. Subject to all of the extensions of time available in Section 13.3, failure or delay by any party to perfonn any tenn or provision of this Agreement constitutes a default under this Agreement; however, the party shaH not be deemed to be in default if (i) such party cures, corrects, or remedies such default within thirty (30) days after receipt of a notice specifying such failure or delay, or (ii) for such defaults that cannot reasonably be cured, corrected, or remedied within thirty (30) days, if such party commences to cure, correct, or remedy such failure or delay within thirty (30) days after receipt of a notice specifying such failure or delay, and diligently prosecutes such cure, correction or remedy to completion. 25 DOCSOC\989728v5\24036.0030 14-67 The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Copies of any notice of default given to Borrower shall also be . delivered to the Permanent Lender, the Limited Partner of Borrower, and any other permitted lender requesting such notice. The Limited Partner of Borrower shall have the same cure rights as the Borrower and any cure by the Limited Partner of Borrower shall constitute a cure by, and shall be given the same effect as if performed by, the Borrower. Except as provided in Section 13.3 herein or as required to protect against further damages, the injured party may not institute proceedings against the party in default until thirty (30) days after giving such notice. Except as otherwise expressly provided in this Agreement, any failure or delay in giving such notice or in asserting any of its rights and remedies as to any default shall not constitute a waiver of any default, nor shall it change the time of default, nor shall it deprive either party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 12.2 Termination. 12.2.1 Termination bv City. Notwithstanding any other provision of this Agreement to the contrary, in the event that the City is not in default under this Agreement, City shall have the right to terminate this Agreement prior to disbursement of the City Laan upon written notice to the other parties if: (i) Borrower commits a material default hereunder and fails ta cure said default within the time specified in Section 12.1 hereof; or (ii) Borrower fails to abtain the necessary approvals from the TCAC for an allocation of "9%" Low Income Housing Tax Credits under terms that will restrict the residential units in the Project to the requirements set forth herein; or (iii) Subject to extensions of time made pursuant to Section 13.3 hereof, Borrower shall have failed to commence construction of the Project pursuant to a valid building permit or permits and is not diligently proceeding with such construction on or before the time requITed in the Schedule of Performance and does not timely cure such default. In addition, in the event of Borrower's uncured material default under this Agreement at the time Agency exercises its right under this Section 12.2 to terminate the Agreement, nothing in this Section 12.2 is intended or shall be interpreted as a limitation of any other legal or equitable rights to which Agency may be entitled. 12.2.2 Termination by Borrower. Notwithstanding any other provision of this Agreement to the contrary, provided that Borrower is not in default under this Agreement, Borrawer shall have the right to terminate this Agreement prior to disbursement of the City Loan, upon written notice to City, if: (i) City commits a material default hereunder and fails to cure said default within the time specified in Section 12.1; or (ii) City fails to approve, after best efforts by Borrower to obtain such approval, such permits as are required to commence and complete construction of the Project on the Property. In addition, in the event of City's uncured material default under this Agreement at the time Borrower exercises its right under this Section 12.2 to terminate the Agreement, nothing in this Section 12.2 is intended or shall be interpreted as a limitation of any other legal or equitable rights to which Borrower may be entitled. 12.3 Legal Actions. 12.3.1 Institution of Legal Actions. 26 DOCSOC\989728v5\24036.0030 14-68 In addition to any other rights or remedies, any party may institute legal action to cure, correct, or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement. Such legal actions must be instituted and maintained in the Superior Court of the COIUlty of San Diego, State of California, ar in any other appropriate court in that county. 12.3.2 Applicable Law. The laws of the State of California shall govem the interpretation and enforcement of this Agreement. 12.3.3 Acceptance of Service of Process. In the event that any legal action is commenced by Borrower against City, service of process on City shall be made by personal service upon the City Community Development Director or City Clerk, or in such other manner as may be pravided by law. In the event that any legal action is commenced by City against Borrower, service of process on Borrower shall be made in such manner as may be provided by law, and shall be valid whether made within or without the State ofCa1ifomia. 12.3.4 Action for Specific Perfannance. If either the Borrower or City defaults with regard to any of the pravisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default does not commence to be cured by the defaulting party within thirty (30) days after service of the notice of default, the non-defaulting party at its option may thereafter commence an action for specific perfonnance of the tenns of this Agreement pertaining to such default, subject to the provisions of Sections 12.1 and 13.3 hereof. 12.3.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the ather party. ARTICLE 13 - General Provisions 13.1 Notices. Demands. and Communications Between the Parties. Fonnal notices, demands, and communications between City and Borrower shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, to the address of the party as set forth below, or at any other address as that party may later designate by notice: To City: City of Chula Vista Community Development Department 276 Fourth Avenue Chula Vista, CA 91910 Attn: Community DevelopméÌ1t Director With a copy to City Attorney 27 DOCSOC\989728v5\24036.0030 14-69 To Borrower: Seniors on Broadway Limited Partnership, a California Limited Partnership c/o Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc 22 West 35th Street, Suite 200 National City, CA 91950 Attn: General Partner With a couv to Limited Partner: SCDC, LLC c/o Red Capital Markets, Inc. Two Miranova Place, 12th Floor Calumbus, OR 43215 Attention: Tax Credit Asset Management Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may fi-om time ta time designate by mail. 13.2 Nonliabilitv ofCitv Officials and Emulovees: Conflicts of Interest. No member, official, employee, or cantractor of City shall be personally liable to Borrower in the event of any default or breach by City or for any amount which may become due to Borrower or on any obligations under the terms of this Agreement. No member, official, employee, or agent of City shall have any direct or indirect interest in this Agreement nor participate in any decision relating to this Agreement which is prohibited by law. 13.3 Enforced Delav: Extension of Times of Performance. In addition to specific provisions of this Agreement, and except as expressly set forth in Section 13.2 and this Section 13.3, performance by either party hereunder shall not be deemed to be in default and such party shall be entitled to an extension of time to perform its obligations hereunder where delays in performance are due to causes beyond the control and without the fault of such party, including as applicable: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fITes; casualties; supernatural causes; acts of a public enemy; epidemics; quarantine restrictions; fi-eight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplies; acts of the other party; acts or the failure to act of Agency or City or any other public or governmental agency or entity (except that any act or failure to act of or by Agency shall not excuse timely performance by City). In addition, nothing in this Section 13.3 is intended or shall be interpreted to entitle Borrower to an extension of time to close the escrow for acquisition of the Property or to delay commencement of construction ofthe Project. An extension oftime for any cause permitted under this Section 13.3 shall be limited to the period of the enforced delay and shall commence to run fi-om the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of Imowledge of the commencement of the cause, or if no written notice is sent within thirty (30) days, fi-om the date written notice is sent by the other party. Times of performance under this Agreement may be extended by mutual written agreement of City and Borrower. 28 DOCSOC\989728v5\24036.0030 14-70 13.4 Inspection of Books and Records. The Borrower shall keep and maintain at the Project, or elsewhere within the County of San Diego, full, complete and appropriate books, records and accounts relating to the Project, including all such books, records and accounts necessary or prudent to evidence and substantiate in full detail Borrower's calculation of Residual Receipts and compliance with the affordable housing requirements herein. Books, records and accounts relating to Borrower's compliance with the terms, provisions, covenants, and conditions of this Agreement shall be kept and maintained in accordance with generally accepted accounting principles consistently applied, and shall be consistent with requirements of this Agreement. All such books, records, and accounts shall be open to and available for inspection by the City, its auditors or other authorized representatives at reasonable intervals during normal business hours upon reasonable prior notice to Borrower. Copies of all tax returns and other reports that Borrower may be required ta furnish any governmental agency shall at all reasonable times, upon reasonable prior notice to Borrower, be open for inspection by the City at the place that the books, records, accounts af the Borrower are kept. The Borrower shall preserve records on which any statement of Residual Receipts is based for a period of not less than five (5) years after such statement is rendered. City shall have the right at all reasonable times to inspect the books and records of Borrower pertaining to the Praperty and the Project as pertinent to the purposes af this Agreement. Borrower shall provide its books and records to City without reasonable delay upon no less than five (5) business days prior written request by such party. City shall not request inspection for Borrower's books and records more than once in any twelve (12) month period, unless it is required to obtain information in order to comply with reporting or other requirements oflaw herein. Borrower shall have the right at all reasonable times to inspect the books and records of City pertaining to the Property and the Project as pertinent to the purposes of this Agreement. 13.5 Interpretation. The terms af this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against any party by reason af the authorship of this Agreement or any other rule of construction which might otherwise apply. The section headings are for purposes of canvenience only, and shall not be construed to limit or extend the meaning of this Agreement. 13.6 Entire Agreement. Waivers and Amendments. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the pravisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of City and Borrower. 13.7 Consent/Reasonableness. Except when this Agreement specifically authorizes a party to withhold its approval or consent in its sole and absolute discretion, when either City or Borrower shall require the consent or approval of another party in fulfilling any agreement, covenant, provision, or condition contained in this Agreement, such consent or approval shall not be unreasonably withheld, conditioned, or delayed by the party ITom whom such consent or approval is sought. 13.8 Severability. DOCSOC\989728v5\24036.00JO 29 14-71 If any tenn, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perfonn taking into consideration the purposes of this Agreement. In the event that all or any portion of this Agreement is found to be unenforceable, this Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event, and to the maximum extent permitted by law, they shall take all steps reasonably necessary to comply with such procedures or requirements as may be reasonably necessary in order to make valid this Agreement or that portion which is found to be unenforceable. 13.9 Third party Beneficiaries. Notwithstanding any other provision of this Agreement to the contrary nothing herein is intended to create any third party beneficiaries to this Agreement, and no person or entity other than City and Borrower, and the permitted successors and assigns of each of them, shall be authorized to enforce the provisions of this Agreement. 13.10 Reuresentations and Warranties. Borrower and each general partner af Borrower executing this Agreement on behalf of Borrower represents and warrants that: (i) Borrower is a limited partnership organized and existing under the laws of the State of Califomia, in good standing, and authorized to do business and doing business in the County of San Diego; (ii) Borrower has all requisite power and authority to carry out its business as now and whenever conducted and to enter into and perform its obligations under this Agreement; (iii) by proper action of Borrower, Borrower's signatories have been duly authorized to execute and deliver this Agreement; (iv) the execution of this Agreement by Borrower does not violate any provision of any other agreement to which Borrower is a party; (v) except as may be specifically set forth in this Agreement, and except for the approval of Borrower's investor Limited Partner, no approvals or consents not heretofore obtained by Borrower are necessary in connection with the execution of this Agreement by Borrower or with the performance by Borrower of its obligations hereunder, and (vi) no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, receivership or other proceedings are pending or threatened against the Borrower, or any partners of Borrower, nor are any of such proceedings contemplated by Borrower or any partners of Borrower. 13.11 Execution. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 13.12 Relationship of Parties. It is understood that the contractual relationship between the City and Borrower is such that Borrower is an independent entity and not an agent or partner of City. Nothing in this Agreement shall constitute Borrower as the agent or partner or representative of City for any purpose whatsoever. 13.13 Attomev's Fees. If any party to this Agreement is required to initiate or defend litigation in any way connected with this Agreement, the prevailing party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to its actual and reasonable attorney's fees. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term or provision of this Agreement by the other party, then the party so litigating shall DOCSOC\989728v5\24036.0030 30 14-72 be entitled to its actual and reasonable attorney's fees from the other party to this Agreement. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred in such litigation. All such fees shall be deemed to have accrued On commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. The parties hereto acknowledge and agree that each such party shall bear its own legal costs incurred in connection with the negotiation, approval, and execution of this Agreement. [NEXT PAGE IS SIGNATURE PAGE] DOCSOC\989728v5124036.0030 31 14-73 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date specified herein. "CITY" CITY OF CHULA VISTA, a municipal corporation of the State of Califomia By: Its: Mayor ATTEST: Susan Bigelow, City Clerk APPROVED AS TO FORM: City Attorney S-1 DOCS0C\989728v5\24036.0030 14-74 "BORROWER" DOCSOC\989728\24036.0030 DOCSOC\989728v5\24036.0030 [SIGNATURE PAGE CONTINUED] SENIORS ON BROADWAY LIMITED PARTNERSHIP, a Califomia Limited Partnership By: METROPOLITAN AREA ADVISORY COMMITTEE ON ANTI-POVERTY OF SAN DIEGO, INC., a California non-profit public benefit corporation, its General Partner By: S-2 14-75 EXHIBIT A LEGAL DESCRIPTION That certain real property in the City of Chula Vista, County of San Diego, State of California, described as follows: A-l DOCSOC\989728v5\24036.0030 14-76 EXIllBIT B CITY PROMISSORY NOTE DOCSOC\989728v5\24036.0030 B-1 14-77 EXHIBIT C CITY DEED OF TRUST DOCSOC\989728v5\24036.0030 C-l 14-78 DOCSOC\989728v5\24036.0030 EXHIBIT D AFFORDABLE HOUSING AGREEMENT D-l 14-79 EXHIBIT E SOURCES AND USES DOCSOC\989728v5\24036.0030 E-l 14-80 EXHIBIT F . PROJECT BUDGET DOCSOC\989728v5\24036.0030 F-l 14-81 EXHIBIT G PROJECT PRO FORMA DOCSOC\989728v5\24036.0030 G-l 14-82 EXHIBIT H CERTIFICATE OF COMPLETION THIS CERTIFICATE OF COMPLETION (the "Certificate") is made by the CITY OF CHULA VISTA, a municipal corporation ("City") in favor of SENIORS ON BROADWAY, a California Limited Partnership (the "Project Owner"), as of ,200_. RECITALS A. The City, and the Project Owner have entered inta that certain Loan Agreement and Related Restricted Covenants (the "Loan Agreement") dated , concerning the redevelopment of certain real property situated in the City of Chula Vista, California as more fully described in Exhibit A attached hereto and made a part hereof. B. As referenced in Sectian 9.8 of the Loan Agreement, the City is required to furnish the Project Owner with a Certificate of Completian upon completion of the development and constructian of the Project in accordance with the Loan Agreement. This Certificate of Completion is conclusive determination of satisfactory completion of the development and construction required by Article 9 of the Loan Agreement. C. The City has conclusively detennined that the development and construction of the Project has been satisfactorily completed. NOW, TIIEREFORE, the City hereby certify as follows: The development and construction of the Project to be perfonned by the Project Owner has been fully and satisfactorily completed in confonnance with Article 9 of the Loan Agreement. [NEXT PAGE IS SIGNATURE PAGE] H-l DOCSOC\989728v5\24036.0030 14-83 IN WITNESS WHEREOF, the City has executed this Certificate of Completion as of the date set forth above. THE CITY OF CHULA VISTA, a municipal corporation By: Its: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney H-2 DOCSOC\989728v5\24036.0030 14-84 EXBIBIT I SCOPE OF WORK DOCSOC\989728v5\24036.0030 I-I 14-85 DOCSOC\989728v5\24036.0030 EXIDBIT J SCHEDULE OF PERFORMANCE I-I 14-86 Table of Contents Page ARTICLE 1 - RECITALS .........................................................................................................................2 l.l AUTHORITY. ...........................................................................................................................................2 1.2 AVAILABLE FUNDS. ................................................................................................................................2 1.3 THE PROPERTY. ......................................................................................................................................2 1.4 PROJECT.................................................... ..............................................................................................2 1.5 CITY FINANCIAL ASSISTANCE TO BORROWER. ......................................................................................2 1.6 INTERESTS OF THE CITY AND THE PuBLIC..............................................................................................2 1.7 HOUSING OBJECTIVES AND GOALS. ............................................................ ........................................ ...3 ARTICLE 2 - DEFINITIONS ...................................................................................................................3 ARTICLE 3 - FINANCING OF THE PROJECT ...................................................................................5 3.1 SUMMARY OF FINANCING. ......................................................................................................................5 ARTICLE 4 -cITY LOANS .....................................................................................................................5 4.1 AMOUNT. ................................................................................................................................................5 4.2 INTEREST. .............................................. .................................................................................................5 4.3 BORROWER'S OBLIGATIONS. ..................................................................................................................5 4.4 SOURCE OF CITY LOAN ...........................................................................................................................6 4.6 REPAYMENT. [INSERT CITY LOAN REPAYMENT .TERMS]...................................................................... 6 4. 7 PREPAYMENT. ......................................................................................................................................... 8 4.8 ASSUMPTION.................................................................. ................. ........................................................ 8 4.9 USE OF LOAN PROCEEDS. ................... .................................................................................................... 8 4.10 LJEN PRIORITY, TITLE INSURANCE................ .......................................................................................8 4.11 SUBORDINATION; REFINANCING. .........................................................................................................9 4.12 BORROWER'S EVIDENCE OF FINANCIAL CAP ABILITY. .........................................................................9 4.13 REpORTS AND ACCOUNTING OF RESIDUAL RECEIPTS. .........................................................................9 ARTICLE 5 - NOTES AND DEEDS OF TRUST .................................................................................10 5.1 SECURITY FOR LOANS. ........ ................. ................................................................................................1 0 5.2 NONRECOURSE OBLIGATION. ...............................................................................................................1 0 ARTICLE 6 -DISBURSEMENT OF CITY LOANS ............................................................................10 6.1 DISBURSEMENT. ...................................................................................................................................1 0 ARTICLE 7 - HOME REQUIREMENTS 7.1 REQUIREMENTS. ........................................................ ....... ............ 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ARTICLE 8 - DEVELOPMENT FEE....................................................................................................12 8.1 DEVELOPMENT FEE. ....................... ................................................................................................ ......12 - DOCSOC\989728v5\24036.0030 14-87 Table of Contents (continued) Page ARTICLE 9 -DEVELOPMENT OF THE PROJECT ..........................................................................12 9.1 WORK TO BE PERFORMED. ...................................................................................................................12 9.2 COMPLIANCE WJTH PERMITS AND LA WS..............................................................................................13 9.3 COSTS OF DEVELOPMENT. ......... ..... ............ ................ ... ............................................................. ..........13 9.4 SCHEDULE OF PERFORMANCE: PROGRESS REpORTS............................................................................13 9.5 ANTI -DISCRIMINATION. ........................................................................................................................ 14 9.6 RIGHT OF ACCESS. . ................... ...... ......................................................................................................14 9.7 MECHANICS LIENS, STOP NOTICES, AND NOTICES OF COMPLETION...................................................14 9 .8 CERTIFICATE OF COMPLETION. .................................................... .................................................. ......15 9.9 ESTOPPELS................................................................................................................................ ............ 15 ARTICLE 10 USES OF THE PROPERTY ...........................................................................................16 10.1 SUMMARY. ......... .................................................................................................................................16 10.2 AFFORDABLE HOUSING. ............................................ .........................................................................16 10.3 REpORTS........................... .................................................................................................................. 16 10.4 SUBORDINATION OF AFFORDABILlTY COVENANTS............................................................................17 10.5 CONDITION OF THE PROPERTY. ..........................................................................................................17 10.6 MARKETING PLAN. ............................ ..................................................................... .................. ..........18 10.7 MAINTENANCE OF PROPERTY. ...... ....... ...................... ..... ....................................................................18 10.8 PROPERTY MANAGEMENT. ........... ....... ........................... ................. ...................................................19 10.9 AFFORDABLE HOUSING AGREEMENT. ............................ ....................................................................19 ARTICLE 11 - CONTINUING OBLIGATIONS OF BORROWER..................................................19 11.1 APPLICABILITY. .......................................................................... ........................................................19 11.2 INSURANCE............................................................................................ ............................................. .20 11.3 PROCEEDS OF INSURANCE. ............. ....................................................................................................20 11.4 TAXES, AsSESSMENTS, ENCUMBRANCES, AND LIENS. ......................................................................20 11.5 HOLD HARMLESS. ................................................. ...................................................... ........................21 11.6 FURTHER INDEMNIFICATION OF CITY. ...............................................................................................21 112.7 OBLIGATION TO REFRAIN FROM DISCRIMINATION. .........................................................................21 11.8 FORM OF NONDISCRIMINATION AND NONSEGREGATION CLAUSES. ..................................................21 11.9 EFFECT OF COVENANTS. ........................................................ .... ........ .................................................22 11.10 PROHIBITION AGAINST ASSIGNMENT AND TRANSFER. ....................................................................23 11.11 SECURED FINANCING; RIGHT OF HOLDERS......................................................................................24 11.12 RIGHT OF CITY TO SATISFY LIENS....................................................................................................25 ARTICLE 12 - DEFAULTS, REMEDIES, AND TERMINATION ....................................................25 12.1 DEFAULTS - GENERAL. .............................................. ................ .........................................................25 12.2 TERMINATION. ................................ ............... .....................................................................................26 12.2.1 TERMINATION BY CITY. ... ........................ .............................. ........... .............................................. .26 12.2.2 TERMINATION BY BORROWER. .... ......................................... .......................................................... .26 12.3 LEGAL ACTIONS. ........................................ ............................................ ........................... .............. ...26 12.3.1 INSTITUTION OF LEGAL ACTIONS. .............................. ......................... ............................................26 12.3.2 APPLICABLE LAW. ........................................................................................................................... 27 ii DOCSOC\989728v5\24036.0030 14-88 Table of Contents (continued) Page 12.3.3 ACCEPTANCE OF SERVICE OF PROCESS. ..........................................................................................27 12.3.4 ACTION FOR SPECIFIC PERFORMANCE.................. ......... ................ ............................ ......................27 12.3.5 RIGHTS AND REMEDIES ARE CUMULATIVE. ....................................................................................27 ARTICLE 13 - GENERAL PROVISIONS............................................................................................27 13.1 NOTICES, DEMANDS, AND COMMUNICATIONS BETWEEN THE PARTIES. ...........................................27 13.2 NONLIAB1LITY OF CITY OFFICIALS AND EMPLOYEES: CONFLICTS OF INTEREST. .............................28 13.3 ENFORCED DELAY; EXTENSION OF TIMES OF PERFORMANcE...........................................................28 13.4 INSPECTION OF BOOKS AND RECORDs. ..............................................................................................29 13 .5 INTERPRETATION............................................................................................................................:.. .29 13.6 ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS. ........................................................................29 13.7 CONSENTIREASONABLENESS. .................................................. ..........................................................29 13.8 SEVERABILITY. ...................................................................................................................................29 13.9 THIRD PARTY BENEFlcIARlES. ........................................................................................................ ...30 13.10 REPRESENTATIONS AND WARRANTIES. ............................ ...............................................................30 13.11 EXECUTION. .......................................................................................... ............................................30 13.12 RELATIONSHIP OF PARTIES. .......................................... .................................. ..................................30 13.13 A TIORNEY'S FEES. .................................. ...........:.............................................................................30 iii DOCSOC\989728v5124036.0030 14-89 Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Legal Description City Promissory Note City Deed of Trust Affordable Housing Agreement Sources and Uses Project Budget Project Pro Forma Certificate of Completion Scope of Work Schedule of Performance DOCSOC\989728v5124036.0030 Table of Contents (continued) Page EXHIBITS iv 14-90 City: City ofChula Vista 276 Faurth Avenue Chula Vista, CA 91910 Attn: Community Development Director Developer: Seniors on Broadway Lirnited Partnership, a California Limited Partnership c/o Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc. 22 West 35th Street, Suite 200 National City, CA 91950 With a copy to: SCDC, LLC c/o Red Capital Markets, Inc. Two Miranova Place, 12th Floor Columbus, Ohio 43215 Attention: Tax Credit Asset Management A party may change its address by giving notice in writing to the other party. Thereafter, natices, demands and requests shall be addressed and transmitted to the new address. ARTICLE 7 - Conflicts of Law 7.1 Conflict of City and State or Federal Laws. In the event that state or federal laws or regulations enacted after this Agreement has been entered into prevent or preclude compliance with ane or more provisions of this Agreement, or require changes in plans, maps or permits approved by the City, the parties will: 7.1.1 Notice and Copies: Provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy and statement of conflict with the provisions of this Agreement. 7.1.2 Modification Conferences: The parties will, within 30 days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. 14-91 suspension will be taken by the affIrmative vote of not less than a majority of the authorized voting members of the goveming board of the City Council. 7.3 Cooperation in Securing Permits. The City shall cooperate with the Developer in the securing of any permits which may be required as a result of such modifications or suspensions. ARTICLE 8 - Miscellaneous Provisions 8.1 Rules of Construction. The singular includes the plural and the neuter gender includes the masculine and the feminine. Any terms used herein which are nat defined herein shall have the meaning given ta such terms in the Loan Agreement. 8.2 Severability. The parties hereto agree that the provisions are severable. If any provision of this Agreement is held invalid, the remainder of this Agreement will be effective and will remain in full force and effect unless amended or modified by mutual consent of the parties. 8.3 Entire Agreement. Waivers and Amendments: Regulatory Agreement to Control. This Agreement, together with any ather written document referred to or contemplated herein, embodies the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived, or discharged except by an instrument in writing executed by the party against which enforcement or such amendment, wmver, or discharge is sought. 8.4 Capacities of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction trom its principal to enter into this Agreement, and that all resalutions or other actions have been taken so as to enable it to enter into this Agreement. 8.5 Governing LawNenue. This Agreement shall be governed by and construed in accordance with the laws of the State of Califomia. 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 Califomia, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City _£''-'',.__,_ 'Ir:_L_ 14-92 IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed as of the day and year first written above. "CITY" CITY OF CHULA VISTA, a municipal corporation of the State of Califomia By: Its: Mayor ATTEST: Susan Bigelow, City Clerk APPROVED AS TO FORM: City Attomey 14-93 "DEVELOPER" SENIORS ON BROADWAY LIM:ITED PARTNERSHIP, A CALIFORNIA LIM:ITED PARTNERSHIP By: Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc., a California nonprofit public benefit corporation, its general partner By: By: By: 14-94 STATE OF CALIFORNIA ) ) ss. ) COUNTY OF SAN DIEGO On , before me, (Print Name of Notary Public) , Notary Public, personally appeared o o personally known to me -or- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged ta me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf afwhich the person(s) acted, executed the instrument. WITNESS my hand and official seal. :SIgnature U! Notary OPTIONAL Though the data below is not required by law, it may prove valuable ta persons relying on the document and cauld prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT o Individual o Corporate Officer Title(s) Title Or Type Of Document o Partner(s) 0 o Attorney-In-Fact Trustee(s) Guardian/Conservator Other: Limited General o o o o Number Of Pages 14-95 STATE OF CALIFORNIA ) ) ss. ) COUNTY OF SAN DIEGO On , before me, (Print Name of Notary Public) , Notary Public, personally appeared o o personally known to me -or- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), ar the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. :SIgnature Ut Notary OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this fonn. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT o Individual o Corporate'Officer Titie(s) Title Or Type Of Document o Partner(s) 0 o Attorney-In-Fact Trustee( s) Guardian/Conservator Other: Limited General o o o o Number Of Pages SiQ11er is renresentinl1: 14-96 EXHIBIT A LEGAL PROPERTY DESCRIPTION All that certain real property situated in the City of Chula Vista, Caunty of San Diego, State of California, described as fallows: 14-97 EXHIBIT B (COUNCIL RESOLUTION - ) 14-98 EXHIBIT C 14-99 ~~I¡¡!5~ 'i;11 ôª u ~ o 11. W ~ C) z ë2 o I- Z o :E C) z iñ ::) o :I: W ...J In <C c ~ o u.. u.. <C ...J <C ::) z z ~ :E w III ~ M .... 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"en '(5' 0 cat.) ~ en :- Q)o c... <I: .- 00 = ¡;;¡ '" ..... 00 '" Q .... M IF> IF> IF> IF> '" '" '" ~~ !::~ Uo ~¡;.:¡ 000 liõ.þ " " .: .: .~ ~ ç- ~ ._~ 'S ]-?:, þ 0 U ~ C') ~ Q) .c E ~ Q) u Q) 0 a c.. w II:: C) D z ~~¡¡f ~~ c:: 0 I- ~¡ ôª z 0 u :¡¡; C) z iñ :J ..: 0 co :r: Q) W >. ..J .c IIJ u t1J « Q) c Õ II:: 0 £; LL tn LL ~ « >. ..J "5 « ...., :J -0 Z c: Z t1J c¡: £; :¡¡; ci tn C') ~ w Q) 2:- en c: t1J '" '" ...., c: t1J ...., D t1J 0 '" E 0 0 E <Ó '" ..co ~~ iri '- ð; E ,.:.;.. ON Q) ..... ... '" - Q) :iJ z t1J a c: g¡ - :.::Ü Ü ~ -00 Q) ..... "ê' 0 t1J '" '" Q) Ü a.. « 08 '" "" on '¢ '¢ '¢ ~!~ --'-- ~ 01Y OF CHUIA VISTA SEMI-ANNUAL AFFORDABLE HOUSING MONITORING REPORT Owner's Certification I am the owner or owner's representative for an affordable housing development in the City of Chula Vista, which is bound by a Housing Agreement with the City. I certify under penalty or petjury that the attached rent roll for affordable units at my project is true and correct to the best of my knowledge and complies with the terms and conditions stipulated in the Affordable Housing Agreement, or any agreement that implements the same, with the City of Chula Vista. Name Title Signature Date DOCSOCI989729v2\240J6.00JO 14-110 01Y OF CHUlA VISTA SUPPLEMENTAL RENTAL APPLICATION The rental unit for which you are applying has received governmental assistance under programs to encourage more affordable housing. As a result, the unit carries a rent level res1riction and is res1ricted to occupancy by very low income households. The infonnation required on this fonn is necessary to determine you income eligibility to occupy the unit. You must report all household income. Infonnation provided will be confidential and not subject to public disclosure pursuant to State Gavernment Code Section 6254(h). I. Rental Unit Address 2. Head of Household Name 3. Household Members Household Name Date of Birth Age Member No. I (Head of Household) 2 3 4 5 4. Total Current AmlUal Household Income from all Sources: Household Source Income Member No. I(Head OfHouseholdf TOTAL $ 5. Total Gross Annual Household Income shown on most recent Federal Tax return (attach copies of most recent Federal Tax returns for all household members receiving incame). Total Gross Annual Income $ 6. Unit Size: I Bedraom 7. Monthly Rental Rate: $ DOCSOC\989729v2\24036.0030 14-111 Supplemental Rental Application Page 2 of2 APPLICANT'S STATEMENT I certify, under penalty of perjury, that the foregoing information is true and correct to the best of my knowledge. I understand that any misrepresentation of the infonnation contained herein may be cause for eviction. Signature Date Applicant Signature Date Applicant OWNER'S STATEMENT Based on the foregoing infonnation, I certify, under penalty of perjury, that the applicant is eligible to occupy this restricted affordable unit. Eligibility is based on fmding that the applicant household's current annual income is $ and does not exceed the current maximum household income of $ allowed under the terms of the Affordable Housing Agreement with the City of Chula Vista regarding this residential development. Name Title Signature Date DOCSOC\989729v2\24036.0030 14-112 City of Chula Vista CATEGORICAL EXCLUSIO,N (not subject to 58.5) 24 CFR 58.35(b) Grant No.: 376 Project Name: MAAC Project Seniors on Broadway Project Description: The City will use HOME CHDO funds ta assist MAAC with pre-developing costs associated with the proposed construction af 41 one-bedroom units affordable to very- low income seniors and a two-bedroom manager's unit along with a provision for a small area of commerciaJ/retail space. Location: 825-841 Broadway Declaration of Exemption: We, the undersigned, do hereby certify that this project has been reviewed and detemrined to be a Categorically Excluded Activity per 24 CFR 58.35(b) as follows: [1] Tenant-based rental assistance; [2] Supportive services including, but not linúted to: health care housing services, Pennanent housing placement, day care, nutritional services, short-term payments for rent/mortgage/utility costs, and assistance in gaining access to local, State, Federal government benefits and services; [3] Operation costs, including but not linúted to: equipment purchases, inventory financing, interest subsidy, operation expenses and sinúlar costs not associated with construction or expansion of existing operation; [4] Economic development activities including, but not linúted to: equipment purchases, inventory financing, interest subsidy, operating expenses and sinúlar costs not associated with construction or expansion of existing operations; [5] Activities to assist home ownership of existing "or new dwelling units not assisted with Federal funds" including closing costs and down payment assistance to homebuyers, interest buy downs and sinúlar activities that result in the transfer of title to a property; X [6] Affordable housing pre-development costs including legal, consulting, developer and other costs related to obtaining site options, project [mancing, administrative costs and fees for loan commitments, zoning approvals, and other related activities which do not have a physical impact. Documentation indicating cnmpliance with 24 cDR 58.6 attached (when applicable) Prepared by: BeJ1iamin Guerrero, Environmental Projects Manager, Date: Jan. 24, '05 Certifying Ollicer: Laurie Madigan, Director of Community Development Department 14-113 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: . City ofChula Vista 276 Fourth Avenue Chula Vista, California 9l9l 0 Attention: Housing Manager LEASEHOLD DEED OF TRUST WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING THE PARTIES TO THIS LEASEHOLD DEED OF TRUST WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING ("Deed of Trust"), made as of , 2005, are SENIORS ON BROADWAY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP. ("Trustor"), FIRST AMERICAN TITLE INSURANCE COMPANY ("Trustee"), and the CITY OF CHULA VISTA, a municipal corporation ("Beneficiary"). ARTICLE 1. GRANT IN TRUST 1.1 GRANT. For the purposes of and upon the terms and conditions in this Deed of Trust, Trustor irrevocably grants, conveys and assigns ta Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry and possessian, all leasehold interest in that real property located in the City of Chula Vista, County of San Diego, State of California, described on Exhibit A attached hereto, together with all development rights or eredits, air rights, water, water rights and water stock related to the real property, and all minerals, oil and gas, and other hydrocarbon substances in, on or under the real property, and all appurtenances, easements, rights and rights of way appurtenant or related thereto; all buildings, other improvements and fixtures now or hereafter located on the real property, including, but not limited to, all apparatus, equipment, and appliances used in the operation or occupancy of the real property, it being intended by the parties that all such items shall be conclusively considered to be a part af the real property, whether or not attached or affixed to the real property (the "Improvements"); all interest or estate which Trustor may hereafter acquire in the property described above, and all additions and aceretions thereto, and the proceeds of any of the foregoing; (all of the foregoing being collectively referred to as the "Subject Property"). The listing of specific rights or property shall not be interpreted as a limit of general tenns. 1.2 ADDRESS. The address of the Subject Property is 825 Broadway in the City of Chula Vista, California. However, neither the failure to designate an address nor any inaccuracy in the address designated shall affect the validity or priority of the lien of this Deed of Trust on the Subject Property as described on Exhibit A. ARTICLE 2. OBLIGATIONS SECURED 2.1 OBLIGATIONS SECURED. Trustor makes this grant and assignment for the purpose of securing the following obligations ("Secured Obligations"): (a) Payment to Beneficiary of all sums at any time owing under that certain Promissory Note of even date herewith executed by T~stor in favor of Beneficiary in the principal amount DOCSOC\989734v4\24036.0030 -1- 14-114 of One Million Forty Three Thousand Eight Hundred and Fifty Dollars ($1,043,850), and the performance of all covenants and obligations of Trustor lll1der the Promissory Note and the Loan Agreement and Related Restricted Covenants of even date herewith between Trustor and Beneficiary ("Loan Agreement"); and (b) Payment and performance of all covenants and obligations of Trustor lll1der this Deed of Trust; and (c) All modifications, extensions and renewals of any of the obligations secured hereby, however evidenced, including, without limitation: (i) modifications of the required principal payment dates or interest payment dates or both, as the case may be, deferring or accelerating payment dates wholly or partly; or (ii) modifications of the required debt service payments. 2.2 INCORPORATION. All terms of the Secured Obligations and the documents evidencing such obligations are incorporated herein by this reference. All persons who may have or acquire an interest in the Subject Property shall be deemed to have notice of the terms of the Secured Obligations. ARTICLE 3. ASSIGNMENT OF LEASES AND RENTS 3.1 ASSIGNMENT. Subject to the rights afthe beneficiary under the Senior Deed of Trust, defmed that Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated concurrently herewith, made in connection with the loan of by U.S. Bank, N.A in the approximate amount of $1,000,000 which has been approved by Beneficiary and is permitted pursuant to the Loan Agreement (the "Senior Deed of Trust"), Trustor hereby irrevocably assigns to Beneficiary all of Trustor's right, title and interest in, to and under: (a) all leases of the Subject Property or any portion thereof, all licenses and agreements relating to the management, leasing or operation of the Subject Property or any portion thereof, and all other agreements of any kind relating to the use or occupancy of the Subject Property or any portion thereof, whether now existing or entered into after the date hereof ("Leases"); and (b) the rents, issues, deposits and profits of the Subject Praperty, including, without limitatian, all amOlll1ts payable and all rights and benefits accruing to Trustor under the Leases ("Payments"). The term "Leases" shall also include all guarantees of and security for the lessees' performance thereunder, and all amendments, extensions, renewals or modifications thereto which are permitted herelll1der. This is a present and absolute assignment, not an assignment for security purposes only, and Beneficiary's right to the Leases and Payments is not contingent upon, and may be exercised without possession of, the Subject Property. 3.2 GRANT OF LICENSE. Beneficiary confers upon Trustor a license ("License") to collect and retain the Payments as they become due and payable, until the occurrence of a Default (as hereinafter defined). Upon a Default, the License shall be automatically revoked and Subject to the rights of the beneficiary lll1der the Senior Deed of Trust, Beneficiary may collect and apply. the Payments pursuant to Section 6.4 without notice and without taking possession of the Subject Property. Trustor hereby irrevocably authorizes and directs the lessees under the Leases to rely upon and comply witlÌ any notice or demand by Beneficiary for the payment to Beneficiary of any rental or other sums which may at any time become due lll1der the Leases, or for the performance of any of the lessees' undertakings under the Leases, and the lessees shall have no right or duty to inquire as to whether any Default has actually occurred or is then existing herelll1der. Trustor hereby relieves the lessees from any liability to Trustor by reason of relying upon and complying with any such notice or d_emand by Beneficiary. -2- DOCSOC\989734v4\24036.0030 14-115 3.3 EFFECT OF ASSIGNMENT. The faregoing irrevocable Assignment shall not cause Beneficiary to be: (a) a mortgagee in possession; (b) responsible or liable for the control, care, management or repair of the Subject Property or for performing any of the terms, agreements, undertakings, obligations, representations, warranties, covenants and conditions of the Leases; or (c) responsible or liable for any waste committed on the Subject Property by the lessees under any of the Leases or any other parties; for any dangerous or defective condition of the Subject Property; or for any negligence in the management, upkeep, repair or control of the Subject Property resulting in loss or injury or death to any lessee, licensee, employee, invitee or other person, unless caused by the gross negligence or wilful misconduct of Beneficiary or its agents. Beneficiary shall not directly or indirectly be liable to Trustor or any other person as a consequence of: (i) the exercise or failure to exercise any of the rights, remedies or powers granted to Beneficiary hereunder; or (ii) the failure or refusal of Beneficiary ta perform or discharge any obligation, duty or liability of Trustor arising under the Leases. 3.4 REPRESENTATIONS AND WARRANTIES. Trustor represents and warrants that as of the date of this Deed of Trust there are no Leases affecting any portion of the Subject Property. 3.5 COVENANTS. Trustor covenants and agrees at Trustor's sole cost and expense ta: (a) perform the obligatians of lessor contained in the Leases and enforce by all available remedies performance by the lessees of the obligations of the lessees contained in the Leases; (b) give Beneficiary prompt written notice of any material default which occurs with respect ta any af the Leases, whether the default be that of the lessee or af the lessor; (c) exercise commercially reasonable effarts ta keep all portions of the Subject Property that are currently subject to Leases leased at all times at rentals not less than the fair market rental value; (d) deliver ta Beneficiary fully executed, counterpart original(s) of each and every Lease if requested to do so; and (e) execute and record such additional assignments of any Lease or specific subordinatians of any Lease ta the Deed of Trust, in form and substance acceptable to Beneficiary, as Beneficiary may request. Except as required or permitted by the Senior Deed of Trust, or its beneficiary, or by the loan agreement secured thereby, Trustor shall not, without Beneficiary's prior written consent or as otherwise permitted by any provision af the Loan Agreement: (i) execute any other assignment relating to any of the Leases; (ii) discount any rent or other sums due under the Leases or collect the same in advance, other than to collect rent one (1) month in advance of the time when it becomes due; (iii) terminate, modify or amend any of the material terms of the Leases or in any material manner release or discharge the lessees from any obligations thereunder; (iv) consent to any assignment or subletting by any lessee; ar (v) subordinate or agree to subordinate any of the Leases to any other deed of trust or encumbrance. Any such attempted action in violation of the provisions af this Section 3.5 shall be null and void. Without in any way limiting the requirement of Beneficiary's consent hereunder, but subject to the right of the beneficiary under the Senior Deed of Trust, any sums received by Trustor in consideration of any termination (or the release or discharge of any lessee) modification or amendment of any Lease shall be applied to reduce the outstanding Secured Obligations and any such sums received by Trustor shall be held in trust by Trustor for such purpose. 3.6 ESTOPPEL CERTIFICATES. Within thirty (30) days after written request by Beneficiary, Trustor shall deliver to Beneficiary and to any party designated by Beneficiary estoppel certificates executed by Trustor and by each of the lessees, in recordable form, certifying (if such be the case): (a) that the foregoing assignment and the Leases are in full force and effect; (b) the date of each lessee's most recent payment of rent; (c) that there are no defenses or offsets outstanding, or stating those claimed by Trustor or lessees under the foregoing assignment or the Leases, as the case may be; and (d) any other information reasonably requested by Beneficiary. . DOCSOC\989734v4\24036.0030 -3- 14-116 ARTICLE 4. SECURITY AGREEMENT AND FIXTURE FILING 4.1 SECURITY INTEREST. Trustor hereby grants and assigns to Beneficiary as of the date hereof ("Effective Date") a security interest, to secure payment and performance of all of the Secured Obligations, in all of the following described personal property in which Trustor now or at any time hereafter has any interest (collectively, the "Collateral"): All goods, building and other materials, supplies, work in process, equipment, machinery, fixtures, furniture, furnishings, signs and other personal property, wherever situated, which are or are to be incorporated into, used in connection with, or appropriated for the use and operation of Subject Property (to the extent the same are not effectively made a part of the real property pursuant to Section 1.1 above) tagether with all rents, issues, deposits and profits of the Subject Property (to the extent, if any, they are not subject to Article 3); all inventory, accounts, cash receipts, deposit accounts, accounts receivable, contract rights, general intangibles, chattel paper, instruments, documents, notes, drafts, letters of credit, insurance policies, insurance and condemnation awards and proceeds, any other rights to the payment of money, trade names, trademarks and service marks arising from or related to the Subject Property or any business now or hereafter conducted thereon by Trustor; all permits consents, approvals, licenses, authorizations and other rights granted by, given by or obtained from, any governmental entity with respect to the Subject Property; all deposits or other security now or hereafter made with or given to utility companies by Trustor with respect to the Subject Property; all advance payments of insurance premiums made by Trustor with respect to the Subject Property; all plans, drawings and specifications relating to the Subject Property; all funds deposited with Beneficiary pursuant to any loan agreement; all reserves, deferred payments, deposits, accounts, refunds, cost savings and payments of any kind related to the Subject Property or any portion thereof; together with all replacements and proceeds of, and additions and accessions to, any of the foregoing; together with all books, records and files relating to any of the foregoing. As to all of the above described personal property which is or which hereafter becomes a "fixture" under applicable law, this Deed of Trust constitutes and is filed as a fixture filing under Sections 9604 and 9502, et seq. of the California Uniform Commercial Code, as amended or recodified from time to time, and covers goods which are or are to become fixtures. 4.2 REPRESENTATIONS AND WARRANTIES. Trustor represents and warrants that: (a) Trustor has, or will have, good title to the Collateral (except for items that are leased by Trustor); and (b) Trustor's principal place of business is located at the address shown in Section 7.9. 4.3 RIGHTS OF BENEFICIARY. In addition to Beneficiary's rights as a "Secured Party" under the Califomia Uniform Commercial Code, as amended or recadified from time to time ("UCC"), Beneficiary may, but shall not be obligated to, at any time without notice and at the expense of Trustor: (a) give notice to any person of Beneficiary's rights hereunder and enforce such rights at law or in equity; (b) insure, protect, defend and preserve the Collateral or any rights or interests of Beneficiary therein; (c) inspect the Collateral; and (d) endorse, collect and receive any right to payment of money owing to Trustor under or from the Collateral. Notwithstanding the above, in no event shall Beneficiary be deemed to have accepted any property other than cash in DOCSOC\989734v4\24036.0030 -4- 14-117 satisfaction of any obligation af Trustor to Beneficiary unless Beneficiary shall make an express written election of said remedy under UCC §9620 or 9624, or other applicable law. 4.4 RIGHTS OF BENEFICIARY ON DEFAULT. Upon the occurrence and during the continuance of a Default (hereinafter defined) under this Deed of Trust, then in addition tö all of Beneficiary's rights as a "Secured Party" under the UCC or otherwise at law: (a) Beneficiary may (i) upon written notice, require Trustor to assemble any or all of the Collateral and make it available to Beneficiary at a place designated by Beneficiary; (ii) without prior notice, enter upon the Subject Property or other place where any of the Collateral may be located and take possessian of, callect, sell, and dispose of any or all of the Collateral, and store the same at locations acceptable to Beneficiary at Trustor's expense; (iii) sell, assign and deliver at any place or in any lawful manner all or any part af the Callateral and bid and become purchaser at any such sales; and (b) Beneficiary may, for the account of Trustor and at Trustor's expense: (i) operate, use, consume, sell or dispose of the Collateral as Beneficiary deems appropriate for the purpose of performing any or all of the Secured Obligations; (ii) enter into any agreement, compromise, or settlement, including insurance claims, which Beneficiary may deem desirable or proper with respect to any af the Collateral; and (iii) endorse and deliver evidences of title for, and receive, enforce and collect by legal action or otherwise, all indebtedness and obligations now or hereafter owing to Trustor in connection with or on account of any or all of the Collateral. Notwithstanding any other provision hereof, Beneficiary shall not be deemed to have accepted any property other than cash in satisfactian of any obligatiQn of Trustor to Beneficiary unless Trustor shall make an express written election of said remedy under UCC §9620 or 9624, or other applicable law. 4.5 POWER OF ATTORNEY. Trustor hereby irrevocably appoints Beneficiary as Trustor's attorney-in-fact (such agency being coupled with an interest), and as such attomey-in-fact Beneficiary may, upon the occurrence and during the cantinuance of a Default, without the obligation to do so, in Beneficiary's name, or in the name of Trustor, prepare, execute and file or record fmancing statements, continuation statements, applications for registration and like papers necessary to create, perfect or preserve any of Beneficiary's security interests and rights in or to any of the Collateral, and, upon the accurrence and during the continuance of a Default hereunder, take any other action required of Trustor; provided, however., that Beneficiary as such attomey-in-fact shall be accountable only for such funds as are actually received by Beneficiary. 4.6 POSSESSION AND USE OF COLLATERAL. Except as otherwise provided in this Section, so long as no Default exists under this Deed of Trust, Trustor may possess, use, move, transfer or dispose of any of the Collateral in the ordinary course of Trustor's business. ARTICLE 5. RIGHTS AND DUTIES OF THE PARTIES 5.1 TAXES AND ASSESSMENTS. Subject to Trustor's rights to contest payment oftaxes, Trustor shall pay prior to delinquency all taxes, assessments, levies and charges imposed by any public or quasi-public authority or utility company which are or which may become a lien upon or cause a loss in value of the Subject Property or any interest therein. Trustor shall also pay prior to delinquency all taxes, assessments, levies and charges imposed by any public authority upon Beneficiary by reason of its interest in any S,:cured Obligatian or in the Subject Property, or by DOCSOC\989734v4\24036.0030 -5- 14-118 reason of any payment made to Beneficiary pursuant to any Secured Obligation; provided, however, Trustor shall have no obligation to pay taxes which may be imposed .trom time to time upon Beneficiary and which are measured by and imposed upon Beneficiary's net income. 5.2 PERFORMANCE OF SECURED OBLIGATIONS. Trustor shall promptly pay and perfonn each Secured Obligation when due. 5.3 LIENS, ENCUMBRANCES AND CHARGES. This Deed of Trust shall constitute a second priority security interest, junior and subordinate only to the Senior Deed of Trust. Trustor shall immediately discharge any other lien not approved by Beneficiary in writing that has or may attain priority over this Deed of Trust. Trustor shall pay when due all obligations secured by or reducible to liens which shall now ar hereafter encumber or appear to encumber all ar any part of the Subject Property or any interest therein, whether senior or subordinate hereto; provided, however, Trustor shall have the right to contest in good faith any claims and liens for labor done and materials and services furnished in connection with the construction of any Improvements and any such claim or lien so contested may remain unpaid during the period of such contest and any appeal there.tram. 5.4 DAMAGES: INSURANCE AND CONDEMNATION PROCEEDS. Proceeds af casualty insurance policies and condemnation awards shall be disposed of in accordance with and subject to the conditions contained in the Loan Agreement. 5.5 MAINTENANCE AND PRESERVATION OF THE SUBJECT PROPERTY. Trustor covenants: (a) to insure the Subject Property against such risks as are required under the Loan Agreement and, at Beneficiary's request, to provide evidence of such insurance to Beneficiary, and to comply with the requirements of any insurance companies insuring the Subject Property; (b) to keep the Subject Property in good condition and repair; (c) except as pennitted by the Senior Deed of Trust, or its beneficiary, or the loan agreement secured thereby, not to remove or demolish the Subject Property or any part thereof, not to materially alter, restore or add to the Subject Property and not to initiate or acquiesce in any change in any zoning or other land classification which affects the Subject Property without Beneficiary's prior written consent; (d) to complete or restore promptly and in good and workmanlike manner the Subject Property, or any part thereaf which may be damaged or destroyed; (e) to comply with all laws, ordinances, regulations and standards, and all covenants, conditions, restrictions and equitable servitudes, whether public or private, of every kind and character which affect the Subject Property and pertain to acts committed or conditions existing thereon, including, without limitation, any work, alteration, improvement or demolition mandated by such laws, covenants or requirements; (f) not to commit or pennit waste of the Subject Property; and (g) to do all other acts which .trom the character or use of the Subject Property may be reasonably necessary to maintain and preserve its value. 5.6 DEFENSE AND NOTICE OF LOSSES, CLAIMS AND ACTIONS. At Trustor's sole expense, Trustor shall protect, preserve and defend the Subject Property and title to and right of possession of the Subject Property, the security hereof and the rights and powers of Beneficiary and Trustee hereunder against all adverse claims. Trustor shall give Beneficiary and Trustee prompt notice in writing of the assertion of any claim, of the filing of any action or proceeding, of the occurrence of any damage to the Subject Property and of any condemnation offer or action. 5.7 ACCEPTANCE OF TRUST: POWERS AND DUTIES OF TRUSTEE. Trustee accepts this trust when this Deed of Trust is recorded. From time to time upon written request of Beneficiary and presentation of this Deed of Trust or a c~rtified copy thereof for endorsement, and without DOCSOCl989734v4\24036.0030 -6- 14-119 affecting the personal liability of any person for payment of any indebtedness or perfonnance of any obligations secured hereby, Trustee may, without liability therefor and without notice: (a) reconvey all or any part of the Subject Property; (b) consent to the making of any map or plat thereof; and (c) join in any grant of easement thereon, any declaration of covenants and restrictions, or any extension agreement or any agreement subordinating the lien or charge of this Deed of Trust. Except as may be required by applicable law, Trustee or Beneficiary may from time to time apply to any court of competent jurisdiction for aid and direction in the execution of the trust hereunder and the enforcement of the rights and remedies available hereunder, and may obtain orders or decrees directing or confirming or approving acts in the execution of said trust and the enforcement of said remedies. Trustee has no obligation to notify any party of any pending sale or any action or praceeding, including, without limitation, actions in which Trustor, Beneficiary or Trustee shaIl be a party unless held or commenced and maintained by Trustee under this Deed of Trust. Trustee shall not be obligated to perform any act required of it hereunder unless the performance of the act is requested in writing and Trustee is reasonably indenmified and held harmless against loss, cost, liability or expense. 5.8 EXCULPATION; INDEMNIFICATION. (a) Beneficiary shall not directly or indirectly be liable ta Trustor or any other persan as a consequence of (i) the exercise of the rights, remedies or powers granted to Beneficiary in this Deed of Trust; (ii) the failure or refusal ofBeneflciary to perfonn or discharge any obligation or liability of Trustor under any agreement related ta the Subject Property or under this Deed of Trust; or (iii) any loss sustained by Trustor or any third party resulting from Beneficiary's failure to lease the Subject Property after a Default (hereinafter defmed) or from any other act or amission of Beneficiary in managing the Subject Property after a Default unless the loss is caused by the gross negligence or wiIlful misconduct of Beneficiary and no such liability shaIl be asserted against or imposed upon Beneficiary or its agents, and all such liability is hereby expressly waived and released by Trustor. (b) Trustor indenmifies Trustee and Beneficiary against, and holds Trustee and Beneficiary harmless from, all losses, damages, liabilities, claims, causes of action, judgments, court costs, attomeys' fees and other legal expenses, cost of evidence of title, cost of evidence of value, and other expenses which either may suffer or incur: (i) by reason of this Deed of Trust; (ii) by reason of the execution of this trust or in perfarmance af any act required or permitted hereunder or by law; (iii) as a result of any failure of Trustor to perfonn Trustor's obligations; or (iv) by reason of any aIleged obligation or undertaking on Beneficiary's part to perfonn or discharge any of the representations, warranties, conditions, covenants or other obligations contained in any other dacument related to the Subject Property; provided, however, such indemnity does not include matters caused by the gross negligence or wiIlful misconduct of Beneficiary or its agents. The above obligation of Trustor to indemnify and hold harmless Trustee and Beneficiary shaIl survive the release and canceIlation of the Secured Obligations and the release and reconveyance or partial release and reconveyance of this Deed of Trust. (c) Trustar shaIl pay all amounts and indebtedness arising under this Section 5.8 immediately upon written demand by Trustee or Beneficiary together with interest thereon from the date of such demand at the rate of ten percent (10%) per annum. 5.9 SUBSTITUTION OF TRUSTEES. Fram time to time, by a writing, signed and acknowledged by Beneficiary and recorded in the Office of:. the Recorder of the County in which the Subject DOCSOC\989734v4\24036.0030 -7- 14-120 Property is situated, Beneficiary may appoint another trustee to act in the place and stead of Trustee or any successor. Such writing shall set forth any information required by law. The recordation of such instrument of substitution shall discharge Trustee herein named and shall appoint the new trustee as the trustee hereunder with the same effect as if originally named Trustee herein. A writing recorded pursuant to the provisions of this Section 5.9 shall be conclusive proof of the proper substitution of such new Trustee. 5.10 NONRECOURSE OBLIGATION. Nothing herein contained shall be deemed to cause Trustor (or any of its partners, or any of their respective directors, officers, employees, partners, principals or members) personally to be liable to payor perform any of its obligatians secured hereby, and Beneficiary shall not seek any personal or deficiency judgment on such obligations, and the sole remedy of Beneficiary shall be against the Subject Property and the Collateral; provided, however, that the foregoing shall not in any way affect any rights Beneficiary may have (as a secured party or otherwise) hereunder or under the Promissory Note or Laan Agreement, or any other rights Beneficiary may have to: (a) recover directly from Trustor any funds, damages or costs (including, without limitation, reasonable attorneys' fees and costs) incurred by Beneficiary as a result of fraud, misrepresentation or waste; ar (b) recover directly from Trustor any condemnation or insurance proceeds, or other similar funds or payments attributable to the Property which under the terms of this Deed of Trust should have been paid to Beneficiary and any costs and expenses incurred by Beneficiary in conneciion therewith (including, without limitation, reasonable attorneys' fees and costs). 5.11 RELEASES. EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. Without notice ta or the consent, approval or agreement of any persons or entities having any interest at any time in the Subject Property or in any manner obligated under the Secured Obligations ("Interested Parties"), Beneficiary may, from time to time, release any person or entity from liability for the payment or performance af any Secured Obligation, take any action or make any agreement extending the maturity or otherwise altering the terms or increasing the amount of any Secured Obligation, or accept additional security or release all or a portion of the Subject Property and other security for the Secured Obligations. None of the foregoing actions (other than a duly executed written release) shall release or reduce the liability of any of said Interested Parties, ta the extent such liability exists, or release or impair the priority of the lien of this Deed of Trust upon the Subject Property. 5.12 RECONVEYANCE. Upon Beneficiary's written request, and upon surrender to Trustee for cancellatian of this Deed of Trust or a certified copy thereof and any note, instrument, or instruments setting forth all obligations secured hereby, Trustee shall reconvey, without warranty, the Subject Property or that portion thereof then held hereunder. To the extent permitted by law, the reconveyance may describe the grantee as "the person or persons legally entitled thereto" and the recitals of any matters or facts in any reconveyance executed hereunder shall be conclusive proof of the truthfulness thereof. Neither Beneficiary nor Trustee shall have any duty to determine the rights of persons claiming to be rightful grantees of any reconveyance. When the Subject Property has been fully reconveyed, the last such reconveyance shall operate as a reassignment of all future rents, issues and profits of the Subject Property to the person or persons legally entitled thereto. 5.13 SUBROGATION. Beneficiary shall be subrogated to the lien of all encumbrances, whether released af record or not, paid in whole or in part by Beneficiary pursuant to this Deed of Trust or by the proceeds of any loan secured by this Deed of Trust. DOCSOC\989734v4\24036.0030 -8- 14-121 5.14 RIGHT OF INSPECTION. Subject to the rights of tenants or occupants of the Subject Property, Beneficiary, its agents and emplayees, may enter the Subject Property at any reasonable time upon twenty-four (24) hours' notice (except in cases of emergency where no notice is required) for the purpose of inspecting the Subject Property and ascertaining Trustor's compliance with the tenns hereof. 5.15 HAZARDOUS MATERIALS. Without in any way limiting the other representations and warranties set forth in this Deed of Trust, and except as otherwise disclosed in written reports and surveys previously delivered to Beneficiary, Trustor hereby specifically represents and warrants to the best of Trustor's actual knowledge, without inquiry, as of the date of this Deed of Trust as follows: (a) The Subject Property is not and has not been a site for the use, generation, manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation or presence of any oil, flanunable explosives, asbestos, urea formaldehyde insulation, radioactive materials, hazardous wastes, toxic ar contaminated substances or similar materials, including, without limitation, any substances which are "hazardous substances," "hazardous wastes," "hazardous materials" or "toxic substances" under the Hazardous Materials Laws, as described below, and/or other applicable environmental laws, ordinances and regulations (collectively, the "Hazardous Materials"). "Hazardous Materials" shall not include commercially reasonable amounts of such materials used (i) in labarataries for educational purposes, (ii) in business offices and schools of the type and nature currently operated by Trustor, (iü) in the ordinary course of construction of the Subject Property, and (iv) by accupants of residential units for normal household activities, and by Trustor for nonna! maintenance and operations of the Subject Property, all of which materials set forth in (i)-(iv) above are used and stored in accordance with all applicable environmental laws, ordinances and regulations. (b) The Subject Property is in compliance with all laws, ordinances and regulations relating to Hazardous Materials ("Hazardous Materials Laws"), including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as amended, 33 V.S.C. Sectian 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 V.S.C. Section 6901 et seq.; the Comprehensive Environment Respanse, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986, "CERCLA"), 42 V.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, 15 V.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 V.S.C. Section 651, the Emergency Planning and Community Right-to-Know Act of 1986, 42 V.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 V.S.C. Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 V.S.C. Section 300f et seq.; and all comparable state and local laws, laws of other jurisdictions or orders and regulations. (c) There are no claims or actions ("Hazardous Materials Claims") pending or threatened against Trustor or the Subject Property by any governmental entity or agency or by any other person or entity relating to Hazardous Materials or pursuant to the Hazardous Materials Laws. (d) The Subject Property has not been designated as Border Zone Property under the provisions of Califomia Health and Safety Code, Sections 25220 et seq. and there has been no occurrence or condition on a.ny real property adjoining or in the vicinity of the DOCSOC\989734v4124036.0030 -9- 14-122 Subject Property that could cause the Subject Property or any part thereof to be designated as Border Zone Property. 5.16 HAZARDOUS MATERIALS COVENANTS. Trustor agrees as follows: (a) Trustor shall not cause or pernrit the Subject Property to be used as a site for the use, generation, manufacture, storage, treatment, release, discharge, disposal, transportation or presence of any Hazardous Materials (other than as provided in Section 5.15 above). (b) Trustor shall comply and cause the Subject Property to comply with all Hazardous Materials Laws. (c) Trustor shall immediately notify Beneficiary in writing of: (i) the discovery of any Hazardous Materials (other than those set forth in Section 5.15 above) on or Wlder the Subject Property; (ii) any knowledge by Trustor that the Subject Property does not comply with any Hazardous Materials Laws; (iii) any Hazardous Materials Claims; and (iv) the discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Subject Property that could cause the Subj ect Property or any part thereof to be designated as Border Zone Property. (d) In response to the presence of any Hazardous Materials on or Wlder the Subject Property, Trustor shall immediately take, at Trustor's sole expense, in a commercially reasonable manner, all remedial action required by any Hazardous Materials Laws ar any judgment, consent decree, settlement or compromise in respect to any Hazardous Materials Claims. 5.17 INSPECTION BY BENEFICIARY. At any reasonable time, upon twenty-four (24) hours' notice (except in cases of emergency where no notice is required) to Trustor, but subject to the rights of tenants and occupants of the Subject Property, Beneficiary, its emplayees and agents, may from time to time (whether before or after the commencement of a nonjudicial or judicial foreclosure proceeding) enter and inspect the Subject Property for the purpose of determining the existence, location, nature and magnitude of any past or present release or threatened release of any hazardous substance into, onto, beneath or from the Subject Property. 5.18 HAZARDOUS MATERIALS INDEMNITY. Trustor hereby agrees to defend, indenmify and hold hannless Beneficiary, its directors, officers, employees, agents, successors and assigns from and against any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including, without limitation, reasonable attorneys' fees and expenses) which Beneficiary may incur as a direct or indirect consequence of the use, generation, manufacture, storage, disposal, threatened disposal, transportation or presence of Hazardous Materials in, on or under the Subject Property. Trustor shall immediately pay to Beneficiary upon written demand any amounts owing under this indenmity, together with interest from the date of demand therefor Wltil paid at the rate of ten percent (10%) per annum. TRUSTOR'S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS BENEFICIARY SHALL SURVIVE THE TERMINATION OF THE LOAN AGREEMENT AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THE DEED OF TRUST. 5.19 LEGAL EFFECT. Trustor and Beneficiary agree that: (a) Sections 5.15 through 5.18 are intended as Beneficiary's written request for information (and Trustor's response) concerning the environmental condition of the real property security as required by California Code of Civil Procedure §726.5; and (b) each provisiolL_ in such sections (together with any indenmity -10- DOCSOC\989734v4\24036.0030 14-123 applicable to a breach of any such provision) with respect to the environmental condition of the real property security is intended by Beneficiary and Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure §736, and as such it is expressly understood that Trustor's duty to indemnifY Beneficiary hereunder shall survive: (a) any judicial or non- judicial foreclosure under the Deed of Trust, or transfer of the Subject Property in lieu thereof, and (b) the release and reconveyance or cancellation of the Deed of Trust. ARTICLE 6. DEFAULT PROVISIONS 6.1 DEFAULT. For all purposes hereof, the term "Default" shall mean (a) the occurrence of an "event of default" as defined in the Promissory Note or the Loan Agreement beyond all applicable cure periods provided therein; (b) the failure of Trustor to make any payment of any amount due hereunder when the same is due and payable, where such failure has continued for ten (10) days after notice (c) Trustor's failure to observe and perform any other covenant, condition or agreement on its part to be observed or performed under this Deed of Trust for a period of thirty (30) days after written notice specifYing such failure and requesting that it be remedied is given to Trustor by Beneficiary; provided, however, if the failure stated in the notice is correctable but cannot be corrected within such thirty (30) day periad, Trustor shall have such additional time as reasonably necessary to effect such cure, provided that such corrective action is instituted by Trustor within such thirty (30) day period and diligently pursued until the default is corrected, (d) at the option af Beneficiary, the occurrence of a breach or default (beyond any applicable cure period) under any other deed of trust to Trustee executed by Trustor for the benefit of Beneficiary of even date herewith or hereafter executed (the "Other Deeds of Trust") which secures (i) payment to Beneficiary of sums owing under the Loan Agreement and/or (ii) the performance of the covenants and obligations of Trustor under the Loan Agreement, or (e) the failure (in any material respect) of any of the representations and warranties of Trustor herein to be true and correct when made. Beneficiary shall simultaneously deliver notice of any default under this Deed of Trust to the Limited Partner of the Trustor pursuant to Section 7.9 below. The Limited Partner of Trustor shall have the same rights as the Trustor to cure any default under this Deed of Trust and any cure by the Limited Partner of Trustor shall constitute a cure by, and shall be given the same effect as if performed by, Trustor. 6.2 RIGHTS AND REMEDIES. At any time after Default, Beneficiary and Trustee shall each have all the following rights and remedies; provided, however, Beneficiary and Trustee may not exercise the rights and remedies under subsections (c), (f) and (g) below until there has been a Default: (a) With or without notice, to declare all Secured Obligations immediately due and payable; (b) With or without notice, and without releasing Trustor rrom any Secured Obligation, and . without becoming a mortgagee in possession, to cure any breach or Default of Trustor and, in connection therewith, to enter upon the Subject Property and do such acts and things as Beneficiary or Trustee deem necessary or desirable ta protect the security hereof, including, without limitation: (i) to appear in and defend any action or proceeding purporting to affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee under this Deed of Trust; (ii) to pay, purchase, contest or compromise any encumbrance, charge, lien or claim of lien which, in the sole judgment of either Beneficiary or Trustee, is or may be senior in priority to this Deed of Trust, the judgment of Beneficiary or Trustee being canclusive as between the parties hereto; (iii) to obtain insurance; (iv) to pay any premiums or charges with respect to insurance required DOCSOC\989734v4\2403S.0030 -11- 14-124 to be carried under this Deed of Trust; or (v) to employ counsel, accountants, contractors and other appropriate persons. (c) To commence and maintain an action or actions in any court of competent jurisdiction to foreclose this instrument as a mortgage or to obtain specific enforcement of the covenants of Trustor hereunder, and Trustor agrees that such covenants shall be specifically enforceable by injunction or any other appropriate equitable remedy and that for the purposes of any suit brought under this subparagraph, Trustor waives the defense of laches and any applicable statute oflimitations; (d) To apply to a court of competent jurisdiction for and obtain appointment of a receiver of the Subject Property as a matter of strict right and without regard to the adequacy of the security for the repayment of the Secured Obligations, the existence of a declaration that the Secured Obligations are immediately due and payable, or the filing of a natice of default, and Trustor hereby consents to such appointment; (e) To enter upon, possess, manage and operate the Subject Property or any part thereof, to take and possess all docwnents, books, records, papers and accounts of Trustor or the then owner of the Subject Property, to make, tenninate, enforce or modify Leases of the Subject Property upon such terms and conditions as Beneficiary deems proper, to make repairs, alterations and improvements to the Subject Property as necessary, in Trustee's or Beneficiary's sole judgment, to protect or enhance the security hereof; (f) To execute a written natice of such Default and of its election to cause the Subject Property to be sold to satisfy the Secured Obligations. As a condition precedent to any such sale, Trustee shall give and record such notice as the law then requires. When the minimum period of time required by law after such notice has elapsed, Trustee, without notice to or demand upon Trustor except as required by law, shall sell the Subject Property at the time and place of sale fixed by it in the notice of sale, at one or several sales, either as a whole or in separate parcels and in such manner and order, all as Beneficiary in its sole discretion may determine, at public auction to the highest bidder for cash, in lawful money of the United States, payable at time of sale. Neither Trustor nor any other person or entity other than Beneficiary shall have the right to direct the order in which the Subject Property is sold. Subject to requirements and limits imposed by law, Trustee may from time to time postpone sale of all or any partion of the Subject Property by public announcement at such time and place of sale. Trustee shall deliver to the purchaser at such sale a deed conveying the Subject Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in the deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustee, Trustor or Beneficiary may purchase at the sale; (g) To resort to and realize upon the security hereunder and any other security now or later held by Beneficiary concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both, and to apply the proceeds received upon the Secured Obligations all in such order and manner as Trustee and Beneficiary, or either of them, determine in their sole discretion; Upon sale of the Subject Property at any judicial or non-judicial foreclosure, Beneficiary may credit bid (as determined by Beneficiary in its sole and absolute discretion) all or any portion of the Secured Obligations. In determining such credit bid, Beneficiary may, but is not obligated to, take into account all or a'!y of the following: (i) appraisals of the Subject DOCSOC\989734v4\24036.0030 -12- 14-125 Property as such appraisals may be discounted or adjusted by Beneficiary in its sole and absolute underwriting discretion; (ii) expenses and costs incurred by Beneficiary with respect to the Subject Property prior to foreclosure; (iii) expenses and costs which Beneficiary anticipates will be incurred with respect to the Subject Property after foreclosure, but prior to resale, including, without limitation, costs of structural reports and other due diligence, costs to carry the Subject Property prior to resale, costs of resale (e.g., commissions, attorneys' fees, and taxes), costs of any hazardous materials clean-up and monitoring, costs of deferred maintenance, repair, refurbishment and retrofit, costs of defending or settling litigation affecting the Subject Property, and lost opportunity casts (if any), including the time value of money during any anticipated halding period by Beneficiary; (iv) declining trends in real property values generally and with respect to properties similar to the Subject Property; (v) anticipated discounts upon resale of the Subject Property as a distressed or foreclosed property; (vi) the fact of additional collateral (if any), for the Secured Obligations; and (vii) such other factors or matters that Beneficiary (in its sole and absolute discretion) deems appropriate. In regard to the above, Trustor acknowledges and agrees that: (w) Beneficiary is not required to use any or all of the foregoing factors to determine the amaunt of its credit bid; (x) this Section does not impose upon Beneficiary any additional obligations that are not imposed by law at the time the credit bid is made; (y) the amount of Beneficiary's credit bid need not have any relation to any loan-ta-value ratios previausly discussed between Trustor and Beneficiary; and (z) Beneficiary's credit bid may be (at Beneficiary's sole and absolute discretion) higher or lower than any appraised value of the Subject Property; 6.3 APPLICATION OF FORECLOSURE SALE PROCEEDS. After deducting all costs, fees and expenses of Trustee, and of this trust, including, without limitation, cost of evidence of title and attorneys' fees in connection with sale and costs and expenses of sale and of any judicial proceeding wherein such sale may be made, Trustee shall apply all proceeds of any foreclosure sale: (a) to payment of all sums expended by Beneficiary under the terms hereof and not then re- paid, with accrued interest; (b) to payment of all other Secured Obligations; and (c) the remainder, if any, to the person or persons legally entitled thereto. 6.4 APPLICATION OF OTHER SUMS. All sums received by Beneficiary under Section 6.2 or Section 3.2, less all costs and expenses incurred by Beneficiary or any receiver under Section 6.2 or Section 3.2, including, without limitation, attorneys' fees, shall be applied in payment of the Secured Obligations in such order as Beneficiary shall determine in its sole discretion; provided, however, Beneficiary shall have no liability for funds not actually received by Beneficiary. 6.5 NO CURE OR WAIVER. Neither Beneficiary's nor Trustee's nor any receiver's entry upon and taking possessian of all or any part of the Subject Property, nor any collection of rents, issues, profits, insurance proceeds, condemnation proceeds or damages, other security or proceeds of other security, or other sums, nor the application of any collected sum to any Secured Obligation, nor the exercise or failure to exercise of any other right or remedy by Beneficiary or Trustee or any receiver shall cure or waive any breach, Default or notice of default under this Deed of Trust, or nullify the effect of any notice of default or sale (unless all Secured Obligations then due have been paid and performed and Trustor has cured all other defaults), or impair the status of the security, or prejudice Beneficiary or Trustee in the exercise of any right or remedy, or be construed as an affIrmation by Beneficiary af any tenancy, lease or option or a subordination of the lien of this Deed of Trust. 6.6 PAYMENT OF COSTS. EXPENSES AND ATTORNEYS' FEES. Trustor agrees to pay to Beneficiary immediately and without demand all reasonable costs and reasonable expenses incurred by Trustee and Beneficiary pursuantJo Section 6.2 (including, without limitation, court DOCSOC\989734v4\24036.0030 -13- 14-126 costs and attorneys' fees, whether incurred in litigation or not) with interest ftom the date of expenditure until said sums have been paid at the rate of interest then applicable to the principal balance of the indebtedness as specified in the Loan Agreement. In addition, Trustor shall pay to Trustee all Trustee's fees hereunder and shall reimburse Trustee for all expenses incurred in the administration of this trust, including, without limitation, any attorneys' fees. 6.7 POWER TO FILE NOTICES AND CURE DEFAULTS. Trustor hereby irrevocably appoints Beneficiary and its successors and assigns, as its attomey-in-fact, which agency is coupled with an interest, upon the occurrence and during the continuance of a default, (a) to execute and/or record any notices of completion, cessation of labor, or any other notices that Beneficiary deems appropriate to protect Beneficiary's interest, (b) upon the issuance of a deed pursuant to the foreclasure of this Deed of Trust or the delivery of a deed in lieu of foreclosure, to execute all instruments of assignment or further assurance with respect to the Leases and Payments in favor of the grantee of any such deed, as may be necessary or desirable for such purpose, (c) to prepare, execute and file or record fmancing statements, continuation statements, applications for registration and like papers necessary to create, perfect or preserve Beneficiary's security interests and rights in or to any of the Callateral, and (d) to perform any obligation of Trustor hereunder; provided, however, that: (i) Beneficiary as such attomey-in-fact shall only be accauntable for such funds as are actually received by Beneficiary; and (ii) Beneficiary shall not be liable ta Trustor or any other person or entity for any failure to act under this Section. ARTICLE 7. MISCELLANEOUS PROVISIONS 7.1 MERGER. No merger shall occur as a result afBeneficiary's acquiring any other estate in, or any other lien on, the Subject Property unless Beneficiary consents to a merger in writing. 7.2 OBLIGATIONS OF TRUSTOR. JOINT AND SEVERAL. If more than one person has executed this Deed of Trust as "Trustor", the obligations of all such persons hereunder shall be joint and several. 7.3 WAIVER OF MARSHALLING RIGHTS. Trustor, for itself and for all parties claiming through or under Trustor, and for all parties who may acquire a lien on or interest in the Subject Property, hereby waives all rights to have the Subject Praperty and/or any other property, including, without limitatian, the Collateral, which is now or later may be security for any Secured Obligation ("Other Property") marshaled upon any foreclosure of this Deed of Trust or on a foreclosure of any other security for any of the Secured Obligations. Beneficiary shall have the right to sell, and any court in which foreclosure proceedings may be brought shall have the right to order a sale of, the Subject Property and any or all of the Collateral or Other Property as a whole or in separate parcels, in any order that Beneficiary may designate. 7.4 RULES OF CONSTRUCTION. When the identity of the parties or other circumstances make it appropriate the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. The term "Subject Property" means all and any part of the Subject Property and any interest in the Subject Property. 7.5 SUCCESSORS IN INTEREST. The terms, covenants, and conditions herein contained shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto; provided, however, that this Section 7.5 does not waive or modify the provisions of Section 5.10. DOCSOC\989734v4\24036.0030 -14- 14-127 7.6 EXECUTION IN COUNTERPARTS. This Deed of Trust may be executed in any number of counterparts, each of which, when executed and delivered to Beneficiary, will be deemed to be an original and all of which, taken together, will be deemed to be one and the same instrument. 7.7 CALIFORNIA LAW. This Deed of Trust shall be construed in accordance with the laws of the State of California, except to the extent that Federal laws preempt the laws of the State of California. 7.8 INCORPORATION. Exhibit A, as attached, is incorporated into this Deed of Trust by this reference. 7.9 NOTICES. All notices or other communications required or permitted to be given pursuant to the provisions of this Deed of Trust shall be in writing and shall be considered as properly given if delivered personally or sent by first class U.S. mail, postage prepaid, except that notice of a Default may be sent by certified mail, return receipt requested, or by Overnight Express Mail or by ovemight commercial courier service, charges prepaid. Notices so sent shall be effective three (3) days after mailing, if mailed by first class mail, and otherwise upon receipt at the addresses set forth below. For purposes of notice, the addresses of the parties shall be: Trustor: Seniors on Broadway Limited Partnership, a Califomia Limited Partnership c/o Metropolitan Area Advisory Committee on Anti-Paverty of San Diego, Inc. 22 West 35th Street, Suite 200 National City, CA Attention: General Partner With a copy to Limited Partner: SCDC, LLC c/o Red Capital Markets, Inc. Two Miranova Place, 12th Floor Columbus,OH 43215 Attention: Tax Credit Asset Management Trustee: First American Title Insurance Company 411 Ivy Street San Diego, Califomia 92101 City ofChula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attn: Community Development Director With a copy to City Attorney and Housing Coordinator Beneficiary: Any party shall have the right to change its address for notice hereunder to any other location within the continental United States by the giving of thirty (30) days notice to the other party in the manner set forth hereinabove. Trustor shall forward to Beneficiary, without delay, any notices, letters or other communications delivered to the Subject Property or to Trustor naming Beneficiary, as addressee, or which could reasonably be deemed to affect the ability of Trustor to perfonn its obligatians to Beneficiary under the Loan Agreement. DOCSOC\989734v4\24036.0030 -15- 14-128 7.10 LOAN AGREEMENT AND PROMISSORY NOTE CONTROL. In the event of conflict between the terms of this Deed of Trust and the Loan Agreement or the Promissory Note, the terms of the Loan Agreement and Promissory Note shall prevail, except that the provisions of 6.2 of this Deed of Trust shall control with respect to rights and remedies of Beneficiary and Trustee hereunder. 7.11 NONDISCRIMINATION. Trustor herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through it that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or ~oyment of the Subject Property, nor shall the grantee of any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Subject Property. rSivnature on next navel DOCSOC\989734v4\24036.0030 -16- 14-129 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year set forth above. SENIORS ON BROADWAY LIMITED PARTNERSHIP, a Califomia Limited Partnership By: METROPOLITAN AREA ADVISORY COMMITTEE ON ANTI-POVERTY OF SAN DIEGO, INC., a California non-profit public benefit corporation, its General Partner By: (ALL SIGNATURES MUST BE ACKNOWLEDGED) S-1 DOCSOC\989734\24036.0030 DOCSOC\989734v4\24036.0030 14-130 DOCSOC\989734v4\24036.0030 SCHEDULE 1 DESCRIPTION OF SUBJECT PROPERTY , Page 1 of Schedule 14-131 STATE OF CALIFORNIA COUNTY OF ) ) ss. ) On , before me, (Print Name of Notary Public) , Natary Public, personally appeared D D personally known to me -or- proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ~lgnature Ut Notary OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT o Individual o Corporate Officer Title(s) Title Or Type Of Document o Partner(s) 0 o Attorney-In-Fact Trustee(s) Guardian/Conservator Other: Limited General o o o o Number Of Pages Signer is representing: Name OfPerson(s) Or Entity(ies) Date Of Documents Signer(s) Other Than Named Above Page 1 of scñ4<mII: 3 2 DOCSOC\989734v4\24036.0030 PROMISSORY NOTE Secured by a Deed of Trust $l,043,850 Date: February 22, 2005 Chula Vista, CA 1. Borrower's Promise to Pay. For value received, the undersigned SENIORS ON BROADWAY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, ("Borrower"), promises to pay to the CITY OF CHULA VISTA, a public body, corporate and politic (the "City"), or order, at 276 Fourth Avenue, Chula Vista, Califomia 9l9l0, or such other place as the City may designate in writing, the principal sum of One Million Forty Three Thousand Eight Hundred and Fifty Dollars ($1,043,850) (the "principal"), plus interest as set forth in Section 4 below. (a) Use Of Funds. Borrower is improving certain real property in the City of Chula Vista, as legally described in the Loan Agreement (the "Property") with a multifamily housing development consisting of 41 affordable housing units for seniors and one manager unit (the "Project"), subject to the terms of the Permanent Loan Documents, the Regulatory Agreement and Declaration of Restrictive Covenants, the Affordable Housing Agreement and the TCAC Regulatory Agreement, as those terms are defined in that certain Loan Agreement and Related Restricted Covenants between the Borrower and the City dated as of February 22, 2005 (the "Loan Agreement"). This Note evidences the loan made by the City to assist Borrower in leasing and improving the Property for occupation by very-low income seniors, as more particularly set forth in the Loan Agreement. 2. Definitions. Capitalized terms used herein not otherwise defined shall have the meanings set forth in the Loan Agreement. 3. Security. This Note is secured by the Leasehold Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing of the same date as this Note (the "Deed of Trust"), executed by Borrower, as trustor, in favor of the City, as beneficiary, and encumbering the leasehold interest in the real property described in the Deed of Trust. The City will be entitled to the benefits of the security provided by the Deed of Trust and will have the right to enforce the covenants and agreements of Borrower specified within the Deed of Trust. 4. Interest. Simple interest will accrue on the principal balance remaining unpaid trom time to time at the rate of three percent (3%) per annum. 5. Payments. Payments of principal and interest due under this Note shall be made in accordance with the payment terms set forth in Section 4.6 ofthe Loan Agreement, which such terms are incorporated herein by this reference. All payments on this Note shall be applied first to payment of accrued but unpaid interest, and after all such interest has been paid, any remainder shall be applied to reduction of the principal balance. Unless the Loan Agreement is extended pursuant to the terms of the Loan Agreement, all principal and interest shall be due and payable on the date that is fifty-five (55) years rrom the date of the City's issuance of the Certificate of Completion. ~ 1 DOCSOC\989731 v4\24036.0030 14-133 6. Borrower's Right To Repay. Borrower has the right to pay, without penalty or premium, all or any portion of the outstanding amount of this Note prior to the maturity date. 7. No Assumptions of Note. Borrower acknowledges that this Note is given in connection with the development of the Project as part of a program of the City to assist with the provision of housing for very low income households. Consequently, this Note is not assumable by transferees of the Property, but is immediately due and payable in full on the date of the Transfer of the Property, whether voluntary or involuntary, unless such Transfer is permitted by the Loan Agreement or by the City in writing in the City's sole and absolute discretion 8. Maintenance; Taxes; Insurance. Borrower shall maintain the Property in good, clean and orderly condition. Borrower shall promptly pay all property taxes due on the Property prior to any delinquency and shall comply with the insurance requirements set forth in the Loan Agreement. 9. Default. The occurrence of anyone or more of the following events shall constitute an "Event of Default": (a) Default after the expiration of all applicable cure periods under any agreement or other writing executed in favor of the City in connection with this Note, including but not limited to the Loan Agreement or the Deed of Trust; (b) Default in the payment when due of any installment or amount of principal or interest due on this Note, beyond the applicable cure period contained in Section 13.1 of the Loan Agreement; (c) The making by Borrower of any assignment for the benefit of creditors or the voluntary appointment (at the request or with the consent of Borrower) of a receiver, custodian, liquidator or trustee in bankruptcy of any of Borrower's property, or the filing by Borrower of a petition in bankruptcy or other similar proceeding under any law for relief of debtors; (d) The filing against Borrower (by anyone other than the City) of a petition in bankruptcy or other similar proceeding under any law for relief of debtors, or the involuntary appointment (by anyone other than the City) of a receiver, custodian, liquidator or trustee in bankruptcy of the property of Borrower, if such petition or appointment is not vacated or discharged within sixty (60) calendar days after the filing or making thereof; or (e) The occurrence of a default under any note or deed of trust to which the Deed of Trust is junior and subordinate, beyond the applicable cure period. Upon the occurrence of an Event of Default, the City may, at its option, declare the entire unpaid principal balance and accrued interest to be immediately due and payable in full pursuant to Section 10 hereof or pursue any and all other remedies provided at law or in equity. Upon the occurrence of an Event of Default of the type described in clause (b) above, the entire unpaid principal balance and unpaid interest accrued thereon shall bear interest, from the date of the Event of Default until such default is cured, at a rate of nine percent (9%) compounded monthly ("Default Rate"). 10. Acceleration. Upon the occurrence of an Event of Default, the City shall have the right to declare the full amount of the principal, interest and other amounts owing under this Note immediately due and payable. Any failure hy the City to pursue its legal and equitable remedies upon an Event of Default shall not constitute a waiver of the City's right to declare an Event of Default and exercise all of its rights under this Note, the Deed of Trust or the Loan Agreement. Nor shall acceptance by the City of any payment provided for in the Note constitute a waiver of the City's right to require prompt payment of any remaining amounts owed. 11. No Offset. Borrower hereby waives any rights of offset it now has or may later have against the City, its successors and assigns, and agrees to make the payments called for in this Note in accordance with the terms of this Note. 2 DOCSOC\989731 v4\24036.0030 14-134 12. Waivers. Borrower and any endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, dishonor and non-payment of this Note, and expressly waive any rights to be released by reasons of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payments hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorney fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs and disbursements allowed by law, such sum as a court may adjudge reasonable as attomeys' fees in such action. 13. No Waiver by the City. No previous waiver, failure, or delay by the City in acting with respect to the terms of this Note, the Deed of Trust, or any other loan documents in favor of the City executed by Borrower in connection with this Note will constitute a waiver of any breach, default or failure of conditions under this Note, Deed of Trust, or such other associated documents. A waiver of any terms must be made in writing. 14. Non Recourse Obligation. Nothing herein contained shall be deemed to cause Borrower (or any of its partners, or any of their respective directors, officers, employees, partners, principals or members) personally to be liable to payor perform any of its obligations evidenced hereby, and City shall not seek any personal or deficiency judgment on such obligations, and the sole remedy of City shall be against the Property and the collateral under the Deed of Trust; provided, however, that the foregoing shall not in any way affect any rights City may have (as a secured party or otherwise) hereunder or under the Deed of Trust or Loan Agreement, or any other rights City may have to: (a) recover directly from Borrower any funds, damages or costs (including, without limitation, reasonable attorneys' fees and costs) incurred by City as a result of fraud, intentional misrepresentation or intentional waste by Borrower; or (b) recover directly from Borrower any condemnation or insurance proceeds, or other similar funds or payments attributable to the Property which under the terms of the Loan Agreement should have been paid to City and any costs and expenses incurred by City in connection therewith (including, without limitation, reasonable attomeys' fees and costs). 15. Late Fees. Borrower acknowledges that if any payment required under this Note is not paid within fifteen (15) days after the date when the same becomes due and payable, the City will incur extra administrative expenses (i.e., in addition to expenses incident to receipt of timely payment) and the loss of the use of funds in connection with the delinquency in payment. Because, from the nature of the case, the actual damages suffered by the City by reason of such extra administrative expenses and loss of use of funds would be impracticable or extremely difficult to ascertain, Borrower agrees that five percent (5%) of the amount of the delinquent payment shall be the amount of damages to which the City is entitled, upon such breach, in compensation therefor. Therefore, Borrower shall, in such event, without further notice, pay to the City as the City's sole monetary recovery to cover such extra administrative expenses and loss of use of funds, liquidated damages in the amount of five percent (5%) of the amount of such delinquent payment. The provisions of this paragraph are intended to govern only the determination of damages in the event of a breach in the performance of the obligation of Borrower to make timely payments hereunder. Nothing in this Note shall be construed as an expressed or implied agreement by the City to forbear in the collection of any delinquent payment, or be construed as in any way giving Borrower the right, expressed or implied, to fail to make timely payments hereunder, whether upon payment of such damages or otherwise. The right of the holder hereof to receive payment of such liquidated and 3 DOCSOC\989731 v4\24036.0030 14-135 actual damages, and receipt thereof, are without prejudice to the right of such holder to collect such delinquent payments and other amounts provided to be paid hereunder or under any security for this Note or to declare a default hereunder or under any security for this Note. 16. Giving Of Notices. Formal notices, demands, and communications between City and Borrower shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, retum receipt requested, to the address of the party as set forth below, or at any other address as that party may later designate by notice: Borrower: Seniors on Broadway Limited Partnership, a Califomia Limited Partnership c/o Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, 22 West 35th Street, Suite 200 National City, CA 91950 Attention: General Partner With a Copy to: SCDC, LLC c/o Red Capital Markets, Inc. Two Miranova Place, 12th Floor Columbus, OR 43215 City: City of Chula Vista Community Development Department 276 Fourth Avenue Chula Vista CA 91910 Attn: Community Development Director With copies to: City Manager and City Attorney The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this Section. 17. No Partnership or Joint Venture. The relationship of Borrower and the City under this Note is solely that of borrower and lender, and the loan evidenced by this Note and secured by the Deed of Trust will in no manner make the City the partner or joint venturer of Borrower. 18. Joint and Several Obligations. This Note is the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assIgns. 19. Attorney's Fees. In the event of any conflict or dispute conceming any term or provision of this Note or otherwise arising out of this Note, the prevailing party shall be entitled to recover from the other party any and all reasonable costs and expenses incurred in connection therewith, including, but not limited to, attorney's fees and court costs, whether or not a legal action is commenced. 4 DOCSOC\98973! v4\24036.0030 14-136 20. Controlling Law. This Note shall be construed in accordance with and be governed by the laws of the State ofCalifomia. 21. Invalid Provisions. If any one or more of the provisions contained in this Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Note, and this Note shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Note. 22. Amendments. Any amendment, alteration or interpretation of this Note must be in writing and signed by a duly authorized officer of the City and Borrower. If there are any inconsistencies between the terms of this Note and the terms of any of the other loan documents, the terms of the Loan Agreement will prevail. 23. Subordination. The indebtedness evidenced by this Note shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Loan Agreement dated February 22, 2005 in the original principal amount of approximately $1,000,000 payable to U.S. Bank National Association (the "Trustee"), as their interests may appear, to the extent and in the manner provided in that certain Subordination Agreement dated February 22, 2005, by and among Seniors on Broadway Limited Partnership, Trustee and the City (the "Subordination Agreement"). The Deed of Trust securing this Note shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Construction and Permanent Deed of Trust securing Note A and Note B as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder ofthis Note under the Deed of Trust securing this Note are subject to the restrictions and limitation set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the holder of this Note under the Subordination Agreement. [NEXT PAGE IS SIGNATURE PAGE] 5 DOCSOC\989731 v4\24036.0030 14-137 IN WITNESS WHEREOF the Borrower has caused this Promissory Note to be executed as of the day and year first written above. SENIORS ON BROADWAY LIMITED PARTNERSHIP, a Califomia Limited Partnership By: METROPOLITAN AREA ADVISORY COMMITTEE ON ANTI-POVERTY OF SAN DIEGO, INC., a California non-profit public benefit corporation, its General Partner By: DOCSOC\98973 t v4\24036.0030 6 14-138 WHEN RECORDED MAIL TO: Paul, Hastings, Janofsky & Walker LLP 515 South Flower Street Los Angeles, California 90071 Attention: Mark L. Nelson, Esq. (SPACE ABOVE FOR RECORDER'S USE) SUBORDINATION AGREEMENT (City) NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN THE ESTATES IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. THIS SUBORDINATION AGREEMENT ("Agreement") is made as of February _,2005, by and among SENIORS ON BROADWAY LIMITED PARTNERSHIP, a California limited partnership ("Owner"), CITY OF CHULA VISTA, a municipal corporation ("Junior Lender") and U.S. BANK NATIONAL ASSOCIATION, a national banking association, and its successors and assigns ("Senior Lender"). RECITALS A. Owner (i) holds a ground leasehold estate in that certain real estate more particularly described on Exhibit "A" ("Real Property"), and (ii) owns that certain personal property more particularly described in the Senior Loan Documents (the "Personal Property"; together with the Real Property, the "Property"). Owner's ground leasehold estate was created pursuant to that certain Ground Lease dated , 2005, between ("District") and Owner (a memorandum of which was recorded on , 2005, as Instrument No. in ). B. Each of the documents listed on Exhibit "B" together with all other documents and materials entered into with City with respect to the Property shall be referred to collectively as the "Junior Obligation Documents." C. As used herein, the term "Junior Obligations" means any and all indebtedness, claims, debts, liabilities or other obligations ITom Owner to Junior Lender under the Junior Obligation Documents, together with all costs and expenses, including attomeys' fees, of collection thereof, whether the same accrues or is incurred before or after the commencement of any bankruptcy case by or against Owner. D. Owner and Junior Lender desire that Senior Lender and Owner enter into that certain Construction Loan Agreement dated as of even date herewith ("Senior Loan Agreement"), pursuant to which Senior Lender has agreed to make a loan ("Senior Loan") to Owner, in the principal amount of $ , in accordance with the terms and conditions set forth in the Senior Loan Agreement. The Seni,or Loan is to be evidenced by, among other LAlI093229.1 14-139 things, two promissory notes (collectively, "Senior Notes"), each dated as of even date herewith, each made by Owner to the order of Senior Lender, in the aggregate face principal amount of $ . Owner's obligations to Senior Lender under the Senior Loan Agreement are to be secured by, among other things, (i) that certain Construction Deed of Trust with Assignment of Rents, Security Agreement and Fixture Filing ("Senior Deed of Trust"), dated as of even date herewith, made by Owner for the benefit of Senior Lender and (ii) the "Security Documents" described in the Senior Loan Agreement. The Senior Deed of Trust is being recorded concurrently herewith in the Official Records. The Senior Loan Agreement, the Senior Notes, the Senior Deed of Trust, the Security Documents and the other Loan Documents (as defined in the Senior Loan Agreement) are hereinafter collectively referred to as the "Senior Loan Documents." E. As used herein, the term "Senior Lender Indebtedness" means any and all indebtedness, claims, debts, liabilities or other obligations from Owner to Senior Lender under the Senior Loan Documents, together with all interest accruing thereon and all costs and expenses, including attorneys' fees, of collection thereof, whether the same accrues or is incurred before or after the commencement of any bankruptcy case by or against Owner. F. It is a condition precedent to Senior Lender entering into the Senior Loan Documents and permitting the recordation of any of the Junior Obligation Documents that (l) the Senior Deed of Trust and the other Senior Loan Documents be and remain at all times a lien or charge upon the Property, prior and superior to the liens or charges of the Junior Obligation Documents, and (2) Junior Lender will specifically subordinate the liens or charges of the Junior Obligation Documents to the lien or charge of the Senior Deed of Trust and the other Senior Loan Documents. G. Junior Lender is willing that the Senior Deed of Trust shall constitute a lien or charge upon the Property which is prior and superior to the liens or charges ofthe Junior Obligation Documents subject to the terms and conditions of this Agreement. The parties hereto enter into this Agreement for the purposes set forth in these Recitals. H. Capitalized terms used herein and not otherwise defined shall have the meanings set forth for them in the Loan Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, and in order to induce Senior Lender to make the "Loan" described in the Loan Agreement, it is hereby declared, understood, and agreed as follows: 1. Subordination. The Senior Deed of Trust in favor of Senior Lender, and all amendments, modifications, extensions and renewals thereof, shall unconditionally be and remain at all times a lien or charge on the Property prior and superior to the lien or charge of the Junior Obligation Documents. Junior Lender intentionally and unconditionally waives, relinquishes, and subordinates the lien or charge ofthe Junior Obligation Documents in favor of the lien or charge upon said land of the Senior De~d of Trust in favor of Senior Lender, and LA/I093229.J 14-=140 understands that in reliance upon and in consideration of this waiver, relinquishment and subordination, specific loans and advances are being and will be made and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this waiver, relinquishment and subordination. 2. Onlv Agreement Regarding Subordination. This Agreement shall be the whole and only agreement with regard to the subordination of the lien or charge of the Junior Obligation Documents to the lien or charge of the Senior Deed of Trust and shall supersede and cancel, but only insofar as would affect the priority between said deeds of trust and said covenants, conditions and restrictions, any prior agreements as to such subordination, including, but not limited to, those provisions, if any, contained in the Junior Obligation Documents which provide for the subordination of the lien or charge thereof to another deed or deeds of trust or to another mortgage or mortgages. 3. Loan Disbursements. In making disbursements pursuant to any ofth.e Senior Loan Documents, Senior Lender is under no obligation or duty to, nor has Senior Lender represented that it will, see to the application of such proceeds by the person or persons to whom Senior Lender disburses such proceeds, and any application or use of such proceeds for purposes other than those provided for in such Senior Loan Document(s) shall not defeat the subordination herein made in whole or in part. 4. Consent and Approval. Junior Lender has received the Senior Loan Documents and consents to the subordination ofthe Junior Obligation Documents thereto. No decision by Junior Lender to review or not review the Senior Loan Documents, including but not limited to the disbursement provisions contained therein, shall impair or otherwise limit the enforceability ofthis Subordination Agreement. 5. Other Agreements. Junior Lender and Owner declare, agree, and acknowledge that: 5.1 Subordination of Indebtedness. Any and all Junior Obligations are hereby subordinated and subject to any and all Senior Lender Indebtedness, as set forth herein. 5.2 Return of Prohibited Payments. Except as otherwise expressly agreed to herein, if Junior Lender shall receive any payments or other rights in any property of Owner in connection with the Junior Obligations in violation of this Agreement, such payment or property shall immediately be delivered and transferred to Senior Lender after notice to Junior Lender. 5.3 Repayment of Senior Lender Indebtedness. This Agreement shall remain in full force and effect until all Senior Lender Indebtedness is fully repaid in accordance with its terms and all of the terms of this Agreement have been complied with. 6. Bankruptcv Provisions. To the extent any payment under any Senior Loan Document (whether by or on behalf of Owner, as proceeds of security or enforcement of any right of set-off, or otherwise) is declared to be fraudulent or preferential, set aside orrequired to be paid to a trustee, receiver or other similar party under the Bankruptcy Code or any federal or state bankruptcy, insolvency, receivership or similar law, then if such payment is recovered by, LN1 093229. J -3- 1 4-1 41 or paid over to, such trustee, receiver or other similar party, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. 7. Casualty Insurance Proceeds: Condemnation Proceeds. In the event Senior Lender shall release, for the purposes of restoration of all or any part of the improvements, its right, title and interest in and to the proceeds under policies of insurance thereon, and/or its right, title and interest in and to any awards, or its right, title and interest in and to other compensation made for any damages, losses or compensation for other rights by reason of a taking in eminent domain, Junior Lender shall simultaneously release (and hereby agrees that it shall be irrevocably and unconditionally deemed to have agreed to release) for such purpose all of Junior Lender's right, title and interest, if any, in and to all such insurance proceeds, awards or compensation. Junior Lender agrees that the balance of such proceeds remaining after such restoration, or all of such proceeds in the event Senior Lender elects, in accordance with California law, not to release any such proceeds for any such restoration, shall be applied to the payment of amounts due under the Senior Loan Documents until all such amounts have been paid in full, prior to being applied to the payment of any amounts due under the Junior Obligation Documents. If Senior Lender holds such proceeds, awards or compensation and/or monitors the disbursement thereof, Junior Lender agrees that Senior Lender may also elect, in its sole and absolute discretion, to hold and monitor the disbursement of such proceeds, awards and compensation to which Junior Lender is or may be entitled. Nothing contained in this Agreement shall be deemed to require Senior Lender, in anY,way whatsoever, to act for or on behalf of Junior Lender or to hold or monitor any proceeds, awards or compensation in trust for or on behalf of Junior Lender, and all or any of such sums so held or monitored may be commingled with any funds of Senior Lender. 8. Effect of Other Agreements. The relationship between Owner and Senior Lender under the Senior Loan Documents is, and shall at all times remain, solely that of borrower and lender. Based thereon, Junior Lender acknowledges and agrees that Senior Lender neither undertakes nor assumes any fiduciary responsibility or other responsibility or duty to Owner or Junior Lender to guarantee or assist in Owner's or Junior Lender's performance under any ofthe agreements between those parties and other third parties, including without limitation the Junior Obligation Documents. 9. Miscellaneous. This Agreement may be executed in multiple counterparts and the signature page(s) and acknowledgment(s) assembled into one original document for recordation, and the validity hereof shall not be impaired by reason of such execution in multiple counterparts. This Agreement is to be governed according to the laws of California. In the event of action, suit, proceeding or arbitration to enforce any term of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party, as determined by the court or arbitrator, all of the prevailing party's costs and expenses, including without limitation attomeys' fees and expert witness fees, incurred by the prevailing party in connection therewith. If Junior Lender or any affiliate of Junior Lender shall acquire, by indemnification, subrogation or otherwise, any lien, estate, right or other interest in the Property, that lien, estate, right or other interest shall be subordinate to the Senior Deed of Trust and the other Senior Loan Documents as provided herein. The Agreement shall inure to the benefit of, and the binding upon, the parties hereto and the respective successors and assigns. : LA/I093229.1 -4- 14-142 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH MAY ALLOW THE PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE PROPERTY. "JUNIOR LENDER": CITY OF CHULA VISTA, a municipal corporation ATTEST: By: By: [Printed Name and Title] [Printed Name and Title] APPROVED AS TO FORM AND CONTENTS: By: [Printed Name and Title] [Signatures continue on next page] . LNI093229.1 S-l 14-143 "OWNER": SENIORS ON BROADWAY LIMITED PARTNERSHIP, a Califomia limited partnership By: Metropolitan Area Advisory Committee on Anti-Poverty of San Diego, Inc., a California nonprofit public benefit corporation, its general partner By [Printed Name and Title] [Signatures continued on next page] LAl1093229.] S-2 14-144 "SENIOR LENDER": u.s. BANK. NATIONAL ASSOCIATION, a national banking association By: [Printed Name and Title] LA/J093229.] S-3 14-145 STATE OF ) ) ) COUNTY OF On , 2005, before me, , Notary Public, personally appeared Dpersonally known to me or 0 proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. STATE OF ) ) ) COUNTY OF On ,2005, before me, , Notary Public, personally appeared Dpersonally known to me or 0 proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. STATE OF ) ) ) COUNTY OF On ,2005, before me, , Notary Public, personally appeared Dpersonally known to me or 0 proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. LAIl 093229. 1 14-146 STATE OF ) ) ) COUNTY OF On , 2005, before me, , Notary Public, personally appeared Dpersonally known to me or Dproved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. LNI093229.1 14-147 EXHIBIT "A" Legal Description THE LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA AND IS LEGALLY DESCRIBED AS FOLLOWS: - LNI093229.1 Exhibit "A" 1 14-148 EXHIBIT "B" Junior Obligation Documents l. Loan Agreement and Related Restrictive CovenantslHome Program Participation Agreement ("Loan Agreement") dated as of ,2005, between Owner and Junior Lender. 2. Promissory Note dated as of ,2005, made by Owner to the order of Junior Lender, in the face principal amount of$I,043,000. 3. Deed of Trust dated as of , 2005, by Owner for the benefit of Junior Lender, and recorded in the Official Records of the County of San Diego, State of California ("Official Records") substantially concurrently herewith. 4. Affordable Housing Agreement dated as of , 2005, by and between Owner and Junior Lender, and recorded in the Official Records substantially concurrently herewith. Exhibit "B" LN1093229.] 14-149 EXHIBIT H HOME INVESTMENT PARTNERSHIP PROGRAM (HOME) REALLOCATION OF FUNDS - DETAIL SHEET Projects to Reallocate From Projects to Reallocate To MasterlSub ProjectlPro!lram Project Amount ProjectlPro!lram Amount CHDO Set Aside 4122325321 420,950 Seniors on Broadway-MAAC Proiect 1,043,850 CHDO Set Aside 4125324321 157,200 Aff Housing Development 4125325321 465,700 TOTAL-Reallocation $ 1,043,850 TOTAL-New Projects $ 1,043,850 14-150 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF CHULA VISTA APPROVING A LOAN AGREEMENT AND RELATED RESTRICTIVE COVENANTS AND AFFORDABLE HOUSING AGREEMENT AND TRANSFERRING AVAILABLE HOME FUNDS FROM EXISTING PROJECTS TO PROVIDE FINANCIAL ASSISTANCE TO SENIORS ON BROADWAY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, FOR THE DEVELOPMENT AND OPERATION OF THE SENIORS ON BROADWAY AFFORDABLE HOUSING DEVELOPMENT WHEREAS, Seniors an Broadway Limited Partnership, a Califomia limited partnership (the "Developer") has proposed to construct a 42 unit apartment building located at 825 Broadway in the City of Chula Vista (the "Project"); and WHEREAS, the Seniors on Broadway development shall provide forty-one-units of affordable rental housing to very low-income seniors and one unit for an on-site manager; and WHEREAS, the City has been allocated funds ftom the United States Department of Housing and Urban Development ("HUD'') pursuant to the federal government's HOME Investment Partnerships Program (42 U.S.C. Section 1274, et seq.) which can be used to provide subsidies to or for the benefit of very low income and lower income households in accordance with HOME regulations (24 C.F.R. Section 92, et seq.); and WHEREAS, in order to implement the requirements of the HOME Program, the City Council of the City of Chula Vista (the "City Council") proposed to enter into a Loan Agreement and Related Restricted Covenants (the "Loan Agreement") with the Developer, pursuant to which the City would provide a loan not to exceed One Million Forty Three Thousand Eight Hundred and Fifty Three Dollars ($1,043,850) to the Developer, and the Developer shall develop, construct, and operate the Project, restricting the occupancy af 41 of the apartment units in the Project to very low income seniors, and rent those units at an affordable rent; and WHEREAS, the City and the Developer are required pursuant to the Loan Agreement to enter into an "Affordable Housing Agreement" which would set forth the affordable requirements applicable to the Project; and WHEREAS, the City has adopted a Housing Element to the City General Plan which sets forth the objective of providing housing to satisfy the needs and desires of various age, income and ethnic groups of the community, and which specifically provides for the development of rental housing units through City assistance; and WHEREAS, the Loan Agreement and the Affordable Housing Agreement further the goals of the City set forth in the Housing Element as it will facilitate the creation of affordable housing which will serve the residents of the neighborhood and the City; and WHEREAS, the City Council has duly considered all terms and conditions of the proposed Loan Agreement and Affordable Housing Agreement and believes that the Agreements are in the best interests of the City and the health, safety, and welfare of the residents of the City, and in accord with the public purposes and provisions of applicable Federal, State and local law requirements. DOCS0C\997345vl \24æ6.0030 I 14-151 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council hereby approves the Loan Agreement and Affordable Housing Agreement in substantially the form presented and transfers $1,043,850 of Home Funds from existing projects to provide fmancial assistance to the Seniors on Broadway development. The Mayor and City Manager and their designees are hereby authorized to sign all documents, to make' all approvals and take all actions necessary or appropriate to carry out and implement the Loan Agreement and Affordable Housing Agreement and to administer the obligations, responsibilities and duties of the City to be performed under the Loan Agreement, Affordable Housing Agreement and related documents. Section 2. The City Attorney, on behalf afthe City, is hereby authorized to make revisions to the Loan Agreement and Affordable Housing Agreement which do not materially or substantially increase the obligations of the City thereunder or materially or substantially change the uses or development permitted on the Site. APPROVED AND ADOPTED this nd day of ,2005. Presented by Laurie Madigan Director of Community Development 2 DOCSOC\997345v 1\24036.0030 14-152 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A WAIVER OF THE PARKLANDS AND PUBLIC FACILITIES FEES PURSUANT TO MUNICIPAL CODE SECTION 17.10 TO FACILITATE THE CONSTRUCTION OF LOW INCOME HOUSING. WHEREAS, Seniors on Broadway Limited Partnership, a California limited partnership (the "Developer") has proposed to construct a 42 unit apartment building located at 825 Broadway in the City of Chula Vista (the "Project"); and WHEREAS, the Seniors on Broadway development shall provide forty-one-units of affordable rental housing to very low-income seniors and one unit for an on-site manager; and WHEREAS, Chapter 17.10 of the Municipal Code relates to Parklands and Public Facilities which requires that developments not requiring final subdivision or parcel maps, and who do nat have suitable land within the development, satisfy the obligatian for this requirement through land dedication or payment af an in-lieu fee; and WHEREAS, the applicable in-lieu fee for Parklands and Public Facilities would be an additional cost to this praject of $273, 420, and is due and payable prior to the issuance of the first building permit for a development that is not required to submit either a final subdivision map or a parcel map; and WHEREAS, Chapter 17.10.070 also allows that the City Council may by resolutian waive all or any portion of said dedication or in·lieu fee requirements in the interest of stimulating the construction of housing for low and moderate-income households; and WHEREAS, the waiver of the in-lieu fee for Parklands and Public Facilities would assist in reducing the development costs for the construction of the affordable residential units in order to make the Project feasible; and WHEREAS, on October 14, 2003, the City Council conditionally approved financial assistance in the form of a residual receipts loan from the City's HOME Investment Partnership Program funds; and WHEREAS, on February 22, 2005, the City Council approved the Loan Agreement and Related Restrictive Covenants and Affordable Housing Agreement for the appropriation of $1,043,850, ITom the available balance in the City's HOME Investment Partnership Program funds. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby resolve as follows: Section I. The City Council hereby approves a waiver of the Parklands and Public Facilities fees pursuant to Municipal Code Section 17.10 to facilitate the construction of low income housing, in the approximate amount of $273,420 to assist with reducing the development costs for the construction of the residential units of the Project. 14-153 APPROVED AND ADOPTED this nd day of ,2005. Presented by Approved as to form by ~~ City Attomey 14-154 COUNCIL AGENDA STATEMENT Item No~/5 Meeting Lfate 02/22/2005 ITEM TITLE: RESOLUTION APPROPRIATING $250,Obo IN THE FY2005 POLICE DEPARTMENT PERSONNEL SERVIC~S BUDGET FOR OVERTIME EXPENSES RELATED TO OPERATION SAFE NEIGHBORHOODS FROM THE UNAPPROPRI ED BALANCE OF THE GENERAL FUND. i SUBMITTED BY: Chief of pOlice~ REVIEWED BY: City Manager''!; V (1/ (4/5ths Vote: Y4:!s _X_ No-> In response to growing concerns by the community following several noteworthy violent crimes, the Police Department is increasing enforcement efforts in concbntrated areas in an effort to make a significant impact on violent crime within Chula Vista I This resolution will appropriate $250,000 for overtime expenses for this project. ! RECOMMENDATION: That Council adopt the resolution appropriating $250,000 in the FY200$ Police Department Personnel Services budget for overtime expenses related to Operation Safe Neighborhoods from the unappropriated balance of the general fund. BOARDS/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: During the weekend of January 15th, there were several violent crimes ¡committed in Chula Vista that caused heightened concerns from our residents. Although violent crime has fallen 18% since 2001, the department recognized the immediate n,ed to address the public's concerns. Immediately after the violence of January 15th, the Chief of Police with the initial support of the City Council, outlined the immediate steps the department would take in order to address those concerns (Attachment A). At the Januqry 25th regular City Council meeting, Council Member McCann formally asked the Chief of !Police for an update on policing strategies to address issues with gangs, graffiti, trolley statiÞn and park safety. The following information outlines the Police Department's response to these issues. ¡ ¡ OPERA TlON SAFE NEIGHBORHOODS The Police Department will embark on a year long enhanced enforcem"nt and community outreach program to combat violent crimes in Chula Vista. This planl will utilize various resources in an effort to continue to lower the overall violent crime ratJ in Chula Vista, as well as address the perceptions of crime by citizens, specifically in Sec¡tors 1 and 2 which encompasses an area west of Interstate 805, from our City limits north tcÞ south. Captain Ken Dyke will spearhead this projeCt in conjunction with various managers, supervisors and officers within the Police Department. The department is currently in the 15-1 Item No Meeting Date 02/22/2005 process of hiring additional officers. However, until new officers are hired, Captain Dyke will utilize officers on an overtime basis so that regular Patrol activities throughout the City will not be impacted. The overarching goals for this program will be to lower the overall violent crime rate in Chula Vista, to disrupt criminal activity and to address citizen perception issues in regards to crime. 1) Focused Enforcement based upon extensive crime analysis -The department will specifically focus its analytical efforts on identifying high violent crime locations throughout the city. Through this analysis, the department will be able to effectively deploy patrol resources during the times and days that when violent crimes tend to happen the most. a. Focused Deployment - Spearheaded by Street Team/Gang Suppression Unit. i. Increased Police visibility - up to 8 additional officers will be deployed in targeted areas on any day ii. Increased enforcement actions iii. Continual monitoring of crime activity patterns to allow rapid deployment changes b. Focused Enforcement Activities - All focused enforcement activities will target specific areas of Chula Vista with high crime levels. i. Increased public contact and field inteNiews ii. I ncreased traffic operations 1. Increased traffic enforcement through public contact and citation issuance as appropriate 2. Increased DUI checkpoints iii. Increased contact with Police Monitored Individuals 1. Parolee/Probationer checks 2. Sex registrant checks iv. Increased contact with Police Regulated Businesses 1. Alcohol Beverage Controlled business checks 2. Other Police related business checks a. Holistic Health Care practitioners b. Card Rooms c. Adult Bookstores d. Live Entertainment Venues v. Increased gang sweeps vi. Identification of criminals 1. SeNing arrest warrants 2. SeNing search warrants vii. Enhanced graffiti removal and graffiti artist/offender identification viii. Community Outreach c. Focused Problem Analysis - the department will focus a significant amount of its problem solving efforts on wes~ern Chula Vista in order to help stop crimes from occurring. . 15-2 Item No Meeting Date 02/22/2005 i. Enhanced Problem Analysis - The department ras implemented a Federally-funded project to implement problem s¢>lving at the officer level on "micro" level problems. These probleim-solving activities address specific areas of concern such as apartmant complexes, small business, and neighborhoods. . ii. Expand the Crime Free Multi Housing program - Tre Crime Free Multi Housing program seeks to make apartment comþlexes safe for the residents and involves significant training for ~oth residents and apartment complex management. This project will $eek to gain greater participation in the program by apartment complex~s in western Chula Vista. iii. Tough on Crime - The Tough on Crime (TOC) unit provides beat level analysis of crimes. Currently, the analysis is Jþresented to patrol officers on a bi-weekly basis. TOC will increase it~ analysis reports to provide officers working this project with daily in~ormation regarding crimes and their locations. I 2) Enhanced Community Relations -. The department will !be enhancing the Community Relations component of the program through "town hall" style meetings held at various elementary schools in western ¢hula Vista. These meetings will give residents a chance to voice their conctrns on crime and quality of life issues that are caused by criminal activity in 'þ. Chula Vista. The meetings will also give the department an opportunity t relate important information about crime trends and tell residents what they can do to deter crime in their neighborhoods. , a. Public Outreach Meetings - These meetings will providel an opportunity for the community to share its concerns with the Polic~ Department, for department staff to form relationships with community lE1aders, and for the department to relay information about the department, abþut crime and how this plan will benefit the community. i. Four meetings in Sector One by the end of FebruarY ii. Six meetings in Sector Two by mid-April I iii. Survey distributed to attendees to gauge residents qoncerns and fears. These surveys will help get a better understanding of neighborhood issues so that it may more effectively address citize~s concerns. b. Strengthen ties with Schools - These meetings will be held in an effort to let the school districts and school leaders know what the department is doing in their community. i. Meet with School Coordinating Councils ii. Meet with School staff The department will be tracking specific data to measure the effectiven~ss of this program. Specifically, the department will be tracking reported violent crimes, tracking the number of calls for service, and surveying citizens on feelil1gs of safety. I 15-3 Item No Meeting Date 02/22/2005 In order to be able to effectively administer this program, the department is requesting an appropriation of $250,000 to the Police Departments Personnel Services budget for fiscal year 2005. This appropriation will cover the overtime required to implement this program for the remainder of the fiscal year. The enforcement strategies outlined above began on February 3'd, 2005. As a result of implementing Operation Safe Neighborhoods, the department has already recorded significant activity beyond its normal enforcement activities: Activitv Number Calls for Service 11 Felonv Arrests 23 Misdemeanor Arrests 9 Probation/Parolees Checks 33 Weapons Seized - Total 21 Guns 5 Knives 11 Other 5 Stolen Autos Recovered 3 Field Interviews 112 Traffic Stops 109 Gana contacts 93 A few noteworthy arrests that occurred as a result of this program so far include: · The seizure of 6,300 Ibs of marijuana and the arrest of one individual. · The arrest of two individuals who were found with a gun in a shopping center parking lot. One of the suspects was on probation for assault with a deadly weapon. . The arrest of a murder suspect. The department is dedicated to making this program highly effective. Besides lowering the violent crime rate, the department is looking forward to establishing even deeper ties with the community. As the department increases its visibility and increases contacts with individuals in an effort to disrupt criminal activity, there may be some law-abiding citizens who are contacted who may not appreciate, or will be offended by being contacted by the police. While to department is sensitive to the concerns of law-abiding residents who may be contacted, the increased enforcement level makes such contacts unavoidable. However, the department will continue to treat all individuals who are contacted by officers with fairness, respect and dignity as we go about reducing crime in specific areas. The department will attempt to address concerns regarding increased contacts at the Town Hall meetings to allay fears about unnecessary to overly intrusive contacts. FISCAL IMPACT: The cost to implement this program for fiscal year 2005 is $250,000. Fiscal year 2006 expenditure will be developed and presented in the upcoming FY2006 budget process. 15-4 Attachment A Chula Vista Police Departjnent Office of the Chief of PO ice INFORMATION MEMORANDUM DATE: January 20, 2005 TO: FROM: The Honorable Mayor and Council Richard P. Emerson, Police ChiefY David D. Rowlands, Jr., City Manager~~p¥ Enforcement Strategies VIA: SUBJECT: Recent events, coupled with the on-going update of the Police Depairtment's Strategic Plan, have led us to identify opportunities for change that will positiveliy impact safety in Chula Vista. Presented is an overview of several of the strategies that will be employed to address areas of concern identified by both the residents of our community and police personnel. The mid-year violent crime ranking in Chula Vista of 3.8 crimes per thousand placed us tenth in the County. While this is significantly, lower than other southbay cities, it is still a concern of our residents. Violent crime decteased in western Chula Vista by 13% between 2001 and 2004, however the most recent Resident Opinion Survey still showed individuals were concerned about $ome areas and specifically avoided identified locations in our City. Captain Ken Dyke will direct an enforcement and education campaign focused at concerns identified in the western corridor of Chula Vista. His other duties will be redirected so that his sole responsibility will be to coordinate the! crime reduction strategies in the west. Ken and a cadre of personnel that will include:the Street Team, the Special Investigations Unit, and a host of additional department re$ources will focus their attention on both crime and quality of life issues. Prevention' and educational components will be coupled with the enforcement strategies in an attempt to further reduce reported crime in this area, as well as to address, the quality of life concerns listed in the Survey. > 15-5 The Honorable Mayor and Council Enforcement StrateQies January 20, 2005 PaQe 2 of 2 Our community has seen significant crime decreases over the past decade, in spite of the tremendous population growth we have enjoyed. In order to continue this trend, as well as, address quality of lifè concerns, additional resources are called for. Captain Dyke will develop both six and twelve month plans designed to meet our objectives. Staffing will initially require overtime personnel to be directed to this effort. We plan to fund an additional 8.0 positions on this basis, at a cost of $250,000-$300,000 for the remainder of the fiscal year. Over the next two years as additional personnel are hired, trained, and deployed into field duties those overtime resources will be transitioned to personnel whose full time focus will be on crime and disorder issues. Traditional deployment strategies of saturation patrol, high visibility, and targeted enforcement will be coupled with community outreach and information exchange sessions so that community expectations and concerns can be addressed. These strategies are designed to both inform and include the community in the plan. The outreach efforts and the enforcement plan carry a significant price tag that will be factored into the Strategic Plan presentation in March. Captain Dyke will also be preparing detailed strategies that will be factored into those presentations. The goal of crime and disorder reductions is achievable. The successful conclusion will result in the number of crimes decreasing coupled with residents feeling safer in their neighborhoods. RPE:yg 15-6 Item No Meeting !pate 02/22/2005 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CI~ OF CHULA VISTA APPROPRIATING $250,000 IN THE FY2005 POLICE DEPARTMENT PERSONNEL SERVICES BUDGET FOR OVERTIME EXPENSES RELATED TO OPERATION SAFE NEIGHBORHOþDS FROM THE UNAPPROPRIATED BALANCE OF THE GENERAL FUND. WHEREAS, on the weekend of January 15t11, 2005, the City expelrienced four violent crimes, with three occurring in west Chula Vista; and WHEREAS, citizens have expressed their concern with violent crime in Chula Vista despite an 18% decrease since 2001; and WHEREAS, the Police Department is also concerned and has developed a crime reduction plan; and WHEREAS, this plan consists of enhanced enforcement and enhanced community relations; and WHEREAS, this plans goal is to reduce violent crime in west ChuJa Vista; and WHEREAS, the department will initially utilize overtime to appropriately staff this one-year project. NOW, THEREFORE, BE IT RESOLVED the City Council of the City CÞf Chula Vista does hereby appropriate $250,000 in the FY2005 Police Department Personnel Services budget for overtime expenses related to Operation Safe Neighborhoods from the unappropriated balance of the general fund. Presented by: J~ R chard P. Eme son Police Chief Approved as to form by: ~cw~i\\:ï\\)~\\ Ann Moore . City Attorney 15-7