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HomeMy WebLinkAboutAgenda Packet 1999/09/14 CllY OF CHUlA VISTA CITY COUNCIL AGENDA Septem her 14, 1999 6:00 p.m. City Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista City Council Patty Davis John S. Moot Stephen C. Padilla Mary Salas Shirley A. Horton, Mayor City Manager David D. Rowlands, Jr. City Attorney John M. Kaheny City Clerk Susan Bigelow The City Council meets 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 Tuesday City Council meetings are ,oeplayed at 7:00 p.m. on Wednesday Cox Cable Channel 24 Chula Vista Cable Channel 47 City of Chula Vista, 276 Fourth Avcnuc, Chula Vista, CA 91910 619/691-51141 AGENDA Septem ber 14, 1999 6:00 p.m. CALL TO ORDER I. ROLL CALL: Council members Davis, Moot, Padilla, Salas, and Mayor Horton. 2. PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE 3. SPECIAL ORDERS OF THE DAY A. Oath of Office: Growth Management Oversight Commission - William C. Tripp Mobilehome Rent Review Commission - Vikki Robinson Opeodu B. Employee Recognition Award of the Month: Mary Chapman, Administrative Secretary, Fire Department. A proclamation will be presented by Mayor Horton. C. Proclaiming the week of September 20 through September 24, 1999 as "Lawsuit Abuse Awareness Week." The proclamation will be presented by Mayor Horton to Andy Kotner, Executive Director, San Diego County Citizens Against Lawsuit Abuse. D. Chief Richard Emerson will introduce newly promoted officers: Lieutenant Richard Coulson, Sergeant Scott Arsenault, and Agent John Munch. CONSENT CALENDAR (Items 4 through 15) The s{(~f!recommendations regarding thefollowing items listed under the Consent Calendar will be enacted by the Council by one motion, without discussion, unless a Councilmemher, a memher (~! the puhlic, or City staff requests that the item he removedfor discussion. {!you wish to .\peak on one (?! these items, pleasefill out a "Request to Speak" form (availahle in the lobby) and suhmit it to the City Clerk prior to the meeting Items pulledfrom the Consent Calendar will be discussed after Action Items. Items pulled by the puhlic will be the first items (?! business. 4. WRITTEN COMMUNICATIONS A. Letters from the Office of the City Attorney stating that there were no actions taken in Closed Session on August 31, 1999, which are required under the Brown Act to be reported. Staff recommendation: The letter be received and filed. 5. ORDINANCE OF THE CITY COUNCIL, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 99-1 (OTAY RANCH SPA ONE- POR TIONS OF VILLAGE ONE, VILLAGE FIVE AND VILLAGE ONE WEST) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT (SECOND READING AND ADOPTION) Agenda 2 September 14, 1999 On July 13, 1999, Council approved a resolution of intention to form Community Facilities District Number 99-1. A public hearing was noticed and opened on August 17, 1999; the hearing was continued to August 31, 1999, at which time the ordinance was placed on first reading. The district will fund the construction of public facilities serving the Otay Ranch SP A One, portions of Village One, Village Five and Village One West. The action proposed at this meeting will finalize the formal proceedings leading to the establishment of Community Facilities District Number 99-1. Recommendation: Council place the ordinance on second reading and adoption. (Director of Public Works) 6. RESOLUTION AUGMENTING ABE 321 GRANT FUNDS AWARDED TO THE CHULA VIST A LITERACY TEAM FROM THE CALIFORNIA DEPARTMENT OF EDUCATION; AND AMENDING THE FISCAL YEAR 1999/2000 BUDGET TO APPROPRIATE $3,671 IN UNANTICIPATED GRANT REVENUES TO THE LIBRARY AND RECREATION DEPARTMENT (4/5TH'S VOTE REQUIRED) The Chula Vista Literacy Team has been notified of an augmentation of ABE 321 grant funds in the amount of$3,671 from the California Department of Education . The new grant funds are to be used for statT development and to purchase supplies. Staff recommendation: Council adopt the resolution. (Library and Recreation Director) 7. RESOLUTION AMENDING THE FISCAL YEAR 1999/2000 BUDGET BY APPROPRIA TING UNANTICIPATED DONATION REVENUE IN THE AMOUNT OF $1,OOOTOTHE LIBRARY AND RECREATION DEPARTMENT FOR EXPENDlTURES ASSOCIATED WITH THE CHULA VISTA LITERACY TEAM (4/5TH'S VOTE REQUIRED) The Chula Vista Literacy T earn, from time to time, receives donations from the public. These donations generally are received from individual contributors and are small donations from past tutors or learners, or in memory ofa loved one who supported literacy and the Library's adult literacy program. Donations are deposited into a City cash bond account upon receipt and accumulated for future appropriation to a literacy program use. The Library and Recreation Department wishes to appropriate $1,000 in accumulated donations at this time to the Literacy budget to purchase instructional materials and resources. StatTrecommendation: Council adopt the resolution (Library and Recreation Director) 8. RESOLUTION AMENDING THE FISCAL YEAR 1999/2000 BUDGET BY APPROPRIATING $7,750 TO THE LIBRARY AND RECREATION DEPARTMENT BUDGET FOR THE FLAG FOOTBALL PROGRAM EXPENDITURES, BASED ON UNANTICIPATED PROJECTED PARTICIPANT FEE REVENUES OF $12,800, AND APPROVING THE ADDITION OF 0.68 FULL TIME EQUIV ALENT RECREATION LEADER AND 0.23 FULL TIME EQUIV ALENT RECREATION AIDE POSITIONS (HOURLY, PART-TIME, NON-BENEFITTED) TO STAFF THE FLAG FOOTBALL PROGRAM (4/5TH'S VOTE REQUIRED) Agenda ') .J September 14, 1999 The Recreation Division offered an after-school intramural athletic league program (Flag Football) to elementary school children throughout the City until Fiscal Year 1998/1999, when the program was temporarily discontinued due to the reorganization ofthe after-school program into the STRETCH Program. The Department now wishes to recommence the Flag Football program, utilizing previously appropriated and budgeted funding and requesting new funding to support staff and expenditures for the program. In addition, revenue will be budgeted and received from the fees charged to the participants in the program. Staff recommendation: Council adopt the resolution (Library and Recreation Director) 9. RESOLUTION AUTHORIZING THE LIBRARY AND RECREATION DIRECTOR TO EXECUTE PERMITS TO AGENCIES PROVIDING SERVICES AND UTILIZING OFFICE SP ACE AT NORMAN PARK SENIOR CENTER Since the renovation of the Norman Park Center in 1993, the City has issued and renewed multi-year permits to several social service agencies, allowing them to utilize office space at the Center. These agencies provide valuable community services, many of which target the senior population. The City does not charge rent for this use but does require each agency to reimburse the City for a pro-rated share of the utility costs. Three-year permit renewals have been prepared and signed by each agency. Staff recommendation: Council adopt the resolution (Library and Recreation Director) 10. RESOLUTION APPROVING THE MEMORANDUM OF UNDERSTANDING WITH THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT REGARDING JOINT OPERATION OF THE DASH (DYNAMIC AFTER SCHOOL HOURS) AFTER SCHOOL RECREATIONAL PROGRAM, AND THE STRETCH (SAFE TIME FOR RECREATION, ENRICHMENT, AND TUTORING FOR CHILDREN) EXTENDED SCHOOL DAY EDUCATIONAL PROGRAM, AND AUTHORIZING THE DIRECTOR OF LIBRARY AND RECREATION TO EXECUTE THE MOU; AND AMENDING THE FISCAL YEAR ] 999/2000 BUDGET TO APPROVE AN ADDITIONAL 1.3 I FULL TIME EQUIV ALENT SCHOOL SITE COORDINATORS (UNCLASSIFIED, PART-TIME, PARTIALLY BENEFITTED) AND 2.30 FULL TIME EQUIVALENT YOUTH LEADERS (HOURLY, PART - TIME, NON-BENEFITTED), AND APPROPRIATING AN ADDITIONAL $96,000 CONTRIBUTION FROM THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT FOR THE STRETCH PROGRAM (4/STH'S VOTE REQUIRED) In Fiscal Year 1998/1999, the City entered into a partnership with the Chula Vista Elementary School District to examine the City's existing after-school programs, and, with District input, to revamp them based on individual school needs and priorities. The MOU entered into last year created the new STRETCH Program, with an emphasis on literacy, homework assistance, and arts enrichment. The program was offered as a pilot program from the end of February through June at six elementary school sites. The program received an overwhelmingly positive response from the District, School Board members, principals and school personnel, and program recipients. During the FY 1999/2000 budget process, the Council approved the Department's and District's recommendation to close the existing after- school playground program offered at 26 elementary schools. In its place, a high quality, structured, sports and recreation program, entitled DASH, was approved, and it was agreed that DASH would be offered at 12 elementary schools to be selected by the District and that STRETCH sites would not be eligible for the DASH Program. Staff recommendation: Council adopt the resolution. (Library and Recreation Director) Agenda 4 September 14, 1999 11. RESOLUTION APPROVING VARIOUS PERSONNEL RECLASSIFICATIONS The proposed resolution addresses classification and salary issues raised by the Community Development and Police Departments concerning positions which have faced significant recruitment and retention difficulties. It reclassifies the Community Development Specialist II position to Principal Community Development Specialist; and the Police Services Technician position to Senior Management Analyst. Staff recommendation: Council adopt the resolution. (Director of Human Resources) 12. RESOLUTION APPROVING A DESIL T A TION AND GRADING AGREEMENT (POGGI CANYON) WITH OT A Y PROJECT LP AND PROWSWOOD-MA TSUSHIT A OT A Y RANCH PARTNERS LLC FOR OT A Y RANCH SPA ONE, VILLAGE ONE, PHASE 7 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT On November 19, 1996, Council approved the Tentative Map for Tract Number 96-04A, Phase 7, of the Otay Ranch Project SPA One. Tentative Map conditions require that, prior to issuance of a grading permit for any land within the Poggi Canyon basin, the developer shall comply with certain conditions requiring construction of drainage improvements and removal of siltation within Poggi Canyon. The proposed agreement contains appropriate provisions to allow the developer to proceed with the interim grading of Phase 7 in full compliance with the Tentative Map requirements. Staff recommendation: Council adopt the resolution. (Director of Public Works) 13. RESOLUTION APPROVING THE FIRST AMENDMENT TO DEFERRAL AGREEMENT AND DECLARATION OF COVENANTS RUNNING WITH THE LAND WITH MCMILLIN OT A Y RANCH LLC AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Approval of the First Amendment to the agreement for deferring the development of certain parcels within the McMillin Otay Ranch SPA One project will make the agreement consistent with the current Public Facilities Financing Plan (PFFP) for Otay Ranch SPA One. Staff recommendation: Council adopt the resolution. (Director of Public Works) 14. RESOLUTION APPROPRIATING $9,000 IN UNANTICIPATED REVENUES FROM THE U.S. DEPARTMENT OF JUSTICE FOR TRAVEL EXPENSES FOR THE MAJOR NARCOTICS TRAFFICKING INITIATIVE (4/STH'S VOTE REQUIRED) The Police Department has one Agent assigned to the Major Narcotics Trafficking Initiative. The position is funded through the High Intensity Drug Trafficking Area grant and requires the assigned Agent to travel while assigned to this initiative. Travel expenses incurred by the position will be reimbursed by the u.s. Department of Justice. Staff recommendation: Council adopt the resolution. (ChiefofPolice) Agenda 5 September 14, 1999 15. RESOLUTION ACCEPTING DONATION OF TWO TACTICAL VESTS TO THE POLICE DEPARTMENT The Police Department's Special Weapons and Tactical Team has received an unsolicited donation of two tactical vests from the Chula Vista Gun Store. The vests will replace two which are no longer serviceable and will allow the Department to further enhance its abilities to respond safely to critical S.W.AT. incidents. Staff recommendation: Council adopt the resolution. (Chief of Police) ORAL COMMUNICATIONS PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES The followins-; items have heen advertised and/or posted as puhlic hearings as required hy law. f{ you wish to .'peak to any item, please .fill out a "Request to Speak" form (availahle in the lohhy) and suhmit it to the City Clerk prior to the meeting. 16. PUBLIC HEARING TO CONSIDER THE PROPOSED GRANT OF A MODIFIED CABLE SYSTEM FRANCHISE TO COXCOM, INC., DBA COX COMMUNICATIONS SAN DIEGO A ORDINANCE APPROVING THE GRANT OF A MODIFIED CABLE FRANCHISE TO COXCOM, INC., DBA COX COMMUNICATIONS SAN DIEGO AND AUTHORIZING THE MAYOR TO EXECUTE THE IMPLEMENTING FRANCHISE AGREEMENT (FIRST READING) B. ORDINANCE AMENDING SECTION 5.52.010 OF THE MUNICIPAL CODE TO CONFORM THE FEES ASSESSABLE TO CABLE FRANCHISEES AND OTHER VIDEO PROGRAMMING PROVIDERS TO THOSE ALLOWED BY STATE AND FEDERAL LAW (FIRST READING) This report presents a proposed amendment to the City's franchise with Cox Communications. Among the terms of this proposal is a recommendation to increase the franchise fee from the current 3% of gross revenues to the industry standard level of 5% as contemplated in the revenue projections approved by Council as part of the 1999/2000 annual budget. Staff recommendation: Council place the ordinances on first reading. (Special Projects Manager) 17. PUBLIC HEARING TO CONSIDER THE RENEWAL OF THE AGREEMENT WITH THE SWEETWATER UNION HIGH SCHOOL DISTRICT FOR THE JOINT USE OF THE LIBRARY FACILITY AT EASTLAKE LIBRARY RESOLUTION APPROVING THE RENEWAL OF THE AGREEMENT WITH THE SWEETW A TER UNION HIGH SCHOOL DISTRICT FOR THE JOINT USE OF THE LIBRARY FACILITY AT EASTLAKE LIBRARY Agenda 6 September 14, 1999 The three-year agreement with the Sweetwater Union High School District, providing for the joint use of the EastLake School Library, expired on June 30, 1999. A new agreement to continue this collaborative venture has now been negotiated and was approved by the Sweetwater District Board on August 19, 1999. The EastLake Library has remained open to the pubic while the new agreement was being negotiated. Staff recommendation: Council adopt the resolution. (Library and Recreation Director) ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by the Council, stc(ff, or members of the public. The items will be considered individually by the Council, and stqf{recommendations may, in certain cases, be presented in the alternative. r{you wi...h to .\peak 0/1 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. 18. UPDATE ON BROWN FIELD (Director of Planning and Building) 19. RESOLUTION APPROVING AGREEMENT WITH THE CITY OF IMPERIAL BEACH FOR ANIMAL CONTROL SERVICES, AMENDING THE FISCAL YEAR 2000 BUDGET APPROPRIATING $53,473 FOR RELATED GENERAL FUND COSTS BASED ON UNANTICIP A TED REVENUES, AND ADDING ONE ANIMAL CONTROL OFFICER POSITION, AND .25 KENNEL ATTENDANT POSITION (4/5TH'S VOTE REQUIRED) Chula Vista provided animal control services to the City of Imperial Beach from 1993 to 1998. In January 1998, Imperial Beach contracted with the County of San Diego for one year of animal control service. Tn May 1999, the City ofImperial Beach requested a bid for animal control services from both the County of San Diego and Chula Vista. The Police Department submitted a proposal and entered into contract discussions with Imperial Beach. The proposal was based on established formulas to ensure full cost recovery associated with services to be rendered. There were no special allowances made in order to solicit or obtain the Imperial Beach contract. Subsequently, the contract was awarded to Chula Vista contingent upon Council approval. Staff recommendation: Council adopt the resolution. (ChiefofPolice) 20. RESOLUTION ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "STORM DRAIN REPLACEMENT ROHR ELEMENTARY SCHOOL" IN THE CITY (DR-147); AND APPROPRIATING FUNDS AS A LOAN FROM THE TRUNK SEWER CAPTT AL RESERVE FUND (4/5TH'S VOTE REQUIRED) A portion of the corrugated metal pipe storm drain system traversing the school grounds has collapsed and is in need of urgent repair. Due to the location of the drainage system, it is necessary that the work be done while the students are away on quarter break, which starts on September 20 and ends on October 8, 1999. On August 31, 1999, sealed bids were received project. Staff recommendation: Council adopt the resolution awarding a contract to Fill Dirt, Inc., dba Roberts Engineering Contractors. (Director of Public Works) Agenda 7 September 14, 1999 21. RESOLUTION APPROVING THE OLYMPIC P ARKW A Y LANDSCAPE MASTER PLAN INCLUDING A DEVIATION FROM THE CURRENT CITY OF CHULA VISTA LANDSCAPE MANUAL GUIDELINE FOR PLANTING- TO-P A VING RATIOS WITHIN THE OLYMPIC P ARKW A Y MEDIAN On April 13, 1999, Council was presented with the Olympic Parkway Feasibility and Financing Study which described, among other items, the preparation of a Landscape Master Plan for Olympic Parkway. The Landscape Master Plan has been prepared by Estrada Land Planning, as a subconsultant to Kimley Horn and Associates, Inc. Staffrecommendation: Council adopt the resolution. (Director of Planning & Building and Director of Public Works)) ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 22. CITY MANAGER'S REPORTS A. Scheduling of meetings. 23. MAYOR'S REPORTS A. Consideration of designation of a voting Delegate and Alternate for the Annual League of California Cities conference to be held in San Jose October 10 through October 12, 1999. 24. COUNCIL COMMENTS ADJOURNMENT to a Closed Session, thence to the Adjourned Meeting to be held Wednesday, September 15, 1999, at 4:00 p.m. in the Council Conference Room, Administration Building, and thence to the Regular Meeting of September 21, 1999, at 6:00 p.m. in the Council Chambers. Tuesday, September 14, 1999 6:00 p.m. (immediately following the City Council Meeting) "I declare tinder penalty of perju~ t~at I am employed by the City of Chula Vista In the Office of the Cit1' Ck:r:( <:\nd that I posted this Agenda/Notice on the Bulletin B~ard at the PubliC( er ices BuUding a a CIty Hall o~ " . DATED~ c.r. j/,t? . SIGNE ouncll Chambers Public Services Building CHULA VISTA CITY COUNCIL CLOSED SESSION AGENDA Effective April 1, 1994, there have been new amendments to the Brown Act. Unless the City Attorney, the City Manager or the City Council states otherwise at this time, the Council will discuss and deliberate on the following items of business which are permitted by law to be the subject of a closed session discussion, and which the Council is advised should be discussed in closed session to best protect the interests of the City. The Council is required by law to return to open session, issue any reports offinal action taken in closed session, and the votes taken. However, due to the typical length of time taken up by closed sessions, the videotaping will be terminated at this point in order to save costs so that the Council's return from closed session, reports of final action taken, and adjournment will not be videotaped. Nevertheless, the report offinal action taken will be recorded in the minutes which will be available in the City Clerk's Office. CONFERENCE WITH LEGAL COUNSEL REGARDING: . Existing litigation pursuant to Government Code Section 54956.9(a) Fritsch v. City ofChula Vista, District Case No. 98-CV-0972-E CGA. . Significant exposure to litigation pursuant to Government Code Section 54956.9(b) One case. CONFERENCE WITH REAL PROPERTYNEGOTIA TOR- Pursuantto Government Code Section 54956.8 Property: 428 "F" Street, Chula Vista, California 91910. Assessor's Parcel Number 568-181-34,35,36,37 (portion), 41 (portion). Negotiating Parties: Security Trust Company and City ofChula Vista (Sid Morris). Under Negotiations: Property Acquisition September 14, 1999 AGENDA UI declare under penalty of perjury that I am employed by t:~o City of Chula Vista in the Office of ::>3 \'i"''';:,1a;,1{ and t:,at I posted this A:?:en 5,:.fiL) , ;:0 <:in the Bulletin Board at the PUbliJ; eryices Bu!ding a at City Hal DATED~ '1, q I qa SIGNED ROLL CALL: Councilmembers Davis, Moot, adilla, Sala , an 6:00 p.m. CALL TO ORDER 1. 2. PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE 3. SPECIAL ORDERS OF THE DA Y A. Oath of Office: Growth Management Oversight Commission - William C. Tripp Mobilehome Rent Review Commission - Vikki Robinson Opeodu B. Employee Recognition Award of the Month: Mary Chapman, Administrative Secretary, Fire Department. A proclamation will be presented by Mayor Horton. C. Proclaiming the week of September 20 through September 24, 1999 as "Lawsuit Abuse Awareness Week." The proclamation will be presented by Mayor Horton to Andy Kotner, Executive Director, San Diego County Citizens Against Lawsuit Abuse. D. Chief Richard Emerson will introduce newly promoted officers: Lieutenant Richard Coulson, Sergeant Scott Arsenault, and Agent John Munch. CONSENT CALENDAR (Items 4 through 15) The staff recommendations regarding thefollowing items listed under the Consent Calendar will be enacted by the Council by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that the item be removedfor discussion. ffyou 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 pulledfrom the Consent Calendar will be discussed after Action Items. Items pulled by the public will be the first items of business. 4. WRITTEN COMMUNICATIONS A. Letters from the Office of the City Attorney stating that there were no actions taken in Closed Session on August 31, 1999, which are required under the Brown Act to be reported. Staff recommendation: The letter be received and filed. 5. ORDINANCE OF THE CITY COUNCIL, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NUMBER 99-1 (OTAY RANCH SPA ONE- POR TIONS OF VILLAGE ONE, VILLAGE FIVE AND VILLAGE ONE WEST) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT (SECOND READING AND ADOPTION) Agenda 2 September 14, 1999 On July 13, 1999, Council approved a resolution of intention to form Community Facilities District Number 99-1. A public hearing was noticed and opened on August 17, 1999; the hearing was continued to August :3 1, 1999, at which time the ordinance was placed on first reading. The district will fund the construction of public facilities serving the Otay Ranch SP A One, portions of Village One, Village Five and Village One West. The action proposed at this meeting will finalize the formal proceedings leading to the establishment of Community Facilities District Number 99-1. Recommendation: Council place the ordinance on second reading and adoption. (Director of Public Works) 6. RESOLUTION AUGMENTING ABE 321 GRANT FUNDS AWARDED TO THE CHULA VIST A LITERACY TEAM FROM THE CALIFORNIA DEP AR TMENT OF EDUCATION; AND AMENDING THE FISCAL YEAR 1999/2000 BUDGET TO APPROPRIATE $3,671 IN UNANTICIPATED GRANT REVENUES TO THE LffiRARY AND RECREATION DEPARTMENT (4/5TH'S VOTE REQUIRED) The Chula Vista Literacy Team has been notified of an augmentation of ABE 321 grant funds in the amount of$36,671 from the California Department of Education . The new grant funds are to be used for staff development and to purchase supplies. Staff recommendation: Council adopt the resolution. (Library and Recreation Director) 7. RESOLUTION AMENDING THE FISCAL YEAR 1999/2000 BUDGET BY APPROPRIATING UNANTICIP A TED DONATION REVENUE IN THE AMOUNT OF $1,000 TO THE LIBRARY AND RECREATION DEP ARTMENTFOREXPENDITURES ASSOCIATED WITH THE CHULA VISTA LITERACY TEAM (4/5TH'S VOTE REQUIRED) The Chula Vista Literacy Team, from time to time, receives donations from the public. These donations generally are received from individual contributors and are small donations from past tutors or learners, or in memory ofa loved one who supported literacy and the Library's adult literacy program. Donations are deposited into a City cash bond account upon receipt and accumulated for future appropriation to a literacy program use. The Library and Recreation Department wishes to appropriate $1,000 in accumulated donations at this time to the Literacy budget to purchase instructional materials and resources. Staff recommendation: Council adopt the resolution (Library and Recreation Director) 8. RESOLUTION AMENDING THE FISCAL YEAR 1999/2000 BUDGET BY APPROPRIATING $7,750 TO THE LIBRARY AND RECREATION DEPARTMENT BUDGET FOR THE FLAG FOOTBALL PROGRAM EXPENDITURES, BASED ON UNANTICIPATED PROJECTED PARTICIPANT FEE REVENUES OF $12,800, AND APPROVING THE ADDITION OF 0.68 FULL TIME EQUIVALENT RECREATION LEADER AND 0.23 FULL TIME EQUIV ALENT RECREATION AIDE POSITIONS (HOURLY, PART-TIME, NON-BENEFITTED) TO STAFF THE FLAG FOOTBALL PROGRAM (4/5TH'S VOTE REQUIRED) Agenda 3 September 14, 1999 The Recreation Division offered an after-school intramural athletic league program (Flag Football) to elementary school children throughout the City until Fiscal Year 1998/1999, when the program was temporarily discontinued due to the reorganization ofthe after-school program into the STRETCH Program. The Department now wishes to recommence the Flag Football program, utilizing previously appropriated and budgeted funding and requesting new funding to support staff and expenditures for the program. In addition, revenue will be budgeted and received from the fees charged to the participants in the program. Staff recommendation: Council adopt the resolution (Library and Recreation Director) 9. RESOLUTION AUTHORIZING THE LIBRARY AND RECREATION DIRECTOR TO EXECUTE PERMITS TO AGENCIES PROVIDING SERVICES AND UTILIZING OFFICE SP ACE AT NORMAN PARK SENIOR CENTER Since the renovation of the Norman Park Center in 1993, the City has issued and renewed multi-year permits to several social service agencies, allowing them to utilize office space at the Center. These agencies provide valuable community services, many of which target the senior population. The City does not charge rent for this use but does require each agency to reimburse the City for a pro-rated share of the utility costs. Three-year permit renewals have been prepared and signed by each agency. Staff recommendation: Council adopt the resolution (Library and Recreation Director) 10. RESOLUTION APPROVING THE MEMORANDUM OF UNDERSTANDING WITH THE CHULA VISTA ELEMENT AR Y SCHOOL DISTRICT REGARDING JOINT OPERA TION OF THE DASH (DYNAMIC AFTER SCHOOL HOURS) AFTER SCHOOL RECREATIONAL PROGRAM, AND THE STRETCH (SAFE TIME FOR RECREATION, ENRICHMENT, AND TUTORING FOR CHILDREN) EXTENDED SCHOOL DAY EDUCATIONAL PROGRAM, AND AUTHORIZING THE DIRECTOR OF LIBRARY AND RECREATION TO EXECUTE THE MOU; AND AMENDING THE FISCAL YEAR 1999/2000 BUDGET TO APPROVE AN ADDITIONAL 1.31 FULL TIME EQUIVALENT SCHOOL SITE COORDINATORS (UNCLASSIFIED, PART-TIME, PARTIALLY BENEFITTED) AND 2.30 FULL TIME EQUIV ALENT YOUTH LEADERS (HOURLY, PART - TIME, NON-BENEFITTED), AND APPROPRIATING AN ADDITIONAL $96,000 CONTRIBUTION FROM THE CHULA VISTA ELEMENT AR Y SCHOOL DISTRICT FOR THE STRETCH PROGRAM (4/sTH'S VOTE REQUIRED) In Fiscal Year 1998/1999, the City entered into a partnership with the Chula Vista Elementary School District to examine the City's existing after-school programs, and, with District input, to revamp them based on individual school needs and priorities. The MOU entered into last year created the new STRETCH Program, with an emphasis on literacy, homework assistance, and arts enrichment. The program was offered as a pilot program from the end of February through June at six elementary school sites. The program received an overwhelmingly positive response from the District, School Board members, principals and school personnel, and program recipients. During the FY 1999/2000 budget process, the Council approved the Department's and District's recommendation to close the existing after- school playground program offered at 26 elementary schools. In its place, a high quality, structured, sports and recreation program, entitled DASH, was approved, and it was agreed that DASH would be offered at 12 elementary schools to be selected by the District and that STRETCH sites would not be eligible for the DASH Program. Staff recommendation: Council adopt the resolution. (Library and Recreation Director) Agenda 4 September 14, 1999 II. RESOLUTION APPROVING VARIOUS PERSONNEL RECLASSIFICATIONS The proposed resolution addresses classification and salary issues raised by the Community Development and Police Departments concerning positions which have faced significant recruitment and retention difficulties. It reclassifies the Community Development Specialist II position to Principal Community Development Specialist; and the Police Services Technician position to Senior Management Analyst. Staff recommendation: Council adopt the resolution. (Director of Human Resources) 12. RESOLUTION APPROVING A DESIL T A TION AND GRADING AGREEMENT (POGGI CANYON) WITH OT A Y PROJECT LP AND PROWSWOOD-MA TSUSHIT A OT A Y RANCH PARTNERS LLC FOR OT A Y RANCH SPA ONE, VILLAGE ONE, PHASE 7 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT On November 19, 1996, Council approved the Tentative Map for Tract Number 96-04A, Phase 7, of the Otay Ranch Project SPA One. Tentative Map conditions require that, prior to issuance of a grading permit for any land within the Poggi Canyon basin, the developer shall comply with certain conditions requiring construction of drainage improvements and removal of siltation within Poggi Canyon. The proposed agreement contains appropriate provisions to allow the developer to proceed with the interim grading of Phase 7 in full compliance with the Tentative Map requirements. Staff recommendation: Council adopt the resolution. (Director of Public Works) 13. RESOLUTION APPROVING THE FIRST AMENDMENT TO DEFERRAL AGREEMENT AND DECLARATION OF COVENANTS RUNNING WITH THE LAND WITH MCMILLIN OT A Y RANCH LLC AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Approval of the First Amendment to the agreement for deferring the development of certain parcels within the McMillin Otay Ranch SP A One project will make the agreement consistent with the current Public Facilities Financing Plan (PFFP) for Otay Ranch SPA One. Staff recommendation: Council adopt the resolution. (Director of Public Works) 14. RESOLUTION APPROPRIATING $9,000 IN UNANTICIPATED REVENUES FROM THE U.S. DEPARTMENT OF JUSTICE FOR TRAVEL EXPENSES FOR THE MAJOR NARCOTICS TRAFFICKING INITIATIVE (4/STH'S VOTE REQUIRED) The Police Department has one Agent assigned to the Major Narcotics Trafficking Initiative. The position is funded through the High Intensity Drug Trafficking Area grant and requires the assigned Agent to travel while assigned to this initiative. Travel expenses incurred by the position will be reimbursed by the U.S. Department ofJustice. Staff recommendation: Council adopt the resolution. (Chief of Police) Agenda 5 September 14, 1999 15. RESOLUTION ACCEPTING DONATION OF TWO TACTICAL VESTS TO THE POLICE DEPARTMENT The Police Department's Special Weapons and Tactical Team has received an unsolicited donation of two tactical vests from the Chula Vista Gun Store. The vests will replace two which are no longer serviceable and will allow the Department to further enhance its abilities to respond safely to critical S.W.A.T. incidents. Staff recommendation: Council adopt the resolution. (Chief of Police) ORAL COMMUNICATIONS PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES The following items have been advertised and/or posted as public hearings as required by law. fr you wish to c\peak to 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. 16. PUBLIC HEARING TO CONSIDER THE PROPOSED GRANT OF A MODIFIED CABLE SYSTEM FRANCHISE TO COXCOM, INC., DBA COX COMMUNICATIONS SAN DIEGO A. ORDINANCE APPROVING THE GRANT OF A MODIFIED CABLE FRANCHISE TO COXCOM, INC., DBA COX COMMUNICATIONS SAN DIEGO AND AUTHORIZING THE MAYOR TO EXECUTE THE IMPLEMENTING FRANCHISE AGREEMENT (FIRST READING) B. ORDINANCE AMENDING SECTION 5.52.010 OF THE MUNICIPAL CODE TO CONFORM THE FEES ASSESSABLE TO CABLE FRANCHISEES AND OTHER VIDEO PROGRAMMING PROVIDERS TO THOSE ALLOWED BY STATE AND FEDERAL LAW (FIRST READING) This report presents a proposed amendment to the City's franchise with Cox Communications. Among the terms of this proposal is a recommendation to increase the franchise fee from the current 3% of gross revenues to the industry standard level of 5% as contemplated in the revenue projections approved by Council as part ofthe 1999/2000 annual budget. Staff recommendation: Council place the ordinances on first reading. (Special Projects Manager) 17. PUBLIC HEARING TO CONSIDER THE RENEWAL OF THE AGREEMENT WITH THE SWEETWATER UNION HIGH SCHOOL DISTRICT FOR THE JOINT USE OF THE LIBRARY FACILITY AT EASTLAKE LIBRARY RESOLUTION APPROVING THE RENEWAL OF THE AGREEMENT WITH THE SWEETW A TER UNION HIGH SCHOOL DISTRICT FOR THE JOINT USE OF THE LIBRARY F ACILITY AT EASTLAKE LIBRARY Agenda 6 September 14, 1999 The three-year agreement with the Sweetwater Union High School District, providing for the joint use of the EastLake School Library, expired on June 30, 1999. A new agreement to continue this collaborative venture has now been negotiated and was approved by the Sweetwater District Board on August 19, 1999. The EastLake Library has remained open to the pubic while the new agreement was being negotiated. Staff recommendation: Council adopt the resolution. (Library and Recreation Director) ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by the Council, staff, or members of the public. The items will be considered individually by the Council, and stalfrecommendations may, in certain cases, be presented in the alternative. If you wi.\'h 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. 18. UPDATE ON BROWN FIELD (Director of Planning and Building) 19. RESOLUTION APPROVING AGREEMENT WITH THE CITY OF IMPERIAL BEACH FOR ANIMAL CONTROL SER VICES, AMENDING THE FISCAL YEAR 2000 BUDGET APPROPRIATING $53,473 FOR RELATED GENERAL FUND COSTS BASED ON UNANTICIPATED REVENUES, AND ADDING ONE ANIMAL CONTROL OFFICER POSITION, AND .25 KENNEL ATTENDANT POSITION (4/sTH'S VOTE REQUIRED) Chula Vista provided animal control services to the City of Imperial Beach from 1993 to 1998. In January 1998, Imperial Beach contracted with the County of San Diego for one year of animal control service. In May 1999, the City ofImperial Beach requested a bid for animal control services from both the County of San Diego and Chula Vista. The Police Department submitted a proposal and entered into contract discussions with Imperial Beach. The proposal was based on established formulas to ensure full cost recovery associated with services to be rendered. There were no special allowances made in order to solicit or obtain the Imperial Beach contract. Subsequently, the contract was awarded to Chula Vista contingent upon Council approval. Staff recommendation: Council adopt the resolution. (Chief of Police) 20. RESOLUTION ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "STORM DRAIN REPLACEMENT ROHR ELEMENTARY SCHOOL" IN THE CITY (DR-147); AND APPROPRIATING FUNDS AS A LOAN FROM THE TRUNK SEWER CAPITAL RESERVE FUND (4/5TH'S VOTE REQUIRED) A portion of the corrugated metal pipe storm drain system traversing the school grounds has collapsed and is in need of urgent repair. Due to the location of the drainage system, it is necessary that the work be done while the students are away on quarter break, which starts on September 20 and ends on October 8, 1999. On August 31, 1999, sealed bids were received project. Staff recommendation: Council adopt the resolution awarding a contract to Fill Dirt, Inc., dba Roberts Engineering Contractors. (Director of Public Works) Agenda 7 September 14, 1999 21. RESOLUTION APPROVING THE OLYMPIC P ARKW A Y LANDSCAPE MASTER PLAN INCLUDING A DEVIATION FROM THE CURRENT CITY OF CHULA VISTA LANDSCAPE MANUAL GUIDELINE FOR PLANTING- TO-PA VING RATIOS WITHIN THE OLYMPIC P ARKW A Y MEDIAN On April 13, 1999, Council was presented with the Olympic Parkway Feasibility and Financing Study which described, among other items, the preparation of a Landscape Master Plan for Olympic Parkway. The Landscape Master Plan has been prepared by Estrada Land Planning, as a subconsultant to Kimley Horn and Associates, Inc. Staff recommendation: Council adopt the resolution. (Director of Planning & Building and Director of Public Works)) ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 22. CITY MANAGER'S REPORTS A. Scheduling of meetings. 23. MAYOR'S REPORTS A. Consideration of designation of a voting Delegate and Alternate for the Annual League of California Cities conference to be held in San Jose October 10 through October 12, 1999. 24. COUNCIL COMMENTS ADJOURNMENT to a Closed Session, thence to the Adjourned Meeting to be held Wednesday, September 15, 1999, at 4:00 p.m. in the Council Conference Room, Administration Building, and thence to the Regular Meeting of September 21, 1999, at 6:00 p.m. in the Council Chambers. ~~f?- -.- ........,;:""---.;:~~ ~~~~ CllY OF CHUlA VISTA MEMORANDUM September 9, 1999 From: The Honorable Mayor and City Council David D. Rowlands, Jr., City Manager~ ~".-v ..(rrv\ Council meeting of September 14,1999 To: Subject: This will transmit the agenda and related materials for the regular City Council meeting of Tuesday, September 14, 1999. Comments regarding the Written Communications are as follows: 4a. This is a letter from the City Attorney stating that there were no actions taken in Closed Session on August 31, 1999, which are required under the Brown Act to be reported. IT IS RECOMMENDED THAT THIS LETTER BE RECEIVED AND FILED. DDR:mab ~~~ ~ ~~~~ ---- CllY OF CHUlA VISTA OFFICE OF THE CITY ATTORNEY Date: September 9, 1999 From: The Honorable Mayor and City Council . 1 Cd~ ' I . I ' Ann Moore, Senlor Asslstant Clty Attorney To: Re: Report Regarding Actions Taken in Closed Session for the Meeting of 8/31/99 The City Council of the City of Chula vista met in Closed Session on 8/31/99 to discuss: . CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION - Pursuant to Government Code Section 54956.9(b) One Case Approval was given to its legal counsel to intervene in an action if deemed legally necessary by the City Attorney. In accordance with the Brown Act requirements, once such action has been taken, the defendants and other particulars shall be disclosed to any person upon request. The Redevelopment Agency of the City of Chula vista met in Closed Session on 8/31/99 to discuss: . CONFERENCE WITH REAL PROPERTY NEGOTIATOR Government Code Section 54956.8 Pursuant to Property: Agency-owned parcels at the northwest corner of Third Avenue and H Street Negotiating Parties: Redevelopment Agency (Chris Salomone) and Chrismatt Corporation, a California Corporation, dba pieri Company (James v. pieri) Under Negotiation: Price and terms for disposition/acquisition The Senior Assistant City Attorney hereby reports to the best of her knowledge from observance of actions taken in the Closed Session in which the Senior Assistant City Attorney participated, that there were no reportable actions pursuant to Conference with Real Property Negotiator which are required under the Brown Act to be reported. AYM: 19k H, \ home \ lorT"in" \ 1 t \clOB se8 ~ . no Lj/j// 276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910' (619) 691-5037' FAX (619) 409-5823 4> Post-Consumer Recycled Paper ~~f?- ~~ ......,;:......,;:~......,;: ~~~~ ---- CllY OF CHUlA VISTA OFFICE OF THE CITY ATTORNEY Date: September 9, 1999 From: The Honorable Mayor and City Council Bart Miesfeld, Deputy city Attorney~ Report Regarding Actions Taken in Closed Session for the Meeting of 8/31/99 To: Re: The City Council of the City of Chula vista met in Closed Session on 8/31/99 to discuss: . CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION - Pursuant to Government Code section 54956.9(a) Fritsch v. City of Chula Vista Rosete v. City of Chula Vista The Deputy City Attorney hereby reports to the best of his knowledge from observance of actions taken in the Closed Session in which the Deputy City Attorney participated, that there were no reportable actions which are required under the Brown Act to be reported. BJM:cbs J/J ~ c:z 276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910. (619) 691-5037. FAX (619) 409-5823 Post-Consumer Recycled Paper ORDINANCE NO. . \.-Ot\ ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHU~V~ CALIFORNIA, ACTING AS THE LEGISLATIVE BODY ",~~UNITY FACILITIES DISTRICT NO. 99-1 (OTA Y RANCR...~ ~:-PORTIONS OF VILLAGE ONE, VILLAGE FIVE AN~~ICAGE ONE WEST) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "City Council"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors authorizing the levy of a special tax in a community facilities district, all as authorized pursuant to the terms and provisions of the" Mello- Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 99-1 (Otay Ranch Spa One - Portions of Village One, Village Five and Village One West) (the "District"). The City Council of the City of Chula Vista, California, acting as the legislative body of Community Facilities District No. 99-1 (Otay Ranch Spa One - Portions of Village One, Village Five and Village One West), does hereby ordain as follows: SECTION 1. This City Council does, by the passage of this ordinance, authorize the levy of special taxes pursuant to the Rate and Method of Apportionment of Special Taxes as set forth in Exhibit "A" attached hereto (the "Special Tax Formula"), referenced and so incorporated. SECTION 2. This City Council, acting as the legislative body of the District, is hereby further authorized, by Resolution, to annually determine the special tax to be levied for the then current tax year or future tax years, except that the special tax to be levied shall not exceed the maximum special tax calculated pursuant to the Special Tax Formula, but the special tax may be levied at a lower rate. SECTION 3. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorem taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. 1 5" /<6Y/ / SECTION 4. The special tax shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the City Council in the manner provided in Section 53330.5 of said Government Code. SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. PRESENTED BY APPROVED AS TO FORM: CL~~ John M. Kaheny, City Attorney John P. Lippitt, Director of Public Works H:\home\attorney\cfd99-I.ord 2 5 ;/tP;~oZ CITY COUNCIL AGENDA STATEMENT ITEM: ~ MEETING DATE: 09/14/99 REVIEWED BY: Resolution Augmenting ABE 321 grant funds awarded to the Chula Vista Literacy Team from the California Department of Education; and amending the FY 99/00 budget to appropriate $3,671 in unanticipated grant revenues to the Library and Recreation Department Library and Recreation Direct~ City Manager~~ (4/5ths Vote: YES..lL NO -> ,ff c.) \ ITEM TITLE: SUBMITTED BY: The Chula Vista Literacy Team has been notified of an augmentation of ABE 321 grant funds in the amount of $3,671, from the California Department of Education. The new grant funds are to be used for staff development and to purchase supplies. STAFF RECOMMENDATION: That Council adopt the Resolution augmenting ABE 321 grant funds awarded to the Chula Vista Literacy Team from the California Department of Education; and amending the FY 99/00 budget to appropriate $3,671 in unanticipated grant revenues to the Library and Recreation Department. BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: The California Department of Education notified agencies previously awarded ABE 321 grants, that unexpended funds from the federal adult education supplemental program were being redistributed. As a result, the Chula Vista Literacy Team will receive $3,671. Augmentation funds were authorized by the State to be used to purchase learner assessment tools and supplies, and staff development for the Literacy Coordinator and staff. FISCAL IMPACT: $3,671 will be received as revenue and reimbursed to the grant budget to cover the funds used to purchase supplies and assessment tools as provided for by the grant. [e:\home\library\A 113\ABE 321 Augment A 113.doc - 09-02-99] t~/ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUGMENTING ABE 321 GRANT FUNDS AWARDED TO THE CHULA VISTA LITERACY TEAM FROM THE CALIFORNIA DEPARTMENT OF EDUCATION; AND AMENDING THE FY 99/00 BUDGET TO APPROPRIATE $3,671 IN UNANTICIPATED GRANT REVENUES TO THE LIBRARY AND RECREATION DEPARTMENT WHEREAS, the Chula vista Literacy Team has been notified of an augmentation of ABE 321 grant funds in the amount of $3,671 from the California Department of Education; and WHEREAS, the new grant funds are to be used for staff development and to purchase supplies that will assist with the increased reporting requirements of the federal program. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby augment ABE 321 grant funds awarded to the Chula Vista Literacy Team from the California Department of Education. BE IT FURTHER RESOLVED that the FY 99/00 budget is hereby amended to appropriate $3,671 in unanticipated grant revenues to the Library and Recreation Department. Presented by Approved as to form by David Palmer, Library and Recreation Director H:\home\attorney\reso\abe321.aug t-~ CITY COUNCIL AGENDA STATEMENT ITEM ? MEETING DATE 09/14/99 ITEM TITLE: Resolution Amending the FY 99/00 budget by appropriating unanticipated donation revenue in the amount of $1,000 to the Library and Recreation Department for expenditures associated with the Chula Vista Literacy Team /\w Library and Recreation Manage(dOU SUBMITTED BY: REVIEWED BY: City Managerb~ f" 9 )7-- (4/5ths Vote: YES l NO -> The Chula Vista Literacy Team, from time to time, receives donations from the public. These donations generally are received from individual contributors, and are small donations from past tutors or learners, or in memory of a loved one who supported literacy and the Chula Vista Public Library's adult literacy program. The donations are deposited into a City cash bond account upon receipt, and accumulated for a future appropriation for a literacy program use. The Library and Recreation Department now wishes to appropriate $1,000 in accumulated donations from the cash bond account to the Literacy budget to be used to purchase instructional materials and resources. STAFF RECOMMENDATION: That Council approve the Resolution amending the FY 99/00 budget by appropriating unanticipated donation revenue in the amount of $1,000 to the Library and Recreation Department for expenditures associated with the Chula Vista Literacy Team BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: Donations to the City of Chula Vista Literacy Team Program are accrued to purchase program materials or to supplement special literacy programs. The Literacy Team depends upon these donations to enhance the quality of its program throughout the year. FISCAL IMPACT: $1,000 previously received as revenue will be expended for Instructional Materials and Resources. [e:\home\library\A 113\LAC Book Grant.A 113 - 08-26-99] ?-/ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FY 99/00 BUDGET BY APPROPRIATING UNANTICIPATED DONATION REVENUE IN THE AMOUNT OF $1, 000 TO THE LIBRARY AND RECREATION DEPARTMENT FOR EXPENDITURES ASSOCIATED WITH THE CHULA VISTA LITERACY TEAM WHEREAS, the Chula vista Literacy Team, from time to time, receives donations from the public; and WHEREAS, these donations generally are received from individual contributors, and are small donations from past tutors or learners, or in memory of a loved one who supported literacy and the Chula vista Public Library's adult literacy program; and WHEREAS, the donations are deposited into a City cash bond account upon receipt, and accumulated for a future appropriation for a literacy program use; and WHEREAS, the Library and Recreation Department now wishes to appropriate $1,000 in accumulated donations from the cash bond account to the Literacy budget to be used to purchase instructional materials and resources. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby amend the FY 99/00 budget by appropriating unanticipated donation revenue in the amount of $1,000 to the Library and Recreation Department for expenditures associated with the Chula vista Literacy Team. Presented by Approved as to form by David Palmer, Library and Recreation Director H:\home\attorney\reso\literacy.app 7/~ CITY COUNCIL AGENDA STATEMENT Item: Meeting Date: 09/14/99 ~ REVIEWED BY: Resolution Amending the FY 1999/2000 budget by appropriating $7,750 to the Library and Recreation Department budget for the Flag Football Program expenditures, based on unanticipated projected participant fee revenues of $12,800, and approving the addition of 0.68 FTE Recreation Leader and 0.23 FTE Recreation Aide positions (hourly part-time non-benefited) to staff the Flag Football Program Director of Library and Recreation~ City Manager ~ D 1/ (4/5ths Vote: Yes..JL No -l ITEM TITLE: SUBMITTED BY: For many years the Parks and Recreation Department offered an intra-mural after school athletic league program (Flag Football) to all elementary school children. In the fall of 1998, the Flag Football program was conducted by the newly created Library and Recreation Department's Educational Services Division under the Elementary After School Program umbrella. This spring, while planning the redesign of the Elementary After School Program into the new DASH Program, staff initially decided to drop the Flag Footballl program completely. Therefore, the normal revenue from the fees charged to participants was not budgeted in the FY 1999-2000 budget. However, due to popular demand, the Department has decided to continue the program and more appropriately, move its administration back to the Recreation Division. As a result, the Department wishes to utilize previously appropriated and budgeted funding ($10,000), and request additional funding ($7,750) to support staff and expenditures for the program. The additional funding is offset by revenue received from the fees charged to the participants in the Flag Football Program. STAFF RECOMMENDATION: That Council approve the Resolution: 1. Amending the FY 1999/2000 budget by appropriating $7,750 to the Library and Recreation Department budget, based on unanticipated revenue from participant fees for the Flag Football Program expenditures; and 2. Approving the addition of 0.68 FTE Recreation Leader and 0.23 FTE Recreation Aide positions (hourly part-time non-benefited) to staff the Flag Football Program, and BOARDS/COMMISSIONS RECOMMENDATION: The Parks and Recreation Commission will be consulted regarding the implementation of this program as appropriate. [e:\home\parksrec\A 113\Flag Football.A 13 - 09-01-99] 0"./ / 1 DISCUSSION: As discussed in another Council report presented at this meeting, the STRETCH and DASH programs are being re-formatted under the auspices of a new agreement with the Chula Vista Elementary School District. These new programs do not include the continuation of the popular Flag Football Program. However, staff has determined that the program is so popular, that it indeed should be continued as a separate entity under the Lorna Verde Recreation Center. There are . sufficient funds in the new STRETCH and DASH budgets to allow the transfer of the $10,000 from those programs to Recreation to continue Flag Football. Therefore, in order to appropriately budget for the necessary expenditures for the Flag Football Program (projected to be $17,750), previously budgeted funds must be transferred administratively from the DASH Program to the Loma Verde Recreation Center budget in the amount of $10,000. Additional funds are being requested in this report, to be appropriated in the amount of $7,750. Staff has estimated that revenue from fees for Flag Football will be received in the amount of $12,800. The majority of the costs of this program are to hire 0.91 FTE (hourly employees) to coach and referee. FISCAL IMPACT: $10,000 will be transferred administratively between budgets in the Library and Recreation Department; $7,750 will be appropriated from available fund balance in the General Fund, to the Library and Recreation Department for the after school intramural athletic leagues (Flag Football); and $12,800 in unanticipated revenue derived from fees charged for the Flag Football program will be budgeted. [e:\home\parksrec\A113\Flag Football.A13 - 09-01-99] ff /' ~ 2 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FY 1999/2000 BUDGET BY APPROPRIATING $7,750 TO THE LIBRARY AND RECREATION DEPARTMENT BUDGET FOR THE FLAG FOOTBALL PROGRAM EXPENDITURES, BASED ON UNANTICIAPTED PROJECTED PARTICIPANT FEE REVENUES OF $12,800, AND APPROVING THE ADDITION OF 0.68 FTE RECREATION LEADER AND 0.23 FTE RECREATION AIDE POSITIONS (HOURLY PART-TIME NON-BENEFITTED) TO STAFF THE FLAG FOOTBALL PROGRAM WHEREAS, the Recreation Division has offered an intra- mural after school athletic league program (Flag Football) to all elementary school children; and WHEREAS, in the fall of 1998, the Flag Football program was conducted by the newly created Library and Recreation Department's Educational Services Division under the Elementary After School Program umbrella; and WHEREAS, this spring, while planning the redesign of the Elementary After School Program into the new DASH Program, staff initially decided to drop the Flag Football program completely, therefore, the normal revenue from the fees charged to participants was not budgeted in the FY 1999-2000 budget; and WHEREAS, due to popular demand, the Deparatment has decided to continue the program and move its administration back to the Recreation Division; and WHEREAS, as a result, the Department wishes to utilize previously appropriated and budgeted funding ($10,000), and request additional funding ($7,750) to support staff and expenditures for the program which additional funding is offset by revenue received from the fees charged to the participants in the Flag Football Program. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby amend the FY 1999/2000 budget by appropriating $7,750 to the Library and Recreation Department budget for Flag Football Program expenditures based on unanticipated projected participant fee revenues of $12,800. BE IT FURTHER RESOLVED that the addition of 0.68 FTE Recreation Leader and 0.23 FTE Recreation Aide positions (hourly part-time non-benefitted) is hereby approved to staff the Flag Football Program. Presented by Approved as to form by David Palmer, Director of Library and Recreation H:\home\attorney\reso\flagprog.app o~} Item: Meeting Date: 09/14/99 9 CITY COUNCIL AGENDA STATEMENT ITEM TITLE: Resolution Authorizing the Library and Recreation Director to execute Permits to Agencies providing services and utilizing office space at Norman Park Senior Center ~ SUBMITTED BY: Library and Recreation Directoro~U REVIEWED BY: City Manager hli- . ) (4/5ths Vote: Yes _ No XJ II" t.v Xtfv Since the renovation of Norman Park Center in 1993, the City has issued and renewed multi-year permits to several social service agencies, allowing them to utilize office space at Norman Park Senior Center. These agencies provide valuable community services, many of which target the senior population. The City does not charge rent for this use, but does require each agency to reimburse the City for a pro-rated share of the utility costs. Three-year permit renewals have been prepared and signed by each agency. STAFF RECOMMENDATION: That the City Council approve the Resolution authorizing the Library and Recreation Director to execute Permits to Agencies providing services and utilizing office space at Norman Park Senior Center. BOARD/COMMISSION RECOMMENDATION: N/A. DISCUSSION: Upon completion of the Norman Park Senior Center renovation, the City allowed four social service agencies, which provide special services and programs to senior citizens, to utilize the office space on the second floor of the facility. The four agencies are: . Lutheran Social Services of Southern California (Caring Neighbor and Shared Housing), . Greater San Diego Meals on Wheels, . Senior Citizen's Legal Services, . San Diego County - Aging and Independence Services - Adult Protective Services. Under the original agreements, each agency is required to reimburse the City for a pro-rated portion of the facility's utility costs and to provide their own telephone service. The facility use permits for the four agencies are now up for renewal and new three-year permits have been negotiated which continue the original terms. All four agencies have been providing services at a satisfactory level and their programs are popular with the senior citizen community. FISCAL IMPACT: The four agencies annually reimburse the City for approximately $3,250 in utility costs. This represents approximately 11 % of the Norman Park Senior Center utilities budget. The revenue from the agencies is budgeted in the FY 99/00 budget. Attachments: "A" - Permit - Lutheran Social Services "B" - Permit - San Diego Meals on Wheels "C" - Permit - Senior Citizens Legal Services "0" - Permit - San Diego County - Aging and Independence Services [H:\HOME\PARKSREC\A 113\NPCAGENCY.A 13.DOC] 1 C)-/ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE LIBRARY AND RECREATION DIRECTOR TO EXECUTE PERMITS TO AGENCIES PROVIDING SERVICES AND UTILIZING OFFICE SPACE AT NORMAN PARK SENIOR CENTER WHEREAS, since the renovation of Norman Park Center in 1993, the City has issued and renewed multi-year permits to several social service agencies, allowing them to utilize office space at Norman Park Senior Center; and WHEREAS, these agencies provide valuable community services, many of which target the senior population; and WHEREAS, the City does not charge rent for this use, but does require each agency to reimburse the City for a pro-rated share of the utility costs; and WHEREAS, three-year permit renewals have been prepared and signed by each agency. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby authorize the Library and Recreation Director to execute Permits to the following four agencies providing services and utilizing office space at Norman Park Senior Center: 1. Lutheran Social Services of Southern California (Caring Neighbor and Shared Housing) 2. Greater San Diego Meals on Wheels. 3. Senior Citizen's Legal Services. 4. San Diego County - Aging and Independence Services - Adult Protective Services. Presented by Approved as to form by David Palmer, Library and Recreation Director H:\home\attorney\reso\normpark.ser ~~2 ATTACHMENT A NORMAN PARK SENIOR CENTER PERMIT This permit is granted as of the latest date appearing opposite the signatures of the respective parties hereto, by and between LUTHERAN SOCIAL SERVICES of SOUTHERN CAUFORNIA - CARING NEIGHBORS and SHARED HOUSING; a California nonprofit corporation, (hereinafter referred to as "Permittee") by the Director of Library and Recreation of the City of Chula Vista, a municipal corporation (hereinafter referred to as "City"), concerning use of certain portions of Norman Park Senior Center, located at 270 "F" Street, Chula Vista, CA 91910-2815. The "Permittee", hereby agrees to the following terms and conditions upon which permission to use the facility is based: I. AREA OF USE - The Permittee shall have permission to use those portions of the Norman Park Senior Center designated on Exhibit "A", attached hereto and made a part hereof by this reference. II. PERMITTED USES - The Permittee shall be required prior to the execution of this permit to submit, in writing, for the approval of the Library and Recreation Department, an outline of the services to be provided to the public by Permittee in connection with the use of the premises described herein. The premises may not be put to any use which is not specifically authorized in writing by the Director of Library and Recreation. Permittee shall at all times be required to maintain a level of service to the public acceptable to the Library and Recreation Department. III. USE OF MEETING ROOMS - Permittee may use meeting rooms at the Senior Center for activities in connection with the use of permitted space at no additional charge on a reservation/as available basis. IV. CONSIDERATION - Permittee shall on or before the 15th day of the beginning of the fiscal year**, in advance, pay to the Library and Recreation Department of the City of Chula Vista the sum of $848.16 as its prorata share of utility costs. (Sum based on square footage is $70.68 per month.) City shall refund any unused portion if permittee vacates during any following month and City is able to obtain attendant thereto. (**Fiscal year is based upon the City of Chula Vista's fiscal year, July to June). V. TELEPHONE CHARGES - Permittee agrees to maintain its own telephone services, including all costs attendant thereto. VI. TERM - This permit may be terminated by either party upon thirty (30) days written notice. The term of this permit shall be for a period of thirty-six (36) months commencing on July 1, 1999, and terminating June 30, 2002. {JGB: Social Service Agercies .1s8'gemit.99] 1/J 2 VII. SERVICE AREA - Permittee agrees that at least sixty-six (66) percent of the clients served will be Chula Vista residents. VIII. NOTICE - Any notice required or permitted pursuant to this Permit, shall be given by personal service or by deposit of the same in the U. S. Mail, postage prepaid and address to the parties as follows: PERMITTEE: Lutheran Social Services 3101 Fourth Avenue San Diego, CA 92103 CITY: Director of Library and Recreation City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 IX. TAXES - The terms of this permit may give rise to possessory interest for the Permittee. Permittee shall pay all taxes and assessments, including but not limited to possessory interest taxes, which may be levied as a result of the Permittee's occupancy of the permitted areas. X. MAINTENANCE OF THE PREMISES - The City of Chula Vista, through the Director of Library and Recreation, has final approval for any major, extraordinary structural maintenance and repair, including exterior painting. The City reserves the right to do any/or approve any and all work of any nature for the preservation, maintenance and operation of the area. The City shall maintain and repair facility at its expense. The Permittee must maintain their portion of the facility in reasonable condition and notify staff of any repairs that need to be addressed by the City. XI. HOURS OF OPERATION - Permittee shall obtain prior written approval of its hours of operation from the Director of Library and Recreation. Any changes or modifications in said hours of operation shall also be approved in advance by Center Director and Director of Library and Recreation. XII. LAWS. ORDINANCES. RULES AND REGULATIONS - Permittee shall conduct its business in accordance with all laws, ordinances, rules and regulations applicable to such business as set forth by the City of Chula Vista, County of San Diego, State of California, or the Federal Government, including but not limited to those items listed on Exhibit "B", attached hereto, and made a part hereof. XIII. INDEMNIFICATION AND INSURANCE - Throughout the term of this Permit, at Permittee's sole cost and expense, Permittee shall keep or cause to be kept in full force and effect, for the mutual benefit of City and Permittee, comprehensive, broad form, general commercial liability insurance against claims and liability for personal injury, death, or property damage arising from Permittee's operations and the use, occupancy, or misuse of the facility or adjoining areas and ways providing protection of at least One Million Dollars ($1,000,000) combined single limit. All 9-1 pGB: Sl>CialSeNice Aoemies, Issllemlt99] 3 insurance required by this provIsion of this Permit shall be carried only in responsible insurance companies licensed to do business in the State of California and rated A-5 or better in Best's Key Ratings, or the substantial equivalent satisfactory to the Risk Manager. Permittee agrees that City, its elected officials, officers and employees shall be named additional insured on all such policies. All such policies shall contain language, to the extent obtainable, to the effect that (1) the insurer waives the right of subrogation against City and City's agents and representatives, (2) the policies are primary and noncontributing with any insurance that may be carried by City, (3) they cannot be canceled or materially changed except after thirty (30) days notice by the insurer to the City. Permittee shall furnish City with certificates and policy endorsements evidencing the coverage outlined in this section. Permittee agrees that it will indemnify and hold City and its elected officials, officers, agents, and employees free and harmless from all claims for damage to persons or property by reason of Permittee's negligence or intentional acts or those of Permittee's officers, employees, agents or invites in connection with Permittee's use and occupancy of the Facility and its operations, to the maximum extent allowed by law. XIV. PERMITS/CHARGES - Permittee shall, at its sole cost and expense, obtain any and all other governmental permits, approvals or concurrences required for the use of the Facility for the purposes set forth herein. Further, Permittee agrees that it shall promptly pay all charges required from private persons or corporations for which it is responsible, including, but not limited to food, beverage and services and supply purchases, relating to use of the Facility, and to protect and hold City harmless from any failure to make any such payment. xv. TRANSFER OR ASSIGNMENT - Permittee shall not assign or transfer this permit, or any interest therein, nor shall this permit be subject to transfer or assignment by any court in any proceeding in which the Permittee is involved without the Director of Library and Recreation's prior written approval of such assignment or transfer. XVI. ADA REQUIREMENTS -Permittee will abide by all applicable Federal, State and local laws regarding compliance with Americans with Disabilities Act (ADA). XVII. NON DISCRIMINATION - Permittee will abide by all applicable Federal, State and local laws regarding compliance of non discrimination against anyone on the basis of race, religion, color, sex, national origin, mental or physical disability. 'J-J (JGB: Social Service Agencies -1s8~m1il99J ATTACHMENTS: Exhibit "A" - Facility Map Exhibit "8" - Facility Regulations Exhibit "C" - Furniture 4 IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS PERMIT AS OF THE DATE SET FORTH OPPOSITE THEIR RES CTIVE SIGNATURES. j.g.99 Dated /~ /7-91 Dated Approved as to form: Ellen Gross Deputy City At 0 {JOB: Sodlll SeMce Agendes .IsSlpermit991 Permitte ~ David Palmer, ir ctor Library and Recreation Department City of Chula Vista 9-t A:J L Ssftc. 5 EXHIBIT A n~'_' -=,. ..~. . ....='h. Permittee shall occupy room number 21 Norman Park Senior Center. Space is on the second floor of :372 SQ,. ft. :~'l:o.- , . '\., : :, .J.: I ~I ~! CD 0, " ; , ; i ,1' I , I, " ,;. ~ " "~'r' :'~:,' . ''',' ...~.. -. :. .?J(~:(.. . ',-" ":0 ' . i I , f I i. f. :0 ,0 0' , .' .. '~OOO ~ ,g" '<0 8 , 'CiS\'.'" Ii ~ .... , ,0 ,0 ~O -n I .,~ , 0 "0 . ~~ ~ ':,'- (J 0 ,-;0 L--..J ...! _'" I (I )' '.,.... ...__e_.... ._ _..-.., J..._ t -=.~ ::._----- ,- " -;. . ~ : '~~- '.' ":f5, I ~ . :;~1:: (=~4,ri.~.-_;],'._,___~."_:_~~~G~\ 7~ ~. L ~ ';~,~";--..-:i-'\ ~ . _ . ,---1 .... -.. . :~- CJ ? I -- ., ~. . - . , , ' , \ I ! 6 EXHIBIT B FACILITY REGULATIONS 1. The Director of Library and Recreation or his/her designated representative will have access to any portion of the building or grounds adjacent thereto, 24 hours a day. 2. The public restrooms in the building will be available for public use whenever the facility is open to the public. 3. Permittee must obtained permission from the Human Services Coordinator or Center Director to use the facility any time other than regularly assigned schedule. Permittee is required to give written notice of any change in hours. Permittee shall give written notice of all closure dates to the Human Services Coordinator or Center Director. 4. Permittee will maintain the portion of the facility used by the Permittee in a neat and orderly condition. 5. Permittee will be responsible for upkeep and safety of their own equipment and records. 6. Permittee will provide all supplies for their needs in conjunction with use of the facility. 7. The Human Services Coordinator must approve any furniture/furnishings brought to the premises and add to Exhibit C/Furnishing List. All furniture/furnishings must be tasteful and compliment the existing furniture/furnishings. 8. Permittee or its officer, agents, employees or members will not knowingly interrupt other activities at the facility. 9. Permittee will be responsible for the behavior of its personnel and clientele during its hours of use at the facility, so that its activities are conducted in an orderly and businesslike manner. 10. The consumption of alcoholic beverages is prohibited on the premises. 11. Smoking is prohibited anywhere inside the facility. 12. Each agency shall participate in Social Services Advisory Group meetings. 13. Each agency shall submit a monthly statistical report. 14. Each agency shall complete a yearly evaluation. 15. No agency shall use Norman Park Senior Center on their letterhead without written permission from the City. 16. All social service agencies shall be non-profit agencies. 1-6 jJGB: Social SeNice Agencles -1&&'pem'iil99J 7 EXHIBIT C FURNISHING REQUIREMENTS AND SPECIFICATIONS ROOM 21 LUTHERAN SOCIAL SERVICES OF SOUTHERN CALIFORNIA CARING NEIGHBOR AND SHARED HOUSING QTY. DESCRIPTION PRICE TOTAL 2 Executive Desk $839 $1678 3 Task Chair $210 $630 3 Guest/Side Chair $160 $960 2 2-DR Lateral File $255 $510 1 4-DR Vertical File $430 $430 1 Kitchen Table Single $130 $130 Pedestal 1 Acoustical Partitions & $4800 Components: 29 lineal ft. of 80" high panels, 13.5 lineal ft. of 63'" high panels. TOTAL $9138 9-c; ATTACHMENT B NORMAN PARK SENIOR CENTER PERMIT This permit is granted as of the latest date appearing opposite the signatures of the respective parties hereto, by and between Meals-On-Wheels Greater San Diego, Inc. a California nonprofit corporation, (hereinafter referred to as "Permittee") by the Director of Library and Recreation of the City of Chula Vista, a municipal corporation (hereinafter referred to as "City"), concerning use of certain portions of Norman Park Senior Center, located at 270 "F" Street, Chula Vista, CA 91910-2815. The "Permittee", hereby agrees to the following terms and conditions upon which permission to use the facility is based: I. AREA OF USE - The Permittee shall have permission to use those portions of the Norman Park Senior Center designated on Exhibit "A", attached hereto and made a part hereof by this reference. II. PERMITTED USES- The Permittee shall be required prior to the execution of this permit to submit, in writing, for the approval of the Library and Recreation Department, an outline of the services to be provided to the public by Permittee in connection with the use of the premises described herein. The premises may not be put to any use which is not specifically authorized in writing by the Director of Library and Recreation. Permittee shall at all times be required to maintain a level of service to the public acceptable to the Library and Recreation Department. III. USE OF MEETING ROOMS - Permittee may use meeting rooms at the Senior Center for activities in connection with the use of permitted space at no additional charge on a reservation I as available basis. IV. CONSIDERATION - Permittee shall on or before the 15th day of the beginning of the fiscal year**, in advance, pay to the Library and Recreation Department of the City of Chula Vista the sum of $1313.28 as its prorata share of utility costs. (Sum based on square footage is $109.44 per month.) City shall refund any unused portion if permittee vacates during any following month and City is able to obtain attendant thereto. (**Fiscal year is based upon the City of Chula Vista's fiscal year, July to June). V. TELEPHONE CHARGES - Permittee agrees to maintain its own telephone services, including all costs attendant thereto. [JGB: Social Service Agen:ies - mow'pennit99] 9//0 2 VI. TERM - This permit may be terminated by either party upon thirty (30) days written notice. The term of this permit shall be for a period of thirty-six (36) months commencing on July 1, 1999, and terminating June 30, 2002. VII. SERVICE AREA - Permittee agrees that at least sixty-six (66) percent of the clients served will be Chula Vista residents. VIII. NOTICE - Any notice required or permitted pursuant to this Permit, shall be given by personal service or by deposit of the same in the U. S. Mail, postage prepaid and address to the parties as follows: PERMITTEE: Meals-On-Wheels Greater San Diego, Inc. South Bay Division P.O. Box 1933 Chula Vista, CA 91912 CITY: Director of Library and Recreation City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 IX. TAXES - The terms of this permit may give rise to possessory interest for the Permittee. Permittee shall pay all taxes and assessments, including but not limited to possessory interest taxes, which may be levied as a result of the Permittee's occupancy of the permitted areas. X. MAINTENANCE OF THE PREMISES - The City of Chula Vista, through the Director of Library and Recreation, has final approval for any major, extraordinary structural maintenance and repair, including exterior painting. The City reserves the right to do any/or approve any and all work of any nature for the preservation, maintenance and operation of the area. The City shall maintain and repair facility at its expense. The Permittee must maintain their portion of the facility in reasonable condition and notify staff of any repairs that need to be addressed by the City. XI. HOURS OF OPERATION - Permittee shall obtain prior written approval of its hours of operation from the Director of Library and Recreation. Any changes or modifications in said hours of operation shall also be approved in advance by Human Services Coordinator and Director of Library and Recreation. XII. LAWS. ORDINANCES. RULES AND REGULATIONS - Permittee shall conduct its business in accordance with all laws, ordinances, rules and regulations applicable to such business as set forth by the City of Chula Vista, County of San Diego, State (JG8: Social Service Agerr:ies -lTlI:JV/ot)ermlt99J 9-// 3 of California, or the Federal Government, including but not limited to those items listed on Exhibit "B", attached hereto, and made a part hereof. XIII. INDEMNIFICATION AND INSURANCE - Throughout the term of this Permit, at Permittee's sole cost and expense, Permittee shall keep or cause to be kept in full force and effect, for the mutual benefit of City and Permittee, comprehensive, broad form, general commercial liability insurance against claims and liability for personal injury, death, or property damage arising from Permittee's operations and the use, occupancy, or misuse of the facility or adjoining areas and ways providing protection of at least One Million Dollars ($1,000,000) combined single limit. All insurance required by this provision of this Permit shall be carried only in responsible insurance companies licensed to do business in the State of California and rated A-5 or better in Best's Key Ratings, or the substantial equivalent satisfactory to the Risk Manager. Permittee agrees that City, its elected officials, officers and employees shall be named additional insured on all such policies. All such policies shall contain language, to the extent obtainable, to the effect that (1) the insurer waives the right of subrogation against City and City's agents and representatives, (2) the policies are primary and noncontributing with any insurance that may be carried by City, (3) they cannot be canceled or materially changed except after thirty (30) days notice by the insurer to the City. Permittee shall furnish City with certificates and policy endorsements evidencing the coverage outlined in this section. Permittee agrees that it will indemnify and hold City and its elected officials, officers, agents, and employees free and harmless from all claims for damage to persons or property by reason of Permittee's negligence or intentional acts or those of Permittee's officers, employees, agents or invites in connection with Permittee's use and occupancy of the Facility and its operations, to the maximum extent allowed by law. XIV. PERMITS/CHARGES - Permittee shall, at its sole cost and expense, obtain any and all other governmental permits, approvals or concurrences required for the use of the Facility for the purposes set forth herein. Further, Permittee agrees that it shall promptly pay all charges required from private persons or corporations for which it is responsible, including, but not limited to food, beverage and services and supply purchases, relating to use of the Facility, and to protect and hold City harmless from any failure to make any such payment. XV. TRANSFER OR ASSIGNMENT - Permittee shall not assign or transfer this permit, or any interest therein, nor shall this permit be subject to transfer or assignment by any court in any proceeding in which the Permittee is involved without the Director of Library and Recreation's prior written approval of such assignment or transfer. (JGB: Soclal Service Ager<<:ies - ~mil991 '1--/2 4 XVI. ADA REQUIREMENTS - Permittee will abide by all applicable Federal, State and local laws regarding compliance with Americans with Disabilities Act (ADA). XVII. NON DISCRIMINATION - Permittee will abide by all applicable Federal, State and local laws regarding compliance of non discrimination against anyone on the basis of race, religion, color, sex, national origin, mental or physical disability. ATTACHMENTS: Exhibit "A" - Facility Map Exhibit "8" - Facility Regulations Exhibit "C" - Furniture IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS PERMIT AS OF THE DATE SET FORTH OPPOSITE THEIR RESPECTIVE SIGNATURES. 6/} el/11 Dated I I 7/11/11 Dated ' /Jr ~ /?~ Permittee ~~ Library and Recreation City of Chula Vista Approved as to form: Ellen Gross Deputy City AU l..IGB: Sode1 SeMce Agencies. ~,99] 9-)) I '. ji a ~ II . '0 12, \ r""!)"1. ano ~D' I ' i .,'- ~~ ' I 1-:' - 'e I 0 '",) 0 :0 , I .-- 1 I . " . ~,.____--;.... ----. I -, __:':"_" g i . ~. - ~ 'c--"'\ I C \!." \: (--- I . __~: .-' ~, ~. '1 \\ __..:::=!. ,~1" . (~, i-J 9i / iY" _\SL,~.=~,~"d .,.. .:.~.....-._.,,~-\ \d.-:...:.::::-::;::.:.:.::;.:!':'::::~"':'=--''::::;!:::::''---'' . EXHIBIT A Perm; ttee shall occupy room number ___ 1/22 Norman Park Senior Center. Space is 576 [g]' .' 1 .1 I ~~"" _.- .--_._._.~ :::;::--- -.. ~-~ . . " ,'.'. . . i ~ \. . '\\: . .j: ! ~ ~ ~, " ,. . .'" : ~:- ,~ , .: \~. 5 '4' on the second floor of sq,' ft. :0 . 0" o. o ; ~ F I I I I I 8. 6 EXHIBIT B FACILITY REGULATIONS 1. The Director of Library and Recreation or his/her designated representative will have access to any portion of the building or grounds adjacent thereto, 24 hours a day. 2. The public restrooms in the building will be available for public use whenever the facility is open to the public. 3. Permittee must obtain permission from the Human Services Coordinator or Center Director to use the facility any time other than regularly assigned schedule. Permittee is required to give written notice of any change in hours. Permittee shall give written notice of all closure dates to the Human Services Coordinator or Center Director. 4. Permittee will maintain the portion of the facility used by the Permittee in a neat and orderly condition. 5. Permittee will be responsible for upkeep and safety of their own equipment and records. 6. Permittee will provide all supplies for their needs in conjunction with use of the facility. 7. The Human Services Coordinator must approve any furniture/furnishings brought to the premises and add to Exhibit C/Furnishing List. All furniture/furnishings must be tasteful and compliment the existing furniture/furnishings. 8. Permittee or its officer, agents, employees or members will not knowingly interrupt other activities at the facility. 9. Permittee will be responsible for the behavior of its personnel and clientele during its hours of use at the facility, so that its activities are conducted in an orderly and businesslike manner. 10. The consumption of alcoholic beverages is prohibited on the premises. 11. Smoking is prohibited anywhere inside the facility. 12. Each agency shall participate in Social Services Advisory Group meetings. 13. Each agency shall submit a monthly statistical report. 14. Each agency shall complete a yearly evaluation. 15. No agency shall use Norman Park Senior Center on their letterhead without written permission from the City. 16. All social service agencies shall be non-profit agencies. [JGB: Social Service Agencies - ~rmlt.99J 9-// 7 EXHIBIT C FURNISHING REQUIREMENTS AND SPECIFICATIONS ROOM 22 MEALS-ON-WHEELS GREATER SAN DIEGO, INC. QTY. DESCRIPTION PRICE TOTAL 2 Executive Desk $839 $1678 2 Secretary Desk W/Return $1140 $2280 4 Task Chair $210 $840 3 Guest/Side Chair $160 $480 1 2-DR Lateral File $255 $255 3 4-DR Vertical File $150 $450 1 Typewriter Stand $150 $150 1 Computer Table $625 $625 1 lot Acoustical Partitions & $9,500 Components consisting: of 56 lineal ft. of 80" high panels, 12 lineal ft. of 63" high panels, and 13 lineal ft. of work surface, 4 lineal ft. of corner work surface. TOTAL $15,502.00 9-/; ATTACHMENT C NORMAN PARK SENIOR CENTER PERMIT This permit is granted as of the latest date appearing opposite the signatures of the respective parties hereto, by and between SENIOR CITIZENS LEGAL SERVICES - PRO*TECH and HICAP a California nonprofit corporation, (hereinafter referred to as "Permittee") by the Director of Library and Recreation of the City of Chula Vista, a municipal corporation (hereinafter referred to as "City"), concerning use of certain portions of Norman Park Senior Center, located at 270 "F" Street, Chula Vista, CA 91910-2815. The "Permittee", hereby agrees to the following terms and conditions upon which permission to use the facility is based: I. AREA OF USE - The Permittee shall have permission to use those portions of the Norman Park Senior Center designated on Exhibit "A", attached hereto and made a part hereof by this reference. II. PERMITTED USES - The Permittee shall be required prior to the execution of this permit to submit, in writing, for the approval of the Library and Recreation Department, an outline of the services to be provided to the public by Permittee in connection with the use of the premises described herein. The premises may not be put to any use which is not specifically authorized in writing by the Director of Library and Recreation. Permittee shall at all times be required to maintain a level of service to the public acceptable to the Library and Recreation Department. III. USE OF MEETING ROOMS - Permittee may use meeting rooms at the Senior Center for activities in connection with the use of permitted space at no additional charge on a reservation I as available basis. IV. CONSIDERATION - Permittee shall on or before the 15th day of the beginning of the fiscal year**, in advance, pay to the Library and Recreation Department of the City of Chula Vista the sum of $861.84 as its prorata share of utility costs. (Sum based on square footage is $71.82 per month.) City shall refund any unused portion if permittee vacates during any following month and City is able to obtain attendant thereto. (**Fiscal year is based upon the City of Chula Vista's fiscal year, July to June). V. TELEPHONE CHARGES - Permittee agrees to maintain its own telephone services, including all costs attendant thereto. VI. TERM - This permit may be terminated by either party upon thirty (30) days written notice. The term of this permit shall be for a period of thirty-six (36) months commencing on July 1, 1999, and terminating June 30, 2002. 9-/7 (JGB: Social Service Agencle1l - 8cl8'p:nnit99J 2 VII. SERVICE AREA - Permittee agrees that at least sixty-six (66) percent of the clients served will be Chula Vista residents. VIII. NOTICE - Any notice required or permitted pursuant to this Permit, shall be given by personal service or by deposit of the same in the U. S. Mail, postage prepaid and address to the parties as follows: PERMITTEE: PRO*TECH 8775 Aero Drive, Suite 238 San Diego, CA 92123-1756 CITY: Director of Library and Recreation City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 IX. TAXES - The terms of this permit may give rise to possessory interest for the Permittee. Permittee shall pay all taxes and assessments, including but not limited to possessory interest taxes, which may be levied as a result of the Permittee's occupancy of the permitted areas. X. MAINTENANCE OF THE PREMISES - The City of Chula Vista, through the Director of Library and Recreation, has final approval for any major, extraordinary structural maintenance and repair, including exterior painting. The City reserves the right to do any/or approve any and all work of any nature for the preservation, maintenance and operation of the area. The City shall maintain and repair facility at its expense. The Permittee must maintain their portion of the facility in reasonable condition and notify staff of any repairs that need to be addressed by the City. XI. HOURS OF OPERATION - Permittee shall obtain prior written approval of its hours of operation from the Director of Library and Recreation. Any changes or modifications in said hours of operation shall also be approved in advance by Human Services Coordinator and Director of Library and Recreation. XII. LAWS. ORDINANCES. RULES AND REGULATIONS - Permittee shall conduct its business in accordance with all laws, ordinances, rules and regulations applicable to such business as set forth by the City of Chula Vista, County of San Diego, State of California, or the Federal Government, including but not limited to those items listed on Exhibit "B", attached hereto, and made a part hereof. XIII. INDEMNIFICATION AND INSURANCE - Throughout the term of this Permit, at Permittee's sole cost and expense, Permittee shall keep or cause to be kept in full force and effect, for the mutual benefit of City and Permittee, comprehensive, broad form, general commercial liability insurance against claims and liability for personal injury, death, or property damage arising from Permittee's operations and the use, 9//~ {JGB: Social SeMte Agencies -l5CI&'gemit.991 3 occupancy, or misuse of the facility or adjoining areas and ways providing protection of at least One Million Dollars ($1,000,000) combined single limit. All insurance required by this provision of this Permit shall be carried only in responsible insurance companies licensed to do business in the State of California and rated A-5 or better in Best's Key Ratings, or the substantial equivalent satisfactory to the Risk Manager. Permittee agrees that City, its elected officials, officers and employees shall be named additional insured on all such policies. All such policies shall contain language, to the extent obtainable, to the effect that (1) the insurer waives the right of subrogation against City and City's agents and representatives, (2) the policies are primary and noncontributing with any insurance that may be carried by City, (3) they cannot be canceled or materially changed except after thirty (30) days notice by the insurer to the City. Permittee shall furnish City with certificates and policy endorsements evidencing the coverage outlined in this section. Permittee agrees that it will indemnify and hold City and its elected officials, officers, agents, and employees free and harmless from all claims for damage to persons or property by reason of Permittee's negligence or intentional acts or those of Permittee's officers, employees, agents or invites in connection with Permittee's use and occupancy of the Facility and its operations, to the maximum extent allowed by law. XIV. PERMITS/CHARGES - Permittee shall, at its sole cost and expense, obtain any and all other governmental permits, approvals or concurrences required for the use of the Facility for the purposes set forth herein. Further, Permittee agrees that it shall promptly pay all charges required from private persons or corporations for which it is responsible, including, but not limited to food, beverage and services and supply purchases, relating to use of the Facility, and to protect and hold City harmless from any failure to make any such payment. XV. TRANSFER OR ASSIGNMENT - Permittee shall not assign or transfer this permit, or any interest therein, nor shall this permit be subject to transfer or assignment by any court in any proceeding in which the Permittee is involved without the Director of Library and Recreation's prior written approval of such assignment or transfer. XVI. ADA REQUIREMENTS - Permittee will abide by all applicable Federal, State and local laws regarding compliance with Americans with Disabilities Act (ADA). XVII. NON DISCRIMINATION - Permittee will abide by all applicable Federal, State and local laws regarding compliance of non discrimination against anyone on the basis of race, religion, color, sex, national origin, mental or physical disability. (JGB: Soelal SeNlce AQerdetl -lJds~rmit99J ]>-/j 4 ATTACHMENTS: Exhibit "A" - Facility Map Exhibit "B" - Facility Regulations Exhibit "C" - Furniture IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS PERMIT AS OF THE DATE SET FORTH OPPOSITE THEIR RESPECTIVE SIGNATURES. 1- ~ - q q 8J~ ,J)Jii7-IL ,t," Dated r 'Permittee ) I- .)" ;e~ 7 -/'9'-'7'7 ~ Dated David Palme, Irector Library and Recreation City of Chula Vista Approved as to form: Ellen Gross Deputy City Atto (..1GB: Sods SoMe8 Agencies. sds~I.99J 9./ 2?J 5 ,0' , ""....."'__,..~__~ ._ ,,-_,.. , '<_ _e .'..U....... a.....-...,c ~.~..,.,._"-."._'''' E~.~~.~.IT A 25 ~~t~~~n the second floor of Permit~ee shall occupy room number Norman .Park ~en.; or . Center. Space; s 378 \r- '2,,<6, '"3 sq.. ft. ! I, i . --....... ... ... ~I . I 'I .' . I en ... . .-... .-, '" , I I i. ',; I , .: ", ~ .... ......-.. '. . -. :~!1/' . ':$~. :0 .CJ o ~ I .1 a I '-- \ ~ . '.. '\' '. .j) \ . ~f: ..OOC) 8. . \ .; " i i . ! ~ . . on, i! . ; .-1J\ . . , a . ~6 ';:." ". 1 .' oDofiD ,'\~ "'"1:':: . . . '.0 . O~O ....~!~ .:: ;. ~~'::'~-'I' \1--"] ,......-, . e :.' i ;"."{.. .... ~" F . . \ \;;]\ -r . . ,0 d" (_ d . \ ~". ..--'--' ~ .~. . .~\ -.-.-..:;;:::;:--'- . .' ;""1 i. . . . . . \ -.-::::::;::' .-- ; !. ....;.\..:~~.~~ ~'f::i .-' ..----.-~ <7-;2, / .: ~~ .... !. i ," , . . ' 6 EXHIBIT B FACILITY REGULATIONS 1. The Director of Library and Recreation or his/her designated representative will have access to any portion of the building or grounds adjacent thereto, 24 hours a day. 2. The public restrooms in the building will be available for public use whenever the facility is open to the public. 3. Permittee must obtained permission from the Human Services Coordinator or Center Director to use the facility any time other than regularly assigned schedule. Permittee is required to give written notice of any change in hours. Permittee shall give written notice of all closure dates to the Human Services Coordinator or Center Director. 4. Permittee will maintain the portion of the facility used by the Permittee in a neat and orderly condition. 5. Permittee will be responsible for upkeep and safety of their own equipment and records. 6. Permittee will provide all supplies for their needs in conjunction with use of the facility. 7. The Human Services Coordinator must approve any furniture/furnishings brought to the premises and add to Exhibit C/Furnishing List. All furniture/furnishings must be tasteful and compliment the existing furniture/furnishings. 8. Permittee or its officer, agents, employees or members will not knowingly interrupt other activities at the facility. 9. Permittee will be responsible for the behavior of its personnel and clientele during its hours of use at the facility, so that its activities are conducted in an orderly and businesslike manner. 10. The consumption of alcoholic beverages is prohibited on the premises. 11. Smoking is prohibited anywhere inside the facility. 12. Each agency shall participate in Social Services Advisory Group meetings. 13. Each agency shall submit a monthly statistical report. 14. Each agency shall complete a yearly evaluation. 15. No agency shall use Norman Park Senior Center on their letterhead without written permission from the City. 16. All social service agencies shall be non-profit agencies. 9/~~ [.1GB: Social SeMce Agencies. sdsl.pentlil.99) 7 EXHIBIT C FURNISHING REQUIREMENTS AND SPECIFICATIONS ROOM 25 SENIOR CITIZENS LEGAL SERVICES - PRO*TECH QTY. DESCRIPTION PRICE TOTAL 1 Executive Desk $839 $839 1 Desk, 30 X 60 $792 $792 1 Secretary Desk with Return $1140 $1140 1 Printer Stand $150 $150 4 Task Chair $210 $840 2 GuesUSide Chair $160 $320 2 4-DR Lateral File $557 $1114 3 4-DR Vertical File $150 $450 1 Storage Cabinet $160 $160 1 Acoustical Partitions & $9500 Components: 63 lineal ft. of 80" high panels, 13 lineal ft. of work space, 4 lineal ft. of corner work surface. Total $15305 [JGB SOCl81 SalVlcs AgenCies. scls~ermlt 99] 9--02J ATTACHMENT D NORMAN PARK SENIOR CENTER PERMIT This permit is granted as of the latest date appearing opposite the signatures of the respective parties hereto, by and between SAN> OIEGO COUNTY - AGING and .OEPENDENCE SERVICES - ADULT PROTECTIVE SERVICES, a San Diego County Agency, (hereinafter referred to as "Permittee") by the Director of library and Recreation of the City of Chula Vista, a municipal corporation (hereinafter referred to as "City"), concerning use of certain portions of Norman Park Senior Center, located at 270 "F" Street, Chula Vista, CA 91910-2815. The "Permittee", hereby agrees to the following terms and conditions upon which permission to use the facility is based: I. AREA OF USE - The Permittee shall have permission to use those portions of the Norman Park Senior Center designated on Exhibit "A", attached hereto and made a part hereof by this reference. II. PERMITTED USES - The Permittee shall be required prior to the execution of this permit to submit, in writing, for the approval of the library and Recreation Department, an outline of the services to be provided to the public by Permittee in connection with the use of the premises described herein. The premises may not be put to any use which is not specifically authorized in writing by the Director of library and Recreation. Permittee shall at all times be required to maintain a level of service to the public acceptable to the library and Recreation Department. III. USE OF MEETING ROOMS - Permittee may use meeting rooms at the Senior Center for activities in connection with the use of permitted space at no additional charge on a reservation I as available basis. IV. CONSIDERATION - Permittee shall on or before the 15th day of the beginning of the fiscal year**, in advance, pay to the library and Recreation Department of the City of Chula Vista the sum of $201.36 as its prorata share of utility costs. (Sum based on square footage is $16.78 per month.) City shall refund any unused portion if permittee vacates during the any following month and City is able to obtain attendant thereto. (**Fiscal year is based upon the City of Chula Vista's fiscal year, July to June). V. TELEPHONE CHARGES - Permittee agrees to maintain its own telephone services, including all costs attendant thereto. [JGB: Social Service Agencies - aislpermit.99] 9-.21 2 VI. TERM - This permit may be terminated by either party upon thirty (30) days written notice. The term of this permit shall be for a period of thirty-six (36) months . commencing on July 1, 1999 and terminating-June 30, 2002. VII. NOTICE - Any notice required or permitted pursuant to this Permit, shall be given by personal service or by deposit of the same in the U. S. Mail, postage prepaid and address to the parties as follows: PERMITTEE: San Diego County - Aging and Independence Services 9335 Hazard Way, Suite 100 San Diego, CA 92123 CITY: Director of Library and Recreation City of Chula Vista 276 Fourth Ave. Chula Vista, CA 91910 VIII. TAXES - The terms of this permit may give rise to possessory interest for the Permittee. Permittee shall pay all taxes and assessments, including but not limited to possessory interest taxes, which may be levied as a result of the Permittee's occupancy of the permitted areas. IX. MAINTENANCE OF THE PREMISES - The City of Chula Vista, through the Director of Library and Recreation, has final approval for any major, extraordinary structural maintenance and repair, including exterior painting. The City reserves the right to do any/or approve any and all work of any nature for the preservation, maintenance and operation of the area. The City shall maintain and repair facility at its expense. The Permittee must maintain their portion of the facility in reasonable condition and notify staff of any repairs that need to be addressed by the City. X. HOURS OF OPERATION - Permittee shall obtain prior written approval of its hours of operation from the Director of Library and Recreation. Any changes or modifications in said hours of operation shall also be approved in advance by Senior Recreation Supervisor and Director of Library and Recreation. XI. LAWS. ORDINANCES. RULES AND REGULATIONS - Permittee shall conduct its business in accordance with all laws, ordinances, rules and regulations applicable to such business as set forth by the City of Chula Vista, County of San Diego, State of California, or the Federal Government, including but not limited to those items listed on Exhibit "B", attached hereto, and made a part hereof. [JGB: Social Service Agencies - aislpermit99] f-c25 3 XII. INDEMNIFICATION - Throughout the term of this Permit, Permittee agrees to defend, indemnify, protect and hold harmless the City, its elected officials, officers, agents and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorney's fees) arising out of the conduct of Permittee, or any Permittee's agents, employees, subcontractors, or others in connection with Permittee's use, occupancy of, or operations at the Norman Park Senior Center, to the maximum extent allowed by law, except only for those claims arising from the sole negligence or sole willful conduct of the City, its elected officials, officers, agents and employees. Permittee's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City, its elected officials, officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not further, Permittee at its own expense shall, upon written request by the City defend against any suit or action brought against the City, its elected officials, officers, agents and employees. Permittee's indemnification of the City shall not be limited by any prior or subsequent declaration by the Permittee. XIII. PERMITS/CHARGES - Permittee shall, at its sole cost and expense, obtain any and all other governmental permits, approvals or concurrences required for the use of the Facility for the purposes set forth herein. Further, Permittee agrees that it shall promptly pay all charges required from private persons or corporations for which it is responsible, including, but not limited to food, beverage and services and supply purchases, relating to use of the Facility, and to protect and hold City harmless from any failure to make any such payment. XIV. TRANSFER OR ASSIGNMENT - Permittee shall not assign or transfer this permit, or any interest therein, nor shall this permit be subject to transfer or assignment by any court in any proceeding in which the Permittee is involved without the Director of Library and Recreation's prior written approval of such assignment or transfer. XVI. ADA REQUIREMENTS - Permittee will abide by all applicable Federal, State and local laws regarding compliance with Americans with Disabilities Act (ADA). XVII. NON DISCRIMINATION - Permittee will abide by all applicable Federal, State and local laws regarding compliance of non discrimination against anyone on the basis of race, religion, color, sex, national origin, mental or physical disability. [JGB: Social Service Agencies - aislpenn it. 99] 9-:2~ 4 ATTACHMENTS: Exhibit "A" - Facility Map Exhibit "B" - Facility Regulations Exhibit "C" - Furniture IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS PERMIT AS OF THE DATE SET FORTH OPPOSITE THEIR RESPECTIVE SIGNATURES. :/3019'1 Date / 7 //7/11 Dated I Approved as to form: q~Otl-J/;~ Ellen Gross Deputy City Att ney [JGB: Social Service Agencies. aaalpermil99] aJaJ5~ :~~~- Library and Recreation City of Chula Vista 9/:2./ EXHIBIT A " 5 Permittee shall occupy room number Work Station A on the second floor of Norman Park Senior Center. Space is 88.3 ~I . I .. : a "006 "-- \. .. ,\"" ~ . .J} ~ ,: , ~. r""1j 1- .__- I.... ~ ~. \ .:. " '--\i-; ~ r · ,-.- ___,>:;~t~};~~, .". -:~-- .... ,. : ..... e sq.. ft. ~ Ii E:L I il (J .. " II . '10 n hI ii . C) DiD ., 1-:' ~ '",) 0 ;0 I I "'j ---.. I ( I "., ~ -J . .:.... ::.~:;.:::::;.:.:.::.:j:_- 6 EXHIBIT B FACILITY REGULATIONS 1. The Director of Library and Recreation or his/her designated representative will have access to any portion of the building or grounds adjacent thereto, 24 hours a day. 2. The public restrooms in the building will be available for public use whenever the facility is open to the public. 3. Permittee must obtain permission from the Human Services Coordinator or Center Director to use the facility any time other than regularly assigned schedule. Permittee is required to give written notice of any change in hours. Permittee shall give written notice of all closure dates to the Human Services Coordinator or Center Director. A_Permittee wHl maintainnthe portion-of thefaciHtyused-by the-Permittee in a neat and orderly condition. 5. Permittee will be responsible for upkeep and safety of their own equipment and records. 6. Permittee will provide all supplies for their needs in conjunction with use of the facility. 7. The Human Services Coordinator must approve any furniture/furnishings brought to the premises and add to Exhibit C/Furnishing List. All furniture/furnishings must be tasteful and compliment the existing furniture/furnishings. 8. Permittee or its officer, agents, employees or members will not knowingly interrupt other activities at the facility. 9. Permittee will be responsible for the behavior of its personnel and clientele during its hours of use at the facility, so that its activities are conducted in an orderly and businesslike manner. 10. The consumption of alcoholic beverages is prohibited on the premises. 11. Smoking is prohibited anywhere inside the facility. 12. Each agency shall participate in Social Services Advisory Group meetings. 13. Each agency shall submit a monthly statistical report. 14. Each agency shall complete a yearly evaluation. 15. No agency shall use Norman Park Senior Center on their letterhead without written permission from the City. 16. All social service agencies shall be non-profit agencies. 9/29 7 EXHIBIT C FURNISHING REQUIREMENTS AND SPECIFICATIONS WORK STATION A SAN DIEGO COUNTY AREA AGENCY on AGING QTY. DESCRIPTION PRICE TOTAL 1 Secretary Desk with Return $1140 $1140 1 Task Chair $210 $210 1 Guest/Side Chair $160 $160 1 2-DR Lateral File $255 $255 1 Acoustical Partitions & $3800 Components: 15 lineal ft. of 63" high panels. TOTAL $5565 7JO CITY COUNCIL AGENDA STATEMENT Item: / tJ Meeting Date: 09/14/99 ITEM TITLE: Resolution Approving the Memorandum of Understanding between the City of Chula Vista and the Chula Vista Elementary School District regarding joint operation of the DASH (Dynamic After School Hours) after school recreational program, and the STRETCH (Safe Time for Recreation, Enrichment, and Tutoring for CHildren) extended school day educational program, and authorizing the Director of Library and Recreation to execute the MOU; and amending the FY 1999/2000 budget to approve an additional 1.31 FTE School Site Coordinators (unclassified part-time partially benefited) and 2.30 FTE Youth Leaders (hourly part-time non-benefited), and appropriating an additional $96,000 contribution from the Chula Vista Elementary School District for the STRETCH Program SUBMITTED BY: Director of Library and Recreation~ 4 REVIEWED BY: City Manager 1, pfl/ (4/5ths Vote: Yes L No _) In FY 1998/1999 the City entered into a unique partnership with the Chula Vista Elementary School District, the purpose of which was to examine the City's existing after school program offerings and, with District input, to revamp them based on individual school needs and priorities. The Memorandum of Understanding (MOU) which was entered into last year between the City and the District created the new STRETCH Program (Safe Time for Recreation, Enrichment and Tutoring for CHildren). STRETCH, with its emphasis on literacy, homework assistance and arts enrichment, was offered as a pilot program, from February through June of last fiscal year, at six elementary school sites. The program received an overwhelmingly positive response from the District, members of the School Board, principals and school personnel, as well as from the recipients themselves - children and their parents. During the FY 1999/2000 budget process, Council approved the Department and District's recommendation to shut down the existing After School Playground Program on June 30, 1999, which, at that time, was offered at 26 elementary schools. In its place, a new high-quality, well-structured, sports and recreation program, entitled DASH (Dynamic After School Hours) was approved. It was agreed that DASH would be offered at twelve (12) elementary schools, to be selected by the District, and that STRETCH school sites would not be eligible for the DASH Program. The DASH and STRETCH budgets for FY 1999/2000 were based on a projection that the District would contribute $500,000. That amount has now been augmented by an additional $96,000 as a result of the District receiving a state Department of Education grant which allows the expansion of the STRETCH program from six to eight sites. [e:\home\parksrec\A113\Dash and Stretch.A13 - 09-01-99] ) (!J ,./ / 1 Item: , Page 2 Meeting Date: 09/14/99 STAFF RECOMMENDATION: That Council approve the Resolution: 1. Approving the Memorandum of Understanding between the City of Chula Vista and the Chula Vista Elementary School District regarding joint operation of the DASH (Dynamic After School Hours) after school recreational program, and the STRETCH (Safe Time for Recreation, Enrichment, and Tutoring for CHildren) extended school day educational program, and 2. Authorizing the Director of Library and Recreation to execute the MOU; and 3. Amending the FY 1999/2000 budget to approve an additional 1.31 FTE School Site Coordinators (unclassified part-time partially benefited) and 2.30 FTE Youth Leaders (hourly part-time non-benefited), and 4. Appropriating an additional $96,000 contribution from the Chula Vista Elementary School District for the STRETCH Program. BOARDS/COMMISSIONS RECOMMENDATION: The Parks and Recreation Commission will be consulted regarding the implementation of these programs as appropriate. DISCUSSION: A new FY 1999/2000 Memorandum of Understanding between the City and the Chula Vista Elementary School District (Attachment "A") has now been prepared in conjunction with the City Attorney's office. The MOU authorizes: . The STRETCH program be conducted by the City at eight (8) school sites; Harborside, Lauderbach, Loma Verde, Los Altos, Montgomery, Mueller, Otay, and Rice Elementary Schools. . The DASH program be conducted by the City at twelve (12) school sites; Allen, Casillas, Chula Vista Hills, Clear View, Cook, Feaster-Edison, Halecrest, Hilltop, Olympic View, Palomar, Greg Rogers, and Valle Lindo. The District selected these sites based upon student participation figures, school staff support, and geographic distribution of all elementary after school programs. DASH is slated to begin operation on Monday, October 11th, 1999. Further, the MOU provides that the City will recruit, hire, and train appropriate staff to conduct both STRETCH and DASH programs. The City will provide $315,200 towards the cost of the programs. The District will actively promote communication, cooperation and coordination among and between school sites and school personnel. The District will provide $596,000 towards the cost of the programs. The City will act as the fiscal agent for the combined City and District funds. Both the STRETCH and DASH programs will be conducted by the Educational Services Division of the Library and Recreation Department. [e:\home\parksrec\A 113\Dash and Stretch.A 13 - 09-01-99] /tJ~2 2 Item: , Page 3 Meeting Date: 09/14/99 The MOU was adopted by the Chula Vista Elementary School District Board at their August 31, 1999 meeting, and has been reviewed and approved by the City Attorney's office. As a result of the two new state grant funded STRETCH sites, the Department is requesting an additional 1.31 FTE School Site Coordinators and 2.30 FTE Youth Leaders. FISCAL IMPACT: For FY 1999/2000, the City is contributing $315,200 in budgeted expenditures (already appropriated), and $35,800 in in-kind services, towards the DASH and STRETCH programs, for a total of $351,000. The District is contributing $596,000 in revenue. $500,000 of the District's revenue has already been budgeted in FY 1999/2000. The additional unanticipated revenue of $96,000 from the Chula Vista Elementary School District for extended school day educational programs will be appropriated and budgeted in the Library and Recreation Department FY 1999/2000 budget from Council action on this Resolution. There is no new General Fund impact to the FY 1999/2000 expenditure budgets from the effects of the MOU, nor to the DASH and STRETCH budgets due to the request for additional FTE in this report. Attachment: "A" - Memorandum of Understanding between the City of Chula Vista and the Chula Vista Elementary School Program for the STRETCH and DASH programs. [e:\home\parksrec\A113\Dash and Stretch.A13 - 09-01-99] ) 0 .... J 3 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT REGARDING JOINT OPERATION OF THE DASH (DYNAMIC AFTER SCHOOL HOURS) AFTER SCHOOL RECREATIONAL PROGRAM, AND THE STRETCH (SAFE TIME FOR RECREATION, ENRICHMENT, AND TUTORING FOR CHILDREN) EXTENDED SCHOOL DAY EDUCATIONAL PROGRAM, AND AUTHORIZING THE DIRECTOR OF LIBRARY AND RECREATION TO EXECUTE THE MOU; AND AMENDING THE FY 1999/2000 BUDGET TO APPROVE AN ADDITIONAL 1.31 FTE SCHOOL SITE COORDINATORS (UNCLASSIFIED PART-TIME PARTIALLY BENEFITED) AND 2.30 FTE YOUTH LEADERS (HOURLY PART-TIME NON-BENEFITED) , AND APPROPRIATING AN ADDITIONAL $96,000 CONTRIBUTION FROM THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT FOR THE STRETCH PROGRAM WHEREAS, in FY 1998/99 the City entered into a unique partnership with the Chula vista Elementary School District, the purpose of which was to examine the City's existing after school program offerings and, with District input, to revamp them based on individual school needs and priorities; and WHEREAS, the Memorandum of Understanding (MOU) which was entered into last year between the city and the District created the new STRETCH Program (Safe Time for Recreation, Enrichment and Tutoring for Children); and WHEREAS, STRETCH, with its emphasis on literacy, homework assistance and arts enrichment, was offered as a pilot program from the end of February through June of last fiscal year at six elementary school sites; and WHEREAS, the program received an overwhelmingly positive response from the District, members of the School Board, principals and school personnel, as well as from the recipients themselves - children and their parents; and WHEREAS, during the FY 1999/00 budget process, Council approved the Department and District's recommendation to shut down the existing After School Playground Program on June 30, 1999, which, at that time, was offered at 26 elementary schools; and WHEREAS, in its place, a new, high-quality, structured, sports and recreation program, entitled DASH (Dynamic After School Hours was approved which will be offered at 12 elementary schools, 1 /IJ- 'I to be selected by the District, and STRETCH school sites will not be eligible for the DASH Program; and WHEREAS, the DASH and STRETCH budgets for the FY 1999/00 were based on a proj ection that the District would contribute $500,000 which amount has now been augmented by an additional $96,000 as a result of District receiving a state grant which allows the expansion of the STRETCH program from six to eight sites. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approving the Memorandum of Understanding between the City of Chula vista and the Chula vista Elementary School District regarding joint operation of the DASH (Dynamic After School Hours) after school recreational program, and the STRETCH (Safe Time for Recreation, Enrichment, and Tutoring for Children) extended school day educational program. BE IT FURTHER RESOLVED that the Director of Library and Recreation is hereby authorized to execute the MOU. BE IT FURTHER RESOLVED that the FY 1999/2000 budget is hereby amended to approve an additional 1.31 FTE School Site Coordinators (unclassified part-time partially benefited) and 2.30 FTE Youth Leaders (hourly part-time non-benefited) . BE IT FURTHER RESOLVED that the City Council does hereby appropriate an additional $96,000 contribution from the Chula vista Elementary School District for the STRETCH Program. Presented by Approved as to form by David Palmer, Library and Recreation Director H:\home\attorney\reso\stretch 2 /tP0 ATTACHMENT A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND CHULA VISTA ELEMENTARY SCHOOL DISTRICT This MOD is entered into by the City Manager of the City of Chula Vista and the Superintendent of Chula Vista Elementary School District. This is an agreement to operate an after school recreational program (DASH - Dynamic After School Hours), and an extended school day educational program (STRETCH - Safe Time for Recreation, Enrichment and Tutoring for CHildren) in Chula Vista Elementary School District schools in FY 1999-2000. The parties agree that the Chula Vista Elementary School District's responsibilities shall be to: . Facilitate communication of the DASH and STRETCH Programs' missions, goals and objectives to all participating school sites, in particular to principals, PT As and School Site Councils. . Actively promote cooperation and coordination among and between school sites and all personnel involved in DASH and STRETCH activities. . Participate in the development and actualization of a plan to evaluate the DASH and STRETCH Programs. . Provide a staff liaison with the City as a key contact. . Provide the City of Chula Vista $596,000 in FY 1999-2000 towards the cost of operating the DASH and STRETCH Programs, payable upon receipt of four quarterly invoices from the City of Chula Vista. The parties agree that the City of Chula Vista's responsibilities shall be to: . Provide a Library and Recreation Department Manager to oversee and coordinate the DASH and STRETCH Programs' activities, in cooperation with District staff. . Facilitate communication of the DASH and STRETCH Programs' missions, goals and objectives to all participating staff. . Actively promote cooperation and coordination among and between school sites and all personnel involved in DASH and STRETCH activities. . Participate in the development and actualization of a plan to evaluate the DASH and STRETCH Programs. . Operate the DASH Program at the following 12 District Schools: Allen/Ann Daly, Casillas, Chula Vista Hills, Clear View Charter, Cook, Feaster-Edison Charter, Halecrest, Hilltop, Olympic View, Palomar, Rogers, and Valle Lindo. . Recruit, hire, and train 26 part-time DASH Leaders, under the supervision of a full-time DASH Supervisor. · Operate the STRETCH Program at the following 8 District Schools: Harborside, Lauderbach, Lorna Verde Comer, Los Altos, Montgomery, Mueller Charter, Otay, and Rice. . Recruit, hire, and train 8 part-time, benefited STRETCH School Site Coordinators, and 24 part-time Youth Leaders, under the supervision of a full-time STRETCH Supervisor. · Provide individual participating schools with detailed terms of agreement regarding specific program hours, staffing, programming, shared use of facilities, etc. Page 1 of 2 )jJ/t . Conduct a Citywide after school intramural sports program for children from all Chula Vista Elementary School. District schools through the City's Community Centers. . Provide $351,000 in FY 1999-2000 towards the cost of operating the DASH and STRETCH Programs. Citywide overhead is contributed in-kind. . Act as fiscal agent for the combined District and City funds, the duties of which include but are not limited to budgeting, appropriating, expending, tracking, and reporting funds. The parties agree that a joint decision-making panel shall continue to govern the DASH and STRETCH Programs. The panel is comprised of the following District and City employees: Chula Vista Elementary School District: Assistant Superintendent for Instructional Services and Support District Coordinator of Early Intervention City of Chula Vista Director, Chula Vista Library and Recreation Department Educational Services Manager The parties further agree to hold harmless each other against any and all claims asserted or liability established for damages or injuries, including death, to any person or property, including an officer, agent or employee of one of the parties, which arise from or are connected with or are caused or claimed to be caused by the negligent acts or omissions of the District or the City in carrying out the terms of this agreement; provided, however, that no duty to hold harmless one party shall arise or exist regarding the established sole negligence or willful misconduct of that party. CHULA VISTA ELEMENTARY SCHOOL DISTRICT CITY OF CHULA VISTA By: Ja S.~ By: Date: September 2, 1999 Date: Page 2 of2 / t/..- ? COUNCIL AGENDA STATEMENT ITEM /1 MEETING DATE September 14,1999 ITEM TITLE: RESOLUTION Approving Various Personnel Reclassifications. SUBMITTED BY: Director of Human Resource~ REVIEWED BY: City Manage~ (4/5th Vote: Yes X No ) RECOMMENDATION: in Exhibit A. Adopt Resolution approving various position reclassifications detailed BOARD/COMMISSION RECOMMENDATION: N/ A DISCUSSION: Approval ofthe following recommendations will address both classification and salary issues raised by the Community Development, Planning/Building and Police departments. They are presented at this time (rather than as a result of the ongoing classification study) because of the significant recruitment and retention difficulties we have experienced. DEPARTMENT: Community Development RECOMMENDATION: Reclassify the Community Development Specialist II position (E-Step Salary - $48,710) to Senior Community Development Specialist (E-Step Salary - $54,381), effective September 24, 1999. The majority of positions within the Community Development Department require the ability to function independently, as well as perform all aspects of the job with the highest level of skill and ability, hence the recommendation to upgrade the existing position to the Senior level. The incumbent has been performing at that level with a minimum of supervision. Some of the current and/or proposed duties are: business outreach, including promotional efforts, marketing, power point presentations, preparing flyers, press releases and exhibits, attending trade shows, creating a CD Rom and Web Page, maintaining the Commercial and Industrial Land and Building Inventory, providing general business assistance, conducting site searches, assisting the Economic Development Manager in preparing business recruitment proposals and assisting with land development projects. Reclassification will insure the continuation of duties and responsibility at the higher level with an internal promotion and will eliminate the two and three recruitments for the same position that we have experienced in the past. / / /"1 Item Meeting Date September 14. 1999 RECOMMENDATION: Reclassify the vacant Senior Development Specialist position (E-Step Salary - $54,381) to Principal Community Development Specialist (E-Step Salary - $62,536). With the history oftumover in the Senior Community Development Specialist position (including one as recently as last month), and the repeated attempts at recruitment for each vacancy, it has become obvious that salary is a key factor at this level. Ofthose few who qualify, several top candidates have withdrawn due to salary issues and others have had questionable reference check results. In order to successfully recruit an individual to function independently as a project manager with proven experience and successes, the Principal level is necessary. The request to reclassify at this time is based on the need to re-recruit as soon as possible. DEPARTMENT: Police DIVISION: Administration RECOMMENDATION: Reclassify the vacant Police Services Technician position (E-Step Salary- $36,170) to Senior Management Analyst (E-Step Salary - $54,381). In the current budget, Council approved addition of a Police Services Technician position to assist in procurement, budget and audits. As Human Resources staff began preparing for the recruitment, it became apparent that a technician level position was inappropriate for the type of duties and responsibilities anticipated. Additional duties identified by Police management include writing RFP's and contracts, negotiating service contracts, assisting in preparing quarterly grant reports, fiscal certifications, staffing studies and various automation projects. Without staff to devote adequate time to the management of the many varied contracts, it is possible that the City will lose money or the funding sources will be jeopardized. Upgrade to this position will create the ability to proactively manage. DEPARTMENT: Planning/Building DIVISION: Building RECOMMENDATION: Reclassify the vacant Plans Examiner position (E-Step Salary - $53,311) to Plan Check Engineer (E-Step salary - $68,035). In the past, recruitments for a Plans Examiner have yielded few, and often, no qualified candidates. Salary is a significant factor in the recruitment difficulties, hence, the recommendation to raise it. It has also become obvious that the successful candidate will have not only building experience, but engineering, as well. For that reason, we have added a registration requirement that will result in the hire of an individual with both plan check and engineering skills. This is a significant departure from past classification structure and all involved agree that we should be in a much more solid position to recruit well-qualified candidates. //-2 - Item Meeting Date September 14. 1999 FISCAL IMP ACT: The full cost of these changes for the remainder of the Fiscal Year is $36,923. Of that amount, $17,227 will be reimbursed from fees and the remainder will be absorbed by available salary savings within the specific departments. Ongoing annual cost will be $45,714, $21,348 of which will be reimbursed from fees. Exhibit A Department Current Position/ Proposed Position/ Cost of Changes Funding Benefit Group Benefit Group For Remainder of Sources FY (Including Benefits) Community Senior Community Principal Community Development Development Specialist Development Specialist Mid- Management Mid- Management $6,924 Salary Savings Community Community Development Senior Community Development Specialist II Development Specialist CVEA Mid-Management $5,582 Salary Savings Police Department Police Service Technician Senior Management Analyst CVEA Mid-Management $6,213 Salary Savings Planning/Building Plans Examiner Plan Check Engineer General Fund Building Division CVEA WCE $17,227 (reimbursed from fees) TOTAL $36,923 //,:j- RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING VARIOUS PERSONNEL RECLASSIFICATIONS WHEREAS, approval of the following recommendations will address both classification and salary issues raised by the Community Development, Planning/Building and Police departments; and WHEREAS, they are presented at this time (rather than as a result of the ongoing classification study) because of the significant recruitment and retention difficulties we have experienced. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the following reclassifications effective September 24, 1999: DEPARTMENT: Community Development RECOMMENDATION: Reclassify the Community Development Specialist II position (E-Step Salary - $48,710) to Senior Community Development Specialist (E-Step Salary - $54,381). DEPARTMENT: Community Development RECOMMENDATION: Reclassify the vacant Senior Development Specialist position (E-Step Salary $54,381) to Principal Community Development Specialist (E-Step Salary - $62,536). DEPARTMENT: Police DIVISION: Administration RECOMMENDATION: Reclassify the vacant police Services Technician position (E-Step Salary - $36,170) to Senior Management Analyst (E-Step Salary - $54,381). DEPARTMENT: planning/Building DIVISION: Building RECOMMENDATION: Reclassify the Step Salary - $53,311) to Plan $68,035). vacant Plans Examiner position (E- Check Engineer (E-Step salary - Presented by Approved as to form by Candy Emerson, Director of Human Resources H: \home\attorney\reso\rec1ass. 914 JI- f COUNCIL AGENDA STATEMENT Item /:z Meeting Date 9/14/99 SUBMITTED BY: Resolution Approving a Desiltation and Grading Agreement (Poggi Canyon) between the City of Chula Vista and Otay Project LP and Prowswood-Matsushita Otay Ranch Partners LLC for Otay Ranch SPA One Village 1 Phase 7 and authorizing the Mayor to execute said agreement. Director of Public W orks ~ ITEM TITLE: REVIEWED BY: City Manager~~[V (4/5ths Vote: Yes_No..xJ On May 4, 1999 by Resolution No. 19448, Council approved the Tentative Map for Chula Vista Tract No. 96-04A - Phase 7 of the Otay Ranch Project SPA One. Tentative Map conditions require that, prior to issuance of a grading permit for any land within the Poggi Canyon basin, the developer shall comply with certain conditions requiring construction of drainage improvements and removal of siltation within Poggi Canyon. The Otay Ranch Company is currently processing interim grading plans for Phase 7 land located within the Poggi Canyon basin and has requested issuance of the corresponding grading permit. Staff believes that the proposed agreement contains appropriate provisions that will allow the developer to proceed with the interim grading of Phase 7 in full compliance with the Tentative Map requirements. RECOMMENDATION: That Council approve the agreement and authorize the Mayor to execute said agreement. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Due to the delays experienced in obtaining the environmental permits required for constructing Olympic Parkway and Poggi Canyon Channel, the Otay Ranch Company has requested issuance of a permit for an interim mass grading of Village One Phase 7 (see Exhibit A). This will enable the developer to complete the grading work for the majority of Village One in accordance with their development plan. The Environmental Review Coordinator has determined that the proposed work will impact existing Coastal Sage Scrub and that issuance of the corresponding 4(d) Habitat Loss Permit is required. Therefore, the agreement stipulates that issuance by the City of said 4(d) permit is a condition precedent to the issuance of any grading permit for the project. No other jurisdictional habitat would be disturbed by the proposed project and, therefore, no further environmental review or approval is required. Staff has reviewed the proposed agreement and concluded that it satisfies the Tentative Map conditions applicable to the earthwork proposed in the interim grading plans. Full compliance with the Tentative Map requirements will be required prior to approval of the first [mal "B" map or prior to issuing any subsequent grading permit for Phase 7. It should be noted that this agreement does not fulfill any of the developer's duties and obligations as set forth in the Agreement for Financing and Construction of Olympic Parkway and Related Roadway Improvements ("Olympic Parkway Agreement") adopted by City Council Resolution No. 19410. Those duties and obligations shall be met by the developer in accordance with the terms of said agreement. /:2--/ Page 2, Item _ Meeting Date 9/14/99 The Village 1 Phase 7 Interim Mass Grading will grade most of Phase 7 and create interim and permanent slopes adjacent to Olympic Parkway and Paseo Ranchero. The plans propose draining into the existing natural Poggi Canyon channel and contain adequate erosion/sedimentation control measures and a temporary runoff detention facility to protect the natural canyon until the permanent Poggi Canyon channel improvements and detention/de silting basin are constructed. In addition, this grading will not encroach into the currently proposed Olympic Parkway embankment nor the Poggi Canyon Channel which will run adjacent to Olympic Parkway. Once the permits for constructing Olympic Parkway and Poggi Canyon channel are issued, the interim plans would be superseded by final mass and rough grading plans currently under review by staff. The permits for Phase 7 fInal mass and rough grading, and for grading Olympic Parkway and the Poggi Canyon channel can only be issued after the required environmental permits are obtained. As a prerequisite for issuing these [mal grading permits, the developer is required to enter into a new agreement with the City addressing the maintenance of the permanent Poggi Canyon channel improvements. This new agreement will supersede the interim agreement that is before Council tonight. Following is a brief discussion on the most relevant aspects of the proposed agreement: Construction of drainage improvements. Condition 55 of the tentative map conditions (see Exhibit B) requires the developer to guarantee the construction, operation and maintenance of drainage facilities (naturalized channel and detention/de silting basin) in the Poggi Canyon prior to approval of the fIrst [mal "B" map or grading permit for any land draining into the Poggi Canyon unless otherwise approved by the City Engineer. The existing Olympic Parkway Agreement requires the developer to construct said permanent drainage facilities. However, the grading permit for constructing those improvements can only be issued after the required environmental permits are obtained. The condition of approval further provides that temporary detention facilities may be constructed to reduce the peak runoff from the development to an amount equal to or less than the existing 100 year flow. As an interim measure, developer is proposing the construction of a private onsite detention basin that will discharge into the existing natural Poggi Canyon. This will reduce the flows discharged into the natural channel to pre development conditions until such time as the permanent channel and detention basin are operational. The proposed Phase 7 mass grading includes 122 acres which will discharge to Poggi Canyon. This area includes approximately 30 acres of permanent and temporary slopes as well as 92 acres of mass grading for super pads. The slope areas will be fully landscaped, hydro seeded and silt-fenced to control erosion. The mass graded areas will also be protected by an approved on-site erosion/sedimentation control system. Maintenance of the Onsite Erosion/Sedimentation Control Facilities. The proposed interim agreement requires the developer to maintain the on-site erosion/sedimentation control system and the detention basin until such time as the construction of the pennanent channel and detention/desilting basin has been completed and accepted by the City. The developer has already provided a cash deposit in the amount of $34,000 and will provide, prior to issuance of the interim grading permit, a bond in the amount of $136,000 to guarantee the operation and maintenance of said temporary facilities (including removal of siltation) for a period of fIve years in the event the developer fails to perform. In addition, the proposed agreement requires the developer to provide for removal of siltation attributable to the project in the existing natural Poggi Canyon in the event of a catastrophic failure of a slope or the erosion/sedimentation control system. The developer has already provided a cash deposit in the amount of $100,000 and will provide, prior to issuance of the interim grading permit, a bond in the amount of $400,000 to guarantee performance of the environmental mitigation activities should the developer /2--,2 Page 3, Item _ Meeting Date 9/14/99 default in their obligations. This is a conservative estimate assuming replacement of the downstream Sunbow mitigation areas due to excessive sedimentation that may result from a catastrophic failure of the proposed slopes or the erosion/sedimentation control system. The cash deposit may be used to cover any immediate removal of silt until the City can collect on the bond. The proposed agreement also stipulates that the developer is responsible for I) providing for any difference between the actual cost incurred by the City and the amount of the security, 2) replenishing the cash deposits within 30 days of City's request, and 3) ensuring that at no time will the developer leave a gap in providing the required security for its outstanding obligations. Wetland Mitigation Requirements. The City is diligently pursuing the approval of the environmental permits for constructing Olympic Parkway and the Poggi Canyon improvements. In Section 5 of the subject agreement, the developer agrees to implement, at their sole cost, all the requirements to be imposed by the environmental permits (i.e., Clean Water Act Section 404 Permit, Clean Water Act Section 40 I Certification or Waiver, Endangered Species Act 4 (d) habitat loss permit, California Department of Fish and Game (CDFG) Section 1601 Stream bed Alteration Agreement). Staff and consultants have estimated that the activities required by the environmental permits (i.e., wetland establishment, monitoring, maintenance) may cost approximately $1,000,000. In order to guarantee compliance with the environmental permits during the typical 5-year term required by the Resource Agencies, developer will provide, prior to issuance of the interim grading permit, a cash deposit in the amount of $200,000 together with a bond in the amount of $800,000. These monies may be used by the City to ensure compliance with the environmental permits, in the event the developer fails to perform. The agreement also provides that the City may withhold building permits for the project if the developer is not in compliance with the terms of the agreement. Staff has reviewed the proposed agreement and believes that it provides adequate protection to the City while meeting the developer's grading needs. The agreement has been executed by the developer and approved as to form by the City Attorney. FISCAL IMPACT: None. All costs associated with the construction of the proposed desilting facilities will be paid for by the developer. The developer will be also responsible for maintaining the proposed improvements and the natural channel until permanent facilities are constructed. Exhibit A - Village 1 Phase 7 Plat B - Condition 55 - CVT No. 96-04A H:\HOME\ENGINEER\AGENDA \ORI45G J LOT File: 0600-80-0RI45G September 3. 1999 /;2:} RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A DESILTATION AND GRADING AGREEMENT (POGGI CANYON) BETWEEN THE CITY AND OTAY PROJECT LP AND PROWSWOOD- MATSUSHITA OTAY RANCH PARTNERS LLC FOR OTAY RANCH SPA ONE VILLAGE 1 PHASE 7 AND AUTHO- RIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, on May 4, 1999 by Resolution No. 19448, Council approved the Tentative Map for Chula vista Tract No. 96-04A - Phase 7 of the Otay Ranch Project SPA One; and WHEREAS, the Tentative Map conditions require that prior to issuance of a grading permit for any land within the Poggi Canyon basis, the developer shall comply with certain conditions requiring construction of drainage improvements and removal of siltation within poggi Canyon; and WHEREAS, the Otay Ranch Company is currently processing interim grading plans for Phase 7 land located within the poggi Canyon basin and has requested issuance of the corresponding grading permit; and WHEREAS, the issuance of a grading permit will be contingent upon the issuance of an Endangered species Act Section 4(d) Habitat Loss Permit which the city has discretion to issue as well as condition; and WHEREAS, staff consider that the proposed agreement contains appropriate provisions that will allow the developer to proceed with the interim grading of Phase 7 in full compliance with the Tentative Map requirements. NOW, THEREFORE, BE IT RESOLVED the city Council of the city of Chula vista does hereby approve a Desiltation and Grading Agreement (Poggi canyon) between the city and Otay Project LP and Prowswood-Matsushita Otay Ranch Partners LLC for Otay Ranch SPA One village 1 Phase 7, 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 and directed to execute said agreement on behalf of the City of Chula vista. Presented by Approved as to form by John P. Lippitt, Director of Public Works ~cml'~ Jon M. Kaheny, c'~orney H:\home\attorney\reso\poggi.agr / ;2 -i CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 ) ) ) ) ) ) ) ) ) Recording Requested by: CITY CLERK When Recorded, Mail to: DESILTATION AND GRADING AGREEMENT OTAY RANCH SPA ONE VILLAGE 1 PHASE 7 (Condition 55 of Resolution 19448) This Agreement is made on this 14th day of September, 1999, by and between Otay Project LP ("Otay proj ect") and Prowswood-Matsushita Otay Ranch Partners LLC ("Prowswood"), ("collectively referred as Developer") and the City of Chula Vista, a California municipal corporation ("City"), with reference to the following facts: RECITALS A. Otay Project owns approximately 123.1 acres and prowswood owns approximately 7.9 acres ("collectively referred as Project") of that certain real property, as described on Exhibit "A", and shown on Exhibit "A-1" located within a portion of what is commonly known as Village One Phase 7 (Purple Phase) of the Otay Ranch planned community. B. On October 28, 1993, the Chula Vista City Council, pursuant to Resolution No. 17298, as amended on May 14, 1996 by Resolution No. 18285, and in accordance with the California Environmental Quality Act ("CEQA") (Pub. Resources Code Section 21000 et seq.), certified the Final Program Environmental Impact Report for the GDP, SCH #9010154 ("Program EIR 90-01", or "Program EIR"), made certain Findings of Fact, adopted a Mitigation Monitoring and Reporting Program, and adopted a Statement of Overriding Considerations. C. On June 4, 1996, the City Council, pursuant to Resolution No. 18286, as amended on February 16, 1999 by Resolution No. 19376, approved the Otay Ranch Sectional Planning Area Plan (SPA One), including the Otay Ranch Public Facilities Financing Plan for Villages One and Five relying on the Otay Ranch SPA One plan Final Second Tier Environmental Impact Report 95-01 and the first Addendum, recertified on May 21, 1996 by Resolution No. 18304. D. On May 4, 1999, the City approved a Tentative Map, H:\HOMEIENGINEERILANDDEV\OTA YRNCH\OR151B.DOC 1 ))./5 Tract 96-04A (herein referred to as the "Project's Tentative Map"), for Village One and portion of Village Five by Resolution Number 19448. E. Condition number 55 of the Project's Tentative Map, as more particularly set forth on Exhibit "B" ("Condition 55"), requires the Developer to guarantee the construction of drainage facilities and guarantee the operation and maintenance of such facilities ("Condition 55 improvements"). F. Whereas Developer has proposed grading for the Project on Chula vista Drawings No. 99-613 through 99-621. G. Whereas Developer has proposed that certain Desiltation Facilities and Detention Facilities, as shown on Chula Vista Drawings Nos. 99-613 through 99-621 are adequate to meet the detention and desiltation requirements for the grading proposed for the proj ect on Chula Vista Drawings Nos.99-613 through 99-621. H. Whereas Developer is the master developer who has obligated itself to construct public improvements under the terms of the Tentative Subdivision Map and the Re-stated and Amended Pre-Annexation Development Agreement, (Ordinance No. 2695) . I. City has applied for and requested a Section 404 Permit, Clean Water Act Section 401 Certification or Waiver, an Endangered Species Act Section 4(d) Habitat Loss Permit and California Fish and Game Section 1601 Streambed Alteration Agreement (collectively "Environmental Permits") which relate to that portion of Olympic Parkway which Developer is obligated to construct. J. The following defined terms shall have the meanings set forth herein unless otherwise specifically indicated. 1.1 "Complete Construction" shall mean that construction of the improvements have been completed and have been inspected by the City. 1.2 "Final "B" Map" shall mean any final subdivision map for all or any portion of the Property other than the Superblock Final Maps commonly referred to by City as an "A" Map. 1.3 "Maintain" or "Maintenance" shall mean to furnish, or the furnishing of, services and materials for the ordinary and usual maintenance required for the operation of the Desiltation Facilities and Detention Facilities or similar type of improvement or as set forth in a City approved maintenance program. H:\HOME\ENGINEERILANDDEV\OTA YRNCIDORI51B.OOC 2 /:2 -~ 1.4 "Project" shall mean the portion of the Property within Village One, Phase 7 which drains into Poggi Canyon, as depicted in Exhibit "A-1". 1.5 "Existing Natural Poggi Canyon" shall mean the natural flow line of the channel in Poggi Canyon from Brandywine Avenue to SR-125. 1.6 "Desiltation Facilities" shall mean the provisions for controlling erosion and silt transportation that are shown on the plans and details of the approved grading plans for the Project on Chula Vista Dwg. Nos.99-613 through 99-621, together with the proper maintenance of those facilities. Desiltation Facilities shall include all private temporary desilting basins, silt fences, hydroseeding, and any other erosion/sedimentation control facilities for the Project shown on Chula Vista Dwg. Nos.99-613 through 99-621. 1.7 "Detention Facilities" shall mean the provisions for reducing the runoff drainage flows from the Project to existing pre development conditions that are shown on the plans and details of the grading plans for the Project on Chula vista Dwg. Nos.99-613 through 99-621, together with the proper maintenance of those facilities. 1.8 "Olympic Parkway Agreement" shall mean the Agreement for Financing and Construction of Olympic Parkway and Related Roadway Improvements adopted by Chula Vista City Council Resolution No. 19410. 1.9 "Resource Agencies" shall mean the U. S. Army Corps of Engineers, California Department of Fish and Game, and the United States Fish and Wildlife Services, unless otherwise stated. NOW THEREFORE IT BE RESOLVED that the Parties agree as follows: 1. Performance Obligation. Developer represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the obligations set forth herein. Notwithstanding the foregoing, all parties to this agreement acknowledge and agree that all such obligations remain a covenant running with the land as set forth more particularly in paragraph 11 below. 2. Acknowledgments. Developer understands and agrees that Developer shall be required to comply with those provisions of Condition No. 55 of the Project's Tentative Map regarding construction, maintenance, and desiltation of the permanent naturalized channel and permanent H:\HOME\ENGINEER\LANDDEV\OTA YRNCH\OR15IB.DOC 3 /;2~? detention/desilting basin in the Poggi Canyon, prior to approval of the first final "B" map or any subsequent grading permit for the Project, whichever occurs first. Developer acknowledges and agrees that this Agreement does not fulfill all of the requirements of Condition 55 of the Project I s Tentative Map. Developer further acknowledges and agrees that this Agreement does not fulfill Developer's duties and obligations as set forth in the Olympic Parkway Agreement and specifically does not relieve Developer of the duties, obligations and restrictions of Table 11 thereto. Developer acknowledges and agrees that this Agreement may not be construed or interpreted as fulfilling any of its obligations except as partial satisfaction of Condition 55 of the Project's Tentative Map as specifically set forth herein. 3. 4 (d) Permit. Developer acknowledges and agrees as follows: (i) that the issuance by the City of an Endangered Species Act Section 4(d) Habitat Loss Permit ("4(d) Permit") is a condition precedent to the issuance of any grading permit for the Project; (ii) that the City retains unfettered discretion to determine whether or not to issue a 4(d) Permit for the Project; (iii) that the City retains unfettered discretion to, if it chooses in its discretion to issue a 4 (d) Permit for the Project, to condition such permit as it sees fit; and (iv) that a grading permit for the Project will not be issued by the City should Developer fail to fully and completely comply with the terms of the 4 (d) Permit for the Project, if the City in its discretion issued a 4(d) Permit. 4. Condition No. 55 Detention Facilities and Desiltation Facilities. In partial satisfaction of Condition No. 55 of the Project's Tentative Map, with respect to the provisions of adequate Detention Facilities and Desiltation Facilities for the grading work proposed on Chula Vista Drawing Nos.99-613 through 99-621, Developer agrees to construct private Detention Facilities and private Desiltation Facilities as shown on Chula vista Drawings Nos 99-613 through 99-621, as approved by the City Engineer, to control the quality and quantity of runoff from the Project into the Existing Natural Poggi Canyon for the grading work proposed on Chula Vista Drawings Nos.99-613 through 99-621. The private Detention Facilities and Desiltation Facilities shall comply with all the provisions of the National Pollutant Discharge Elimination System and the Clean Water Program. Developer understands and agrees that Developer is responsible for H:\HOME\ENGINEER\LANDDEV\OTA YRNCH\OR151B.DOC 4 )2~6 obtaining all necessary permits, approvals and certifications, if any, from the applicable federal or state agencies, including but not limited to California Department of Fish and Game and/or the u.s. Army Corps of Engineers. 4.1 Maintenance. Developer shall operate and maintain the Detention Facilities and Desiltation Facilities to the satisfaction of the City Engineer until such time as the construction of the permanent naturalized channel and permanent detention/desilting basin in the Poggi Canyon, as required by Condition 55 of Project's Tentative Map, have been completed and accepted by the City. Developer understands and agrees that Developer shall be solely responsible for the maintenance and operation of the Detention Facilities and Desiltation Facilities and any liability resulting therefrom. Developer acknowledges and agrees that it will operate and maintain the Detention Facilities and Desiltation Facilities in perpetuity should Developer fail to comply with Condition 55 and the Olympic Parkway Agreement. 4.2 Securitv. Developer shall provide the City with securities, in accordance with paragraph 7 below, to guarantee Developers' Maintenance obligations hereunder. 5. Condition No. 55 - Siltation Removal. In partial satisfaction of Condition No. 55 of Project's Tentative Map , Developer agrees to remove siltation attributable to the Project from the Existing Natural Poggi Canyon including any additional work as required by the City Engineer or the Resource Agencies to restore the channel to its natural state, until such time as the construction of the permanent naturalized channel and permanent detention/desilting basin in the Poggi Canyon have been completed and accepted by the City. Developer understands and agrees that the City Engineer shall be solely responsible for determining if any siltation is attributable to the Project. 5.1 Security. Developers shall provide the City with securities, in accordance with paragraph 7 below, to guarantee Developers' siltation removal obligations hereunder. 6. Habitat Mitigation. Developer understand and agrees that Developer shall be responsible for implementing all requirements of the Environmental Permits that pertain to those portions of the Olympic Parkway extension project which the Developer is obligated to construct and the costs thereof shall be allocated in accordance with the Olympic Parkway Agreement. These elements include, but are not limited to any and all pre-construction and construction period measures required to comply with Environmental Permits requirements, H:\HOMEIENGINEERILANDDEV\OTA YRNCH\OR151 B.DOC 5 / 02 ~7 any and all habitat conservation and/or restoration required, and any and all maintenance required to achieve mitigation habitat success milestones over the periods required by the Environmental Permits (anticipated to be 5-years). As a principal beneficiary of the Environmental Permits, Developer shall ensure that any and all measures to meet the obligations of the City under the Environmental Permits, shall be accomplished by the Developer for that particular portion of the OlYmpic Parkway extension project which the Developer is obligated to construct. Any and all obligations of the City, as required by the Environmental Permits conditions, that are not satisfactorily completed shall be remedied by Developer, within those portions of the OlYmpic Parkway extension project which the Developer is obligated to construct and the costs thereof shall be allocated in accordance with the OlYmpic Parkway Agreement. 6.1. Security. Developer shall provide the City with securities, in accordance with paragraph 7 below, to guarantee Developer's obligations hereunder. 7. Security for Perfor.mance. 7.1 Cash Deposit. Developer shall provide the City with a cash deposit to guarantee Developer's obligations under this Agreement and Condition 55 of the Project's Tentative Map in the sums and as such times as set forth in Exhibit "C" ("Cash Deposit"). City shall hold the Cash Deposit until Developer has fully complied with this Agreement and Condition 55. City shall expend such deposit solely for purposes in the performance of this Agreement and Condition 55 obligations including siltation removal. In the event of Developer IS default in the performance of its duties and obligations of this Agreement or any Condition 55 obligations, Developer agrees to pay to the City any difference between the total costs incurred by the City to perform such duties and obligations, and any proceeds from the Cash Deposit, subject to the cost allocations set forth in the OlYmPic Parkway Agreement. Should the City expend the Cash Deposit due to Developer's failure to perform under this Agreement or pursuant to Condition 55, Developer agrees to redeposit the equivalent sum of money needed to equal the amount required by this Agreement, as set forth in Exhibit "C", within 30 days of the City's request for such deposit. All interest earnings on the Cash Deposit shall be retained by the City during this period. Any unexpended amount of the deposit, including any interest earned, shall be released and remitted to Developer upon the termination of its obligations as set forth in this Agreement and full performance of its obligations under H:\HOME\ENGINEERILANDDEV\OT A YRNCIDORl5 IB.DOC 6 /;2 r/t? Condition 55. 7.2 Five-Year Term Bonds. Prior to the issuance of the grading permit for the proposed grading for the Project on Chula Vista Drawings No.99-613 through 99-621, Developer shall provide the City with a Bond with a term of five years guaranteeing its obligations under Sections 4 and 6 of this Agreement and its obligations pursuant to Condition 55 in the amounts more fully set forth in Exhibit "C". The Bond (s) shall be issued by a surety with a Bests A-V rating or better and shall be in a form approved by the City Attorney. At all times while Developer has outstanding obligations under this Agreement, the Bond as required herein will be valid and in full force and effect. Developer understands and agrees that the City shall not issue building permits for the Project if the Bond or Cash Deposit have not been delivered or approved as sufficient by the City. Developer may request that another form of equivalent security, such as a letter of credit or cash, acceptable to the City in its sole discretion, be substituted for the Bonds described herein. Developer acknowledges and agrees that such substitution is in the sole discretion of the City. 7.3 One-Year Term Bonds. Prior to the issuance of the grading permit for the proposed grading for the Project on Chula Vista Drawings No.99-613 through 99-621, Developer shall provide the City with bonds for a series of one year terms starting from the date of issuance of the grading permit in connection with Chula Vista Drawing Nos.99-613 through 99-621 in order to guarantee its siltation removal obligations under Section 5 of this agreement and its obligations pursuant to Condition 55, in the amounts more fully set forth in Exhibit "C". The Maintenance Bond(s) shall be issued by a surety with a Bests A-V rating or better and shall be in a form approved by the City Attorney. The City Engineer will review the security provided herein every year prior to expiration thereof. The City acknowledges that bonds are issued for a one year period, however, it shall be the responsibility of Developer to ensure that at all times while Developer has outstanding obligations under this Agreement, security as required herein will be valid and in full force and effect. Developer understands and agrees that the City shall not issue building permits for the Project if the bonds or Cash Deposit have not been delivered or approved as sufficient by the City or said bonds have not been renewed. At the bond renewal time, the City Engineer may reduce the bond requirement by an incremental amount determined by the City Engineer to reflect a reduction in Developer's maintenance obligations. In addition, Developer may request that another form of equivalent security, such as a letter of H:\HOMEIENGINEER\LANDDEV\OTA YRNCH\OR151 B.DOC 7 / 02 -/J credit or cash, acceptable to the City in its sole discretion, be substituted for the bonds described herein. Developer acknowledges and agrees that such reduction and substitution is in the sole discretion of the City. 8. Use of Cash Deposit and Bonds. Developer acknowledges that those government agencies responsible for issuing the Environmental Permits will likely condition such Environmental Permits, if issued. City, as permittee, shall meet the conditions of the permits should Developer fail to enter into an agreement with City for Developer to comply with such conditions. i. Developer hereby agrees that City shall use the Cash Deposit and any redeposit thereof as described in Section 6 above to comply with the Environmental Permits and any conditions and requirements thereto. ii. Developer acknowledges and agrees that if the Detention Facilities or Condition 55 Improvements are not completed within the time agreed, the sums provided by said Bond may be used by City for the completion of the Detention Facilities and Condition 55 Improvements in accordance with approved plans and specifications or at the option of the City, for those improvements that are less than, but not greater to, the sums provided by said Bond. Developer agrees to pay to the City any difference between the total costs incurred to perform the work, including limited and reasonable design and administration of construction in substantial conformance with the approved plans (including a reasonable allocation of overhead), and any proceeds from the Bond, subject to the cost allocations set forth in the Olympic Parkway Agreement. Upon certification of completion by the City Engineer and acceptance of said work by City, if necessary, and after certification by the Director of Finance that all costs thereof are fully paid, the whole amount, or any part thereof not required for payment thereof, shall be released to the Developer or its successors in interest, pursuant to the terms of the Bond. iii. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall the City or the City's officer, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor. 9. Building Per.mits. Developer acknowledges and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of the H:\HOMEIENGINEERILANDDEV\OT A YRNCH\OR151 B.DOC 8 /~'/;2 City of Chula Vista. Therefore, the Developer agrees that the City shall have the absolute and unfettered right to withhold the issuance of any building permit for any residential units within the Project if the Developer is determined by the City not to be in compliance with the terms of this Agreement. If Developer is determined by the City not to be in compliance with any term of this Agreement, the City shall notify Developer of Developer's noncompliance and provide the Developer with 30 days to cure said noncompliance. The Developer shall not be in non-compliance if, upon notification of non-compliance, Developer starts immediately to work toward cure of said non compliance and diligently pursues, as determined by the City Engineer, a course of action to achieve a cure within a reasonable time frame. 10. Indemnification. Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, related to the construction of the Detention Facilities and Desiltation Facilities and Developer's maintenance activities. Developer further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employee, related to the construction of the Detention Facilities and Desiltation Facilities and Developer's maintenance and/or siltation removal activities. The approved improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of Developer's construction and maintenance activities as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or modification of the point of discharge as the r~sult of the construction of the Detention Facilities and Desiltation Facilities and maintenance and/or siltation removal activities. The approval of plans for the Detention Facilities and Desiltation Facilities and any related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the Detention and Desiltation Facilities and any related improvements. The provisions of this Agreement shall become effective upon the execution of this Agreement. H:\HOME\ENGINEERILANDDEV\OT A YRNCIDORI5IB.DOC 9 /2//3 11. Agreement Applicable to Subsequent Owners 11.1 Aqreement Bindinq Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Project, as described on Exhibit "A", until released by the mutual consent of the parties. 11.2 Aqreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Project, as described on Exhibit "A", and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its 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. If such covenants are breached, the City shall have the right 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 breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. 12. Miscellaneous Provisions. 12.1 Entire Aqreement. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof and any and all other prior or contemporaneous oral or written agreements are hereby superseded. This Agreement may be amended, but only pursuant to a written amendment properly authorized and executed by both parties hereto. 12.2 Compliance with Laws. In the performance of its obligations under this agreement Developer shall comply with any and all applicable federal, state and local laws, regulations, policies, permits and approvals. 12.3 Recitals and Exhibits. All Recitals and attached Exhibits referred to herein are hereby incorporated herein by this reference. 12.4 Term. This agreement shall remain in effect for so long as either party has executory obligations hereunder. 12.5 Recordinq. The parties hereto shall cause this Agreement to be recorded in the Official Records of the County of San Diego. H:\HOME\ENGINEERILANDDEV\OTA YRNCH\OR151B.DOC 10 /02-/1 12.6 Release. Each lot or parcel encumbered by this Agreement may, in the City Manager's (or Manager's designee) discretion, be released from the encumbrance hereof upon the conveyance of any such lot or parcel to a buyer of an individual housing unit or to a homeowners association. The City Manager (or Manager's designee) shall not withhold consent to such release so long as the City Manager (or Manager's designee) in good faith finds that the Developer is in compliance with the terms of this Agreement and that such partial release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement or the conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. In the event the City Manager (or Manager's designee) agrees to the release of, or escrow closes on any individual homeowner's lot or parcel or any conveyance to homeowner's association, at the request of Developer or any successor in interest who owns any such lot or parcel, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to City Manager (or Manager's designee) which confirms the release of such lot or parcel from the encumbrance of this Agreement. 12.7 Assiqnment. The obligations of the Developer under this Agreement shall not be assigned in whole or in part, without the express written consent of the City. 12.8 Authoritv of Sionatories. 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 resolutions and/or other actions have been taken so as to enable it to enter into this agreement. 12.9 Termination. Upon the termination of this Agreement pursuant to applicable provisions hereof, at the request of Developer or any successor in interest who owns any portion of the proj ect encumbered by this Agreement, the City shall execute an instrument in recordable form which evidences the termination of this Agreement and confirms the release of the Project from the encumbrance of this Agreement. 12.10 Prowswood Liabilitv. Notwithstanding anything in this Agreement to the contrary, in recognition of the fact that prowswood owns only a limited portion of the area within the proj ect, prowswood's portion of any liability arising under this Agreement shall not exceed its proportionate share H:\HOMEIENGINEERILANDDEV\OT A YRNCH\OR15IB.DOC 11 1cJ.-/5 of the claim, demand, cause of action, liability or loss; provided that Otay Project shall have 100% joint and several liability for any such claim, demand, cause of action, liability or loss. Provided that Prowswood (or its successor- in-interest) is not in default under this Agreement, prowswood's obligations under this Agreement shall terminate and this Agreement shall no longer burden Prowswood's property one year following the issuance by the City of a Certificate of Occupancy for the last of any apartment units constructed on the prowswood property. At such time, the City agrees to release auch property from the encumbrance hereof within fifteen (15) days from the written request of Prowswood or its successor-in-interest. [NEXT PAGE IS SIGNATURE PAGE] H:\HOME\ENGINEER\LANDDEV\OT A YRNCIDORl 5 IB.DOC 12 1e1-/? SEP, 8,1999 4:49PM THE OTAY RANCH CO NO, 6087 P. 14 SIGN'A"l'URB PAGE TO DESILTATION AND GRAtlING AGUEMJ:;NT OTAY RANCH VILLAGE 1 PHASE 7 IN WITNESS WHEREOF, the parties he~eto have caused chis agreemenc to be execu~ed the day and year first hereinabove set forth. CITY OF CHULA VISTA DEVELOPER: OTAY PROJECT L.P. a California limited partnership Mayor Date: By: OTAY'PROJECT LLC a California li~1ced liability company At~est: By: OTA\" RANCH DEVELOPMENT, LLC a Dela~are limited liability company, Authorized Member .~~ Ci-cy Clerk PROWSWOO~-MATSOSHITA OTAY PARTNERS LLC a California limited liability company as o~er Approv~d as to Form: , BY PROW$~OOD COMPANIES a u~ah Qorporacion, Managini Member BY: City Attorney H:lHOJG\ENGINll1!Jl~DEV\OTA YlQftM\QIl.lS'B,poC i02 ~/ / r._._._._._._._._._._.~._.~.~.~._.~.' . State of California n} · t VI' SS. t i On J be{orf me, ~Oli{..C I1Ulio AJuJ-ary -PJ/t'L i .t oblr.\.- ~, 0. nil -T J(NC1fAJ.Y) -, ,. SICl/llIlIl(S) i ~ personally known to me - OR- 0 p....-nJ 'u m. un II.. bA'is of 'A,.,C.d"'y i . r eYid...u\,;1Wo to be the personfs.) whose nameEBt · t is,(ape subscribed to the within instrument and t . acknowledged to me that heJsheH:bey executed · t the same in his/h",..ltl.leir authorized t t. r.;.n-.. JOLlE E. MAY.O .~ capacity(~. and that by his/lle./Lhdl ,. _ CDmm. , 1141932 Ul signature~ on the instrument the person(osT," t. [J) NOTARl PUlll1C.CALlfORNIA .. or the entity upon behalf of which the ,. ~ Sin Diego Counly .. . 1... . My tOllm. ~lpilll June 13.1001 t person~ acted. ex.ecuted the instrument. . t I i i i i i . t . , . , . , . , i . t i . , . , SEP. 8,1999 4:49PM THE OTAY RANCH CO A.~L-PURPOSE ACKNOWLEDGMENT NO. 6087 P. 15 OPTIONAL INFORMATION TIle information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgmen[ [0 an unauthorizeu documem. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) o INDIVIDUAL o CORPORATE OFFICER TITU!(S) t . , . t i o PARTNER(S) o ATTORNEY-IN-FACT o TRUSTEE(S) o OUARDIAN/CONSERVATOR o OTHER: SIGNER IS REPRESENTING: !\lAME of' l'I!RSOJll(S) olt E~'ITY(mS) 'li . ~. L._._._._._._._.~.~.~.~.~._.~.~.~.~.J NUMBER OF PAGES DAU~rLuUMENT OiHER RIOHT THUMBPJUNT OF SIGNER i! .! .'5! .t F i. ^PA 51')7 VALLEY-SIERRA, 81;1;)-362-3369 /:2 -J~ SIGNATURE PAGE TO DESILTATION AND GRADING AGREEMENT OTAY RANCH VILLAGE 1 PHASE 7 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA DEVELOPER: OTAY PROJECT L.P. a California limited partnership Mayor Date: By: OTAY PROJECT LLC a California limited liability company By: OTAY RANCH DEVELOPMENT, LLC a Delaware limited liability company, Authorized Member Attest: By: City Clerk PROWSWOOD-MATSUSHITA OTAY PARTNERS LLC a California limited liability company as Owner Approved as to Form: BY PROWSWOOD COMPANIES a Utah corporation, Managing Member By: City Attorney H:\HOME\ENGINEERILANDDEV\OTA YRNCH\OR151B.DOC /02-/1 List of Exhibits Exhibit A Legal Description Exhibit A-l Project Plat Exhibit B Partial Conditions Approving C.V.T No. 96-04A Exhibit C Security Requirements H:\HOMEIENGINEERILANDDEV\OTA YRNCHlOR151B .DOC /;2 - c2c:/ RUG-25-1999 13:16 HUNSRKER & RSSOCIRTES SD 858 558 4500 P.02/02 EXHIBIT "A" LEGAL DESCRIPTION PARCEL A: IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, LOTS 22,23 AND 24 OF CHULA VISTA TRACT NO. 96-04, OTAY RANCH, VILLAGE 1 MA" MAP NO. 1, ACCORDING TO MAP THEREOF NO. 13592, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON JUNE 24,1998, TOGETHER WITH THOSE PORTIONS OF PARCEL 1 AND PARCEL 5 OF PARCEL MAP NO. 18234, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON APRIL 13, 1999, LYING SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT AN ANGLE POINT IN THE NORTHERLY BOUNDARY OF PARCEL 5 OF SAID PARCEL MAP NO. 18234, SAID ANGLE POINT BEING THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID PARCEL MAP NO. 18234 AS "N 43029'00" E, 337.09'''; THENCE LEAVING SAID NORTHERLY BOUNDARY, SOUTH 28003'00" EAST, 918.55 FEET; THENCE SOUTH 27026'00" EAST, 472.40 FEET TO A POINT ON THE SOUTHEASTERLY BOUNDARY OF SAID PARCEL 1. EXCEPTING THEREFROM THAT PORTION OF PARCEL 1 OF SAID PARCEL MAP NO. 18234 LYING SOUTHERLY OF THE NORTHERLY LINE OF THAT CERTAIN 100 FOOT WIDE STRIP OF LAND KNOWN AS THE SAN DIEGO PIPELINE, DESCRIBED IN DEED RECORDED JUNE 24, 19121N BOOK 570, PAGE 113 OF DEEDS. CONTAINS 131.08 ACRES MORE OR LESS. ~l-vtl-~ Z.> ;frJ' 9fj JOHN W. HILL, JR. L.S. 5669 HUNSAKER & ASSOCIATES SAN DIEGO, INC. ;J M:l.L8galsI0025\251 a03.doc WO 0025-251 B125/ge PAGE 1 OF 1 Je2 -;If TOTRL P.02 - ~ ... ,-' ~\~:'l.)~ uvC:;;T:.; 3:; =.'::;:::::': .. ~ EXHIBIT "A- l " OTA Y R..A..NCH SPA 1 VILLAGE 1 PH.A.SE '"T I t I i ; I \ , t .c.Or I ~a / I / ~ {jI ~~ ~ ~~ \ \ \ \ I / r I i ! f I II ') I . I \ t ! t I \ \ ' ..c~ ......~ :.17>" ......yo ~ .7 -~~ R:\0Da6\0096ZAC2 - W.12 25-2,!7 / 2- ,. ;2.;2.. -::'7=,_ =. €= EXHIBIT "B" Partial Conditions of Approval for Chula Vista Tract No. 96-04A Otay Project, LP, Otay Ranch SPA One Village I Phase 7 Resolution No. 19448 - Condition No. 55 55. Prior to approval of the first final "B" Map or grading permit for land draining into Poggi Canyon or grading permit which requires construction of the Poggi Canyon Channel, whichever is earlier, the developer shall: a. Guarantee the construction of the applicable drainage facility, unless otherwise approved by the City Engineer including a runoff detention/de silting basin and naturalized channel in Poggi Canyon; The City Engineer may approve that these facilities are constructed at a later time if the developer provides private temporary runoff detention basins or other facilities, approved by the City Engineer, which would reduce the quantity of runoff from the development to an amount equal to less than the present 100 year flow. Said temporary facilities shall comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES)and the Clean Water Program. Prior to issuance of any grading permit which approves any temporary facility, the developer shall enter into an agreement with the City to guarantee the adequate operation and maintenance (0 & M) of said facility. The developer shall provide security satisfactory to the City to guarantee the 0 & M activities, in the event said facilities are not maintained to City standards as determined by the City Engineer. The developer shall be responsible for obtaining all permits and agreements with the environmental regulatory agencies required to perform this work. b. Prepare a maintenance program including a schedule, estimate of cost, operations manual and a financing mechanism for the maintenance of the applicable facilities. Said program shall be subject to approval ofthe City Engineer, the Director of Planning and Building, and the applicable environmental agencies. c. Enter into an agreement with the City of Chula Vista and the applicable environmental agencies (Fish and Game, Fish and Wildlife) wherein the parties agree to implement the maintenance program. d. Enter into an agreement with the City where the developer agrees to the following: (1) Provide for the maintenance of the proposed naturalized channel and H:\HOME\ENGINEER\LANDDEV\OTA YRNCH\OR151B.DOC /2-e2J detention basin in Poggi Canyon until such time as maintenance of such facilities is assumed by the City or an open space district. (2) Provide for the removal of siltation in the Poggi Canyon Channel (including detention basins) until all upstream grading within the development is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Planning and Building. (3) Provide for the removal of any siltation in the Poggi Canyon Channel (including detention basins) attributable to the development for a minimum period of five years after maintenance of the facility is accepted by the City or an open space district. H:\HOMEIENGINEERILANDDEV\OT A YRNCIDOR151B.DOC jr2r-;;"Y EXHIBIT "e" SECURITY REQUIREMENTS INTERIM DESILTATION AGREEMENT (POGGI CANYON) 1. TEMPORARY DESILTATION FACILITIES (Section 4 of the agreement) * Cash Deposit Cash deposit in the $34,000 to be concurrent with the of this agreement amount of submitted execution * Maintenance Bond Bond (S-year term) in the amount of $136,000 to be submitted prior to issuance of the grading permit 2. SILTATION REMOVAL (Section 5 of the agreement) * Cash Deposit Cash deposit in the $100,000 to be concurrent with the of this agreement amount of submitted execution * Maintenance Bonds Bond (series of one year term) in the amount of $400,000 to be submi t ted prior to issuance of the grading permit. 3. HABITAT MITIGATION REQUIREMENTS (Section 6 of the agreement) * Cash Deposit Cash deposit in the amount of $200,000 to be submitted prior to issuance of the grading permit * Maintenance Bond Bond (S-year term) in the amount of $800,000 to be submitted prior to issuance of the grading permit H:\HOMEIENGINEERILANDDEV\OT A YRNCH\ORI51 B.DOC /2~2S-- ~AUG.16.1999 4:24PM THE OTAY RANCH COCIATES so 858 5~NO. 5264 Fp.8:/03 EXHIBIT "A " OTA Y RANCH SPA 1 VILLAGE 1 PHASE 7 TOT~L P.03 /e2--02.? ~1I1$;'r IS t'~~~'U7"dHl~ R~qu~ste~ h~,' JFJ,q S::. 'o~ H H~)\t:~ l".~:ISEI~R ___.4. ~,: ):):~\' (r:-.:~ YtC,~'i-1 '~)L ~ ~ ;:...: ',-. --~~.. ,....,- -.-,.... ~-.._-_..~ v~' :-le:: F-~e 2 =~de:i 1 M~ -' - .. J.Ci..___ ---,.,..,"\/ :)F:::~v~.. \.7IS::;.. ~i6 Fou~~~ Avenue :h:.:la \!is:.a I CA 9:92.0 DESILTATION Ah~ GRAnING AGREEMENT OTAY R&~CH SPA ONE ~=LLAGE 1 PHASE ~ (Condition 55 of Res81utio~ 194~8) ~~~E hs~eemen~ lS mane O~ ~~is =~~~ ~ay 8~ AU9us~, .... ...~ '- -- -' - -' , ~-j-' ~e=wee~ J~2Y P~cjec~, --l=-, '~~ - ~. .' lp"':,~~ ' ;;~.;:::. ., \ ;.....1_'___,,-,,__ , . -. an:l ::.n~ 2:'-' ,":\" \ :"S:'c . ___ =2.~ i:: ::,~:-_i. a , - rnun:...:: =- :Jc..._ ':: ,::,::-p =.:::- a ~ l c::--~ :::::_'"''': - 71'~:: '....-- -1',,>, v.-~ :';l -.--:::;..._. .::....,"=,....-,'--'~ ----.---"----- ~ - - . , - = =- ~ __ ::)'v.~ =- ~::: -;::::. --:::. -.......- --- . ~EC:=:-F~S ~. J~a}r Proje=~, ~~ is ~he mas~e~ ~evelQ~e~ an~ owne~ 0:: , , approx::-ma:.e-Ly - '"' '"' -L"::~ acres (~Project~) ,..,- v_ :.hat. cert.ai.n real >>.7\>> , pyoperry, as described on Exhibi~ ~ a~Q snown on Exh~b~t :::.~ 1X'"1 ~--p":; ,~""h-i'n - ...:~_--"-<< -LO'--a.....~"'" v;_'-"~_." c;. por:.::-or. ,..,- -....;';'" what :.s cDmmo:-lly knDwn as Villaae One Phase 7 (Purple Phase ; 0:: the Otay Ranch planned c:Jmmuni:.y. _ ~n October 28, 1993, ~he Chula Vis~a City Council, """1-~"-"-- -'......._ ::::, u.c.._.L I.- :'0 Resolution No. 17290, as amenaea .on ~av 14, - 0 '"' ~ ____::1'0 bv Resol'J:.ion ND. 18285, and in accordance with the California ~::\ri~onmen-:'c..l Quali t)" Act (~CEQ.z~~) (Pub. Resources CD de 1 /2 -02.? .; '2 :: :. i :J::-: , - ,... r-. '\ - --... -- ....- et se::. ---.:=.:.-- ~ - ~ ;::..:.--. ---- ----~....... :':le .. - -- ;::. ~ --.-- ...,- - ~..,- - .~ - - - - -- - - ~ ~:-:"\~:.. ::-:):1!Tle:::. a =- _r.l:tJd::-: !'""'..e:=; =':-:. =-.- ~~~ --::"':' '-'--- J .s =:~ ~ , - ~ - - v _ (~Proqram ~~~ 90-0l~, r-,~ x':"~,"",~~~",- ;;--R'>> __ <<_ _ -'~__ C1..~. ____ ~I , mace ceY~a~~ ~~~~~:_=~ ~= Fact, adop~ed a Mitiaa::.ioD Moni::.oring ana ~ep=r-:~D= Program, and adopted a Statement "'.;: v...... Ove~~iding Consi~e~~~~2~S. c. On June 4, 1996, t.he Cit)" C:8uncil, ;:':1~suc..::: Resolution No. 18286, as amen::ied on ?ebruary " r - ~ , - :... c; .: .-,-. - \ Resolutio::1 No. 19376, approved t:he O::ay Ran::.r:. - - .::Je:: -=-: :)::-...2_ ?lanning Area Plan (SPA One) i~cludin; ~~e Otay Ra~=~ ?u=~~= - ..." , ..:--aClJ...lt.les ?inancing Plan ~or Villaaes One -~- c..;,~ ___ ~esolutio~ Numbe~ 18266 ana re'-~sec 8~ ?ebr~ary :~l ;'_esolu:..:..o:--... I~8. 2-9376 rel)ring O~ ~he O~ay Ranc~ S?J~ J~e -,' 1 t':o.na... Second Tier Environmental Impac~ Report 95-C: 2.::l.:: ::':le :irst Addendum, recertified on May L~, ~ ~ Q'" __~__o oy Resc~~~~~~ N~. :'8304. D. On May 4, 1999, t:he C~~y approved a Tenta::.ive Map. Tract 96-04A (herein referred to as ~he ~Project!s Te~~a::.ive Map~) , foy Villaae ~ One and port:ion "'.:: ',-"..;.. Village ~'i \re - , ~esolution Number 19448. E. Condition number 55 0:;: the Project I s Tent:a::.ive !vIap as more particularly set forth on Exhibi t ~B~: (I! CO::1:::i ::.~::,:-:. 55"), re~ires the Developer to guarantee the constr~ct~o~ == a drainage facility and guarantee the operation anc.. 2 /02 ~d-~ 17la=-r:.:.e:la::::~ 1""'.- ~ , , -..,,......- - -. - - .... _. . ;::'1...4_..._ _a'-....~...._\. I' -,......,.....,~~ +- -:.-.._ ---...........-- '--- ------ =- rr.p~2\"'e!':1e:-_:. ~ I :- . Whereas :>e"\ielC)pe::- :1a8 pyoposed gyac:-ng --.- -- - Ii':::" Project on :hula Vis~a Drawings N~. through G. Whereas Otay Project, LF, has proposed that certain Desiltation Facilities and Detention Facilities, as shown on Chula Vista Drawings Nos. through a~.=> .l- _ adequate to meet the detention requirements for the graolng proposed for the Projec~ on Chu:a Vista Drawings N~. ~hrough Whereas O~~y prcject, ~~, is the master Qeve~o~sr who has obligated itself to CO:1struct public improvemen~s under the terms of the Tentative Subdivision Map and the Re- stated and Amended Pre-~~nexation Development Agreement, (Ordinance No. 2695) I. ci ty has applied for and requested a Section 4 D4 Permit, Clean Water Act Section 401 Certification or Waiver, an Endangered Species Act Section 4(d) Habitat Loss Permi~ and California Fish and Game Section 1601 Streambed Alteration Agreement (collectively "Environmental Permits") which relate to that portion of Olympic Parkway which DeveloDer obligated to construct. 3 /:2--~( ~~e :ollowi~g oefi~ed ~e~s s~~__ have ~~e me~~~~~~ .-..;=..- :=>~- :c~~~ ~e~e~D ~~less o~herwise spec~=~~~::y ~~~~2a~e~. 1.1 ~Complete Construction~ sha.LL mea:-, -- """' -., - _.....1.0........ construction of the improvements have been completed and have been inspected by the City. 1. 2 ~Final iB~ Ma~ shall mean any fin.al subdivision map for all or any portion of the Property o~~er -::.han the Superblock Final Maps commonly referred to by::::=-::y ;0, C an ~:~ Map. ~aintai~ or ~aintenance~ shall mean furnish, or the furnishing of, services and materials for the ordinary and usual maintenance required for the operation 0: the Desiltation Facilities and Detention Facilities or similar type of improvement or as set forth In a City approvec maintenance program. 1.4 ~project~ shall mean the portion or the Property within Village One which drains into Poggi Canyon, as depicted in Exhibits ~-1~. 1.5 ~xisting Natural Poggi Canyo~ shall mean the natural flow line of the channel in Poggi Canyon from Brandywine Avenue to SR-125. 4 / cL ~ Ji/ X:r>pc;" , ,.. a'-'; 0'"" -:-:~ - - -- -- .... ..... -- ...... ;;'~ ~" , " ~ "p :::: _ a ~ ~ _ _ '-- ~ ~ S=::. shall 8eoa:: - ...-,~ provisions fo~ cont~82.1ing erosi~rl and s~l ~ t~a::spo~ta:. ~o:-_ ::hat are shown on the plans and details of ::he approve:: grading plans for the Project on Chula Vista Dwg. Nos. through together with the proper maintenance !"""'.- v... those facilities. Desiltation Facilities shall include a' l private temporary desilting basins, silt fences, hydroseeding, and any other erosion/sedimenta~ion control facilities for the Project shown on Chula Vista Dwg. Nos. ~hrough :.7 ~~eten::ion Facilities~ shall mean the prOVlSlons for reducing the runoff drainage flows from the Project to existing pre development conditions that are shown on the plans and details of the approved grading plans for ~hC ......J....._ Project on Chula Vista Dwg. Nos. through together with the proper maintenance of those facilities. NOW THEREFORE IT BE RESOLVED that the Parties agree as follows: 1. Perfor.mance Obligation. Otay Project, LF, signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the obligations set forth herein. 5 /;2 ~J/ 2. Acknowledgments. ::Je-,e::'oper . , 1..::1oers:.a:1::::'s 0.:18. a=-~e-=~ :.nat. Deve:oper shall be rea:.::.red -", ......-.1 compl}-~ Vv'-; - t'"', :. rl:) S oS provisions of Condition No. 55 of the Project's Tenta:.ive Map regarding construction, main~enance, and desiltation of the permanent naturalized channel and permanent detentionjdesilting basin ln the Poggi Canyon, prlor to approval of the first final ~~ map or any subsequent grading permit for the Project, whichever occurs first. Developer acknowledges and agrees that this Agreement does not fulfill all of t.he requirements of Condition 55 of the Proj ect 's Tentative Map. Developer further acknowledges and agrees that :.his Agreement. does not fulfill Developer'S du~ies and obligations as set forth in t.he Agreement for Financing and Construction of Olympic Parkway and Related Roadway Improvements adopted by Chula Vista City Council Resolution No. 19410 and specifically does not relieve Developer of the duties, obligations and restrictions of Table 11 thereto. Developer acknowledges and agrees that this Agreemen~ may no~ be construed or interpreted as fulfilling any of its obligations except as partial satisfaction of Condition 55 of the Project's Tentative Map as specifically set forth herein. 3 . Condition No. 55 Detention Facilities and Desiltation Facilities. In partial satisfaction of Condition No. 55 of the Project's Tentative Map, with respect to the 6 )2,-3:2- P ~CY\l:' S:" O:1S ~~ a~equa~e Deten~~~~ ?acil:..~~es 0.:1::: :Jes.:..::':.a:..:..c=-. ~acilit.ie8 f,~r t.he grac:.:.ns ,^?2Y.K p'~op:)sej a:-~ :::::..:.:'a \:=-s:.~ Drawing Nos. :.hrough , ~eveloper agrees to construct private Detenti~n Facilities and prlvate Desiltation Facilities as shown on Chula Vista Drawings Nos. through , as approved by the City Engineer, to control the quality and quantity of runoff from the Project into the Existing Natural Poggi Canyon for the grading work proposed on Chula Vista Drawings Nos. through ___ ':'he private Detention Facili 'Cies and Desil tation ?acilities shall comply with all the provisions of the National ?cllutant Discharge Elimina'Ci~n System and the Clean Water Program. Developer u:1derstanas and agrees that Developer is responsible for obtaining all necessary permits, approvals and certifications, if any, from the applicable federal or state agencies, including but not limi tea 'Co California Department of Fish and Game and/or the U.S. Army Corps of Engineers. 3.1 Maintenance. Developer shall operate and maintain the Detention Facilities and Desiltation Facilities to the satisfaction of the City Engineer until such time as the construction of the permanent naturalized channel and permanent detention/desilting basin in the Poggi Canyon, as required by Condition 55 of Project's Tentative Map, have been completed and accepted by the City. Developer understands and 7 /c2 -3;1 agrees :':-.a:' ::level::>:per shall be solely respons:..ble -~~ - ",c. main:'ena::1ce and opera:.ior: 0:: :.he Det.er::.ion ?aci~::.. t.ies a::lC Desiltation ?acilit.ies and any liability resulting :.here::ro~. Developer acknowledges and agrees that. it will operate and maintain the Detention Facilities and Desiltation Facilities In perpetuity should Developer fail to comply with Condition 55 and the Agreement for Financing and Construction of Olympic Parkway and Related Roadway Improvements. 3.2 Security. Developer shall provide the City wi t.h securities, in accordance with paragraph 6 below, to guarantee Developers' Maint.enance obligations hereunder. 4. Condition No. 55 - Siltation Removal. In partial satisfaction of Condition No. 55 of Project's Tentative Map, Developer agrees to remove siltation attributable to the Project from the existing natural Poggi Canyon including any additional work as required by the City Engineer or an environmental agency to restore the channel to its natural state, until such time as the construction of the permanent naturalized channel and permanent detention/desilting basin in the Poggi Canyon have been completed and accepted by the City. Developer understands and agrees that the City Engineer shall be solely responsible for determining if any siltation is attributable to the Project. 8 /2:Jf 4.::" Se~u::-it:y. ::Jevelope::-s snall :::::-:::VlCle ths :=l ::,. 'yo;':" t.:-. securi~ies, ~n ac=o~da~ce with pa~ag~aph 6 below, ~c ~~a~an~ee ~evelope::-s' siltation removal obligations hereunde::-. 5. Habitat Mitigation. Developer understand and agrees that Developer shall be responsible for implementing, at its sole cost, all requirements of the Environmental Permits that pertain to those portions of the Olympic Parkway extension project which the Developer is obligated to construct. These elements include, bu t are not limited to . " l any ano a.l.J- pre- construction and construction period measures reaui:r-ed ::0 comply with Envi:r-onmental Permits requirements, any and all habitat conse:r-vation and/or restoration required, and any all maintenance required to achieve mitigation habitat success milestones over the periods required by the Environmental Permits (anticipated to be 5-years). As a principal beneficiary of the Environmental Permits, Developer shall ensure that any and all measures to meet the obligations of the City under the Environmental Permits, shall be accomplished by the Developer for that particula:r- portion of the Olympic Parkway extension project which the Developer lS obligated to construct. Any and all obligations of the City, as required by the Environmental Permits conditions, that are not satisfactorily completed shall be remedied, at Developer's sole expense, within those portions of the Olympic Parkway extension project which the Developer is obligated to 9 /2-J5 c:):-~s:'ruc:. . 5.1. Security. Developer shall provide ~he Ci~y wi~~ securities, in accordance wi~h paragraph 6 below, to guarantee Developer's obligations hereunder. 6. Security for Performance. 6.1 Cash Deposit. Concurrent with the execution of this Agreement, Developer shall provide the City with a cash deposit to guarantee Developer's obligations unaer ~his Agreement and Condition 55 of ~he Project's Tentative Map in the sums s<=>.... -~ for:.h in Exhibit ~~ ( 11 Cash Deposit"). City shall hold the Cash Deposit until Developer has fully complied with this Agreement and Condition 55. City shall e}~end such deposit solely for purposes In the performance of this Agreement and Condition 55 obligations including siltation removal. In the event of Developer's default In the performance of its duties and obligations of this Agreement or any Condition 55 obligations, Developer agrees to pay to the City any difference between the total costs incurred by the City to perform such duties and obligations, and any proceeds from the Cash Deposit. Should the City expend the Cash Deposit due to Developer's failure to perform under this Agreement or pursuant to Condition 55, Developer agrees to redeposit the 10 /:2 '3 t eql.:.ivale::: sum r-,~ '-'- m:::l:1ev :1ee::ied -~ ....'-' ecruai t.~e am~un:' :-e~:.:=-~e8. ........."'.. ~) :.~is AgYeeme~=, as se~ :o~:.~ i~ Exh~bi~ ~'~, withi~ 3~ days t.he City's ~equest ::::l~ such deposit. All interest ea~:1ings 0:: the Cash Deposit shall be ~etained by the City du~ing this period. Any unexpended amount of the deposit, including any interest earned, shall be released and remitted to Developer upon the termination of its obligations as set forth in this Agreement and full performance of its obligati:::lns under Condition 55. 6.2 Five-Yea~ Term Bonds. P~io~ t:::l the issuance of the s~ading permit for the proposed grading fo~ the P~:::lject on Chula Vist.a D~awings No. through :>eveloper shall p~:::lvide the City with a Bond guaranteeing its obligations under Sections 3 and 5 of this Agreement and its obligations pursuant to Condition 55 in the amounts more fully set forth in Exhibit ~~. The Bond(s) shall be issued by a surety with a Bests A-V rating or better and shall be in a form approved by the City Attorney. At all times while Developer has outstanding obligations under this Agreement, the Bond as required herein will be valid and in full force and effect. Developer understands and agrees that the City shall not issue building permits for the Project if the Bond or Cash Deposit have not been delivered or approved as sufficient by the City. 11 /,< ~Jl ::::>eve::::ype~ may ~eques~ ~-,.....-- .... ...J.O-..... anot.he~ :. ~ ~rr. ~- ~- '2 :::..:.:.. '\ ~ c. _ e :--. :. securi t\,~. such as a le~~e::- ,.....;. -........A,....:;;~.............- v_ ___\,.,4........... __ :::ash, acce:;:/:.at:2.e -:.~ t.he Cit.y in its sole disc~et.ion, be subst.it.ut.ed fo~ t.he Bonds described herein. Developer acknowledges and agrees that. such substitut.ion is in the sole discretion of the City. 6.3 One-Year Term Bonds. Prior to the lssuance of the grading permit for the proposed grading for the Project on Chula Vista Drawings No. through ,Developer shall provide t.he City with bonds for a series of one year t.erms starting from t.he date of issuance of the grading permit connection with Chula Vista Drawing Nos. -:hrough order t.o guaran-:ee its siltation removal obligations under Section 4 of this agreement. and its obligations pursuant to Condition 55, in the amount.s more fully set forth in Exhibit ~~. The Maintenance Bond(s) shall be issued by a surety with a Bests A-V rating or better and shall be ln a form approved by the City Attorney. The City Engineer will review the securit.y provided herein every year prior to expiration thereof. The City acknowledges that bonds are issued for a one year period, however, it shall be t.he responsibility of Developer to ensure that at all times while Developer has outstanding obligations under this Agreement, security as required herein will be valid and in full force and effect. Developer understands and agrees that the City shall not issue building permits for the Project if the bonds 12 /2-]5' Cash :Jepos ~:. ha."re no:. bee~ delive~e6 sy a ':J:):- 8 "'V. e j surrlCle~~ by the Ci~v O~ said D8nds nave no~ bee~ ~e~ewe~. At the bond renewal t~me, Lhe City Engineer may reduce the bond requirement by an incremental amount determined by the City Engineer to reflect a reduction in Developers I maintenance obligations. In addition, Developers may request that another form of equivalent security, such as a letter of credit or cash, acceptable to the City in its sole discretion, be substituted for the bonds described herein. Developers acknowledge and agree that such reduction and substitution is in the sole discretion of the City. 7 . Use of Cash Deposit and Bonds. Developer acknowledges that those government agencies responsible for issuing the Environmental Permits will likely condition such Environmental Permits, if issued. City, as permittee, shall meet the conditions of the permits should Developer fail to enter into an agreement with City for Developer to comply with such condiLions. l. Developer hereby agrees that City shall use the Cash Deposit and any redeposit thereof as described in Section 6 above to comply with the Environmental Permits and any conditions and requirements thereto. 13 / ol.. - .3 <; :Jeveloper acknowle::l:Jes a:1:::1 s;rees .- r;.;;.: :Jetention Facilities OY Conci~i:)!1 -.- :rnp=avernen:.s Ci:::-e n'::J:' completed .....ithin t.he time agree:i, t.he sums prm"ided . . - .::>y sa::":::1 Bond may be used by City for the completion of t.he Det.ent.io~ Facilities and Condition 55 Improvements in accordance with approved plans and specifications or at the option of t.he Ci ty, for those improvements that are less than, but not greater to, the sums provided by said Bond. Upon certification of completion by the City Engineer and acceptance of said work by Ci t.y, if necessary, and after certificat.ion by the Director of Finance t.hat. all costs t.hereof are fully paid, the whole amount., or any part. thereof :1 :r: required for payment thereof, mav De released -~ ....1....) t.he Developer or its successors 1n int.erest, pursuant. t.o he t.erms of the Bond. Developer agrees t.o pay to the City any difference between the total costs incurred to perform t.he work, including limited and reasonable design and administration of construction in substant.ial conformance with t.he approved plans (including a reasonable allocation of overhead), and any proceeds from the Bond. iii. It 1S also expressly agreed and understood by t.he parties heret.o that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall the City or the City'S officer, sureties or bondsmen, be 14 /c2 ~~tJ ::..ab:e ~-,"'" ""'--'- :.he pa"11Tler:: 0: a:;.)" S "J IT. ~.".. --'- S :.uns :8~ sa::.:: W8~}: a::~" mate~ials :~~Jished ~he~ef8~. 8. Building Permits. Develope~ acknowledges and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of the City of Chula Vista. Therefore, the Developer agrees that the City shall have the absolute and unfettered right to withhold the issuance of any building permit for any residential units within the Project if the Developer 1S determined by the City not to be 1n compliance with the terms of this Agreement. T~ -.... Developer ::.s determined by the City not to be in compliance wi th any ~erm 0: this Agreement, the City ShaLL notify Developer of Developer's noncompliance and provide the Developer with 30 days to cure salCi noncompliance. The Developer shall not be in non-compliance if, upon notification of non-compliance, Developer starts immediately to work toward cure of said non compliance and diligently pursues, as determined by the City Engineer, a course of action to achieve a cure within a reasonable time frame. 9. Indemnification. Developer further understands and agrees that City, as indemnitee, or any office or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, related to the 15 /02-,// C:>:1S~~U'2:':" ::):: of t1le :Je:. en::' O~. ...... ' -.' , :-a::::..~.:..t.:..es an::: -. - -les:..~ :.a:.:..::::-. ?acili~ies anj Developer's mai~:.enance ac:.ivi~ies. :>eve:'o:::>e::- :urther agrees to prote:::t and hold the City, . ~ - , - :..t.s O::lCeyS a:1::: employees, harmless from any and all claims, demands, :::auses of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employee, related to the construction of the Detention Facilities and Desiltation Facilities and Developer's maintenance and/or siltation removal activities. The approved Improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification ana agreement to held harmless shall extend to damages to adjacent or downs~ream properties or the ~aking of prope~ty =~om owners or such adj acent or downstream properties as a result of Developer's construction and maintenance activities as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion O~ siltation, or modification of the point of discharge as the resul t of the construction of the Detention Facilities and Desiltation Facilities and maintenance and/or siltation removal activities. The approval of plans for the Detention Facilities and Desiltation Facilities and any related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction 16 / 2 /~.2. r~ :'~le ~e~e~t~o~ an= Desil~at:8~ Fac::~~~es ~~~ 0....1'...... a::y --c.:~-:;.:..~ .....------'-- :..mprovemen:.s.. The p::-ovisions :.nlS AG~eeme::t. sr~a:2. ~e=:)rne effective upon the execution of this Ag::-eement. 10. Miscellaneous Provisions. 10.1 Entire Agreement. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof and any and ~ -, l Ct~....... other prio::- or contemporaneous oral or written agreements are ~e::-eby superseded. This Agreement may be amended, but only pursuant to a written amendment prope::-~y autho::-ized and executed by both parties hereto. 10.2 Co~liance with Laws. In the performance of its obligations under this agreement Developer shall comply with any and all applicable federal, state and local laws, regulations, policies, permits and approvals. 10.3 Recitals and Exhibits. All Recitals and attached Exhibits referred to herein are hereby incorporated herein by this reference. 10.4 Term. This agreement shall remain in effect for so long as either party has executory obligations hereunder. 17 J,! ;J/J 10.5 ?ecoydinc. ~he oa::.-:.:.es nere-:c sl'1a.ll c:a1...:se Agreement to be yecorded in the ~fficial Records of the County of San Diego. 10.6 Release. Each lot or parcel encumbered by this Agreement may, in the City Manager's (or Manager's designee) discretion, be released from the encumbrance hereof upon the conveyance of any such lot oy parcel to a buyer of an individual housing unit or to a homeowners association. The City ManageY (or Manager's designee) shall not withhold consent to such release so long as the City ManageY \ OY Manager's jesignee) ~n good faith finds that the Developey is in compliance with the teyms of this Agreement and that such partial release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot oy parcel encumbered by this Agreement or the conveyance to a homeowner's association of any lot oy parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. In the event, the City Manager (or Manager's designee) agrees to the release, or escrow closes on any individual homeowner's lot or parcel at the request of Developer or any successor in interest who owns any such lot or parcel, the City Manager (or Manager's designee) shall 18 /.2-Lf{ execute a~ ins~rume~~ d~afte~ b~! ~eve:2~e~ __ ~e:::;::-:la.::;_e =orm accep~able to Ci~y Manaoe~ 2~ Ma~a?e~ls des~g~ee: W~~2~ confirms ~he release of suc~ lo~ O~ parcel =~om ~he encumbrance of this Agreement. 10.7 Assignment. The obligations of the Developer under t.his Agreement shall not be assigned in whole or In part, without the express written consent of the City. 10.8 Authority o~ Signatories. Each signat.ory and part.y hereto hereby warrants and represent.s to ~he other party that :. ~ has legal authority and capacity an~ direction ::rom ..; +- -. -"-c..;::' principa~ to enter into this Agreement., and ~hat all resolutions and/or other actions have been taken so as to enable it to enter into this agreement. 10.9 Termination. Upon the termination of this Agreement pursuant to applicable provisions hereof, at the request of Developer or any successor in interest who owns any portion of the proj ect encumbered by this Agreement, the City shall execute an instrument in recordable form which evidences the ~ermination of this Agreement and confirms the release of the Project from the encumbrance of this Agreement. [NEXT PAGE IS SIGNATURE PAGE] 19 /2-g S=GNATUR~ ?AGE TJ G?JWING .~~ DETEN~=ON BASIN AGREEMEN~ IN WITNESS WdEREOF, the parties hereto have caused ~~~s agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA DEVELOPER: Mayor Attest: City Clerk Approved as to Form: City Attorney 20 / e2 -L/J ~ist of Exhi.bi:.s Exhibit A Legal Description Exhibits A-l Project Plat Exhibit B Partial Conditions Approving C.V.T No. 96-04A Exhibit C Security Requirements 21 /~-'1l - i1" - '; EXHIBIT "A" LEGAL DESCRIPTION PARCEL A: IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 18234, FILED IN THE OFFICE OF THE SAN DIEGO COUNlY RECORDER ON APRIL 13, 1 999, LYING SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT AN ANGLE POINT IN THE NORTHERLY BOUNDARY OF PARCEL 5 OF SAID PARCEL MAP NO. 18234, SAID ANGLE POINT BEING THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID PARCEL MAP NO. 18234 AS uN 43029'00" E, 337.09'ft; THENCE LEAVING SAID NORTHERLY BOUNDARY, SOUTH 28003'00" EAST, 918.55 FEET; THENCE SOUTH 27D26'OO" EAST, 47240 FEET TO A POINT ON THE SOUTHEASTERLY BOUNDARY OF SAID PARCEL 1. EXCEPTING THEREFROM THAT PORTION OF PARCEL 1 OF SAID PARCEL MAP NO. 18234 LYING SOUTHERLY OF THE NORTHERLY UNE OF THAT CERTAIN 100 FOOT WIDE STRIP OF LAND KNOWN AS THE SAN DIEGO PIPELINE, DESCRIBED IN DEED RECORDED JUNE 24, 19121N BOOK 570, PAGE 113 OF DEEDS. CONTAINS 91.90 ACRES MORE OR LESS. ~ cA-..- /l- >i- 9 AU~ Y i JOHN W. HILL, JR. loS. 5669 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :DS M:\Legals\OO25\251 aOJ.doc WO 0025-251 8/9/99 /,2 ~(r ~ '-'< " ",,) "'7.-1-1,,11 :,.... Ulr'll i\r\I~l.fi 'uU NU.4~/S P.3/3 EXHIBIT "A-I" OTA Y RANCH SPA 1 VILLAGE 1 PHASE 7 R: OD96\0096lA02 - w.o. 2~-26~ /.2 - /f9 EXHIBIT "B" Partial Conditions of Approval for Chula Vista Tract No. 96-04A Otay Project, LP, Otay Ranch SPA One Village 1 Phase 7 Resolution No. 19448 - Condition No. 55 55. Prior to approval of the first flnal"B" Map or grading permit for land draining into Poggi Canyon or grading permit which requires construction of the Poggi Canyon Channel. whichever is eariier. the developer shall: a. Guarantee the construction of the applicable drainage facility, unless otherwise approved by the City Engineer including a runoff detention/desilting basin and naturalized channel in Poggi Canyon.; The City Engineer may approve that these facilities are constructed at a later time if the developer provides private temporary runoff detention basins or other facilities, approved by the City Engineer, which would reduce tqe quantity of runoff from the development to an amount equal to less than the present ] 00 year flow. Said temporary facilities shall comply 'with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean \Vater Program. Prior to issuance of.any grading permit which approves any temporary facility, the developer shall enter into an agreement ,"rith the Cit)' to guarantee the adequate operation and maintenance (0 & M) of said facility. Tne developer shall provide security satisfactory to the City to guarantee the 0 & M activities, in the event said facilities are not maintained to Ciry standards as determined by the City Engineer. The develop,er shall be responsible for obtaining all permits and agreements with the environmental regulatory agencies required to perform this work. b. Prep:..::: a mai~ten~ce program in:luding a s:hedule. estimate of cost. operations m~uaJ and a Imancmg mechanism for the maimt'nanc:: of the applicable facilities. Said progr3.m shall be subject to appro\'al of tht' Cit\' Encineer. the Director of Planning and Building. and the applicable en\'ironmen~ ag~encies. c. Ent~r into an agr~emen.t with the City of Chula Vista and the applicable en~'lTonrnentaJ agenCIes (FIsh and Game. Fish and Wildlife) wherein the parties agree to Implement the maintenance program. /;2 -50 d. Enter into an agreement 'with the Cit)' where the developer agrees to the following: (l) Provide for the maintenance of the proposed naturalized channel and detention basin in Poggi Canyon until such time as maintenance of such facilities is assumed by the City or an open space diStrict. C) Provide for the removal of siltation in the Poggi Canyon Channel (including detention basins) until all upstream grading within the development is compleled and erosion protection planting is adequately established as determined by the City Engineer and Director of Planning and Building. (3) Provide for the removal of any siltation in the Poggi Canyon Channel (including detention basins) attributable to the development for a minimwn period of five years after maintenance of the facility is accepted by the City or an open space district. /~r3/ EXHIBIT "e" SECURITY REQUIREMENTS INTERIM DESILTATION AGREEMENT (POGGI CANYON) 1. TEMPORARY DESILTATION FACILITIES (Section 3 of the agreement) * Cash Deposit * Maintenance Bond Cash deposit in the $34,000 to be concurrent with the of this agreement amount of submitted execution Bond (5-year term) in amount of $136,000 to submitted prior to issuance the grading permit the be of * Cash Deposit 2. SILTATION REMOVAL (Section 4 of the agreement) Cash deposit in the $100,000 to be concurrent with the of this agreement amount of submitted execution * Maintenance Bonds Bond (series of one year term) in the amount of $400,000 to be submitted prior to issuance of the grading permit. 3. HABITAT MITIGATION REQUIREMENTS (Section 5 of the agreement) * Cash Deposit Cash deposit in the $200,000 to be concurrent with the of this agreement amount of submitted execution * Maintenance Bond Bond (5-year term) in the amount of $800,000 to be submitted prior to issuance of the grading permit 25 /~-Sj COUNCIL AGENDA STATEMENT Item Meeting Date 9/14/99 /3 ITEM TITLE: Resolution Approving the First Amendment to Deferral Agreement and Declaration of Covenants Running with the Land with McMillin Otay Ranch LLC and Authorizing the Mayor to Execute Said Agreement. SUBMITTED BY: Director of Public Works ( REVIEWED BY: City Manager Cf;/)'iV (4/5ths Vote: Yes_No.xJ This item is to consider the approval of the First Amendment to the agreement for deferring the development of certain parcels within the McMillin Otay Ranch SPA One project. The proposed amendment will make the agreement consistent with the current Public Facilities Financing Plan (PFFP) for Otay Ranch SPA One. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council adopt the Resolution approving the First Amendment to the Deferral Agreement with McMillin Otay Ranch LLC and authorizing the Mayor to execute said amendment. DISCUSSION: On October 6, 1998, by Resolution No. 18286, Council adopted the Otay Ranch SPA One PFFP which established cumulative Equivalent Dwelling Units approved on fmal maps ("mapped EDUs") as trigger points for constructing necessary infrastructure. This original PFFP required that community purpose facility lot CPF-4 (see Attachment 1) be included in determining the mapped EDUs triggers. On December 8, 1998, by Resolution No. 19297, Council approved a Deferral Agreement and Declaration of Covenants Running with the Land ("Deferral Agreement") with McMillin Otay Ranch LLC. In the Deferral Agreement, McMillin agreed to defer the request for a building permit for the CPF-4 site until Olympic Parkway from Brandywine A venue to Paseo Ranchero is constructed and accepted by the City. On April 20,1999, by Resolution No. 19408, Council approved an amendment to the PFFP that, among other revisions, removed CPF-4 as a site counted towards the mapped EDUs triggers. Therefore, this site no longer needs to be included within the property deferred by the Deferral Agreement. By approving the proposed amendment, Council will remove CPF-4 from the Deferral Agreement and make it consistent with the PFFP. The City Attorney has already approved the proposed amendment as to form. McMillin has already executed the proposed amendment. FISCAL IMPACT: None to the City. Attachment 1: Plat for CPF-4 H:\HOME\ENGINEER\LANDDEV\OTA YRNCH\113defag.doc /3-/ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO DEFERRAL AGREEMENT AND DECLARATION OF COVENANTS RUNNING WITH THE LAND WITH McMILLIN OTAY RANCH LLC AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, on October 6, 1998, by Resolution No. 18286, Council adopted the Otay Ranch SPA One PFFP which established cumulative Equivalent Dwelling Units approved on final maps ("mapped EDUs") as trigger points for constructing necessary infrastructure and required that community purpose facility lot CPF-4 be included in determining the mapped EDUs triggers; and WHEREAS, on December 8, 1998, by Resolution No. 19297, Council approved a Deferral Agreement and Declaration of Covenants Running with the Land ("Deferral Agreement") with McMillin Otay Ranch LLC. in which Deferral Agreement, McMillin agreed to defer the request for a building permit for the CPF-4 site until Olympic Parkway from Brandywine Avenue to Paseo Ranchero is constructed and accepted by the City; and WHEREAS, on April 20,1999, by Resolution No. 19408, Council approved an amendment to the PFFP that, among other revisions, removed CPF-4 as a site counted towards the mapped EDUs triggers and, therefore, this site no longer needs to be included within the property deferred by the Deferral Agreement; and WHEREAS, by approving the proposed amendment, will remove CPF-4 from the Deferral Agreement and consistent with the PFFP. Council make it NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the First Amendment to Deferral Agreement and Declaration of Covenants Running with the Land with McMillin Otay Ranch LLC, 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 First Amendment on behalf of the City of Chula vista. Presented by Approved as to form by J!~~:~rneY John P. Lippitt, Director of Public Works H: \home\attorney\reso\CPF4. 1ST /3/~ A lrA(,\-\ M~N\""" SECT! DN ! D - ..... "3:.~ '>0 Il """(-. -Q. C!-o C!-t'<\ ~~.. \ "3:.">- >:z. Il">- ~~ 7a ~~ :z. Jc:.?F-~l \ ~ /ifNgH --- of~~f' 9b PARCEL 2 CERT/ F j CA TE OF CDMPL j ANCE DOC. /997-D443746 REC. 9-/2-97 RICK ENGINEERING COMPANY CIVIL ENGINEERS. SURVEYORS. PLANNERS 5620 FRIARS ROAD. SAN DIEGO CA. 92110-2596 PHONEJ (619) 291-0707 33 ; 3-4 -- ~ - " A8 . L."; +' ,'- .. i..!.! ~! ~ 'I '-> lJV) FRACTJ DNA!... SECT/ON ~ TJ 8S,. R j W S.B.M. \ \ McMILLIN OTA Y RANCH SPA t KEY MAP. 500 SCALE PROJECT NUMBER, /:1 r-J 13126 DATE, JUNE 24. 1998 Recording Requested By: City of Chula vista When Recorded Return to: The City of Chula vista 276 Fourth Avenue Chula vista, CA 91910 Attn: City Clerk FIRST AMENDMENT TO DEFERRAL AGREEMENT AND DECLARATION OF COVENANTS RUNNING WITH THE LAND WHEREAS, the City of Chula vista ("City") by Resolution No. 19297 on December 8, 1998, approved a Deferral Agreement and Declaration of Covenants Running with the Land recorded in the San Diego County Recorder's Office as document number 1999-0253138 ("Agreement") to allow McMillin Otay Ranch, LLC, a Delaware Limited Liability Company formerly known as McMillin-D .A. America Otay Ranch, LLC, a Delaware Limited Liability Company, ("Developer") to defer construction of certain lots in order to construct additional residential developments within the limits of the ("PFFP"); and WHEREAS, the SPA I PFFP was originally adopted by the City pursuant to Resolution No. 18286; and WHEREAS, the PFFP originally required that lot CPF-4 be counted as contributing toward the number of EDD's (equivalent dwelling units) attributed to the Developer; and WHEREAS, at the time of approval of the Agreement, City included community purpose facility lot CPF-4 as part of the maximum number of EDD's Developer was entitled to (1,414) before being required to construct certain street improvements; and WHEREAS, the Otay Ranch CPF sites generate traffic trips that are focused within the immediate area of Otay Ranch, reflect non- peak traffic trips, and represent trips that are not new but included within the residential trip generation totals; and WHEREAS, the PFFP was amended on April 20, 1999 by Resolution No. 19408 to, among other revisions, remove CPF-4 as a site counted toward Developer's total number of EDD's; and WHEREAS, McMillin Otay Ranch, LLC, a Delaware limited liability company, the successor by merger to Developer has requested that City agree to amend the Agreement to delete the inclusion of CPF-4 from the Deferral Property. 1 /J-1 NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Exhibit A-I is hereby deleted and Exhibit A-l.l is substituted in its place and stead. All other terms and conditions not modified by this First Amendment to the Deferral Agreement and Declaration of Covenants Running with the Land shall remain in full force and effect. All terms and conditions in the original Agreement have no force and effect as to the property described in Exhibit "C". (NEXT PAGE IS SIGNATURE PAGE) 2 /' /J~ SIGNATURE PAGE TO FIRST AMENDMENT TO DEFERRAL AGREEMENT AND DECLARATION OF COVENANTS RUNNING WITH THE LAND IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. CITY OF CHULA VISTA McMILLIN OTAY RANCH LLC, a Delaware limited liability company Shirley Horton, Mayor By: McMILLIN COMPANIES, LLC, a Delaware limited liability company, Its Ma'()~fj jtr BY:~ Title: V'ttt.~ Attest: Susan Bigelow, City Clerk Approved as to Form: ~~~ Jo n . Kaheny, Clty Attorney Ho\Home\Attorney\Agree\Amendmnt.Def 3 / J --~ EXHIBIT ";'_-1.1" Lot 3 of Map No. 13649, in the City of Chula Vista, COUDLY Diego, state of California, filed in the Office 0: the Recorder of San Diego County, October 15, 1998. 13-? of San Counev --- EXHIBIT "cn Lo~ 8 of May No. l3605, in the City of Chu~~ Vista, County of S~n Diego, State of California, filed in the Office of the County Recorder of San Diego County, July 29, 1998. /.J -f? COUNCIL AGENDA STATEMENT /~ Item: /7 Meeting Date: 09/14/99 ITEM TITLE: RESOLUTION Appropriating $9,000 in unanticipated revenues from the U.S. Department of Justice for travel expenses for the Major Narcotics Trafficking Initiative. Chief of pOliceP City Manager G (// .V fcJ?C' (4/5ths Vote: Yes l No_) SUBMITTED BY: REVIEWED BY: The Chula Vista Police Department has one Agent assigned to the Major Narcotics Trafficking Initiative. This position is funded through the High Intensity Drug Trafficking Area (HIDTA) grant. The position requires the assigned Agent to travel while assigned to this initiative. Travel expenses incurred by this position will be reimbursed by the U.S. Department of Justice. RECOMMENDATION: That the City Council appropriate $9,000 in unanticipated revenues from the U.S. Department of Justice for travel expenses for the Major Narcotics Trafficking Initiative. BACKGROUND: In 1998, Council approved the participation and assignment of one Agent to the Major Narcotics Trafficking Initiative. The salary and benefits, including associated equipment are funded by the High Intensity Drug Trafficking Area (HIDTA) effort. San Diego and Imperial Counties have been designated a "High Intensity Drug Trafficking Area" by the U.S. Department of Justice due to the volume of illegal narcotics entering the United States through the international border. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: At the request of federal law enforcement agencies and as part of our participation in federal investigations, the major trafficking position will require the assigned Chula Vista Police Department Agent to travel on active criminal investigations. The United States Attorney's Office, Southern District of California has agreed to reimburse the City of Chula Vista for travel in relation to the Major Trafficking Initiative. A total of $9,000 in travel expenses has been allocated for this position. Travel expenses will be reimbursed quarterly based on actual expenses. FISCAL IMPACT: There is no net fiscal impact. The United States Department of Justice will reimburse 100% of all travel expenses. A:\A113 Travel Reimbursement.doc )'1// RESOLUTION RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $9,000 IN UNANTICIPATED REVENUES FROM THE U.S. DEPARTMENT OF JUSTICE FOR TRAVEL EXPENSES FOR THE MAJOR NARCOTICS INITIATIVE. WHEREAS, San Diego and Imperial Counties have been designated a High Intensity Drug Drug Trafficking Area by the U.S. Department of Justice; and, WHEREAS, The Chula Vista Police Department has assigned one Agent to the Major Narcotics Initiative funded by the High Intensity Drug Trafficking Initiative; and, WHEREAS, The City of Chula Vista will appropriate $9,000 in unanticipated revenues from the U.S. Department of Justice for travel expenses; and, WHEREAS, The U.S. Department of Justice will reimburse the City of Chula Vista for all travel expenses incurred by the High Intesity Drug Initiative position; and, NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby appropriate $9,000 in unanticipated revenues from the U.S. Department of Justice for travel expenses for the Major Trafficking Initiative. Presented by: BwfL Richard P. Emerson Chief of Police Approved as to form by: r!n~f!~ City Attorney /(/2 COUNCIL AGENDA STATEMENT ITEM TITLE: Item /~ Meeting Date: 09/14/99 RESOLUTION ACCEPTING DONATION OF TWO TACTICAL VESTS TO THE POLICE DEPARTMENT. Chief of Police ~ City Manager b(Z::-p/ ~.v (4/5ths Vote: Yes_ No~) SUBMITTED BY: REVIEWED BY: The Chula Vista Police Department's Special Weapons Tactical Team has received an unsolicited donation of two tactical vests from the Chula Vista Gun Store. The vests will be used to replace two vests, which are no longer serviceable. These vests will allow the Police Department to further enhance its abilities to respond safely to critical S.W.A.T. incidents. RECOMMENDATION: That the City Council accepts the donation to be utilized by the Police Department's Special Weapons and Tactical Team. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: On August 8, 1999, Mr. Alberto Rodriguez, owner of the Chula Vista Gun Store, located at 319 Broadway, Chula Vista, California, contacted Staff to make an unsolicited donation of two Second Chance, Hardcorp iliA, tactical body armor vests. The vests are extra stock that Mr. Rodriguez does not wish to sell to the public. The vests are new and are in excellent condition. Mr. Alberto Rodriguez, owner of the Chula Vista Gun Store, estimates the value of the vests to be approximately $1,900. The vests will provide an enhanced level of protection to members of our Special Weapons and Tactical Team. The vest is described as a standard body armor that is capable of defeating pistol and rifle rounds. The vests are rated at threat level IliA. Level iliA is one of the highest ratings and quality for tactical vests. FISCAL IMPACT: There is no fiscal impact for acceptance of the vests. The acceptance of the vests will save the general fund $1,900 which will be used to purchase additional vests as needed. Future replacement of the vests will be subject to department vest replacement cycles. /5// RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATION TO THE POLICE DEPARTMENT TO BE UTILIZED BY THE SPECIAL WEAPONS AND TACTICAL TEAM. WHEREAS, the Police Department received an unsolicited donation of two Second Chance, Hardcorp lilA, tactical body armor vests; and, WHEREAS, the Police Department received the vests from the Chula Vista Gun Store; and, WHEREAS, Chula Vista Gun Store has estimated the value of the vests to be $1,900.00; and, WHEREAS, the donated vests were presented to the Police Department to be utilized by the Special Weapons and Tactical Team. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept the donation to the Police Department to be utilized by the Special Weapons and Tactical Team. Presented by: Approved as to form by: 'l.lC WaJr/U_ Richard P. Emerson Chief of Police /yc2 COUNCIL AGENDA STATEMENT Item / ~ Meeting Date 09/14/99 ITEM TITLE Public Hearing: Consideration of the Proposed Grant of a Modified Cable System Franchise to Cox Com, Inc., Cox Communications San Diego Ordinance Approving the Grant of a Modified Cable System Franchise to Cox Com Inc., dba Cox Communications San Diego and Authorizing the Mayor to Execute the Implementing Franchise Agreement (First reading) SUBMITTED BY: Ordinance Amending the Municipal Code to Conform the Fees Assessable to Cable Franchisees and Other Video Programming Providers to those Allowed by State and Federal Law. (First reading) ~ Special Projects Manager City Manager~ (4/5ths Vote: Yes_ NoX) REVIEWED BY: This report presents a proposed amendment to the City's franchise with Cox Communications. Among the terms of this proposal is a recommendation to increase the franchise fee from the current 3% of gross revenues to the industry standard level of 5% as contemplated in the revenue projections approved by Council as part of the 1999/2000 Annual Budget. The proposed amendments would also provide the City with equipment and high-speed Internet access to enhance communications between the Civic Center, remote City facilities and the public at no additional cost. At Cox Communication's request, the proposal also transfers responsibility for the broadcast of Council Meetings and other City broadcasts on the Government Channel from Cox Communications to the City. Additionally, the proposal would extend the current franchise agreement term by approximately ten (10) years (from January 18,2010 to December 31, 2019.) The report also recommends certain changes to the Municipal Code regarding cable system franchises. The proposed changes would allow the City the range of options currently contemplated by state and federal law and further provides the City the flexibility to respond more expeditiously to future changes in the law. A Summary of the terms is provided on page 3 and 4 of this report. RECOMMENDATION: That Council conduct the public hearing and place the ordinances on first reading. BOARD/COMMISSION RECOMMENDATION: N/A BACKGROUND On April 16, 1964, the City Council adopted Ordinance No. 882 granting a franchise to Area Television Antenna, Inc. to operate a community antenna television system in the City of Chula Vista. That franchise was subsequently taken over by Cox Cable and substantially amended in 1984. The franchise is currently scheduled to expire in January 2010. /i-j Item _, Page 2 Meeting Date 09/14/99 Under the current terms of that franchise, the City is paid a 3% franchise fee on Cox's gross receipts. This rate is substantially below the industry standard of 5%, which is also the state and federal maximum. Of the other jurisdictions served by Cox in San Diego County, only the City of San Diego and the County are not at a full 5% -- San Diego is at 3%, the County is at 5% of receipts from basic and expanded service tiers only (not including premium channels or other services). One of the economic development sub-goals outlined by Council in the 1997 priority setting workshops was the review of city franchise agreements. In 1998/99 as part of the adoption of that year's budget, Council directed staff to negotiate an agreement with Cox Communications to raise the franchise fee from 3% of gross receipts to the industry standard of 5%. Subsequently, Council adopted the 1999/2000 fiscal year budget including a projection of $200,000 in additional revenues. Those revenues are based on a 2% franchise fee increase that would go into effect in November 1999. Council also directed staff to complete negotiations with Cox Communications and return with a proposal to implement the franchise fee adjustment required to generate the projected revenues. Because the negotiation of this proposal is taking place well before the end of the existing term of the franchise, the parties have focused on a limited list of issues that are of mutual concern. Those issues deal primarily with the length of the franchise term, fees and several changes in the technology and role of the cable industry that have occurred in the 15 years since the last update to the agreement. To further address Council's stated priorities, staff also incorporated input received from the public from the Smart Community workshops into the negotiations process. With this proposed agreement, the City would be able to improve communications between City facilities in a manner that will improve service to the public and enhance staff productivity at no additional cost. Process: Review of Other Franchises To prepare for a franchise amendment, staff reviewed the franchise documents and ordinances for cities in San Diego County and key cities throughout the United States that had recently concluded franchise agreements. Staff also sought input from an attorney specializing in cable issues and reviewed updates in the state and federal statutes regarding cable industry changes. Many of the terms proposed in this document are based on what staff and the attorney/specialist believe are the best provisions contained in agreements with other jurisdictions. Among those topics were: 1) customer service language, 2) extension of cable to new customers, and 3) language clarifying the definition of franchise fees. Staff also attempted to preserve the option for future City Councils to respond to changes in the industry that are likely to occur during the franchise term. Thus, this proposal includes: 1) a most favored nation provision, 2) a system of penalties to support customer service standards, 3) an "extension of infrastructure and services clause," and 4) a "system and services review," provision that will correspond with five year "renegotiation intervals," throughout the remaining term of the agreement. A summary of the major terms of the proposed franchise is set forth below. A copy of the proposed franchise agreement is attached. /t~ Item _, Page 3 Meeting Date 09/14/99 Maior Proposed Terms 1. FRANCHISE FEE: Raise the existing franchise fee from 3% to the industry standard 5%. 2. TERM: Extend the current agreement from January 2010 to December 31, 2019. 3. WEB SITE: Cox Communications will provide web hosting equipment and services for the City's Web site, and high speed Internet access at 1.5 MB band width to the City at no cost. 4. PEG " CAPITAL" GRANTS: (Public Education Governmental); A one time grant of $100,000 in PEG and Capital Grant funds provided to the City by Cox Communications. 5. CABLE MODEMS: Cox Communications will also provide the City with installation, service and use of up to 30 cable modems with three computer users per modem at no charge that will link the Civic Center to remote City facilities such as Fire Stations and Recreation centers. 6. EXTENSION OF SERVICE: The proposal establishes specific standards that require Cox Communications to pay the first $1,000 for installations in excess of 150 feet overhead and 50 feet underground. 7. SYSTEM AND SERVICES REVIEW: The City and Cox would hold its first System and Services review session in the year 2005 to deal with changes in technology, the law, customer service and other issues. The City may, at its option, take action at that time to require Cox to implement any new programs or procedural changes that do not constitute a "material change" in the franchise. Items that do constitute material changes may be mandated subject to an additional five-year franchise extension. A review shall be conducted every five years throughout the term. 8. EXTENSION OF INFRASTRUCTURE AND SERVICES: Chula Vista was among the first areas in San Diego County to benefit from the additional channel capacity created by Cox's early-mid 1990's system upgrade. The proposed franchise would require Cox Communications to make new services available to Chula Vista subscribers if they are made available to at least 45% of Cox subscribers countywide, in at least 45% of the Cox franchise jurisdictions in the County. This proposed amendment is intended to continue to assure that Chula Vista residents and businesses are in the forefront of developments in the technology or services available in the industry. While it is in Cox's best economic interest to roll out new services and technology to as many customers as possible, this provision would help ensure that Chula Vista is not left among the last jurisdictions to receive those services. 9. TRAFFIC SIGNAL ACCESS TO CABLE FACILITIES: City and Cox agree to work together in good faith to explore evolving technologies and related services, City/Cox partnerships and infrastructure links, and expanded uses of cable-related technology, including the feasibility of central traffic signal control via cable facilities. /~ -;s Item _, Page 4 Meeting Date 09/14/99 10. VIDEO PLAYBACK: Cox is in the final stages of transitioning away from the rebroadcast of City-provided videotapes (e.g. City Council meetings) for San Diego County jurisdictions. With this agreement, Cox would at no charge to the City, provide the initial equipment for the City to link directly into the government access channel and broadcast up to four continuous hours of the Council meetings or other programming by City Staff. This transition is a cost- saving move for Cox; however, the transition will provide the City with greater options and control over when and how frequently public service information may be broadcast to Chula Vista cable subscribers over the Government Channel. The operating, maintenance and future replacement or upgrade costs will be an expense to the City. 11. CUSTOMER SERVICE STANDARDS: Maximum allowable times for response to customer service requests are specified, along with liquidated damages in case a complaint is not handled with satisfactory timing, courtesy and actions. 12. OBSCENITY: The new franchise adds a provision regarding available options to block audio/visual transmissions of obscene, indecent or unwanted programming, with appropriate notice of those options provided to customers at the start of their subscription and at regular subsequent intervals. The new franchise also updates standard legal provisions, such as the City's minimum insurance requirements and indemnity provisions. Municipal Code Amendment Section 5.52.010 of the Municipal Code currently provides for payment of franchise fees in the amount of 3%. The existing franchise agreement with Cox also specifies a franchise fee of 3%. The Chula Vista Cable franchise states that they shall pay a franchise fee equivalent to Cox's current rate. In order to update the Code and make it consistent with state and federal law, it is recommended that the code be amended to allow a franchise fee not to exceed the maximum allowable by state and federal law. A related change to this section would deal with the evolving technology by which cable-like services are being provided. "Open video systems" (OVS) are a new form of service regulated by the 1996 Telecommunications Act which allows an OVS company to transmit programming from various third parties over a combination of cable, telephone lines, fiber optics, satellites or other systems which may be owned by the company or leased from other sources. This hybrid "channel capacity vendor" is not considered either a cable company or a phone company and is not subject to the requirement to obtain a local franchise. Federal law does, however, allow for OVS companies to be charged an in-lieu fee equivalent to the franchise fee assessed to their cable competitors and to be required to meet the public, educational and governmental (PEG) channel requirements of other franchisees. Although there are no OVS companies currently offering service within the San Diego County area, this may be the case soon as new companies are being formed and licensed to take advantage of this new deregulated legal structure. Staff is proposing to implement the in-lieu fee and PEG channel requirements on OVS companies so that all competitors are charged equally. /b-{ Item _, Page 5 Meeting Date 09114/99 Notice and Findings Notice of this hearing was provided in the Star News on Saturday, September 4, 1999, with the Council also officially setting the date for the public hearing via a Resolution of Intention on August 31, 1999. Copies of the notice were provided to both Cox and Chula Vista Cable. These procedures are consistent with both state law requirements and the City Charter. State law dictates a list of findings to be made before the granting of any additional cable franchise. The applicability of these provisions to this proposed extension of an existing franchise is unclear, as is the applicability of such provisions to charter cities. Nonetheless, as such findings are relevant considerations, presented below for Council's consideration are the findings as listed under state law and their respective responses. 1) Whether there are significant positive or negative impacts on the community being served. Via the increased high-speed Internet capacity and cable modem technology, the community should benefit from greater access to city services and information. 2) Whether there will be an unreasonable adverse economic or aesthetic impact upon public or private property within the area. This modified franchise agreement would not significantly change the aesthetics of the overhead or underground network of cable facilities in the city or the affect of such facilities on property values. 3) Whether there will be an unreasonable disruption or inconvenience to users, or any adverse effect on future use, of utility poles, public easements, and the public rights-of-way contrary to the intent of Section 767.5 of the Public Utilities Code. This extension of an existing franchise agreement with modifications primarily to term and fees would not significantly affect the current or future use of utility poles or rights-of-way. 4) Whether the franchise applicant has the technical and financial ability to perform. The franchisee has demonstrated the ability to perform since 1985 and continues to be a preeminent cable service provider nationwide. 5) Whether there is any impact on the franchising authority's interest in having universal cable service. By specifYing the terms for extension of service to individual homes, businesses or new developments, this proposed franchise modification would facilitate greater availability of service. 6) Whether other societal interests generally considered by franchising authorities will be met. The proposed franchise modification would include provisions regarding notice to customers regarding the procedures for blocking unwanted/indecent programming, specification of minimum customer service standards, and enhanced public access to city services and information via an increase in high-speed Internet capacity and cable modem technology that will connect remote City facilities with the Civic Center and the public. ,-/ It ~7 Item _, Page 6 Meeting Date 09/14/99 7) Whether the operation of an additional cable television system in the community is economically feasible. The Chula Vista community has supported two cable service providers since 1987. This proposed franchise modification should not alter the economic feasibility of either franchise. 8) Such other additional matters, both procedural and substantive, as the franchising authority may determine to be relevant. The proposed franchise extension provides for periodic system and services review to respond to changes in the industry, technology, and the regulatory environment as well as to changes in customer demands for service. The proposed franchise also establishes a maximum threshold at which new services that are made available to other customers in the service area will be made available to local customers throughout the franchise term. Proiected Impacts to Rates Federal law allows, but does not require, cable service providers to pass franchise fees (F.F) through to their customers. Staff expects Cox to pass through the proposed franchise fee increase. However, Cox Communications has filed a notice notifying the City of a decrease in the "Basic" service rate. Due to the phasing of recent increases to the Basic rate, some customers are currently paying approximately $11.85 ($11.50 + 35~ F.F.) and others are paying approximately $12.88 ($12.50 + 38~ F.F.). Without Council action all Basic rate customers will pay the same rate, approximately $12.37 ($12.00 + 37~ F.F.) per month beginning November 1999. If Council takes action to approve the franchise fee increase as recommend and Cox passes through the increase as expected, the Basic rate will be approximately $12.63 ($12.00 + 63~ F.F.). Staff has not received notice regarding any change in the "Standard," rate, which affects approximately 90% of the City's Cox Communications customers and Council does not have regulatory authority over the "Standard" rate charged by cable service providers. Under the current franchise fee proposal the Standard service rate would increase approximately 70~, from $33.19 ($32.20 + 99~ F.F.) to $33.89 ($32.20 + $1.69 F.F.). The proposed increase does not include any additional rate adjustments by Cox to the Standard rate. However, as an example, if Cox Communication were to increase their Standard rate by an additional 5%, the proposed 2% increase in the franchise fee would add approximately 2~ to the cost for a Standard rate customer. If approved by Council the franchise fee increase would go into effect on November 15, 1999 at the same time as any rate increases implemented by Cox Communications. Staff will provide Council with an update on "Standard" rates as soon as Cox makes that information available. FISCAL IMP ACT The increase in the franchise fee from 3% to 5% would lead to a 66% increase in annual franchise payments. With Cox currently paying approximately $550,000 per year in franchise fees, this would lead to an annual increase of $360,000. Since Chula Vista Cable's franchise requires that they pay the same franchise fee as is required of Cox, their franchise payments (currently around $35,000) would be projected to rise by approximately $23,000. These revenues would only be realized by Council action to adopt an ordinance amending the level of the franchise fee as recommended by Staff. /~/t Item _, Page 7 Meeting Date 09/14/99 Per the stated citywide goal of reviewing and updating franchise agreements in 1997/98, the approved 1999/2000 budget included the additional revenue resulting from the renegotiation of Cox's franchise. Projected revenues of $200,000 were included in the 1999/2000 budget as revenue to be realized from such an amendment becoming effective in November 1999. The proposed franchise fee adjustment is expected to increase Basic rates approximately 24~ and Standard rates an estimated 70~. As described above, a few customers will actually experience a slight decrease, and the exact effect to Standard ratepayers will not be known until Cox officially notifies the City of any change to the Standard rate. In addition to the change in franchise fees, Cox has committed as part of the franchise amendment to contribute a one-time grant of $100,000 to the City to provide additional hardware and software to complement the City's "Smart Community" program goals. c:mtm:cable-cox -cv /cox -hearing-99 16-? AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND COXCOM, INC. A CALIFORNIA CORPORATION, GRANTING COXCOM THE NON- EXCLUSIVE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE LINES, WIRES, COAXIAL CABLE AND APPURTENANCES FOR TRANSMITTING, DISTRIBUTING AND SUPPLYING CABLE COMMUNICATION SERVICES ALONG, ACROSS AND UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES WITHIN THE CITY OF CHULA VISTA The Parties to this agreement and franchise ("Franchise) are the City of Chula Vista, hereinafter referred to as "City" and CoxCom, Inc., hereinafter referred to as "Grantee." The parties have entered into this Franchise effective as of the date falling thirty (30) days after the adoption hereof by the City Council of the City ("Effective Date"). Section 1. DEFINITIONS. For the purpose of this Franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. (a) "City": The City of Chula Vista, a municipal corporation of the State of California, in its present incorporated form, or in any later reorganized, consolidated, enlarged or reincorporated form. (b) "City Council": The present governing body of the City or any future board constituting the legislative body of the City. (c) "Franchise Property": All property owned, installed or used by Grantee under authority of this Franchise. (d) "Grantee": The person or corporation to whom or which this franchise is granted by the Council, and the lawful successor or assignee thereof, and who or which has filed with the City an acceptance referred to in Sections 3 hereof. (e) "Street": The surface of, and the space above and below any public street, road, highway, freeway, lane, alley, court, sidewalk, parkway, easement, drive, right of way or other public place now or hereafter existing as such within the City. (f) "Cable Service": shall be defined as provided in 47 U.S.C 522(6), as modified from time to time. Cox Cable (CoxCom) Franchise Agreement -1- H:lsharedlattorneylcableICOXfinalb.doc /~-y (g) "Cable System": Shall mean a system of antennas, cables, wires, lines, towers, wave guides, or any other conductors, converters, pedestals, power supplies, equipment or facilities, designed and constructed for the purpose of producing, receiving, amplifying and distributing television or radio stations, or other sources of audio, video, voice, data and other forms of electronic or electrical signals. (h) "Subscribers": Any person or entity receiving for any purpose services via the Cable System of the Franchise herein. (i) "Total Gross Receipts": Shall mean any and all compensation in any form received, directly or indirectly, by the Grantee, or any affiliate thereof, arising from the operation of the Cable System within the corporate limits of the City with respect to which a franchise fee or equivalent right of way access fee may lawfully be charged. Total Gross Receipts shall not include (a) uncollectible amounts; (b) refunds made by Grantee; (c) an allocable portion (based on subscriberhip) of, , revenues received as a direct reimbursement of Grantee's actual expense in the operation of any local access channels; (d) sales, ad valorem, or other types of "add on" taxes, levies or fees calculated by gross receipts or gross revenues which Grantee pays or collects for Federal, State or local government (exclusive of Franchise fees provided for herein which shall be considered part of Total Gross Receipts); (e) revenues received for advertising on Grantee's local origination channels, to the extent of an allocable portion (based on subscribership) of Grantee's direct costs of operation of Grantee's channels (f) non-operating revenues such as income from operations not requiring use of Franchise Property or gain from sale of Franchise Property to other than a Subscriber; (g) revenues from non-Cable Services which cannot be the subject of a franchise or equivalent right-of-way access fee pursuant to federal or state law (for example, telephony); and (h) the value of discounts, rebates or other promotional service offerings given to Subscribers in the normal course of business, but excluding the value of such discounts, rebates or promotions (the value of which shall be included in Total Gross Receipts) when given to Subscribers in exchange for the purchase or lease of merchandise, equipment or services not subject to a Franchise Fee. Section 2. FRANCHISE GRANT. The Franchise hereby granted by the City authorizes Grantee, subject to the provisions herein contained, to engage in the business of operating and providing a Cable System in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in streets such poles, wires, cable, conductors, ducts, conduit vaults, manholes, amplifiers, appliances, attachments, pedestals, power supplies and other property as may be necessary and appurtenant to the Cable System; and, in addition, so to use, operate and provide similar properties rented or loaned form other persons, firms, or corporations, for such purpose. Cox Cable (CoxCom) Francbise Agreement -2- H:\sbared\attorney\cable\COXfinalb.doc /~ --1 Section 3. DURATION OF GRANT; RENEGOTIATION INTERVALS. (a) The Grantee's Franchise rights granted hereunder shall not become effective until the happening of following events: (1) The written acceptance hereof by the Grantee accepting all of the terms and conditions of this Franchise and reflecting its agreement to be bound hereby, delivered to the City in a form approved by the City Attorney. (2) The filing with the City of evidence of a general comprehensive liability insurance policy as required in Section 15(a) hereof. (b) The term of this Franchise shall commence on the Effective Date hereof and shall continue until December 31, 2019 ("Franchise Termination Date") unless extended in accordance with procedures set forth below or earlier terminated in accordance with the procedures set forth in Section 3(c) hereof, or as otherwise permitted by law: (1) The provisions of this Franchise shall be subject to renegotiation every five (5) years during the term of the Franchise, including any extensions thereof. These renegotiation opportunities shall be referred to as "renegotiation intervals." Renegotiation may be initiated upon written notice given by the City or Grantee to the other not less than one (1) year prior to the particular renegotiation interval. Any renegotiation necessary shall be directed towards effecting alterations in the terms and conditions of this Franchise to reflect any significant changes which occurred during the interim period in applicable federal, state or local laws, the cable marketplace, technology, Grantee's business operations, or the needs of City businesses, residents and non-profit institutions. The parties agree to renegotiate in good faith, but neither party shall be obligated to agree to any modification to the Franchise. For purposes of this Franchise, provided that proper notice thereof is given by City or Grantee by no later than January 1, 2004, the first renegotiation interval shall commence on January 1,2005. (2) This Franchise may be extended beyond the Franchise Termination Date either on its then existing terms, or on any other mutually agreed upon terms, upon approval by the City Council and acceptance by the Grantee in accordance with the procedures set forth in Article XII of the City Charter. (c) The Franchise may be terminated at any time by the City Council in the event the City Council shall have found, after notice and hearing, that: (1) The Grantee fails to comply with any material provision of this Franchise; however, termination proceedings shall only be commenced in a public meeting affording due process, if, after thirty (30) days from written notification from the Cox Cable (CoxCom) Franchise Agreement -3- H:\shared\attomey\cable\COXfinalb.doc / t -/ c City stating with particularity the grounds upon which the City relies, Grantee fails to correct stated violation. In the event the stated violation is not reasonably curable within thirty (30) days, termination proceedings shall not be commenced if the Grantee provides, within the said thirty (30) days, a plan, satisfactory to the City Manager to remedy the violation and continues to demonstrate good faith in seeking to correct said violation. (i) It shall not be a failure to comply with a material provision ofthis ordinance for Grantee to comply with any rules and regulations of the Federal Communications Commission, or any Federal or State regulatory commission or agency having jurisdiction over Grantee's operations or any Federal or State law. (ii) The Council's finding of materiality cannot be arbitrary, capricious or unreasonable; or (2) Pursuant to Section 22e, any provision hereof has become invalid or unenforceable, and the City Council finds that such provision constituted a material consideration to the grant or extension ofthis Franchise. The Grantee shall be given at least thirty (30) days' notice of any termination proceedings. Section 4. RATES. The Grantee may establish its own rates and charges, provided, however, Grantee's rates and charges shall be uniform throughout the City, except to the extent allowed by federal or state law. Notwithstanding the foregoing, or any other provision in this Franchise, City reserves the right to regulate Grantee's rates, charges and prices to the maximum extent permitted or allowed by law by the valid exercise of its police powers, now or at a future time. Unless otherwise required by law, City may exercise such regulatory authority with or without the agreement of Grantee. Section 5. FRANCHISE FEE. (a) Grantee shall pay to the City, during the life of this Franchise, and at the times hereinafter specified, a franchise fee ("Franchise Fee") in the initial amount of three percent (3%) of the Total Gross Receipts of the Grantee from the Cable System. Such payment by the Grantee shall be in lieu of any City imposed license fee or business license tax or any other City tax based upon the Total Gross Receipts of Grantee. The Franchise Fee shall automatically increase to five percent (5%) of Total Gross Receipts commencing on the earlier to occur of the first change in monthly subscriber charges after the effective date hereof, or January 1,2000. If at any time applicable federal laws change to allow a higher franchise fee, City reserves the right to increase Cox Cable (CoxCom) Franchise Agreement -4- H:\shared\attomey\cable\COXfinalb.doc Ie? / / / the Franchise Fee imposed hereunder up to the maximum rate then allowed. Any such Franchise Fee increase will go into effect on the earlier to occur of the first change in monthly subscriber charges after the City's election to increase the Franchise fee, or the date falling one year after such City election. The City agrees to meet and confer with the Grantee to discuss the implementation of any such increase to the Franchise Fee and make a good faith effort to assure the timing and other characteristics of its establishment are fair to the Subscriber, City and Grantee. Notwithstanding the foregoing, nothing within this section shall be interpreted as the City relinquishing its sole discretion to increase the Franchise Fee as allowed by state or federal law. (b) The Grantee shall file with the City within ninety (90) days after the expiration of any calendar year during which this Franchise is in force, a verified statement showing in appropriate detail the Total Gross Receipts, as defined herein, of Grantee, its successors or assigns, during the preceding calendar year. It shall be the duty of Grantee to pay to the City, within fifteen (15) days after the time for filing such statements, the remaining sum due for the calendar year covered by such statements. This statement shall be the basis for quarterly estimated payments as deposits on the franchise payment due for the following year. Such quarterly estimated payments are to be made to the City on or before June 30, September 30, and December 31 of each calendar year for that year's estimated payments. Each estimated payment shall be equal to twenty five percent (25%) of the previously filed verified statement, rounded to whole, even dollars. The fourth payment due after the filing of the annual verified statement shall adjust for all estimated payments made for that calendar year. (c) In the event Grantee fails to make the payment for this Franchise on or before the date due as hereinabove provide, Grantee shall pay as additional consideration a sum of money equal to one percent (1 %) of the amount due for each month or fraction thereof during which the payment is due and unpaid, as interest and for loss of use of the money due. (d) No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the City may have for further or additional sums payable under the provisions of this section. (e) No Offset or Credit. Grantee expressly acknowledges and agrees that: (1) The Franchise Fee shall be paid to City without offset or credit of any kind including, without limitation, the value of any other payments or contributions made by, or the services, equipment, facilities, support, resources, or other activities to be provided or performed by Grantee at the direction of the City or otherwise pursuant to this Franchise, or otherwise in connection with the construction, operation, maintenance or upgrade of the Cable System; and Cox Cable (CoxCom) Franchise Agreement -5- H:lsharedlattorneylcableICOXfinalb.doc Ii //:L- (2) Except as otherwise provided in Section 5 hereof, the Franchise Fee and other consideration payable hereunder shall be in addition to, and shall not be offset against, any and all taxes, fees or charges of general applicability which Grantee shall be required to pay to City or to any state or federal agency or authority, all of which shall be separate and distinct obligations of Grantee. (f) The Franchise Fee and other consideration payable by Grantee hereunder is offered in consideration of the rights granted Grantee by City hereunder to install, operate and maintain the Cable System in the City right of way. Such consideration in no way constitutes an imposition of a tax or impact fee by the City upon the Grantee or the Subscribers. In the event that, for whatever reason, the Franchise Fee, or any other consideration payable by Grantee hereunder, is determined by a court of competent jurisdiction, to be invalidly imposed or collected hereunder, Grantee agrees to make any and all appropriate modifications to the franchise to cure such invalidity so as to continue the payment of equivalent value of consideration to the City throughout the term of the Franchise. (g) In the event that Grantee provides another telecommunications provider ("Alternative Provider") access to its Cable System, the Grantee shall notify the City and provide contact information for the Alternative Provider within 60 days. Section 6. LIMITATIONS OF GRANT. (a) No privilege or exemption is granted or conferred by this Franchise except those specifically prescribed herein or by law. (b) Any privilege claimed under this Franchise by the Grantee in any street shall be subordinate to any prior lawful occupancy of the streets, or other public property; provided, however, Grantee does not hereby waive any rights it has acquired vis-a-vis third parties as a result of Grantee's own proper occupancy. (c) This Franchise is a privilege to be held in personal trust by the original Grantee. It cannot in any event be transferred in part, and it is not to be sold, transferred, leased, assigned, or disposed of as a whole, whether by forced sale, merger, consolidation, foreclosure or otherwise, without prior consent of the City expressed by Resolution, unless pursuant to transfer of ownership of Grantee as provided in Section 9 hereof, and then only under such conditions as may be therein prescribed, provided, however, that no such consent shall be required for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure an indebtedness. The consent of the City may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility, and otherwise the ability to comply with all obligations of this Franchise, and must agree to comply with all such obligations. Any transfer made in violation of this provision shall be voidable at the election of the City. Cox Cable (CoxCom) Franchise Agreement -6- H:lsharedlattorneylcableICOXfinalb.doc leG //3 (d) Any right or power in, or duty impressed upon, any officer, employee, department, or board of the City, with respect to this Franchise, is subject to transfer by the City to any other officer, employee, department or Board of the City without Grantee's approval. (e) Grantee is subject to all requirements of the City ordinances, rules, regulations and specifications of the City, not inconsistent with this Franchise, heretofore or hereafter enacted or established, including but not limited to, those concerning street work, street excavations, use, removal and relocation of property within a street, and other street work. (f) This Franchise does not relieve the Grantee of any obligation involved in obtaining pole space from any department of the City, the utility companies or from others maintaining poles in streets. Section 7. RIGHTS RESERVED TO CITY. (a) There is hereby reserved to the City any regulatory authority it may have under federal, state or local law. Grantee, by its acceptance of this Franchise, agrees to be bound by City's valid exercise of its regulatory authority and to comply with any action or requirement of the City in its exercise of any such right or power, heretofore or hereafter enacted or established. (b) This Franchise shall be non-exclusive, and neither the granting of this Franchise nor any of the provisions contained herein shall be construed to prevent the City from granting any identical, or similar franchise to any person or corporation other than the Grantee. Section 8. SERVICES TO CITY AND PUBLIC SCHOOLS. Grantee shall at its own expense and without any cost to the City whatsoever, provide and maintain the following facilities and services to the City and Public Schools as hereinafter provided: (a) One active cable television connection to each City unit designated by the City Manager such as police stations, fire stations, public libraries and other City facilities within Grantee's franchise area that require an aerial drop of 150 feet or less or underground distance of 50 feet or less from the existing cable television distribution system. Grantee shall not be required to provide the cable televisions distribution system within said facilities; (b) One active cable television connection to each public elementary school site, secondary school site, college or university site and educational administrative site within Grantee's Franchise area that require an aerial drop to 150 feet or less from the existing cable televisions distribution system. Grantee shall not be required to provide the cable televisions distribution system within said facilities; Cox Cable (CoxCom) Franchise Agreement -7- H: IsharedlattorneylcablelCO Xfinalb.doc li/Ji (c) Grantee shall not charge the City or public schools any fee for providing the distribution of video images or audio signals to any of the buildings so connected; (d) In the event that the City or school system desires additional service, the Grantee shall provide the basic cable outlet, services and hardware, charging the City or school system the actual variable cost to Grantee of such services. (e) Grantee shall make available without cost one channel for use by Local Governments in all of its San Diego franchises for the distribution of programming in the public interest. Grantee may provide interconnection of such channel with all other Cable Television Systems operating pursuant to a franchise granted by City. If Grantee operates a remote or permanent vehicle and equipment for telecasting and video taping, Grantee shall provide origination service to City at such reasonable times and costs as are mutually agreed upon. (f) Grantee shall make available without cost, one channel for use by Public Schools in all of its San Diego franchises. As required by Grantee, the Public Schools shall save and hold harmless Grantee from any uses made by the Public Schools in the distribution of programming. (g) City shall save and hold harmless Grantee from any uses made by the City in he distribution of programming in the public interest as provided for in Subsection (e) of this section. (h) Grantee shall make available without cost, one channel for public or community access in all of its San Diego franchises in accordance with reasonable rules, regulations and conditions, provided, however, that to the extent that the Federal Communications Commission (FCC) exercises jurisdiction as determined by Federal statute or decisional law to be valid and appropriate, said access rules shall govern. (i) At no cost to City, throughout the term hereof, Grantee shall provide the City through Grantee's Cable System with high-speed cable internet access of 1.5 MB band width capacity and web hosting services for the City's web site. Web hosting should include a minimum of 50 MB of storage for the City I S web site. Internet access shall be connected to the City's firewall which, in turn, uses DHCP and address translation to provide Internet access to an unlimited number of computers on the City I S local area network. In addition, the City has a web server connected to the DMZ port of the firewall, and Grantee shall provide the ability to address this server so that the City can provide interactive applications through the City I S web site. Grantee shall work in good faith with the City to design, test and implement the above. Once implemented, the City shall be responsible for the management and maintenance of the server and web site and must comply with the "Cox Internet Acceptable Use Policy," (Exhibit A)._ The Grantee is providing the service free of charge for the City's sole and non-commercial use. Cox Cable (CoxCom) Franchise Agreement -8- H: \shared\attomey\cable\COXfinalb.doc /,//~ (j) Cable Modems. Grantee shall provide City with modem and internet service at no charge for up to 30 sites to be selected by the City. Each of the (30) thirty sites will be limited to free service for up to (3) three computer users per site. Grantee's responsibility to provide the physical connection at no charge is limited to a maximum cost of $60,000 for all (30) thirty sites. Grantee will make a good faith effort to establish service at sites requested by the City as soon as possible, but no later than twelve months following the request by the City. The City shall not request more than 15 sites per year and the City shall provide Grantee with a list of the sites to be established in the first year within 30 days of the effective date of the agreement. City further agrees to comply with applicable, Cox Internet Acceptable Use Policies (Exhibit B). (k) Video Playback. Until December 31, 1999, Grantee hereby agrees to broadcast City Council meetings or other programming provided by the City from Super VHS tapes provided by the City on either a government access or public access channel. Said broadcasts shall not unreasonably exceed eight hours per week and shall be carried out during scheduled hours reasonably viewable by the public. Within this period Grantee shall provide the City with the equipment, wiring and other connections necessary to perform video playback services from a location at the Chula Vista Civic Center, to be designated by the Director of Management and Information Services, for broadcast directly onto Grantee's government access channel to all of Grantee's Chula Vista basic cable subscribers with times, dates and durations of broadcasts subject to the City's discretion. Said equipment shall be new and unused and shall meet industry standards for clear broadcast-quality playback for a minimum of four (4) hours. Grantee shall also provide City Staff with initial training at City's facilities prior to December 31, 1999 to operate said equipment. There shall be no charge to the City for the broadcasting capability, signal transmission, airtime or initial training so provided. (1) Public Education Governmental (PEG) and Capital Grant. Within thirty (30) days of the Effective Date of this Franchise, Grantee shall provide to the City a PEG and Capital Grant of $100,000. Such monies shall be used by the City at its sole discretion subject to all applicable federal, state and local laws. (m) Technology Linkages. City and Grantee agree to work together in good faith to explore evolving technologies and related services, City/Grantee partnerships and infrastructure links, and expanded uses of cable-related technology. The parties further agree to assess the feasibility of implementing same. Among the linkages to be explored are connections between the City's traffic signal control system and the Grantee's cable system. Section 9. TRANSFER OF OWNERSHIP OR CONTROL OF GRANTEE. In the event the Grantee is a corporation, prior approval of the City Council, expressed by resolution, shall be required when ownership or control of thirty percent (30%) or more of the voting stock of Grantee is acquired by a person or a group of persons acting in concert, Cox Cable (CoxCom) Franchise Agreement -9- H :\shared\attorney\cable\CO Xfinalb.doc It---/;' none of whom already own or control thirty percent (30 %) or more of the voting stock, singularly or collectively. Section 10. LOCATION OF CABLE SYSTEM. (a) The Cable System shall be constructed or installed in Streets only at such locations and in such manner as shall be approved by the City Engineer, acting in the exercise of reasonable discretion in accordance with applicable law. Upon Grantee's written request, City staff shall meet and confer with Grantee in order to develop a process for expediting City processing and approval of proposed Cable System installation of multiple "like-kind" facilities. (b) The Cable System shall be placed underground or where all other utilities are located in all sub-divisions which are subject to the provisions of the Chula Vista Municipal Code unless otherwise approved by the City Engineer. Such approval shall not unreasonably be withheld and shall be applied equitably and in relationship to all other utilities. (c) All construction or maintenance work shall be conducted in a good and workmanlike manner consistent with industry standards. Installation of new facilities shall occur, whenever practical, concurrent with the installation of subdivision public improvements. Section 11. ABANDONMENT OF SERVICE. (a) After Grantee has established service pursuant to this Franchise, such service shall not be suspended or abandoned in the whole of or any part of the Franchise area unless the suspension or abandonment is authorized by the City Council. (b) Whenever Grantee shall file with the City Council a written application alleging that the public interest, convenience and necessity no longer require that Grantee furnish service pursuant to this ordinance in the whole of or in any part of the Franchise area, the City Council, at a public hearing, shall take evidence upon that question and shall make a finding with respect to it. Notice of the hearing shall be given by Grantee in writing to each Subscriber in the part of the Franchise area in question at least fifteen (15) days prior to the date scheduled for the hearing. If the City Council shall find that the public interest, convenience and necessity no longer requires that Grantee furnish service, the City Council, after hearing as provided herein, shall authorize suspension or abandonment of service upon such reasonable terms and conditions as may be prescribed by the City. Section 12. DISPOSITION OF FRANCHISE PROPERTY OR CABLE DISTRIBUTION SYSTEM UPON EXPIRATION OR TERMINATION OF FRANCHISE. (a) Upon the valid termination of this Franchise hereof, the City may purchase the Cable System, or any part thereof, in accordance with subsection (b) of this section. If the Cox Cable (CoxCom) Franchise Agreement -10- H:\shared\attorney\cable\CO Xfinalb.doc /~ ;' / ? City elects to purchase the system, or any part thereof, the Grantee shall promptly execute, upon receipt of the fair market value purchase price, all appropriate documents to transfer title to the City. Upon acquisition of and payment for the system, or any part thereof, the Grantee shall cooperate with the City, or with any other person authorized or directed by the City to operate the system, in maintaining continuity of service. Nothing herein is intended as a waiver of any other rights the City may have. (b) The purchase price to the City for the Grantee's property shall be determined by agreement or by arbitration as provided in subsection (e) hereof. The standard for determining the price to be paid for the property so acquired shall be that provided by law or otherwise established by industry standards affecting the fair market value of similar properties applicable on the effective date of the purchase. If the City does not purchase the Cable System, the Grantee shall deal with the part of the Cable System located in the streets in accordance with provisions of subsections (c) and (d) of this section. (c) In the event that (1) the use of any Franchise Property is discontinued for any reason for a continuous period of twelve (12) months; or (2) the Franchise has been installed in any street without complying with the requirements of this Franchise; or (3) the Franchise has been terminated, surrendered, canceled or has expired, and City has not exercised its rights pursuant to subsection (a) of this section, the Grantee shall promptly remove from the street all such property other than any which the City Engineer may permit to be abandoned in place. In the event of any such removal, the Grantee, at its expense, shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the City Engineer. (d) Franchise property to be abandoned in place shall be abandoned in such manner as the City Engineer shall prescribe. (e) In the event that arbitration is necessary to determine the purchase price to the City for the Grantee's property the parties may agree upon one arbitrator, but in the event that they cannot agree, there shall be three, one named in writing by each of the parties within fifteen (15) days after demand for arbitration is given, and a third chosen by the two appointed. Should either party refuse or neglect to join in the appointment of the arbitrator(s) or to furnish the arbitrator(s) with any papers or information demanded thereby, the arbitrator(s) are empowered by both parties to proceed to determine the purchase price regardless of such failure. If there is only one arbitrator, his decision shall be binding and conclusive on the parties, and if there are three arbitrators the decision of any two shall be binding and conclusive. If no two arbitrators can agree, the purchase price shall be the mean average of the two valuations closest to one another. A judgment confirming the award of the arbitrator(s) may be rendered by any Superior Court having jurisdiction. Arbitration hereunder shall be governed by the provisions of the California Arbitration Act, Section 1280 through 1294.2 of the Code of Civil Procedure. Each party shall bear the cost of its own Cox Cable (CoxCom) Franchise Agreement -11- H:\shared\attomey\cable\CO Xfinalb.doc /t//r appointee and bear the cost equally for any arbitrator appointed by both parties or the two selected arbitrators. Section 13. CHANGES REQUIRED BY PUBLIC IMPROVEMENTS. The Grantee shall, at its expense, protect, support, temporarily disconnect, relocate above or below ground at City's option in the same street, alley, or public place, or remove from any street, alley or public place, any Franchise Property when required by the City Engineer by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks and of any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity or any other structures or public improvements; provided however, that Grantee shall in all such cases have the privileges and be subject to the obligations to abandon Franchise property in place, as provided in Sections 12(c) and 12(d) hereof. Section 14. FAILURE TO PERFORM STREET WORK. Upon failure of the Grantee to complete any work required by the provisions of this Franchise to be done in any street, within the time prescribed and to the satisfaction of the City Engineer, the City Engineer may cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the City Engineer to the Grantee, within thirty (30) days after receipt of such itemized report. Unless the City Engineer reasonably determines that the work must be completed sooner in order to protect the public health, safety or welfare, the City shall give at least a thirty (30) day notice to the Grantee of such work to be done prior to City's commencement of such work. Section 15. INSURANCE. (a) Insurance. Grantee, at its sole cost and expense, for the full term of this Franchise (and any extension thereot), shall obtain and maintain at minimum all of the following Insurance coverage: (1) The coverages required herein may be satisfied by any combination of specific liability and excess liability policies. (i) Workers Compensation and Employees Liability Insurance in conformance with the laws of the State of California (not required if Grantee has no employees). (ii) Grantee's vehicles, including owned, non-owned (e.g., owned by Grantee's employees and used in the course and scope of employment), leased or hired vehicles, shall each be covered with Automobile Liability Insurance in the minimum amount of Two Million Five Hundred Cox Cable (CoxCom) Franchise Agreement -12- H: IsharedlattomeylcablelCOXfinalb.doc /~ / /1 Thousand Dollars ($2,500,000) combined single limit per accident for bodily injury and property damage. (iii) Grantee shall obtain and maintain comprehensive or commercial General Liability Insurance coverage in the aggregate annual amount of Two Million Five Hundred Thousand Dollars ($2,500,000) combined single limit, including bodily injury, and broad form property damage. Such insurance coverage shall include, without limitation: a cross- liability clause. (iv) Grantee shall obtain and maintain Broadcaster's Errors and Omissions Liability Insurance in the aggregate annual amount of One Million Dollars ($1,000,000). (2) All required Insurance Policies shall contain the following endorsement as a part of each policy: "The City of Chula Vista is hereby added as an additional insured as respects the operations of the named insured pursuant to cable television franchises as granted by the City of Chula Vista and said insurance shall specifically cover the negligent acts, errors, and omissions of Grantee, its employees, agents and subcontractors in the performance of work hereunder. " (3) Within thirty (30) days from approval of the Franchise, the Grantee shall furnish proof to the City that a satisfactory insurance policy for General Comprehensive, Bodily Injury Liability, Property Damage, and Broadcaster's Errors and Omissions Liability Insurance is in place. The insurance policies for vehicles shall be in effect prior to usage of any vehicle by Grantee. (4) All insurance policies shall be issued by a California admitted carrier with a Best's rating of A-V or better, or its equivalent. All policies shall provide that in the event of cancellation or non-renewal by the insurance carrier for any reason other than nonpayment of the premium, not less than thirty (30) days' notice will be given to City by registered mail of one (1) copy of a written notice of such intent to cancel or not to renew the coverage. An authorized agent of such insurance carrier shall provide to the City, on such schedule as is requested of Grantee by the City, a certification that all insurance premiums have been paid and all coverages are in force. (5) The Grantee agrees to adjust the minimum coverage of the liability insurance policy or policies required above within three (3) months of notice from the City that the City has reasonably determined that additional amounts or Cox Cable (CoxCom) Franchise Agreement -13- H :\shared\attomey\cable\CO Xfinalb.doc /b / ~O types of insurance are being commonly carried with respect to systems of a size and nature similar to the System or other circumstances have arisen which make it reasonably prudent to obtain such additional amounts or types of insurance. (6) The liability of Grantee to the City or any person for any of the matters which are the subject of the liability insurance policy or policies required by this Section 15 shall not be limited by said insurance policy or policies nor by the recovery of any amounts thereunder; provided, however, that the City shall in no case be entitled to duplicative recoveries from different sources. (7) If for any reason, Grantee fails to obtain or keep any of such insurance in force, City may (but shall not be required to) obtain such insurance, in which event Grantee shall promptly reimburse City its premium cost therefor plus one and one-half percent (1-112 %) monthly interest thereon until paid. (b) Defense and Satisfaction of Claims. (1) Grantee shall, at the sole cost and expense of Grantee, upon demand by City, indemnify, protect, defend and hold harmless City, its officers, boards, commissions, or employees, in any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative, or otherwise arising either out of Grantee's acts, errors, or omissions. Grantee shall provide legal services to represent City's interest in litigation referred to above. Where Grantee is required to provide legal services to City under this Section, and chooses to utilize joint counsel, the parties shall make a good faith effort to cooperate and agree upon litigation strategy and implementation thereof. In the event that City determines upon reasonable grounds that Grantee's litigation strategy and implementation decisions are unreasonable, or not in City's best interest, or that separate counsel is necessary for the representation of City, City may obtain separate legal counsel chosen by City. City shall submit to Grantee on a regular basis statements for attorneys' fees incurred during the prior period. Grantee shall pay to City all reasonable attorneys' fees so claimed within sixty (60) days of receipt of said statement. (2) Grantee shall cause to be paid and satisfied any judgment, decree, or order rendered, made, or issued against Grantee, City, its officers, boards, commissions, or employees and hold City harmless therefrom, arising either out of Grantees' acts, errors, or omissions in connection with the construction, operation, maintenance, or other activities in relation to Grantee's Cable System including, but not limited to, damages arising out of copyright infringement, defamation, personal and property liability, and antitrust liability, whether or not said damages are compensatory or punitive; provided, however, Grantee Cox Cable (CoxCom) Franchise Agreement -14- H:\shared\attorney\cable\COXfinalb.doc /t~1 shall not be required pursuant to this Section to hold City harmless for actions relating to programming decisions outside of Grantee's control. (3) Such indemnity shall exist and continue without reference to the amount of any bond, policy of insurance, deposit, undertaking, or other assurance; provided, however, City may not enter into any compromise or settlement which imposes any obligation on Grantee without Grantee's consent, which consent shall not be unreasonably withheld, and Grantee shall not make or enter into any compromise or settlement of any claim, demand, causes of action, suit, or other proceedings which settlement involves anything other than the payment of money by Grantee without contribution by City, without first obtaining the written consent of the City, which consent shall not be unreasonably withheld. Section 16. REGULATION OF SERVICE. Grantee shall: (a) Operate the Cable System authorized by this Franchise in accordance with the minimum technical standards set forth by the FCC, to the effect that the Subscriber shall receive the best possible signal and picture quality consistent with the state of the art and economic operation of the system. (b) Limit outages to a minimum by locating and taking steps to correct malfunctions promptly, but in no event longer than twenty-four (24) hours after notice. The Grantee shall also take all reasonable steps necessary to promptly correct any interference with picture quality and other reception quality impacts. (c) Upon complaint by Subscriber make a demonstration satisfactory to the City Manager or his designated representative that a signal is being delivered which is of sufficient strength and quality to meet the said technical standards referenced to in (a) above. (d) Render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time possible; such interruptions insofar as possible shall be preceded by notice given to Subscribers twenty-four (24) hours in advance where possible and shall occur during periods of minimum use of system. (e) Have a toll free telephone number listed in the local telephone directory, and be so operated that requests for repair may be received at any time. (f) Operate the Cable System authorized by this ordinance twenty-four (24) hours per day, seven (7) days per week. Cox Cable (CoxCom) Franchise Agreement -15- H:\shared\attorney\cable\CO Xfinalb.doc /b / ~2 (g) Maintain an office within the City's service area for the purpose of providing Subscriber services, which shall include at a minimum: personnel and facilities such that billing inquiries, payments, and requests for service or repairs may be made in person between the hours of 8:30 a.m. and 5:00 p.m., weekdays exclusive of holidays. (h) Provide a local studio within San Diego County at its expense reasonably available to the public and Subscribers for public access cablecasting. If Grantee elects to vacate its present studio, any replacement facility shall be of equal or better quality than the present facility. Such facility and equipment shall be made available for public access use at no charge to City residents, non-profit institutions and agencies, the City, and noncommercial users within the service area, subject to reasonable limitations imposed by the Grantee and approved by the City. (i) Employ technicians capable of performing cable-related emergency repairs who shall be available twenty-four (24) hours per day, every day including weekends and holidays. G) Acknowledge requests for repair and maintenance service from Subscribers within twenty-four (24) hours (excluding weekends and holidays). Verification of the problem, and, if possible, resolution, must occur within forty-eight (48) hours of such requests; and in any event, resolution must occur within one (1) week. Those matters requiring maintenance, repair or technical adjustments that are documented as necessitating an excess of one (1) week to reasonably complete must be finally resolved within thirty (30) days of the initial complaint. City may require reasonable documentation to be provided by the Grantee to substantiate additional time to resolve a complaint. (k) Provide Subscribers with notice at the time of initial subscription and at reasonable subsequent intervals regarding limitations on obscene, indecent or adult programming and Subscriber options available to have the audio and/or video portions of unwanted programming or channels blocked or scrambled. (1) Before providing initial service or at the time of initial installation, the Grantee shall advise each Subscriber, in writing, of: (1) The availability of the signal control device as required by Section 624 (d)(2) of the Cable Act. (2) The fees, charges, deposits, and associated terms and conditions that apply to all Services as well as the equipment and facilities then available or being distributed over the System, which the Subscriber may elect to receIve or use. Cox Cable (CoxCom) Franchise Agreement -16- H:\shared\attomey\cable\COXfinalb .doc /@ '-02;; (3) The procedures by which the Subscriber will be notified of changes in fees, charges, deposits, or associated terms and conditions for any serVIce. (4) The Grantee's practices and procedures for protecting against invasions of privacy as required by Section 631 of the Cable Act, and Section 637.5 of the California Penal Code. (5) The Grantee's procedures for the receipt and resolution of Subscriber complaints. (6) The address and toll-free telephone number of the Grantee's office to which complaints may be reported. (m) In the event of any material change in any of the items listed in the foregoing Section 16(1), the Grantee shall promptly notify each affected Subscriber of said change in writing. (n) The Grantee shall send annual written notice to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by the Grantee may be referred to the City Manager's office. Such notification shall be a separate document but may be included with a billing statement. The Grantee's telephone number for service and the telephone number of the City Manager's office shall be contained in the notice. This notice shall be forwarded to the City Manager's office for a check of its accuracy prior to forwarding it to Subscribers. (0) To ensure resolution of Subscriber complaints, Grantee shall adhere to the following requirements and procedures: (1) Investigation and resolution of Subscriber complaints shall be effected by the Grantee at the earliest possible time after receipt of the complaint. (2) Upon complaint by any Subscriber, Grantee shall have the burden to satisfy the City that a signal is being delivered, which is of sufficient strength and quality to meet standards set in FCC Rules and Regulations or in reasonable regulations hereafter lawfully adopted by City. (3) If a Subscriber files in writing with the City a complaint for any material service problem, which is preventable and reasonably within the Grantee's control, which term "complaint" shall not include complaints relating to the composition or mix of programming, and if the Grantee fails within the reasonable time period set forth in a written notice by the City to Grantee to rectify the problem or to explain to the City why the Cox Cable (CoxCom) Franchise Agreement -17- H :lsharedlattorneylcableICOXfinalb.doc If, r;2 t/ problem cannot or should not be rectified to the reasonable satisfaction of the City, the City may levy a penalty after Grantee is afforded a hearing, with appeal to the City Council, consistent with due process protections of up to two hundred dollars ($200) if Grantee has fewer than five thousand (5,000) Subscribers in the City or of up to five hundred dollars ($500) if Grantee has five thousand (5,000) or more Subscribers in the City, per material occurrence or series of related occurrences. (4) Grantee shall maintain a written or computerized record of subscriber complaints, including: loss of signal requiring a field visit, non-receipt of programming or services ordered, billing disputes, missed appointments, unsatisfactory performance of maintenance, malfunctioning signal traps on blocked channels, and unresolved or chronic technical problems. Said record shall indicate; a. date and time of Subscriber complaints b. name and address of complainant; c. nature of complaint; d. Grantee's action(s) to resolve complaint; and e. date(s) and time(s) action(s) taken. Said record shall be kept at Grantee's local office for a period of two (2) years. A copy of said Subscriber complaint record shall be submitted by Grantee to City within ten (10) working days following receipt of a written request by City. (p) The City reserves the right to establish additional, reasonable consumer service standards, which are reasonably comparable to standards imposed upon cable systems of equivalent size and demographic makeup, from time to time, as may be necessary, after notice to and opportunity to be heard has been afforded the Grantee and to the extent that said rules and regulations are otherwise lawful and not otherwise preempted by Federal or State law. Section 17. EXTENSION OF INFRASTRUCTURE AND SERVICES. (a) Grantee shall promptly make available, requested services subject to this Franchise. If Grantee can show that such provision of service is impractical or would impose undue economic hardship, the City may waive or defer Grantee's obligation to provide such serVIce. (b) Service shall be provided in a generally uniform manner throughout the City and consistent with service in other County of San Diego franchise areas, with reasonable allowances for phasing of major system upgrades. Service levels, channel capacity and programming choices shall be maintained or improved. Cox Cable (CoxCom) Franchise Agreement -18- H:\shared\attomey\cable\COXfinalb.doc ----- /;; , ~~ (c) Grantee shall not be required to extend or offer service to any residential site that would result in that portion of the system constituting a ratio of less than fifteen houses per street mile of cable plant. The portion of the system to be used in computing the ratio shall be determined in reasonable consideration of subdivision boundaries. (d) Except as provided in Section (c), Grantee shall not be required to extend or offer service to any site in excess of 150 feet overhead or 50 feet underground distance from existing cable facilities without time and materials cost participation by the person requesting service as follows: in any case in which the cost to extend service to a site would exceed $1,000 per site, Grantee shall be responsible for an amount equal to the first $1,000 of said cost. This Grantee-payable amount shall increase by a factor of five (5) percent annually, beginning January 1, 2000. (e) Extension of Customer Services. If a customer service, equipment or infrastructure upgrade which is not currently provided within the City, but which would, if provided, be regulated by this Franchise, or which is otherwise subject to local regulation under federal law ("Qualified System Upgrade") is made available to at least (1) 45% of Grantee's aggregate subscribership within San Diego County (including incorporated and unincorporated areas); and (2) at least 45 % of Grantee's franchise jurisdictions within San Diego County, said Qualified System Upgrade shall also be made available to Chula Vista Subscribers as soon as practically possible, but no later than twelve (12) months after its availability in the County at the 45 % levels described above. For purposes of this Section, "Qualified System Upgrades" shall not include institutional networks or other services, equipment or infrastructure which do not constitute or provide equipment, infrastructure or services of direct benefit to customers. Section 18. SYSTEM AND SERVICES REVIEW (a) The City and Grantee shall hold Cable System and services review sessions commencing in January of the years 2005. Such sessions shall be structured to run concurrently with the Franchise renegotiation intervals described in Section 3(b)(1) hereof. The topics for discussion shall include compliance with the terms and conditions of this Franchise, any developments in the law since issuance of the Franchise, services provided, application of new technologies, Cable System performance, customer service, and any other topics to which the parties shall mutually agree. (b) City shall conduct a community needs assessment of a sampling of Subscribers prior to commencing said review. Grantee shall assist City with the information gathering process. Grantee may consult with the City on topics to be covered by this assessment and may provide a "state of the technology" or "state of the industry" report as background for such community input. Results of the needs assessment will be shared with Grantee at least two (2) weeks prior to commencement of said review session. Cox Cable (CoxCom) Franchise Agreement -19- H: IsharedlattorneylcablelCO Xfinal b.doc /~ /,2.j, (c) Not later than ninety days after the conclusion of the ascertainment described above, City shall issue its findings evaluating the performance of the Grantee, and identifying specific actions that City desires to be taken by Grantee. Said actions shall include both those required by the existing terms and conditions and those which the City would like to add at that time. (d) Grantee shall comply with all directives resulting from this process related to compliance with the requirements of the existing Franchise. In addition, City may request Grantee to undertake actions not required by this Franchise, and Grantee shall make a good faith effort to comply or provide evidence as to why such compliance would be unreasonable, so long as: (1) Said change(s) has been identified as a significant need in the community assessment; (2) The need(s) cannot be met at least as well by an alternative business or commercial entity at a reasonable price; (3) The present Cable System cannot meet the specified need either as presently operating or with some alternative modification consistent with the Franchise or which imposes a significantly lesser economic burden of Franchise; (4) The change will meet the community need as defined in the community needs ascertainment; (5) Said change is technically feasible and will not impose an unreasonable financial hardship on Grantee or otherwise prevent the Grantee from earning a reasonable return on its investment in the Cable System within the Franchise area. (e) If the parties agree that a proposed change constitutes a material change in the Franchise, and the City still desires the change, if Grantee agrees to make the change, Grantee shall be entitled to an automatic Franchise extension of five (5) years. In the event that said change requires a major redesign or engineering or reconstruction of the system throughout the City, the Grantee shall be permitted a reasonable time to implement said change, unless mutually agreed otherwise. Section 19. FILINGS AND COMMUNICATION WITH REGULATORY AGENCIES. Cox Cable (CoxCom) Franchise Agreement -20- H:\shared\attomey\cable\CO Xfinalb .doc /t "c2;J Copies of all petitions, applications and communications of all types submitted by Grantee or City to the Federal Communications Commission, California Public Utilities Commission, or any other Federal or State regulatory commission or agency having jurisdiction over any matter affecting operation of Grantee's Cable Television System shall be submitted simultaneously to the City or Grantee. A copy of each document filed by the Grantee with the City Clerk in accordance with this section shall be deemed to be delivered. Section 20. INSPECTION OF PROPERTY AND RECORDS. At all reasonable times, the Grantee shall permit any duly authorized representative of the City to examine all Franchise Property, together with any appurtenant property of the Grantee situated within the City, and to examine all maps and other records kept or maintained by the Grantee, which treat the operations, affairs, transactions or property of the Grantee with respect thereto and to determine whether the Grantee has paid Franchise Fees in the amounts prescribed in Section 5. The Grantee shall prepare and furnish to the City Engineer at the time and in the form prescribed by the City Engineer and Finance Director, such reports, with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the duties of the City or any of its officers and employees in connection with this Franchise. The Grantee shall, at all times, make and keep full and complete accounting books, files, plans, maps, and records, showing the exact location of all Cable Television System equipment installed or in use by Grantee in streets, alleys and public places of the City. The Grantee shall maintain a written record of customer service requests and complaints and make an annual report to the City thereof. Such records shall be available for inspection by the City. The Grantee shall notify the City of any changes in the customer service agreement or in the complaint procedure to be followed by the customers. Section 21. DISPUTES: SECURITY. (a) Subject to the terms and conditions hereof, each party reserves the right to pursue any and all available remedies, at law or in equity, to enforce its rights under this Franchise. (b) In the event of a bringing of any action by either party hereto against the other hereon or hereunder, or by reason of the breach of any term, covenant or condition on the part of the other party, or arising out of this Agreement, the party in whose favor final judgment shall be entered, shall be entitled to have and recover from the other party reasonable attorney's fees to be fixed by the Court which shall have rendered the judgment. (c) City shall have the right to waive any provision of this Franchise, except those required by federal or state law, if the City Council determines (1) that it is in the public interest to do so; or (2) that the enforcement of such provision will impose an undue hardship on the Grantee or the Subscribers. Other than as expressly provided above, any failure of the Cox Cable (Cox Com) Franchise Agreement -21- H: IsharedlattomeylcablelCOXfinalb.doc If, /o<~ City to enforce one or more provisions of this Franchise, either knowingly or unknowingly, shall not constitute a waiver by the City of its rights to enforce such provision(s). (d) In order to secure its obligation under this Franchise, within thirty (30) days after the Effective Date, Grantee shall post, and maintain in effect throughout the term of the Franchise, a letter of credit in favor of the City in the principal amount of $50.000, and in a form reasonably approved by the City Attorney. Section 22. MISCELLANEOUS PROVISIONS. (a) All notices herein provided for may be by prepaid registered or certified mail addressed to the parties as follows: TO THE CITY: City Manager 276 Fourth Avenue Chula Vista, CA 91910 WITH COPY TO: City Attorney 276 Fourth Avenue Chula Vista, CA 91910 TO THE GRANTEE: WITH COpy TO: CoxCom, Inc. 5159 Federal Blvd. San Diego, CA 92105 Corporate Secretary CoxCom, Inc. 1400 Lake Hearn Drive Atlanta, GA 30319 and shall be considered as given only when received by the other party. All matters herein provided to be filed with the City shall be filed with the City Clerk. (b) The Grantee shall not engage in the business of repairing television receivers or the sale of parts for the same. It is understood, however, that the foregoing does not apply to converters, decoders, or other types of electronic signal adapters or decoders required for the subscriber's television set to receive any of Grantee's signals. (c) Grantee and the City agree to discuss future non-entertainment uses of the Cable System during the term of this Franchise. Both parties agree to discuss and consider entering into mutually advantageous joint ventures to promote business or other non-entertainment uses of the Cable System, which discussion may include City taxation and bonding powers. This discussion and consideration may be initiated by either party upon a minimum of 30 days written notice, with a proposed agenda to be included. This Section reflects the intent of the Grantee and the City to maintain a strong cooperative relationship which may lead to the introduction of new cable related business services within the City in a manner which is mutually advantageous and acceptable to both the Grantee and the City. Cox Cable (CoxCom) Franchise Agreement -22- H:\shared\attorney\cable\CO Xfinalb .doc )t/,2( (d) Notwithstanding any other provisions ofthis agreement, Grantee shall at all times comply with all State and Federal laws, rules and regulations, or any administrative agency thereof; provided, however, if any such ordinance, law, rule or regulation shall require the Grantee to perform any act or shall permit the Grantee to perform any act in conflict with the provisions and terms of this Franchise, then such provision or term in conflict may be modified or amended by agreement of the parties to such reasonable extent necessary to carry out the full intent and purpose hereof. (e) All provisions of this Franchise are intended to be integral parts of a comprehensive regulatory scheme. In the event that any provision hereof is finally determined by a court of competent jurisdiction, to be invalid, unenforceable, or unconstitutional, then, the parties shall immediately, in good faith, renegotiate such provision for the purpose of developing modifications to the Franchise which would substantially replace such provision(s). In the event that, after good faith efforts, no such modification is approved by the parties by the date 90 days after the final determination, and if the City Councilor Grantee reasonably determines subsequently that the deletion from the Franchise of the subject provision(s) materially alters the Franchise, upon 30 days written notice to the other party of such determination of materiality, the Franchise shall terminate. (f) This Franchise constitutes the entire agreement between the parties with respect to the subject matter hereof. Any and all prior or contemporaneous agreements, written or oral, express or implied, are hereby superseded. (g) By accepting this Franchise, Grantee acknowledges that notice is and was hereby given to Grantee pursuant to California Revenue and Taxation code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein set forth may create a possessory interest which may be subject to the payment of property taxes levied on such interest. Grantee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against Grantee's right to possession , occupancy or use of any public property pursuant to any right of possession, occupancy or use created by this Franchise. (h) Representations and Warranties. (1) Except as expressly provided in this Franchise, the Grantee herein shall have no recourse whatsoever against the City for any loss, cost, or expenses or damage arising out of the provisions or requirements of this Franchise or because of the good faith enforcement thereof by the City. (2) The Grantee expressly acknowledges that upon accepting this Franchise, it did so relying upon its own investigations and understanding of the power and authority of the City to grant this Franchise. Cox Cable (CoxCom) Franchise Agreement -23- H :\shared\attorney\cable\COXfinalb .doc If;, ~3tJ (3) The Grantee by acceptance of this Franchise acknowledges that it has not been induced to enter into this Franchise by any understanding or promise or other statement whether verbal or written by or on behalf of the City or by any other third person concerning any term or condition of this Franchise not expressed herein. (4) The Grantee further acknowledges by acceptance of this Franchise that it has carefully read the terms and conditions hereof and is willing to and does accept all of the risks of the meaning of such terms and conditions. The Grantee hereby certifies that none of the obligations imposed upon it by this Franchise is, in the Grantee's informed opinion, commercially impracticable. (5) The Grantee represents and warrants that it has the power and authority to enter into this Franchise by and through the representative who has signed this Franchise on its behalf, and that is has the power and ability to do all the acts required for under this Franchise. The Grantee shall provide a corporate resolution to that effect simultaneously with the signing hereof. (6) The Grantee enters into this Franchise willingly and without coercion, undue influence, or duress. The Grantee has not misrepresented or omitted material facts, has not entered into this Franchise with intent to act contrary to the provisions herein, and represents and warrants that, so long as it operates the system, it will be bound by the terms and conditions of this Franchise. (i) Force Majeure. In the event Grantee's performance of any of the terms, conditions, obligations or requirements of this Franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Grantee has notified City in writing within thirty (30) days of its discovery of the occurrence of such an event. Such causes beyond Grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God, civil emergencies and labor unrest or strikes, untimely delivery of equipment, inability to obtain gratis access to an individual's property and inability of Grantee to secure all necessary permits to utilize utility poles or conduit so long as Grantee utilizes due diligence to timely obtain said permits. (j) Time is of the essence of this franchise. The Grantee shall not be relieved of its obligation to comply promptly with any of its provisions by any failure of the City to enforce prompt compliance. (k) Provisions of this Franchise shall be construed in accordance with the laws of the State of California and shall be subject to all applicable federal, state and local laws. [Next Page is Signature Page] Cox Cable (CoxCom) Franchise Agreement -24- H:lsharedlattomeylcableICOXfinalb.doc /&~/ SIGNATURE PAGE TO CABLE SYSTEM FRANCHISE AGREEMENT BETWEEN CITY OF CHULA VISTA AND COXCOM, INC. IN WITNESS WHEREOF, Grantee and City have entered into this Franchise Agreement effective as of the date first written below. day of ,19_ EXECUTED AND EFFECTIVE THIS CITY OF CHULA VISTA, A Municipal Corporation By Shirley Horton, Mayor ATTEST: Susan Bigelow, City Clerk APPROVED AS TO FORM BY: John M. Kaheny, City Attorney COXCOM, INC. By [Print Name and Title] Cox Cable (CoxCom) Franchise Agreement -25- H :\shared\attomey\cable\CO Xfinalb.doc I;; -J,2 (Exhibit A) /.5' Jf e vJ;r/.u1U1 a~ @Work ACCEPTABLE USE POUCY Last Modified: July 1, 1999 Important Note: @Worl<;. a division of At Home Corporation, may revise this Acceptable Use Policy from time to time without notice by posting a new version of this document on the @Work Web site. Aa:ordingly, users of the @Wo'* services should consult this dcx:ument regularly to ensure that their activities CDnfann to the most recent version. In the event of a conOid between any service agreement or other terms and this policy, the terms of this policy will govern. Questions regarding this policy can be directed to abuse-oolicv@coro.home.net Complaints of violations of this policy by @Wo/1( QJStomers can be directed to abuse@work.home.net Introduction @Work provides a variety of Internet services ("@Work Services"). For businesses and telerommuters, @Wo~ Services provide a platform for Internet, intranet and extranet ronnectivity solutions and networked business applications. Use of the @Work Service is subject to the following rules and guidelines. Each customer of @Work or its distribution affiliates is responsible for ensuring that the use of all Services provided to such OJStomer romplies with this Aa:eptable Use Policy (the "Policy"). ANY OJsrOMER WHO DOES NOT AGREE TO BE BOUND BY THESE TERMS SHOULD IMMEDIATELY srop USE OF THE SERVICES AND NOTIFY @WORK ACCOUNT MANAGEMENT SO THAT THE OJsrOMER'S SERVICE CAN BE CANCELLED. Illegal Activity Use of @Work Services for any activity that violates any local, state, federal or international law, order or regulation is a violation of this Policy. . Prohibited activities include, but are not limited to: . Posting or disseminating material which is unlawful (such as child pornography or obscene material). . Disseminating material that violates the ropyright or other intellectual property rights of others. You assume all risks regarding the determination of whether material is in the public domain. . Pyramid or other illegal soliciting schemes. . Any fraudulent activities, including impersonating any person or entity or forging anyone else's digital or manual signature. Security You are responsible for any misuse of @Work Services that you have rontracted for, even if the inappropriate activity was rommitted by an employee, customer, ronsultant, guest or other indMduals who have acx::ess to your system. Therefore, you must take steps to ensure that others do not gain unauthorized acx::ess to @Work's Services. This includes any third party use of unsecured mail and news servers or any other unauthorized acx::ess that results in a violation of any portion of this Policy. @Work Services may not be used to breach the security of another Internet user or to attempt to gain acx::ess to any other person's or business's romputer, software or data, without the knowledge and ronsent of such person or business. They also may not be used in any attempt to drcumvent the user authentication or security of any host, network, or aa:ount. This includes, but is not limited to, accessing data not intencled for you, logging into or making use of a server or aa:ount you are not expressly authorized to acx::ess, or probing the security of other networks. Use or distribution of tools designed for rompromising security, such as password guessing programs, cracking tools, packet sniffers or network probing tools, is prohibited. You may not disrupt @Work's Services. @Work's Services may also not be used to interfere with romputer networking or telerommunications services to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a serviCE, improper seizing and abuse of operator privileges and attempts to "crash" a host. The transmission or dissemination of any information or software which contains a virus or other harmful feature also is prohibited. You are solely responsible for the security of any deviCE you choose to ronnect to @Work's Services, induding any data stored on that device. @Work recommends that any files or services you do choose to make available for remote acx::ess be protected with a strong password or as otherwise appropriate. J~ ~ J;J Page 1 of 4 Inappropriate Content There may be rontent on the Internet or otherwise available through @Work Services which may be offensive to some individuals, or whim may not be in rompliance with all local laws, regulations and other rules. For example, it is possible to obtain aa:ess to rontent which is pornographic or offensive, partiQJlarty for children. Neither @Work nor any of its distribution affiliates can assume any responsibility for the rontent rontainec:l on the Internet or otherwise available through @Work's Services. You must assume the risk of aa:essing rontent through our Service, and neither @Work nor any of its distribution affiliates shall have any liability for any daims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to aa:ess to such rontent. Content questions or romplaints should be addressed to the rontent provider. You are solely responsible for any information that you or anyone you allow to access or use @Work Services (including any of your customers) publishes on the web or other Internet services. You must ensure that the recipient of the rontent is appropriate. For example, you must take appropriate precautions to prevent minors from receiving inappropriate rontent. @Work and its distribution affiliates reserve the right to refuse to post or to remove any information or materials, in whole or in part, that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful. Neither @Work nor any of its distribution affiliates has any obligation to monitor transmissions made on @Work Services. However, @Work and its distribution affiliates have the right to monitor such transmissions from time to time and to disdose the same in aa:ordance with your service agreement. By using @Work Services to reproduce, publish, display, transmit and distribute rontent, an @Work QJstomer is warranting that the rontent romplies with this Policy and authorizing @Work and its distribution affiliates to reproduce, publish, display, transmit and distribute such rontent as necessary for @Work to deliver the rontent in a timely manner. Electronic Mail @Work Services may not be used to send unsolidted, bulk or rommerdal messages. This indudes, but is not limited to, bulk mailing of rommerdal advertising, informational announcements, charity requests, petitions for signatures and political or religious messages. Such messages may only be sent to those who have explidtly requested them. @Work Services may not be used to send messages to any indMdual who has indicated that he/she does not wish to receive messages from you. @Work Services may not be used to rollect responses from unsolidted email sent from aa:Dunts on other Internet hosts or email services which violates this Policy or the acceptable use policy of any other Internet service provider. Moreover, unsolidted email may not direct the redpient to any web site or other resource whim uses @Work Services. Forging, altering or removing electronic mail headers is prohibited. You may not reference @Home Corporation, or any of its subsidiaries or divisions (including @Work) either direc:tly or indired:ly, or by listing an IP address that belongs to At Horne Corporation in any unsolidted email even if that email is not sent through @Work Services. "Mail bombing" is prohibited. That is, you may not send numerous ropies of the same or substantially similar messages, nor may you send very large messages or files to a redpient with the intent to disrupt a server or account. The propagation of chain letters is similarty prohibited, whether or not the recipient wishes to receive such mailings. @Work is not responsible for the forwarding of email sent to any QJstomer's service which has been suspended or terminated. Sudl ernail will either be returned to sender, ignored, deleted, or stored temporarily at @Work's sole discretion. Ji/J{ Page 2 of 4 Newsgroups Messages posted to newsgroups must comply with the written charters or FAQs for those newsgroups. Advertisements, solicitations, or other rommercial messages should be posted only in those newsgroups whose charters or FAQs explidtly permit them. You are responsible for determining the polides of a given newsgroup before posting to it. Posting or cross-posting the same or substantially similar messages to more than eight newsgroups is prohibitecl. Our news software will automatically cancel any messages posted to nine or more newsgroups on any news server operated by the At Home Corporation. Binary files may not be posted to newsgroups not specifically named for that purpose. Users posting binary files to groups with polides ronc::eming the permissible daily volume of posted files are required to observe those limitations. Forging, altering or removing header information is prohibited. This indudes attempting to drcumvent the approval process for posting to a moderated newsgroup. @Work reserves the right to discnntinue access to any Usenet newsgroup at any time for any reason. You may not attempt to "flood" or disrupt Usenet newsgroups. Disruption is defined as posting a large number of messages to a newsgroup which contain no substantive content, to the extent that normal diSOJSSion in the group is significantly hindered. Examples of disruptive activities indude, but are not Iimitecl to, posting multiple messages with 00 text in the body, or posting many follow-ups to messages with no new text. Messages may not be canceled, except by the author or by offidal newsgroup moderators performing their duties. Internet Relay Chat @WorkServices may be used to partidpate in "chat" diSOJSSions. In all cases, @Workdoes not normally monitor the contents of the diSOJSSion and is not liable for the contents of any communications made via Internet chat. @Work Services may not be used to perform chat "flooding." Flooding is defined as deliberately repeating actions in quick succession in order to fill the screens of other Internet users with text. Any single computer or other device connected through @Work Services may not maintain more than 2 simultaneous d1at ronnections. This indudes the use of automated programs, such as "bats" or "dones". Automated programs may not be used when the user is not physically present at the device. @Work Services may not be used to send messages which disrupt another Internet user's equipment, induding software, hardware, and user display. @Work Services may not be used to aa:ess any chat server in violation of the acceptable use policy of that server. @Work Services may not be used to manipulate any chat server in order to harass or disronned: other Internet users, or to gain privileges which have not been authorized. A QJStorner may not use @Work Services to conned: to chat servers or channels from which they have been previously banned. @Work Services may not be used to continue to send chat messages to an Internet user who has indicated their desire to not receive such messages. Forging, altering, or obsaJring your identity (other than using a nickname from which @Work rould if necessary determine your real name) while partidpating in chat sessions is forbidden. Bandwidth, Data Storage and Other Umitations You must comply with the then current bandwidth, data storage and other limitations on @Work Services. Users must ensure that their activity does not improperly restrict:, inhibit, or degrade any other user's use of @Work Services, nor represent (in the sole judgment of @Work) an unusually large burden on the network itself. In addition, Page 3 of 4 /&,-35' users must ensure that their activity does not improperly restrict, inhibit, disrupt, degrade or impede @Work's ability to deliver our Services and monitor our Services, backbone, network nodes, and/or other network services. Violation of Acceptable Use Policy @Work does not routinely monitor the activity of services used by customer for violation of this Policy. However, in our efforts to promote good dtizenship within the Internet community, we will respond appropriately if we become aware of inappropriate use of our Services. Although @Work has no obligation to monitor Services provided and/or the network, @Work and it various affiliates and partners reserve the right to monitor bandwidth, usage, and a>ntent from time to time to operate our Services; to identify violations of this Policy; and/or to proted the network and @Work customers. @Work prefers to advise customers of inappropriate behavior and any necessary corrective action. However, if our Services are used in a way which @Work or its distribution affiliates, in their sole discretion, believe violate this Policy, @Work or its distribution affiliates may take any responsive actions they deem appropriate. Such actions include, but are not limited to, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, and the immediate suspension or termination of all or any portion of Services provided by @Work. Neither @Work nor its distribution affiliates will have any liability for any such responsive actions. 1lle above described actions are not @Work's exdusive remec:lies and @Work may take any other legal or technical action it deemS appropriate. @Work reserves the right to investigate suspected violations of this Policy, including the gathering of information from the user or users involved and the complaining party, if any, and examination of material on @Work's servers and network. During an investigation, @Work may suspend the service or services of the customer involved and/or remove material which potentially violates this Policy. You hereby authorize @Work and its distribution affiliates to cooperate with (i) law enforcement authorities in the investigation of suspected aiminal violations, and (ii) and system administrators at other Internet service providers or other network or a>mputing fadlities in order to enforce this Policy. Such cooperation may include @Work providing the name, IP addressees), or other identifying information about a customer. Upon termination of a OJstomer's service, @Work is authorized to delete any files, programs, data and email messages associated with such account. The failure of @Work or its distribution affiliates to enforce this Policy, for whatever reason, shall not be construed as a waiver of any right to do so at any time. You agree that, if any portion of this Policy is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect. This Policy shall be exdusively governed by, and a>nstruecJ in acrordance with, the laws of the State of California. /~ ' :Jt Page 4 of 4 Acceptable Use Policy Cox@Work Internet Document last modified: July 9, 1998 1.5 ..-J.f6 ~~ a~ I!I The @Work dMsion of Exdte@Home provides a variety of Internet services to CDfllmerdal customers (the "Services"). The Cox@Work produc::t set is designed to offer businesses high performance aa:ess to the Internet over the cable HFC plant The Cox@Work Internet Standard service offering enables customers with simple networks (no subnetworks and up to 3 users maximum) to have high speed dient acx:ess to the Internet. The Cox@Work Internet Professional service offering enables customers to have a high perfonnance alternative to Fractional T1's. Bandwidth, Data Storage, DNS, and Other Umitations (Cox@Work Internet Standard) You must comply with the then OJrrent bandwidth, data storage and other limitations on the Services. Users must ensure that their activity does not improperly restrict or inhibit any other user's normal use of the Services. @Home Network customers may not resell, share, or otherwise disbibute the Service or any portion thereof to any third party without the written consent of @Home Network. For example, you cannot provide Internet aa:ess to others through a dial up connection, host shell aa:ounts over the Internet, provide email or news service, or send a news feed. This service will allow the customer to: . Have up to 3 users behind a single cable modem . Domain Name Service (ind. vanity domain name) 0Jst0merS may not: . Place servers behind their connection (i.e. HITP, SMTP, NNTP, FTP, etc.) . No more than 3 users per connection . Manage their own Primary and Secondary DNS (@Work must manage it) Bandwidth, Data Storage, DNS, and Other Umitations (Cox@Work Internet Professional) You must comply with the then current bandwidth, data storage and other limitations on the Services. Users must ensure that their activity does not improperly restrict or inhibit any other user's normal use of the Services. @Home Network customers may not resell, share, or otherwise disbibute the Service or any portion thereof to any third party without the written consent of @Home Network. For example, you cannot provide Internet aa:ess to others through a dial up connection, host shell aa::ounts over the Internet, provide email or news service, or send a news feed. This service will allow the customer to: . Up to 175 users and 7 public servers behind a single connection . Use SMTP mail and outbound mail relay . Place HTfP and FfP servers behind their connection . Domain Name Service (ind. vanity domain names) QJstomers may not: . Manage their own Primary and Secondary DNS (@Work or another ISP must manage Primary and Secondary) . Resell server space . Disconnect the router provided as part of the service Cannot receive an NNTP newsfeed Cox@Work CUstomers have additional Terms and Conditions, please refer to this section of your Agreement. )j,/J7 @Home Acceptable Use Policy QJJf JJ(J~ .A.-e-'" _.A.. (Exhibit B) ~Home. ,,'Home Speed F'eaturu . Content .. . .'. .Prlc.. ,';.-:-' ,-...~ '.......-.. "....,. ','-, ..:-.> ,,',,';'." . ,THtlmoni.li:. '.' .' .; .fAO';': c";;"':' '." ' 'i,' :sJv;l;UJ~J~J~,;~;,t~~:;~i~is~~ @Home Acceptable Use Policy Last modified: July 13, 1999 Important Note: @Home Network may revise this Acceptable Use Policy from time to time without notice by posting a new version of this document on the @Home Network Web site at httrJ://www.home.netlaup and in the "House Rules" section of the "Help" Tab on the @Home Service Home page. Accordingly, users of the @Home Network's residential and commercial services should consult this document regularly to ensure that their activities conform to the most recent version. In the event of a conflict between any subscriber agreement and this policy, the terms of this policy will govern. Questions regarding this policy can be directed to abuse-policv@corp.home.net. Complaints of violations of this policy by @Home users can be directed to abuse@horne.com. Introduction @Home Network provides a variety of Internet services to residences (the "Services"). The @Home@ residential service allows subscribers to connect to the Company's high- speed backbone network and the Internet. ..'"'-.... The Services use resources that are shared with many other customers. Moreover, the Services provide access to the Internet which is used by millions of other users. Each user benefits by being able to share resources and communicate almost effortlessly with other members of the user community. However, as with any community, the benefits and privileges available from the Services, and the Internet in general, must be balanced with duties and responsibilities so that other users can also have a productive experience. Use of the Services is subject to the following rules and guidelines. Each customer of @Home Network or its distribution affiliates is responsible for ensuring that the use of all Services provided to such customer complies with this Acceptable Use Policy (the "Policy"). ANY USER WHO DOES NOT AGREE TO BE BOUND BY THESE TERMS SHOULD IMMEDIATELY STOP USE OF THE SERVICES AND NOTIFY THE @HOME NETWORK CUSTOMER SERVICE DEPARTMENT SO THAT THE USER'S ACCOUNT MAY BE CLOSED. Illegal Activity The use of the Services for any activity that violates any http://www.home.com/supportlaup/ If, ~ g/ 8/17/99 @Home Acceptable Use Policy .I.. ""b""'" .. v.a.. I local, state, federal or intemationallaw. order or regulation is a violation of this Policy. Prohibited activities include. but are not limited to: Posting or disseminating material which is unlawful (such as child pomography or obscene material). Disseminating material which violates the copyright or other intellectual property rights of others. You assume all risks regarding the determination of whether material is in the public domain. Pyramid or other illegal soliciting schemes. Any fraudulent activities. including impersonating any person or entity or forging anyone else's digital or manual signature. Security You are responsible for any misuse of the Services that you have contracted for, even if the inappropriate activity was committed by a friend. family member. guest. employee or customer with access to your account. Therefore. you must take steps to ensure that others do not gain unauthorized access to the Services. The Services may not be used to breach the security of another user or to attempt to gain access to any other person's computer, software or data, without the knowledge and consent of such person. They also may not be used in any attempt to circumvent the user authentication or security of any host, network. or account. This includes. but is not limited to. accessing data not intended for you. logging into or making use of a server or account you are not expressly authorized to access. or probing the security of other networks. Use or distribution of tools designed for compromising security. such as password guessing programs. cracking tools. packet sniffers or network probing tools. is prohibited. You may not disrupt the Services. The Services also may not be used to interfere with computer networking or telecommunications services to any user, host or network. including, without limitation. denial of service attacks. flooding of a network. overloading a service, improper seizing and abuse of operator privileges and attempts to "crash" a host. The transmission or dissemination of any information or software which contains a virus or other harmful feature also is prohibited. You are solely responsible for the security of any device you choose to connect to the Services, including any data stored on that device. In particular. @Home Network recommends against enabling file or printer sharing of any sort. @Home Network recommends that any files or services you do choose to make available for remote access be protected with a strong password or as otherwise appropriate. http://www.home.com/support/aup/ /~~.JI 8/17/99 @Home Acceptable Use polley ~ at;~ oJ V~ I Inappropriate Content There may be content on the Internet or otherwise available through the Services which may be offensive to some individuals, or which may not be in compliance with all local laws, regulations and other rules. For example, it is possible to obtain access to content which is pornographic or offensive, particularly for children. Neither @Home Network nor any of its distribution affiliates can assume any responsibility for the content contained on the Internet or otherwise available through the Services. You must assume the risk of accessing content through the Service, and neither @Home Network nor any of its distribution affiliates shall have any liability for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to access to such content. Parents may want to use a program capable of restricting access to sexually explicit material on the Internet. Content questions or complaints should be addressed to the content provider. You are solely responsible for any information which you publish on the web or other Internet services. You must ensure that the recipient of the content is appropriate. For example, you must take appropriate precautions to prevent minors from receiving inappropriate content. @Home Network and its distribution affiliates reserve the right to refuse to post or to remove any information or materials, in whole or in part, that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful. Neither @Home Network nor any of its distribution affiliates has any obligation to monitor transmissions made on the Services. However, @Home Network and its distribution affiliates have the right to monitor such transmissions from time to time and to disclose the same in accordance with your subscriber agreement. By using the Services to reproduce, publish, display, transmit and distribute content, a user is warranting that the content complies with this Policy and authorizing @Home Network and its distribution affiliates to reproduce, publish, display, transmit and distribute such content as necessary for @Home to deliver the content in a timely manner. Electronic Mail The Services may not be used to send unsolicited bulk or commercial messages. This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures and political or religious messages. Such messages may only be sent to those who have explicitly requested it. The Services may not be used to send messages to any individual who has indicated that he/she does not wish to receive messages from you. http://www.home.comlsupport/aup/ /~ /ljtJ 8/17/99 @Home Acceptable Use Policy r~\;"'tv~1 The Services may not be used to collect responses from unsolicited email sent from accounts on other Intemet hosts or email services which violates this Policy or the acceptable use policy of any other Intemet service provider. Moreover, unsolicited email may not direct the recipient to any web site or other resource which uses the Services. Forging, altering or removing electronic mail headers is prohibited. You may not reference @Home Network (e.g. by including "Organization: @Home Network" in the header or by listing an IP address that belongs to the @Home Network) in any unsolicited email even if that email is not sent through the @Home Network. "Mail bombing" is prohibited. That is, you may not send numerous copies of the same or substantially similar messages, nor may you send very large messages or files to a recipient with the intent to disrupt a server or account. The propagation of chain letters is similarly prohibited, whether or not the recipient wishes to receive such mailings. @Home Network is not responsible for the forwarding of email sent to any account which has been suspended or terminated. Such email will either be retumed to sender, ignored, deleted, or stored temporarily at @Home Network's sole discretion. Newsgroups Messages posted to newsgroups must comply with the written charters or FAQs for those newsgroups. Advertisements, solicitations. or other commercial messages should be posted only in those newsgroups whose charters or FAQs explicitly permit them. You are responsible for determining the policies of a given newsgroup before posting to it. Posting or cross-posting the same or substantially similar messages to more than eight newsgroups is prohibited. Our news software will automatically cancel any messages posted to nine or more newsgroups. Binary files may not be posted to newsgroups not specifically named for that purpose. Users posting binary files to groups with policies conceming the permissible daily volume of posted files are required to observe those limitations. Forging, altering or removing header information is prohibited. This includes attempting to circumvent the approval process for posting to a moderated newsgroup. @Home Network reserves the right to discontinue access to any Usenet newsgroup at any time for any reason. http://www.home.comlsupportlaup/ / b ~i/ 8/17/99 @Home Acceptable Use Pohcy .J,.. """6"" -' v.... , You may not attempt to "flood" or disrupt Usenet newsgroups. Disruption is defined as posting a large number of messages to a newsgroup which contain no substantive content, to the extent that normal discussion in the group is significantly hindered. Examples of disruptive activities include, but are not limited to, posting multiple messages with no text in the body, or posting many follow-ups to messages with no new text. Messages may not be canceled, except by the author or by official newsgroup moderators performing their duties. The Usenet news service included with an @Home residential service account is provided for interactive use by the subscriber, using a commonly-available NNTP client such as Netscape Communicator. Non-interactive clients which download Usenet articles in bulk are prohibited. Internet Relay Chat The Services may be used to participate in "chat" discussions. These discussions may be hosted by @Home Network servers, by third party servers, or may not involve any servers at all. In all cases, @Home Network does not normally monitor the contents of the discussion and is not liable for the contents of any communications made via Internet chat. The services may not be used to perform chat "flooding." Flooding is defined as deliberately repeating actions in quick succession in order to fill the screens of other Internet users with text. Any computer or other device connected through the Services may not maintain more than 2 simultaneous chat connections. This includes the use of automated programs, such as "bets" or "clones". Automated programs may not be used when the account holder is not physically present at the device. The Services may not be used to send messages which disrupt another Internet user's equipment, including software, hardware, and user display. The Services may not be used to access any chat server in violation of the acceptable use policy of that server. The Services may not be used to manipulate any chat server in order to harass or disconnect other Internet users, or to gain privileges which have not been authorized. A customer may not use the Services to connect to chat servers or channels from which they have been previously banned. The Services may not be used to continue to send chat messages to an Internet user who has indicated their desire to not receive such messages. http://www.home.com/supportlaup/ /} /1,2 8/17/99 @Home Acceptable Use Policy .J.. """0....... v v.... , Forging, altering, or obscuring your identity (other than using a nickname from which @Home could if necessary determine your real name) while participating in chat sessions is forbidden. Bandwidth, Data Storage and Other Limitations You must comply with the then current bandwidth, data storage and other limitations on the Services. Users must ensure that their activity does not improperly restrict, inhibit, or degrade any other user's use of the Services, nor represent (in the sole judgment of @Home Network) an unusually large burden on the network itself. In addition, users must ensure that their activity does not improperly restrict, inhibit, disrupt, degrade or impede @Home's ability to deliver the Services and monitor the Services, backbone, network nodes. and/or other network services. @Home Network customers may not resell, share, or otherwise distribute the Services or any portion thereof to any third party without the written consent of @Home Network. For example, you cannot provide Internet access to others through a dial up connection, host shell accounts over the Internet, provide email or news service, or send a news feed. The @Home residential service offering is a consumer product designed for your personal use of the Internet. For example, the service does not provide the type of security, upstream performance and total downstream throughput capability typically associated with commercial use. You may not run a server in connection with the @Home residential service, nor may you provide network services to others via the @Home residential service. The @Home residential service includes personal Webspace accounts for publishing personal Web pages. Examples of prohibited uses include, but are not limited to, running servers for mail, http, ftp, ire, and dhcp, and multi-user interactive forums. For information about @Work products for commercial or network services purposes, including commercial-grade remote LAN access, please see http://work.home.net. Violation of Acceptable Use Policy @Home Network does not routinely monitor the activity of accounts for violation of this Policy. HOYtIever, in our efforts to promote good citizenship within the Internet community, we will respond appropriately if we become aware of inappropriate use of our Services. Although @Home Network has no obligation to monitor the Services and/or the network. @Home Network and it various affiliates and partners reserve the right to monitor bandwidth, usage, and content from time to time to operate the Services; to identify violations of this Policy; and/or to protect the network and @Home users. http://www.home.com/supportlaup/ /t/V 8/17/99 @Home Acceptable Use Policy J. ao~ I VL I @Home Network prefers to advise customers of inappropriate behavior and any necessary corrective action. HOIN'ever, if the Services are used in a way which @Home Network or its distribution affiliates, in their sole discretion, believe violate this Policy, @Home Network or its distribution affiliates may take any responsive actions they deem appropriate. Such actions include, but are not limited to, temporary or permanent removal of content, cancellation of newsgroup posts, filtering of Internet transmissions, and the immediate suspension or termination of all or any portion of the Services. Neither @Home Network nor its distribution affiliates will have any liability for any such responsive actions. The above described actions are not @Home Network's exclusive remedies and @Home Network may take any other legal or technical action it deems appropriate. @Home Network reserves the right to investigate suspected violations of this Policy, including the gathering of information from the user or users involved and the complaining party, if any, and examination of material on @Home Network's servers and network. During an investigation, @Home Network may suspend the account or accounts involved and/or remove material which potentially violates this Policy. You hereby authorize @Home Network and its distribution affiliates to cooperate with (i) law enforcement authorities in the investigation of suspected criminal violations, and (ii) and system administrators at other Internet service providers or other network or computing facilities in order to enforce this Policy. Such cooperation may include @Home Network providing the usemame, IP address, or other identifying information about a subscriber. Upon termination of an account, @Home Network is authorized to delete any files, programs, data and email messages associated with such account. The failure of @Home Network or its distribution affiliates to enforce this Policy, for whatever reason, shall not be construed as a waiver of any right to do so at any time. You agree that, if any portion of this Policy is held invalid or unenforceable, that portion will be construed consistent with applicable law as near1y as possible, and the remaining portions will remain in full force and effect. This Policy shall be exclusively governed by, and construed in accordance with, the laws of the State of California. @Work Customers have a separate Acceptable Use Policy located here. Copyright (c) 1995-1999 At Home Caporation. All Rights Reserved. @Hane. Excite@Home, @Wak, Excite. a1d G are the trademar1cs of At Home Corporation. and may be registered in certain jurisdictions. Leaal Notices http://www.home.com/supportlaup/ It ~J}f 8/17/99 ~ .J{ 0 rlJ/rn5 CO~ ~ Home. SUBSCRIBER AGREEMENT CuxCom. iDe. d/bIa Cox COllU1Wllic;wODS San Die,o C'COJ,") will pro~idc lhc CUAfSoHumc w:r'uQ: ~1hc "Scnict:"J \u ":u,)WllIl:r ("CUSlOIDG'''' on the b:rmS and cooditions ~t forth below. Such Service will be delive~d over cable tr~ion facililic:. Pluyidcd b)' eox. BEFORE YOU CLICK ON THE -ACCEYr SU1TON OR SIGN AT THE END OF THIS .DOCUMENT. CAREFULLY READ THE TERMS AND CONDmONS OFTIUS AGREEMENT. BY CUCKlNG ON THE -ACCEP'r BUTTON OR SIGNING AT THE END OF THIS DOCUMEI<1". YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMEI<1". IF YOU 00 NOT AGREE TO AU. OF THE TERMS AND CONDITIONS OF THIS AGREEMEI<1". CUCK THE "00 NOT ACCEPT" BUTTON. DO NOT SIGN AT TIlE END OF TIllS DOCUMENT. AND DO NOT USE TIlE SERVICE. AaI.aIIiJIIad,. Cox may. in its 50le discrc:lion. cbao&c. modify. add or remove ponions of this Aarecment. and !.be Service provldcd then:r.mder. at any time. em will notify Customer of any such cbanscs by posting notice of such chanaes at bltp:1/www-cox.comlhighspeedlsubagrecmentlcban&es.hun or sending notice via c-mail or postal mail. Customer's continued use of the Scrvacx faUawing notice of such chanJC shall be deemed to be Customer's ac:ceptance of any AlCb modif1C8tiOO. If Customer does DOl ape: to any such modificaaion. Customer must immedialcly stop using the Service and nollfy em that CU5lOmef is tenninating lhilO Agreement in accordance with Section 12(a) of lhis AgreemenL An online version of the: Cox Subscriber Agreement is available al hllp:/Jwww .cox.comlbighspcc:dlsub~reement.htm. l. C..omoulrr Euuiomrnl KruuiremenL. A listiog uf the CLUTCnl minimum computer rc4Wremcnls ili iIlv.nlillbk unline ...1 hnp:J/www.home_c:omIhomeJqa.huo.1.The;uinimumre4luircmentsmayel:Lan8e.mdCuxv.illmake reasunable dfom tU suppon previously acceptable configurations; however. Cuslomer aclulowledges thai Cox is not obligated to continue 10 provi/oJe :>uch lOUppun... 2. C:udumer Prftnis6 EuuiDmmt. Cuswmer may cilhc:r rent or purchase oil cable modem from Cox directly. In wme locatiunli, customers may have the opt.ion of purchusin& a DOCSIS-compliant SWldard modem either from Cox or from a lbird party pru...idcr. In tbcK locations. eo. rcscr\ICs lbc right to provide lCI'\Iice only 10 users who have Cox-approved DQCSIS-compliant modems. Subscribers an: strongly urged to eheck wilb Cox Customer Support at (800) 234-3n4 before purchasing a cable modem. A current listing of the Cox-appro...ed equipment can be found onUne al hUp:J/www.com.comlhigbspccdIFAQ.bun. 3 Al'a!M Pro.idrcl. The equipment provided by Cox (the "Equipment") will allow Customen to access lbe internet. online !OCf\Iiccs and DIher information. Customer acknowledKcs Iba1 CUSlomcr may incur charges while using the Service ill addition 10 those billed by Cox. Customer agrees and understands tbal aUwcb dw1es, including all applicable taxes, are the sole responsibility of Customer. 4. P.Ylllrnt Terms. a. APreelDrnt 10 Pa\' Customer agrees to pay all munthly fees and installation charges. including applicable frollDchisc feo. Wl.~. customer liCrvice fees. Iatt: fee!> and door collection fees. Monthly fees will be billed one monlh in advance. if paymenl. is Dol received by the due datc. la1c: fees and/or door collection charges nwy be assessed and the Service may be discunnected. Customer may be required 10 pay a reconnect fee in addition to all paS! due charges before the Service is fCf:OMecLCd. Customer funhcr acknowledges that Cox may require a liCCurity deposit. b. Pavrnrnt Mrlbods Customer agrees to pay Cox in accordlUlce with the paymenl tenus on lbc: back of lhe invuice received by Customer for the Service and agrees thai Cox ha.s the right to chilDge the suucture a.nd amount uf its fees at any time subject tu applicable law. 5. Ac:ass to Cuslomer's Premises. Custumer lIulhorizcs Cw., an/oJ its elllpluyecli, agents. cunUact~, aud reprClOenw.uvc:. lu enter Customer's premises (me "Premises") in order to im.1.alI, mainUlin, inspect. repair and remove me Equipment and/or Lhe Scrvil..~. if CUSlOIDCI" is nollbc owner of the Premises. upon request. Customer will supply Cox wilh the owne(s name and address. e...idem:e that Customer is autborized to grant access 10 the Premises on me owner's behalf. and (if needed) wrinen consenl from the owner of t.hc Premises. 6. Kel8a.unll'lRemoYiDP EuuiDmenL Customer will not remove the Equipment from the Premises or connect the Equipment to any outlet other lhan the outlet to which the Equipment was initially connected by lhe Cox installer. Cox may relocate the Equipment for Cuslomer within the Premises at the Customer's request. If Customer relocates 10 a new address, lhis Agreement shall au&.oma1ically td'Dlinate and Customer wiU be required to enter into a new Subscriber Agrecmenllu initiate Service. 10 all cases. Customer shall notify Cox as provided in Section . CuslOmer acknowledges that CuslOmer may incur additional charges for any Equipment relocation. Customer will not connect any othec device 10 the dedicated cable modem outlet. Customer understands that doing so may cause damage to the Cox@Home network and subjecl CuslOmer to prosecution for damages. 7. Conlact Addnss. Fur allY illLjuiries or notices required in connection with thilO Agreement. Customer should ~unlaCt Cu);, via e-mail at wirnne-sunDurtWrox.com. or in writing at Cox Communications San Diego. Cox@Home Nelwork Customer Service. 5159 Federal BoWe...ard, San Diego. CA 92105. tI. Prohibited lilies ortbt! Senie~ IndelUllit". Custumer lilLaIl Ilut usc the &juipllll:'lll VI thc Scr...il;c dirc:ctly or imhn:cLly to: a. perform any illegal activity; b. breach or atlempllU breacb lhe lOeCurity of lIDuther user or all.cmpt tu gain al;;ce:il:> to any other person'lO computer. software Of.J.at.a without the koowledge and cODSCnt of sLlcb person. Thl:' E4uipmentlUld tbt Service may not be: used in any attcmptto circumvent the user aur.bcntication ur security of any bast, netwurk or account. Use or distributiun of IOOls dcsigoed for compromiJOing securily is also prohibited. c. invade anotbc:r person's privacy; d. unlawfully use. possess. post. uansmil or disseminate obscene material or child pumugnaphy; e. post. transmit. or disseminate content which ...iolates any proprietary rights of Cox or any Ihin1 pany or is unlawful. threaIe:ning. abusive. libelous. slanderous, defamatory or Olberwise offensive or objeaionollble; f. unlawfully promote or incite haired; g. post, transmit or dissem.inalC objectionable informatiun, including. without limitation. any trans.IIlU5ions constituting ur encouraging cunduct that would constiWte a criminal offense. gi...e rise 10 civil liability. or otherwise ...iolatc any hx:a1, fedcrd.!. or ioternational law. order or reaulation; h. upload. pusl. publish. transmit. reproduce. crcaIC derivati...e works of. or distribute in any way. information. softwa..re or- other material obl&iaed through the Sef't'ice wbich is protected by copyright or other propriewy right. without obtaining permis&OI!. of the owner; copy. distribute or sublicense any soflware provided by Cox or Cox@Homc:. exceptthlll Customer lIUIy nwke onc r.:upy of each software program (or back-up purposes only; j. service. alter, modify or tamper .with any Cox-owncd Er.tuipment or Service or permit MflY other person to du the WiIDC lbal is nol. autboriz.cd by Cox; k... restrict, inhibit or olherwise inll:rfen: wilb Ibc: ability of any other pcnoo to use ur enjuy UM: &,juipmeOl Of UlC Servil..'(. iDc:luding. without limitation. posting or lr.msminiog any information or software wbieb coolll.ins oil "'lJWi, JOCL, key. ~Ill.b. wunll. Trojan horse or other harmful feature; or gencr..ting levels of traffic sufflcientlU impc:de others' abililY tu IiCnd or relrie...c: mlorlUll.lIUn; operate a Web, hnp, FrP. email.chat.nntp.laIDC. Gateway or proxy IQYCf from home; m. use a VPN (vinwtl priVale network) or VPN nmnding protocol; n. you may Dol. refereDCe Cox Communica1ioos (c.g.. by including "Orpnizatioo: Cox CommuniQitiuos- in the beliu1cr or by Usting iIlIl IP address that belongs to Cox Communications) in the header of any unsolicited e-mails. even if that e-mail is not $COI through lhc @Home oclWork.. URLs belonging 10 Cox Communications include. but are nOllimited to the folJowing: cox.net. rox.com...oct. & coxcom.com.. u. disrupt or aItanpt to disrupl Cox's or @Humc: Corpul1l.liun's backbtlllt' nctwork.. Prohibited disruptions include. b':lt ~ DOlIimiu:d to. sending unsolicited bulk or conunc:rcial c--mail messages (",pam"). Unsolicited e-mail may DOl direct lbcl'Cl;;ipiClltlD auy web sitc or ocher ~ce whicb uses the Cox.Home service, 10 IlIddililM"l. "mail bombing: the sending of numClULlS copies 0( the same or subswllially similar messages or very large messages or filcll wHh the intenl to disrupt a server (If accowu. is. probibited.; p. resell1he Service or otherwise charge othcB 10 use the Service. The St:rvlce is for personal use only aDd Customer qra:s DOl to use the Service f<< operation as an Internet Service Provider or for any OIlICI' hll~IllC:SS enterprise; or q. use the Equipment or Service:> in a way wbich is contrary to any Dthllr Cux or @Home Corporation pXK-)' lNt may be p=-od by Cox or @HumeCorporation from time 10 Woe. Specifically. custumellijlrecs to abide by the @Home ~UIpUf'Iltiua Ao:a:paIbk UK Policy (bup:l/www.hume.netlaup) and sbuukI CUDSUI1 Ibis documenl Ifalu1llfly ,tu ensure that Ibcir ..-u....uC$ cun(urm ID" most recent version.. Any questions regardiDl this p:Hicy call be dirccted to: IIhultC.pohcy@curp.nomc:.net. use an IP ~ or client ID not llSSigned 10 alsuxncr. Customer .c1I.I..twl~t.lges that the IP address ~Dat by CUA ~ ..iia.mJe is dynouniCillly assigned. and may chanJe _.y wl'le withuut notice. Eng~ing in any of the activities lilted aoo.c...y l'C:iuh ill inuncuiOitc 1"llIlIllilliull ~f thilO Agrec~ 1D a.U.lWIl.. C.... ~ Ute right to ~ or reclassi.fy lIS corru:llaci&llfao.ie &II) customer:> IUllllJ III viola~lUn uf Sectioo 8 llCIllS 1. m. ur p. -n. Sc:aicwI 8 lOtLall DOt In aDY way Iimll Cox's rightsofIClDUllo&llUllI)Ul:>Uan[ tu Seclll.lII 12(a) of this AgreemeDL Customer agrees 10 indemnify and bold bcmlcas Cux and @lIulIl': Corporation. and ~ <>! ~ m;po:aa- ~ 21- subcon1r~. empluyees and agenu. frCllll. -.y claims Ilfising frum Cll~lumer's use of the: ServICe; - iD.:t..b, ball ill ..1i:mlIcd to, use of tbc Equipment or the Service in my a:wuulCr J'fuhibited under Ihi~ Section 8. 9. COli: Cuntrnl Ri2bts. COlt has no obllpUaD to mUllitur the content uu the Service and expt'osl, ~ .., ~y for any offense << injury IlIisin& OUI ~ _ QaSll.lme(s access to nt dwemination of such adI:DL. IiowncL c.-..:r acknowledges and agrees that Cox has Ibe ri.ItlI .." munilor contenl c1ecU\Mlif..'llIly from time to time and II) dudaK ~ ~ as necessary to saIisfy any law. regulalioo 01" cGa ,1)\Icrnmental rcquelll tv operdte the Service: properly. lZ" to proec::1 iadf<< us subscribers. Co.t.. reserves the right.IO refUIIC to JIU5' or to remove an~' mfmmation or m.llteriab tbaI.. it. -.. ~ /' unacceptable. uodesu-.sble or in violauoo of Ibis A.p'OCment, J / ." 't.> IU Custumer InronnaooD / tJ' a. Credit loowries. Customer autburi2:.a. CuI. kl 1I1olkc illf.!uiric:. al,,1 Iv ICxeive iU.J'UrrllOlliull ;abuut ~.~ ~ .DU.wry from others iUld to enter this infurmation in Cu:siun"'r'~ file. b. Inrllrnwlioo Cull~tiun 11.00 nisdOSUrL CU~hllller agrees th.t Cux _ may, frulll time: k) ~ 0JIl.Ic.::. ~ concerning Custumer's use of the Scrvi.c:e. CUM'lIl1l!r OIgrecs thilt )'l~'h inturm~liun lTllI.y be ~ -- oma- ...,; puua; pruvided lilat Cox (i) doelO nol dlSCluic m) pt'1"'INlwly identirll"l\lt Io;lJSIUlller mform.alluo W oa.:n.. e1.C:lCpI *" .a-ed by hw. ;ml'l Iii) olherwist': com[llies with all aNlI..llhlr Inivilcv iii\\"' Should Custumer not wbb It:tat Cusaoa.::'~ ~on SEKVICE COX DOCS NOT wAJU(ANT THAT ANY DATA OR ANY FILES SENT llY OR TO CUSTOMER WILL llE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALl REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPUED. INCLUDING. W1THOUT UMITATION. ANY WARRANTIES OF NON1NFRINGEMENT. FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTAB1LITY ARE HEREBY EXCLUDED AND DlSCl.A1MED. Some states do not allow the CJtc1usioo or limitation of implied wananticl.. 10 1be above c1Clusions Dr limitations may DOt apply lo you. 14. B.d..Uo RItOuin!mrnls Customer acknowkdles and represents that helshe wlCierslands that the inSlllllation. use, inspection, main1CDU1C(. repoUr and RIDonl of lbe Equipment may result in ICrvice: OUtagcs or potential damage 10 CUSlOmer'$ computer, Customer therefore agrees to back-up all existing computer files by copying lhem 10 another $lOrage medium prior to luch activities involvin& thc Equipmcnl. Customer expressly releases Cox and eHome Corporation. and eacb of their respective affiliates. subcontractors. employees and agents. from any liability whatsoever for any damage to or loss IX destruction of any of Cuslomer's software. files. data or peripherals. Customer acknowledges that the sole responsibility for clU'T)'ma out the back-up dC$cribed in this Paragraph 14 resides with Customer and thai neither Cox nor @Home Corpomion bear any responsibility for inswin~ that Cuslomer has perfonned such back-up. 15 Although Co), will ffilI.ke every commercially reawnilble effort tu deli...er a hiab uality residential Internet access service. unless otherwise specified by COlt in writing. custumer is purchasing a residential bcsl-Cffon data liCrvice with no performance or reliability wammty either expressed or implied. Cox relerves the naht to manage ib nelwort. for the grcalC$[ benefu of the greatest number of Iiubscriben including, but ROt limited to the following: ....te limiting, traffic prioritization, and protoCol filtering. Customer expressly acknuwledges and accepts that such lIction on the pilr1 of Cux may affect the performance of the service. Cox and @Homc Corporatiun r~ve the right to enfurce limib 011 :>pecific fcatureli of the: Service. including, but not limited to. e-mail storage lIDd webhosting maximums. 16. DamaI!C lo.!lod F..nrumbntllCe5 on Eouiomenl C:omoulrt Soflw.!Ife. a. OwornhiD or Eouinm@nL All Equipment. except for equipment purchased and paid for in full by C~tomC(. wi.ll at all times remain the propeny of Cox. Customer may not sell, transfer. lease encumber or assign all or pan of the Equipment 10 any third pany. Customer shall pay the fun retail cost for the repair or replacement of any lost. stolen. uDrClUmed, damaged. sold, nnsfened. leased. ent:umbered or assigned Equipment or part thereof. together with any COSls ineurred by Cox in obtaining or attempting to obtain possession of any such EquipmenL Cuslomer hereby authorizes Cox 10 charge CustOmer's Visa. Master Card, other credit card or other payment melhod authorized by Customer for any oulSlandina Service and Equipment charges. Cox may. at its option. insllll1 new or reconditioned Equipment. including swappina existing custumer equipment for DOCSIS-compliiUlt equipment. for which the customer may incur a fee. b Cu...tumer's H.!Irdware and Sorh,are. Should the hardware of Customer's computer be damaged as a result of the gross negligence of Cox or the gross negligence of an authorized agem of Cox. Cux will pay for 1hc: repair or replacement of the daIDillged pouts up to a maximum of $3.000.00. Cw; shall have no liability whatsoever fur any damage 10 or I~ or dl:'structiun of any softwiifC. files or data. Customer Purchased .'uuinmrnt Customer agr~es to unly cunnecl Cux-approved Cl.J.uipment tu the Cux nelWoR.. 17. YW&8i. Cox may run a third pany virus check software on Customer's computer prior to installing software un Customer's computer. Cox does nut represent. WarTiIlIlt or covenant Uult the virus check software will detect or correct any or IlII viruses. Mureover, if a virus is fuund. Cox nwy trealthe virus using lhe third plU1y virus check software. and lhis may result in damage to Customer's software. files and data. Software or other content downloaded from Ibe Service may contain viruses and it is Customer's sole responsibility to take appropriate precautions to prolCCl Customer's compulCr from damaae 10 its ioftware. fLIes and dala. Neither COlt. nor @Home Corporation. nor an)' of their respecti...e affLIia1es. subconD'actors. employees or agents. shall have any liability whatsoever for any damage to or Joss or destruction of any software. fLIes or data resulting from any virus.locL, key. bomb. wonn, Trojan borse or othcr hannful fcature. l! virus is detected: (Customer 10 initial choice) a) ShaJl virus be c1caned_ b) Installation be tenninated_ 1M. No Lilibi!itv ro. COD~U~ . There may ~ some content on the Internet or otherwilie lIvailable through the Service whicb may be offenSive to wme Uldlvlduals. or which may not be Ul compliance with all local laws. regulations and other rules. Cox assumes no n:spullliibility fur the content cuntained on the Internet or otherwise aVollilollble through Ibe Ser...icc. All contenl ilccelised by Customer thruugh the Service ili acccsliCd and used by CUSlOmer at Customer's own risk.. MIld Cox and (il Home Curporation, and each of their respccti...e affiliates. subcunuaclOrs. employees and agenlS, shall have no liability whatsoC\ler for any c1iUms. lu:>scs. actions. damages. suits or proceedings arising out of or otherwise relating to acccss to sucb content by Customer. Cw; specifically disclaims any responsibility fur the accUfllCY. quality and confidcmialilY of infonnation obtained through the Service. 19. No Cox ur @HomeCurnorlltiunLu.bilitvFur' a. E,a"esdronoin2 Other cable and Service subscribers may be able 10 lICC~ and/or monitor Customer's use of the Scr\Iice. This risk of eavesdropping exists nol only with cable tnlllsmission facilities. but also on lhe lotemct and other services to which access is pro...ided by Cox as pan of the Service. Any sensiti...e or confidential information (sucb as credit card numbers or other finaneial information. medieal information or uade secrets) senl by or 10 Customer is sent at CustOmctl sole risk, and neither Cox nor @Home Corpocation. nor any of their respective aff1liates, subcontractors. employees or agents. shall bave any liability whatsoever for any claims. losses. actions, damales. suits or procec:dinas arisina OLlt of or olherwisc reJaling; to such actions by Customer. b. FrPIH'ITP/Prou/G.lrw.. Server SetUD. Customer should be awan: that when using the Sef't'lce to access Ibe lnlcmCt or any other online service. there are cenain applications. such as FfP. HTTP. proxy. or pteway server applications. wbich may be used to allow other Service USCIS and Internet users 10 gain access to Customer's computer, Neither Cox DOl' @Home Corporation. nor any of Ibeir rcspeeti...e affiliates, subcontraCtors. employees or >>gents, sball have any liability whatsoever for any claims. losses, actions. damages. suits or proceedings resulting from. arisina OUI of Of otherwi.lci relating to the use of such applications by Customer. including. without limitation. damqes rcsuhina from otbcn accessing Customer's computer or from any loss of data mainta.ined on the Network. 20. I imitatinn or LiIlbilil\' Unlc:ss otherwise: specifically pruvided in this AgreemeDl. ncit.hcr Cox nur cwHuDlt Corporatiun. nor any of Ibeir respective affiliates. subcontracturs. employees or agents. will be liable to Customer or 10 any third plllty for: a. any direct, indirect, incidental. speciaJ. puniti...e or conscqueDlw Josses or daInages, includina loll of profits. lUllS of earnings. loss of business oppnnunities ilDd persunal injuries (including death). resultina directly or indirectly from, or otherwise arising in connection with. the use of the Sef't'ice by Customer or any olber use of the Equipment. including. without limitation, any damage resulting from or arising out of CUStomcr'i reliance on or use of the Equipment or Service. . or the mistakes. omissions. interruptions. deletion of files. errors. defects. delays in operation. nondeliveries. misdeliveries, tnl.nsm.is::;ioo, IX auy fllilure of perfDr1lUllJCC of the Equipment or Servic:e; b. any direct, i.~ incidental. special. punitive or consequential losses or damages. includinJ luas of profits. Ion of earnings. loss of business opportUnilies and personal injuries (includina death). resultina directly or indlRctJy fronI.. or otherwise arisi.nc in connection with. the terminatioo or reclassification of Cuswmcr's accouut by Cox pursuad. to this AgrecmenL; aad c. any losses. claims. damages. expcnscl. liabilities or cosu (inclr.wiinJ Iepl feCI) rauhiD& diteclIy ... iDdircctl)' .. of. .- otherwise: a.risiaI iD conneai.oa with. any aUela&Kxl. claim, ..u QI" atbct puceaIiaa bued ..... a ~ .. .. - 01 ... Equipm<ol or Scn"" by CusIomcr or . lhinI pony ~ 1lIe cupyrialII. - - -- - cunfodeolWily. pri""Y. or Olbcr....lIcdoa1 popeny naJllo or""""" ri...."'.., - pony. oJ. The ~ ... lor1b ill Ibis _ 211 apply .. Ibc -. ........ ...-- md _ ........ cI c:. .. Iirll_ c.rpana..aa........... uf!bar ,""""Ii.. alfiliala. ---......,....., - --....... proviIWL .......w &lVC riK \0 a CAUK PI..-\iuD iD coatnIl.'l.lIGft fill" .'1.....1tp1 daarIa. e CUilODllCl"Io .. aa4 CIoClusivc rabt'dM:s ..., lbU ~ .-c _ ~ .. 0IIl . ......-.. s.- - ... DOt ..uo. DIE ~ or e"'lusioD of ~ ar ~ ....... · ... .......... · ~ .., .. oapplyluyuL lm;lallMla.lIIff.a.:Il.iM!r 1rWfl..n I u-.-. L If the ~ of aD Etbcma Q(d . m,uired. it .au be ~ 10 upa c..-"a CiUIIlpIIW. 5,-. .. - Cusloma's ClOIIIpMI" may be modi6cd u I*" oIlbc inIt8l1alioa procaa. c-.... ~ ---. - ....- lha1 oucb .......-..,. will ... dUN", Ibc .......J ~ '" c:...o-n _. c.. - - - -, wbauooYcr for .., clarnKF ...01.... en.. Ibc above or Olbcr me mndif_ Coo iI - .....-.. .. - Customa"s PC ID ill oriJina.l canfi.uraiaa prior 10 iDlaallatioD. b. Cox or iu .... will supply and iDI&a1I ccnaio aoftwarc, ad it nquiraI - CSIDI aDIt OUIMI.. . aWe ... .. - Etberaet ani for. fee _ by Cox. C... will abo.....ide......... -,-. md -- - -- w ... Ibc ScrYicc. Coo shall ... _ effDIU .. inslalI tile ScrYicc .. loIl.......,...w - __ ... c--. computet fuJlilb die mi.nimum COOlpula' n:quimncnu ICl out above in ScctioG 1. c. Cuswmcr qrccs 10 comply with lbe termS and conditioas of all cud YSCf licaIIc apcmealS ~,.. .., -- - plua-ins IU suc:b 50ftware disuibuted by an. in cooneaioa with lbc Service. AU c::ad-taacr MJhwarc ~ .... ~ upon u:rmina1ioD of this AgreemcnL .' /oJ Custumer may U-iUlSfer the soflwarc provided by Cux.Hon~ lo addiLion;,al wmpuaen wllhio tbr bumc. buI wncc A: support fur lhne additiunal machina u. bmilCd lUld/ur may irM:UI" an additional fcc. HuwC't'u. CaallulDCl' ~ that Cox bas DO responsibililY 10 provide service and support (or in-burne netwuds. I( cu5l.OOJCf in&mdi loG &nIIIIa' tile soflwit.fC. CIlQOInIet must give Cux prior notice of Nch tranSfer. 3. Acl"eS." Provided.. The equipment provided by Cox (the "Equipment.) will allow Customers 10 acces.s the lmemet. online services and other information. Customer acknowledges that Customer may incur charges while using the Service m addition to those billed by Cox.. Customer agrees and understands that all such charges, including all applicable taxes. are the sole responsibiliry of Customer. 4. Pa.Ymeot Tenns. a. Al!'reemenl to PaY Customer agrees to pay aU monthly fees and installation charges. including applicable fr.mchis&: feo. LUo.. customer service fees. late fees and door collection fees. Monthly fees will be billed one month in advance. If paymenl. is nOl received by the due date. lale fees and/or door collection charges may be asse~ed and the Service may be: disconno,;red. Customer may be required to pay a reconnect fee in addition 10 aU past due charges before the ~rvice is reconnected. Customer further acknowledges that COJl, may require a S&:curity deposit. b. Payment Methods. Customer agrees LU pay Cox in accordance with the payment terms on the back of the invoice received by Customer for the Service and agrees that Cox has the: right to change the structure OUld amount vf its fees at any lime subjelO:t (0 applicabk law. 5. A~ces... tu Custumer's }'remises Custumer authurias Cox, amJ its empluyct:.S. agents. ..::unU"a.;turs. antJ represelllati\'~ tu emer Cuseomec's premises (the "PnlllisQ") in order La inslall. maintain, inspect. repair and remuve the Equipmellt anrJIor lhc: Service. it Customer is 001 the owner of the Premises. upon requesc. Cu.slOmer will supply Cox with the owner's name and address. evidence thai. Customer is authoriz.ed to gr.mt access to the Premises on the owner's behalf. and (if needed) wrinen consent from the owner of the Premises. 6. Reloca.tinldRemoviDli!' F..uuiDment Customer will not remove the Equipment from the Premi~ or connect the Equipment to any outlee other than the outlet to which the Equipment was initi.ally connected by the Cox installer. Cux may relocate the Equipment for Customer within the Premises at the. Customer's requesL If Customer relocates to a new address, this Agreement shall automatically terminate and Customer will be required to enter into a new Subscriber Agreement to initiate Service. In all cases. Customer sba11 notify Cox as provided in Section. Customer acknowledges that Cusmmer may incur additional charges for any Equipment relocatioD. Customer wUl not connect any other device to the dedicated cable modem outlet. Customer understands thae doing so may cause damage to the Cox@Home network and subject Customer to prosecution for damages. 1. Cunlllct Address For any inquiries or notices required in cunnectiuR with thi:. Agreemenl, Customer shuulJ cumacl Cu),. via ~.mail dJ. wireme-suoourt@coxcom. or in writing at Cox Communications San Diego. Cox@Home Nt:twork. Customer Ser\'ice. 5159 Federal Bouic:vanl. San Diego, CA 92105. ts. Probibited Uses of tbe Service' Indellmitv CUSlulller shaH nvt use Ule ~uiplllelll vr Ule SerHce JU~Lly ur inJuo.:u) tu a. perfonn any illegal activity; b. breach or attempt to breach the security uf another user ur attempt tu gain access to any uther pcp.>un's compuu:r. suflware vr J..w. without the knowledge and consent of such person. The Equi.pment and the Service may not be used in any attempt (u circumvent the user authentication or security of any host. network or account. Use or distributiun of tools designed for compromising sccwity is also prohibited. c. invade another person's privacy; d. unlawfully use. possess. post, transmit or disseminate obscene material or child pornography; e. post. tnmSmit. or disseminate content which violates any proprietary rights of Cox or any third party ur is unlawful. threatening. abusive. libelous, slanderous. defamatory or otherwise offensive or objectionable; f. unlawfully promote or incite hatred; g. post, transmit or disseminate objectionable information. including. without limitatiun. any transmissions constituting or encouraging conduct that would constinlle a criminal offense. give rise to civil liability. or ocherwise violate any local, federal or international law. order or regulation; h. upload, poSt, publish. transmit. ~produce. create derivative works of. or distribute in any way, information. software 01' other material obtained through the Service which is protected by copyright or other proprietary right. without obtaining permissiun of the owner; copy. distribute or sublicense any software provhJed by Cox or Cox@Home. except that Customer may make one copy of each softww-e program fur back-up purposes only; j. service. alter, modify or tamper with any Cox-owned &tuipmem or Service or permit any uther person to do the same thal is nut authorized by Cox; k. restrict. inhibit or ulIu:rwise inu:rfere with the ability of any Olher persun to us<: ur enjuy lhe: E4uipment or the Service, including, without limitation, posting or tnmsmiuing any infOlllWtiun or software which contains a virus, lock. key. bumb, wunn. Trojan hursc or other harmful feature; or generolLing levels of w.tffic sufficient to impede uthers' ability tu send or retrieve informatiun; I. operate a Web. http.FTP.email.chat.nntp.game.Gateway or proxy server from home; m. use a VPN (virtual privlllC nelwork) or VPN tunneling protocul; n. you may not. reference Cox Communications (e.g.. by including -Organization: CUJl, Cummunicatiuns" in the header ur by I~ing an lP address that belongs to Cox Communications) in the header of any unsolicited e-maib. even if that e-mail is not sent through the @Home network. URLs belonging to Cox Communications include. but are notlinUtaJ to the following: cox.net. coxcom.net. & coxcom_com. o. disrupt Of attempe to disrupl COJl,'S or @Hume Corporation's backbone network.. Prohibited disruptions include. but are DOt limited to. sending ulUlOlidted bulk. or commercial e-mail messages(-sparn-).Unsolicitede.mail may not ditect the m:ipient to any web site or other resource which uses the Cox@Home service. In additiOll. .mail bombing.- the sending of numerous copies of the same ur substantially similar messages or very large messages or files with tbe intent to disrupt a server or accounL is prohibited.:. p. resell the Service or otherwise charge others to use the Service. The Service is for personal use only and Customer agrees not to use the Service for operation as an Internet Service Provider or for any other business enterprise; or q. use the Equipment or Services in a way which is contrary to any other Cox or @Home Corporation policy that llUiy be posted by Cox or @Hume Corporation from Lime to time. Specifically. customer agrees to abide: by the @Home Corporatiun A\:ceplable Use Policy (hup:llwww.home.netlaup) and should consult thjs document regularly to eniHlre that their activities conform to the moSI recent version. Any questions regarding this policy can be directed to; abuse-policy@corp.home.net. use an IP address or client 10 not assigned to customer. Custumer ackuuwledges that the IP address a:osigned by Cu),. ;.uJ.J/ur (sIHUllle is dynwnically llSsigned. and may change at any time withuut nutice. Engaging ill any of the activities listed above may result ill inullediaLe lel'HUllatiull vi" lhis Agceellu:nt. III adJiLivlI, Cv,\ n:servt:.S tt!..: right to disconnect or reclassify as commercial grade any customers fuunl1ln viohujun of S~tion ~ ilems I, m. or p. TIus Section 8 shall not in any way limit Cox's rights of lenninatiun pursuant to S~ctiun 12(01) of lhis Agreement. Customer agrees to indemnify and huld harmless Cox and @Homc Corporation. and ew.:h of the:ir respo.:ti'o'e affiliates. 21. subcontnu:lDrs. employees and agents, from any claims arising frum Custumer's use of the Service; this includes, but is not limited to. use of the Equipment or the Service in any manner prohibited under this Sectiun 8. . 9. Cox Cuntent Rill!!bts Cux has no obligation to monitor tbe content on the Service and expressly disclaims any responsibility for any offense or injury arising OUt of the Customer's access to or di:;seminaaion of such content. Huwever, Customer acknowledges and agrees that Cox has the righl to monitor content dectronically from time to time and to disdose any information as necessary 10 satisfy any law, regulation or other govenunental request to oper,l.le the Ser\'ice properly, or to proteCt itself or ilS subscribers. Cox reserves the right to refuse to post or to remuve any infonnation or materials that. in its sole dhcretion. are unacceplllble. undesirable ur in violation of this Agreement. 10. CWitORler Infurmllldon a. Credit Inuuiries Custumer authurizes Cux La m.oo: iUl.}uirir;:s ami tu lQ;el\,e;: iu.luClllaliun abuu( Custumer's ..:reJil hislury from others and to enter this inlurmation in CUlltomds file.. b. InfurnUltiun Cuilectlun aDd Disclusur~ Customer agrees that Cux may, fcom time to time. collCt,;t Wturmatiun concerning Customer's UK of the. Savice. Customer agree:li that such inlunnatiun may be shw-el.1 with other third parties provided that Cox (i) does nut oiscluse any persunally identifiable cuslomer infurmation tu others, eJl.I,"~pt as alluwed by law, Wid Oi) utherwise: complies with all applicable privacy laws. Should Cuslomer flUt wish Uut.t Customcl's information be us&:d in such a manner, Customer c.;m notify Cux at Cwo Cunununications SWl Diego. Cux@Hunlc: Customer Service. 5159 Fct.ler.al Boulevw-o. San Diego. CA 92105. c. Customer expr=sly grants Cux permission to discluse personally identdiable infunnaliun rdating to custumer ur cuslDmer's account in response to (a) a subpucna issued in It civil or criminal investigation or litigation; (b) It civil invesligative demand issued by a guvernment entity; or (c) a coun order. II. Custumer Service Cux expressly reserve;. the right to institute fees fur providing certain customer support sc:rvica if, at its sole discretion. i.t detennines such fees are warranted. Customer acknowledges that Cux shall not be liable for allY damage to Customer's equipmene resulting from or arising in connection with its provision uf technical service and suppun for the: Cox@Home SCO'ice even if such damage results from the negligence or gross nell,lill,ence of the Cox inslallcr. teChnician Of customer service represemaLive. 12. Ternlimlliun lAnd RXDirutiun 24. a. T~nnin.lltiun Kll!hlS Either p.;uly OI<iY terminate this Agreemcnt at any tlllle by pruvioing the ulher p<&rty with nu bs than tweney-tour (24) hours written notice of such lermin<itiun. In the event uf ls:rminatiun by Customer. Customer must notify Cux by telephune or by il nun;:lecuonic wrillen submissiun. E-mail iHlbmissiuns shall nol coru;.tituLC effective notice. In the event uf tenninatiun by Cox. Cux lIlOlY notify the Custumer of such LCmtinatiull by ekctrunic I.K oth.:r means. In those: c~s where annual prepayment terms arc elected by Custumer. CUMomer agrees and umk:CSl<&lIJs that the CotkuhatiulI 0" any refund for unused xCYice will be: basc:d upon the nurmal roW: t'ur the Service and ooC upun the discowllct.l annwal prepayment r<ile. b. ClL....umer Oblil!Htiulls UDOR T~rm.iD.lltiulI CustulUer agrees thai upon te.nlliuOlllvlI uf l.hillo Ag,re":lI1c:m: I. Cuslomer will pay Cox in fu.1l for Customer's use of any Cux-uwned Equipment and Sc:rvace up tu UM: I.&&er ul LJu: effec;tive date of tenninatiun of this Ag.reemem or the dale on which lbc Savice ilmi any CUJl.-uWlloi Eqwprnelll have been disconnected and returned to Cux. Cu.slomer al~es to pay Cux on a pro-rated bllSis for any use by Cuswmcr of any C01-owncd Equipment or Ser\'ices for a pare of a month. 2. CWieomer will permit Cox to access Customer's premises at an agreed to time to remove any Cox-owne&i EA.juipment ilnd olher materuu provided by Cox. 3. Customer will ensure the inunediate return of any Cox-owned &juipment tu CU.l. Customer Will return or dcsuuy aU copies of any software provided to CustOmer pursu.<ant to this Agreement. c. Cu). Retention Ril!hts. Nothing contained in this Agreemeru shall be ..:onSU'Urd to limil Cux's rig.bu ;aDd remedies available at law or in equity. 13 I united Wllccanlv ANY COX-OWNED EQUlPME."'IT AND SERVICE ARE PRUVIDCD BY COX "AS IS. WITHOUT WARRANTY OF ANY KlND. COX DOES NOT WA!<RANT UNlNTEl<RUPTEO USE Of THE EQUIPMENT OR THE U.Ui.l.;.~t:: l.U .;.11<.1 LU\.U...U......."" u.. LVU".-.",,!!' .. "u......u "...... L. a. Own~rshiD or EouiDmene All Equipment, except for equipment purchased and paid for in full by Cuslomer. will at all times remain the propeny of Cox.. Customer may not sell. transfer. lease encumber or a5:lilgn all oc part of the Equipmene to any third party. Customer shall pay the full retail cose for the repair or ~placement of any losL stolen, unreturned, damaged. sold. transferred, leased. entumbered or assigned Equipment or part thereof. together with any costs iocurttd by Cox in obtaining or attempting to obtain possession of any such Equipment. Cusmmer hereby authorizes Cox to charge Customer's Visa. Master Card. olba credit card or other payment method authorized by Cu.stomer for any outstanding Service and Equipment charges. Cox may. at its uption. install new or reconditioned Equipment. including swapping existing customer equipment for DOCSIS-complianl equipmenc. for wbich the cuslomer may iocur a fee. b. Customer's HardWllCe aDd SurtWllCe Should the hardware of Customer's computer be damaged as a result of the grO:iS negligence of Cox or the gross negligence of an aulhurizc:d agent of Co.x. Cux will pay for the repair or replacement of Lhe damaged partS up to a maximum of S3.000.00. Cux shall have no liability whatsoever for any damage to or loss or l1estrUctiun of any software. files or data. Cuslumer Purcbast!d FuuiDment Customer agrees to unly cunnect Cux-appruved C1.(uipment to the Cux ne[wun:. 17. ~ Cox may run a lhird party virus check software un Customer's cumputer priur to installing wftware un Customer's computer. Cux does nut represent. warrant or covenant that the virus check. software wiJI detect or CO!Te(:t any or aU viruses. Moreover. if a virus is found. Cox may treat the virus using the third party virus check. software. and this may result in damage to Customer's software. fLies and data. Software or other content downloaded from the Service may coatain viruses and it is Customer's sole responsibiliry to take appropriate precautions to protece Customer's computer from damage to its software. files and data. Neither Cox nor @Home Corporation. nor any of their respective afflliates. subconttacl(J(S. employees or agents. shall have any liability whatsoever for any damage to or loss or dcsuuction of any software. ftles or data resulting from any virus. Jock. key. bomb. worm. Trojan horse or other harmful feature. If virus is detected: (Customer to initial choice) a) Shall virus be c1eaned_ b) Installation be tenninated_ tH. No Li.llbilit\' rur Conlt!uL There may be some content un the internet IX ut.hcrwise available through the Ser\'ice which may be offensive to some indi'o'lduals. ur which may not be in compliance with all local laws. regulations and other ruk:s. Cox assumes nu responsibility for the content contained un the Internet or otherwise: available througb the Savice. All lO:ontent accessc:O by Customer thruu~ the ~rvice is accessc:d and useO by Customer at Customer's uwn risk. ilnd Cux ;aDd @Hume CurpuratJun, and each uf their respective aililiau:s. subcunU"ou::tors. employees and agents. shall have no liability ""hau,oever for any chums. lusses. actiuns. doamages. suits or proceedings arising out of or otherwise relating [0 access to such I.'anent by CUstomer. CU.l specifically disclaims any responsibility fur the accuracy. qUillity and oontidentiality oi infonnauua obuained throu~ the Service. 19. No Co). or@HumeCorDUratiun I illbililV Fur. a. Eavesdrooolne, Other cable and Service subscribers may be abl~ to access anrJIor munilor Cu.swmer's use uf tbc Service. This risk of eavesdropping lCAists not only with cable r.r.msnUssion facilities. but atso on the Internel and other services 10 which access is provided by Cox as part of the Service. Any sensitive oc confidential information (such aI aajit card numbers or other fmaDCW information. medical information or trade secrets) sene by or to CUsIOmet' is senl al Customer's sole risk. and neither Cox nor @Homc Corporation. nor any of their respective affiliates. subcontractors. ectPoyees or agents. shall have any liability whatsoever for any claims. losses., actions. damages. liuil5 or proceedings arising out of or otherwise relating to such actions by Customer. b. FrPIHTIP!Prn:n/Gateway Sener SetUD CWitomer should be aware that when using the Service to 3CCes5 the Internet or any other online service. there are certain applications. such as FTP, HTTP. proxy. DC gateway server .applications. which may be used 10 allow other Service user.; and Internet users to gain access to Customer's compUla. Neither Cox nor @Home Curporation. nor any of their respective affiliates. subcontraclors. employees or 3leDlS. shall have my li4tbHity whatSoever for any claims. losses. actions. damage.s. suits or proceedings resulting from. ari~ng out of <X' Olberwise relal.ing tu the use of such applicalions by Customer. ulcluding. without limitation. damages resuhing from others accessing Customer's computer or from any loss of dalll maintained un the Netwurk. 2U. l imilllliun uf I ilabililv Unless utherwise: spcci.lically pruvitokd in ttWo Agreement. nc=ither Cu.\. nur IWHume Curpunuvn. nur any of theu respective afti.liatcs. subconuacturs. employees or agents. will be Iillble to Customer or to any third party for. a. any direct. indirect. incidental. special. punitive or conse&{uenlial losses or damages. inc1uiling loss of profiu, loss of earnings. luss of business opponunities alId persunal injuries (including death), ~sulting di.n:ctly or indirectly [rom, or otherwise arising in connection with. the use of the Service by Customer or any other use of the Equipmem. inctuding. without limitation. any damage resulting from or arising uut of CUSlOmer'S reliance on or use of the Equipment or Service. or the miscakes. omissions. interruptions, deletion of files. errors. defects. delays in operation. nondeliveries. misdeliveries. tnmsnlission. or allY failure of performance of the Equipment ur Service; b. any direct. iodirec::t. incidental. special. punitive or consequential 10$5c:> or damages, including loss of profus. loss of earnings. loss of business opportunities and personal injuries (including death). resulting dUo:tIy or indirectly from. or otherwise arising in connection with. the termination or reclassification of Customer's account by Cox pum.wn to this Agreement.; and c. any lu~s. claims. damages. expenses. liabilities or custs (including legal fees) resulting directly or indirectly out of. or otherwise: arising in connection with, any allegation. claim. suit or other proceeding based upon a contention thai. the use of the ~uipment or Service by Customer or a third party infringes the copyright. patent. trademm tnde secret. confidentiality, privOlcy, or other intelle.ctu.al propc:ny rights or conuactual righlS of an)' lhird party. J. The limitatiuns sc:t forth in this Section 20 otpply 10 the acts. omissiuns. negligence and gross negligence uf Cvx and CWHume Curporatiun. and each uf their ~spective aftiliau:s. subcontraeturs, employees and agents. which. but for this provision. would give rise tu a cause uf actiun in conU"<ict, ton ur any other legal doctrine. ..: CUslumers sule and exclu.sive reJlu:di.:s undc=r lhis Agree:mem ale as expressly sel out in lhis Agn:ement. Svme stat.es do nut alluw the Iitnitation or exclusion of incidental or consequemial damages. so such limitations or excJusiunJ may not apply toyvu. InsLlalhlliun/Fnd LJSII!f Sulh"llCe I icense!l. a. If the installation of an Elhemet card is reyuired. it will be n..:ceSSllCY to upen Cus;tumer's computer. SYlotcm files ULl Customer's computer mll.Y be modified as part of the installation process. Cox neither repre:scnl5. Wartants. nor covenants that such modifications will nOl disrupt the normal operations of CuslOmer's computer. Cox shall han DO liability whatsoever for any damage resulting from the above or other me modifications. Cox is not responsible few remming Customer's PC 10 its original configur.won prior to installation. b. Cux or its agents will supply and install certain software. and if required an eXua cable outlet. a cable modem and <All Ethernet cw-d for a fee detennined by Cox. Cox will also provide a .gecting started guide" alId online insU'UCtioa.s on how to use the Service. Cu.x shall use ~asonable effons to install the Service to full operutional status. provided tIw. Customer's computer fulfills the minimum computer requirements set out above in Section I. c. Customer agrees to comply with the terms and condilions of all end user license agreements accompanying allY :;oftwllre or plug-ins La such sohware distributed by Cox in connection with Ihe Service. All end-user software licenses shaIJ r.erminale upon termination uf this Agreement. J Custumer may uansfer r.he software provided by Cux@Hulll~ to aJd.itional cumputers within lhe home. but 5CJVicc: &: suppan fur these additional machines is limiteJ and/ur may incur an additiunal fee. Huwever. CustomCl ar;lLnowledges that CO.ll. has no responsibility to providc= service and suppon for in-hume netwurks. If customer int.ends to U2I1Sfer lhe software. Customer must give Cox prior lIotice uf such transfer. 22. Mullioie User.,; Cuslomer aclr.nuwledges that Custumer is executing this Ajp"eement un bebaU vf .all persons ...blJ use tbc Equipment and/vr Service thruugh Customer's computer. Customer shall have sule responsibility for ensuring that all such other users understand and comply with the terms and cunditions of this Agreement. Custuill~r funher acknuwkdges WlIJ agrees that Customer is solely responsible and liable for any and all bn:aches uf the terms and lO:onditions of lh1s Agreement, whether such breach is the result of use of the Ser\'ice and/or Equipment by Customer or by any other user of Customer's computer. 23. Guvernim~ Law This A,reemem shall be c:xclu.sively guveme.ll by. and construed in ..ccurdance with. the laws of tbe Stale of California. Customer Illay not brin, any claim. suit or proceeding more than one (1) year after the dillC the cause of acltun arose. ~ nus Agreelllc:nt ..:unstitut.es the eutire agreclIlC:l1t ;.l.nO ullJeP.>tanding between the parties with ce.spcct to Lbc: subject matter of this Agreement and supersedes and replaces any and all prior written or verbo&l a~ments. In the evCDl that ~y pun.iun of this Agreemenl is held to be: unenforceabJe. the: Wlenfo!CC4&ble: poniun shall be coosuueaJ in ~ Wtth upplicable law as nearly as possible to reilect the original inteutions uf the panics and the remainder of the pruvi>>ons stuUJ remain in full force and dfect. Cux 's failure to insist upon or enforce sulci performance of any provision of lbiJ, Aareement shall nut be COIlSUUct.l as a waiver uf any pruvisiun or right. Neilh~r the course uf cunduel betw~n the p;anics nor tn\IJc practice shall act to muJify any provisiun ul this Agreement. This Agrtl:ment may nOl be otltsigned or tranSferred by Customer. This Agreemt:ne is freely assignable by Cux tu third parties. Custumer Signature ~m'7t /Jjv 0= ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF A MODIFIED CABLE FRANCHISE TO COXCOM, INC., DBA COX COMMUNICATIONS SAN DIEGO AND AUTHORIZING THE MAYOR TO EXECUTE THE IMPLEMENTING FRANCHISE AGREEMENT WHEREAS, on April 16, 1964, the City Council adopted Ordinance No. 882 granting a franchise to Area Television Antenna, Inc. to operate a community antenna television system in the City of Chula vista, which franchise was subsequently taken over by Cox Com, Inc., dba Cox Communications San Diego ("Cox Cable"), substantially amended in 1984; and is currently scheduled to expire in January, 2009; and WHEREAS, under the current terms of the franchise, the city is paid a 3% fee on Cox Cable's gross receipts, which rate is substantially below the industry standard of 5%; and WHEREAS, staff has been negotiating with Cox Cable to make certain modifications to the franchise for the benefit of the city in exchange for a ten year extension of the franchise term; and WHEREAS, on August 31, 1999, in accordance with City Charter Section 1201, the City Council approved a Resolution of Intention to consider the proposed Franchise ("Franchise") at a public hearing set for September 14, 1999; and WHEREAS, notice of that public hearing was published in the Star News on September 4, 1999, a copy of whicn was provided to Chula Vista Cable; and WHEREAS, the noticed public hearing was duly held on September 14, 1999 at 6:00 p.m. to consider the proposed Franchise and all public testimony was taken and considered by the City Council including City staff's recommendation to approve the Franchise. NOW, THEREFORE, the City Council of the City of Chula vista does hereby ordain as follows: SECTION I: Any and all protests or objections presented tq the granting of the Franchise are hereby overruled. SECTION II: The City Council hereby makes the following findings and determinations in connection with the proposed Franchise: /t/? /j (1) Whether there be significant positive or negative impacts on the community being served. Through the increased high-speed internet capacity and cable modem technology, the community should benefit from greater access to city services and information. (2) Whether there will be an unreasonable adverse economic or aesthetic impact upon public or private property within the area. This Franchise should not significantly change the aesthetics of the overhead or underground network of cable facilities in the city or the effect of such facilities on property values. (3) Whether there will bean unreasonable disruption or inconvenience to users, or any adverse effect on future use, of utility poles, public easements, and the public rights-of-way contrary to the intent of Section 767.5 of the Public utilities Code. This Franchise agreement should not significantly effect the current or future use of utility poles or rights-of-way. (4) Whether the franchise applicant has the technical and financial ability to perform. Cox Cable has demonstrated the ability to perform since 1984 and continues to be a preeminent cable service provider nationwide. (5) Whether there is any impact on the franchising authority's interest in having universal cable service. By specifying the terms for extension of service to individual homes, businesses or new developments, this proposed Franchise should facilitate greater availability of service. (6) Whether other societal interests generally considered by franchising authorities will be met. The proposed Franchise includes provisions regarding notice to customers regarding the procedures for blocking unwanted/indecent programming, specification of minimum customer service standards, and enhanced public access to city services and information via Smart Community and cable modem technology. (7) Whether the operation of an additional cable television system in the community is economically feasible. The Chula vista community has supported two cable companies since 1987. This proposed Franchise should not alter the economic feasibility of either franchise. -2- J~/l/;L (8) Such other additional matters, both procedural and substantive, as the franchising authority may determine to be relevant. Aside from dealing with current issues such as access to cable services and technology, the proposed franchise modification also provides for a mid-term system and services review to respond to changes in the industry, technology, and regulatory environment and to changes in customer demands for service. SECTION III: The grant of the Franchise and the implementing Franchise Agreement with Cox Cable are hereby approved in substantially the form presented, with such minor modifications as may be required or approved by the City Attorney; a copy of the Franchise Agreement shall be kept on file in the office of the City Clerk. SECTION IV: Upon execution by Cox Cable, the Mayor of the City of Chula Vista is hereby authorized and directed to execute the Franchise Agreement for and on behalf of the City of Chula vista. SECTION V: This ordinance and the Agreement, shall take effect and be in full force on the thirtieth day from and after its second reading and adoption. SECTION VI: The city Clerk is hereby directed to publish a summary of this ordinance in a newspaper of general circulation in the City of Chula vista. Presented by Approved as to form by Michael Meacham, Special Projects Manager H:\horne\lorraine\or\cox -3- /6/1:] ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING SECTION 5.52.010 OF THE CHULA VISTA MUNICIPAL CODE TO CONFORM THE FEES ASSESSABLE TO CABLE FRANCHISEES AND OTHER VIDEO PROGRAMMING PROVIDERS TO THOSE ALLOWED BY STATE AND FEDERAL LAW The City Council of the City of Chula vista does hereby ordain as follows: SECTION I: That Section 5.52.010 of the Chula vista Municipal Code is hereby amended to read as follows: 5.52.010 Annual payments to city required in lieu of aay lioeaoe fee or buoineoo lioenoe tax. All persons engaged in the business of transmitting, by means of the lease of a frequency or frequencies from the grantee or grantees of community antenna television systemsL or by use of a cable systems, a signal or transmission providing a television picture or other video, audio or data services to subscribers thereof in the City of Chula vista for the paYment of a fee shall pay the city annually, in lawful money of the united States, ~ franchise/riqht-of-way access fee equal to a percentaqe of its qross receipts in an amount determined by the City Council throuqh a neqotiated franchise aqreement or by independent City Council action. The current fee shall be set at five percent (5%) of the service provider's qross receipts but may be modified in a neqotiated aqreement. In no event shall a fee charqed hereunder exceed the maximum fee allowable by applicable federal or state law. three percent of the tot~l groaa receipta collected or received by the gr~ntee in e~ch c~lend~r ye~r, or portion thereof, during the term of the fr~nchiae. Such peraona eng~ged in the buaineao Jcnm.:n ~a "p~y telc:iaion, II '.Jhether they h~ve Such fees shall apply reqardless of whether a party providinq such services{s) has a fixed place of business within the city or not, oh~ll be o~bject to the ~nnu~l fr~nchiae fee of three percent. In any case in which a person transmittinq a siqnal providinq a television picture or other service to subscribers thereof is not sublect to a local franchise but is, per applicable laws, sublect to in-lieu or other fees payable to the local franchisinq authority for use of riqht-of-way or for other lawful consideration or purpose, said person shall pay to the city annually, in lawful money of the united States, an in-lieu fee equivalent to the franchise fee in effect under this section. SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its second reading and adoption. Presented by Approved as to form by Michael Meacham, Special j/[J/! Jo n Projects Manager ~ H:\home\lorraine\or\cox CITY COUNCIL AGENDA STATEMENT ITEM /? MEETING DATE: 09/14/99 ITEM TITLE: Public Hearing - Consideration of the Renewal of the Agreement with the Sweetwater Union High School District for the Joint Use of the Library Facility at EastLake Library SUBMITTED BY: Resolution Approving the Renewal of the Agreement with the Sweetwater Union High School District for the Joint Use of the Library Facility at EastLake Library Library and Recreation Director ~ REVIEWED BY: City Manager G Lc/ 9/ -rtl,v l (4/Sths vote: Yes _ No _XJ The three-year agreement between the City of Chula Vista and the Sweetwater Union High School District, providing for the joint use of the EastLake School Library, expired on June 30, 1999. A new agreement to continue this collaborative venture has now been negotiated and was approved by the Sweetwater District Board on August 19, 1999. The EastLake Library has remained open to the public while the new agreement was being negotiated. Under the previous agreement, a public hearing is required as part of the renewal process. STAFF RECOMMENDATION: That Council conduct the Public Hearing and approve the Resolution renewing the agreement for the joint use of the EastLake Library for a three-year period ending on June 30,2002, with two one-year options to renew. BOARD/COMMISSION RECOMMENDATION: At their meeting of August 11, 1999, the Library Board of Trustees voted to recommend that the agreement between the City and the Sweetwater Union High School District, providing for the joint use of the EastLake Library, be renewed (Minutes are Attachment "A"). DISCUSSION: In August 1993, the City and Sweetwater Union High School District entered into a three-year agreement to jointly provide library service at the new EastLake High School. In June 1996, the agreement was renewed for a second three-year period. In December 1999, the City Council accepted the "Chula Vista Public Library Master Plan." The Master Plan thoroughly outlined the advantages and disadvantages of continuing the joint- use Library at EastLake. The disadvantages stated were poor visibility, inadequate parking, and limited service hours. Nevertheless, the Master Plan ultimately recommended that because there was a current level of public use, the branch should be kept open and operational until the Rancho Del Rey Library is completed in approximately four to five years. In fact, the public use noted in the Master Plan has been growing as a result of the new housing being constructed near the EastLake High School campus. For example, the number of items checked-out at that branch has increased by 39% over the past two years, for a total circulation of 64,394 in FY 1998-99. [e:\home\library\A 113\ 1999 Renewal of EastLake Library Agreement - 08-27-99] /7// Item _' Page 2 Meeting Date: 09/14/99 Based upon the Master Plan recommendation, staff, in conjunction with the City Attorney's Office, has negotiated another multi-year agreement (Attachment "B"). This proposed renewal agreement continues the basic premises of the previous agreements. The District will: . Allow the City to use the Library, rent free, after regular school hours on weekdays and weekends. Current EastLake Library hours are: Monday - Thursday 3:30 p.m. to 8:00 p.m., and Saturday 10:00 a.m. to 4:00 p.m. . Provide for all custodial services and pay for all utilities, except for the City Library's fax line. . Provide nine (9) or more public access computer workstations with access to the Internet and other software applications plus three (3) or more networked printers. . Provide on-campus parking for the public and staff. The City will: . Provide the School Library access to its automated library system, including circulation and online catalog functions, with the District following City policies regarding patron registration, loan periods, fines, access to materials and restricts for delinquencies. . Provide access to its information network via frame relay. . Provide six (6) computer workstations for access to the catalog and three (3) computer workstations for circulation purposes. Both parties agree to make reasonable efforts to maintain and enrich the book collection. Both parties also agree to allow all patrons equal access to all library materials, regardless of jurisdiction or ownership. Neither party shall remove, label or prohibit access to any library material owned by the other party. Both parties also agree to staff the Library facility with qualified, competent, professional, and team oriented. employees that will strive to provide excellent customer service, work cooperatively, and keep the best interests of the students and public as their number one priority. The terms of the proposed renewal agreement expire on June 30, 2002. There are also two (2) one-year options to renew the agreement, which are to be exercised by June 30 of each year after 2002. As a result, this agreement could be in effect until the Rancho Del Rey Library opens in approximately five years. On August 19, 1999, the Board of the Sweetwater Union High School District voted to approve this renewal. [e:\home\library\A 113\ 1999 Renewal of EastLake Library Agreement - 08-27-99] /7~~ Item , Page 3 Meeting Date: 09/14/99 FISCAL IMPACT: In FY 1999-2000, a budget of $141,849 has been appropriated by the City to operate the EastLake Library. Loss of funding to support the operation of the facility is a cause for termination of the agreement, should that ever become a necessity. Not renewing the agreement would return over $100,000 to the General Fund, but would result in the closure of the Public Library and the layoff of 2.77 FTE staff members. Attachments: "A" - August 11, 1999 Minutes of the Library Board of Trustees "B" - EastLake Library Renewal Agreement [e:\home\library\A113\1999 Renewal of EastLake Library Agreement - 08-27-99] 17-J"'; RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE RENEWAL OF THE AGREEMENT WITH THE SWEETWATER UNION HIGH SCHOOL DISTRICT FOR THE JOINT USE OF THE LIBRARY FACILITY AT EASTLAKE LIBRARY WHEREAS, the three-year agreement between the City of Chula vista and the Sweetwater Union High School District providing for the joint use of the EastLake School Library expired on June 30, 1999; and WHEREAS, a new agreement to continue this collaborative venture has now been negotiated and was approved by the Sweetwater District Board on August 19, 1999; and WHEREAS, the EastLake Library has remained open to the public while the new agreement was being negotiated; and WHEREAS, in December, 1998, the city Council accepted the Chula vista Public Library Master Plan which recommended that because of the current level of public use that the EastLake Library should be kept open and operational until the Rancho Del Rey Library is completed in approximately four (4) to five (5) years; and WHEREAS, at its meeting of August 11, 1999, the Library Board of Trustees voted to recommend that the agreement be renewed NOW, THEREFORE, BE IT RESOLVED the City Council of the ci ty of Chula vista does hereby approve the renewal of the Agreement with the Sweetwater Union High School District for the Joint Use of the Library Facility at EastLake Library, 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 Agreement on behalf of the city of Chula vista. Presented by Approved as to form by David Palmer, Library and Recreation Director H:\home\attorney\reso\SWUSH.ELL /7-3-:< ATTACHMENT A Library Board of Trustees -3- August 11, 1999 B. EastLake Library Agreement Revisions to the joint-use contract were mainly in the areas of equipment. The premise that the School District would provide the Library rent-free space with some custodial services and the Library would provide the School District with an automated circulation system, cataloging services and access to the Chula Vista Public Library's holdings remains unchanged. The offices currently being used by the City Librarian and School Librarians are technically classrooms, which the Library does not have access. Staffhas negotiated revisions to the contract so staff will have a private office in the library building. MSUC (HartmanlDeason) to support the EastLake Library Agreement. Director Palmer reported that the EastLake Library has recently established a Friends group. EastLake Development Company has donated $2,000 toward this end and the Friend's Umbrella Board will also contribute to this group. /?/~ ATTACHMENT B Joint Use Agreement Between the City ofChula Vista and the Sweetwater Union High School District for the Facilities Located at EastLake High School Parties This AGREEMENT, is made and entered into and effective as of the date last executed by the parties ("Effective Date") by and between the City of Chula Vista, a chartered municipal corporation of the State of California ("City"), and the Sweetwater Union High School District ("District"), a political subdivision of the State of California. The date last executed by the parties is the Effective Date. This agreement is made with reference to the following facts: 2 Recitals 2.1 Whereas, Chapter 22 of Part 10 of the Education Code commencing at Section 17750, of the State of California authorizes a District to enter into a contract with the county or other appropriate entity having responsibility for the provision of public library services in which the district is located for the purposes of operating a joint-use library facility at a school site owned by the District. 2.2 Whereas, the City and District are interested in determining if, through cooperative efforts, the best library services can be provided with a combined pooling of public resources; and 2.3 Whereas, a need for library facilities and services exist in the neighborhoods of eastern Chula Vista which is of concern to both the City and the District; and 2.4 Whereas, the City and the District now seek to define the responsibilities and rights of the parties concerning the joint use of the District's facilities. Contract August 27, 1999 Page 1 ) ?-s- 3 Definitions 3.1 The District's Facilities The District currently owns and operates a library building, parking lots and service road ("District Facilities") located at EastLake High School, on EastLake Parkway, in the City of Chula Vista, County of San Diego, State of California, as diagrammatically presented in Exhibit A hereto. Library building includes a library service portion consisting of a reading room, a public access book and materials collections and a children's library area. Other Service portions include City Library staff office, storage and delivery areas. A diagram presenting the footprint of the building with its various portions and identifiable areas is diagrammatically presented in Exhibit B. 3.2 City Public Library Services Defined As the term is used herein, "City Public Library Service" shall mean the provision of books, audio-visual materials, information and programming to all potential users for their educational, cultural, informational and recreational needs. 3.3 Sponsored Group Defined As the term is used herein in the context ofthe City Library sponsoring a group who may use a School District Facility, a "Sponsored Group" shall mean one or more persons who have been given written permission by the City to use and conduct an activity at a Facility herein defined owned by the School District pursuant to the license herein granted to the City. 3.4 City Library Hours Defined City Library Hours shall mean those times the City reserves for public library service which are the hours beginning no later than 3:30 p.m. Monday through Thursday and extending no later than 9:00 p.m., and the hours from 9:00 a.m. to 6 p.m. on Saturday and 1 :00 to 5 :00 p.m. on Sunday. The City shall be provided with access to the building at 3 :00 p.m. on weekdays for purposes of set- up and preparation.:. If school hours change, the City reserves the right to alter Library hours to coincide with the end of a school day provided resources are available and use warrants such a change in City Library hours. The City reserves the option to discuss provision of public library services during specified school hours. In addition, City and contractual repair personnel shall have access to the facility during school and public library hours. Contract August 27, 1999 Page 2 //~t 4 Obligatory Provisions NOW THEREFORE, in consideration of their mutual promises, the parties agree as follows: 4.1 Right of Use 4.1.1 Grant of License to Use On the terms and conditions herein specified, subject to the Exceptions herein permitted, and exclusive of the areas of the School District's Facilities herein specifically and exclusively reserved to one or the other party ("Reserved Areas"), and upon the condition that the City Library complies with the terms, conditions and covenants herein contained, the School District hereby grants to the City, for the Term herein specified, an exclusive right (according to the terms herein contained) license for the City Library, and its Library Patrons to enter upon, occupy, use and operate said School District Facilities ("License") during City Library Hours. 4.1.2 Exceptions None. 4.1.3 Reserved Areas 4.1.3.1 City Library Staff Office - Storage and Workspace City Library private office, storage area, and workspace will be provided in the Library Building. District grants the City the exclusive right to use the designated office area during school and non-school hours. Staff workspace area will be communal with designated City and School Library shelving and cabinets mutually agreed upon.. 4.1.3.2 Parking District will provide designated sufficient and convenient free on-site parking for City Library staff and patrons. City Library staff may park in any available space during City Library hours. City Library staff should be notified of all major events which have the potential to impact parking. Contract August 27, 1999 Page 3 /7'/ 4.1.4 License Inclusions The License herein granted to the City includes the right to place or permanently erect materials and equipment necessary for conducting library service or special event activities at the District Facilities, subject to written approval, which shall not be unreasonably withheld or unreasonably conditioned, of the District. Such materials and equipment shall be maintained at the sole risk of the City placing or erecting them and are subject to removal at the request of the District upon a de- termination of the District that the equipment constitutes a threat to the safety ofthe District, or the public. 4.2 Term of Agreement The term of this Agreement shall commence on the Effective Date and expire on June 30, 2002 ("Nominal Term"). "Term" as used herein shall mean the Nominal Term as extended or contracted by the provisions of section 4.3. 4.2.1 Extensions of Nominal Term This agreement shall provide two (2) one year options to renew to be exercised by June 30 of each year after 2002.. On the condition that the parties have a valid grant of license hereunder, the parties agree that each will review and consider, the advantages and disadvantages of extending the Nominal Term ofthis agreement. 4.3 Causes for Termination, Removal or Suspension 4.3.1 The following shall be case to suspend or terminate the agreement: 4.3.1.1 Failure of either party to make repairs to their equipment and Facilities. 4.3.1.2 Destruction of a Facility 4.3.1.3 Loss of Funding by either Party to support the operation of the Facility 4.3.1.4 Failure of the District to provide a School Campus environment deemed sufficiently secure in the opinion of both parties. 4.3.1.5 Failure ofthe District to provide sufficient security, in the opinion of Contract August 27, 1999 Page 4 /7-~ the City Library Director, for City owned materials and equipment, as well as the database records in the City Integrated Online Library System. 4.3.1.6 Failure by either Party to make a good faith effort towards equivalent contributions to the book collection. 4.3.1.7 Failure by either Party to make a good faith effort at maintaining a cooperative relationship. 4.4 Access to a Facility 4.4.1 Access to District Facilities 4.4.1.1 Access during City Library Hours Absent written agreement to the contrary as to specific times and circumstances, the License herein granted to the City to use the Library Facilities and designated parking area of the District shall, during City Library Hours, have preference over competing District-proposed uses. 4.4.1.2 Access during non-City Library Hours Absent written agreement to the contrary.. the License herein granted to the City to use the Facilities of the District shall, during non City Library Hours, not have preference over actual competing District uses, except as stated in 4.4.1.1 and for access to public exterior book drop, City Library office work areas and delivery area. 4.5 Provision and utilization of materials and equipment and facilities The City and District may, subject to mutual agreement between the City and District librarians, place or erect materials and equipment necessary for conducting events and/or activities on the Facilities. Such materials and equipment shall be maintained at the sole risk of the party placing or erecting them and are subject to immediate removal at the request of either party. Contract August 27, 1999 Page 5 /?~/ 4.5.1 Both parties will supply furniture and equipment as specified in this section. 4.5.1.1 Equipment provided by the District. For public librarian's office furniture to include: desk computer workstation 4-drawer file cabinet 1 chair For Library area furniture and equipment to include: -9 or more public access computer workstations with 3 or more networked printers and printer supplies -1 adjustable table for children's area -3M compatible security system theft detection exit -"Book Check" exit to re-sensitize and a brick to desensitize books -Copier -1 book truck -Bulletin board for public library staff use -3 phone lines and instruments available for joint - Table or other suitable furniture for OP AC -Book collection suitable for high school use -1 display case and key for public library use -Fine mesh insect screen on door vents in electricaVtelecommunications room Contract August 27, 1999 Page 6 / 1 'lz; 4.5.1.2 Equipment provided by the City Integrated Online Library System and hardware to include: 6 public access catalog workstations with networked printer 3 circulation workstations with printer Printer in public library office and related printer supplies 2 bar code readers, date due guns FAX machine Exterior book drop Display rack for Public Library pamphlets and handouts Beeper for City Library security guard Cash register Periodical indices and full text in electronic format Chairs for children's area Conference table and chairs and lockers for Public Librarian's office Books and materials collection 4.5.2 Placement of book and audio visual collections, equipment and service areas 4.5.2.1 Both parties agree to the current layout. Any changes will be negotiated and agreed to by both parties. This layout includes separate children's, browsing, paperback, periodical and new book areas. 4.5.2.2 District and City Library book collections will be inter-filed by classification. 4.5.3 Wiring 4.5.3.1 Integrated Online Library System District has responsibility for installation, testing and maintenance of internal data lines and electrical wiring for terminals and computers at all points to be connected to the DTC or Patch Panel in the electrical telecommunications room and thereby data circuit to the Chula Vista Public Library. 4.5.3.2 The District shall ensure that Category 5 cabling be used for all new data line installations. Cabling shall be certified to operate at a speed of 10 mbps... Contract August 27, 1999 Page 7 /7/// 4.5.3.3 District will provide all cable and connectors and patch panels including Category 5 twisted pair cable, and twisted pair to DB9/DB25 converters... _The District shall install Category 5 cabling to support the 10 networked PC's provided by the City. The cabling shall run to a central patch panel where the City will house its hub, router, DSU and frame relay connection. Category 5 cabling has a 100 meter length restriction, which may dictate that the patch panel and telecommunications equipment be housed some place other than the electrical/telecommunications room. The District shall advise the library if length restrictions are an issue. The District shall provide 20 patch panel cables to establish connections from the PC's to the LAN jacks and the patch panel on the hub by August 15, 1999. 4.5.3.4 City will provide and maintain the system router, DSU/CSU, Patch Panel, hub and file server needed to connect to computer equipment at Chula Vista Library locations. 4.5.3.5 City has the responsibility for telecommunication data lines to maintain this Wide Area Network connectivity. 4.5.4 Telephones 4.5.4.1 District has responsibility for installation and maintenance as well as for ongoing operating costs of all phone lines between school district staff and Pacific Bell and for provision of the telephone instruments, with the exception ofthe FAX machine supplied by the City. The City will maintain the FAX machine and be responsible for line charges for the FAX machine. 4.5.4.2 Telephone lines and instruments are provided and installed by the District at the following locations. Each telephone instrument accommodates the number of lines specified for each location. Contract August 27, 1999 Page 8 1')-/:2- 4.5.4.2.1 Circulation Desk Four lines are installed at the Circulation Desk. Two telephones each accommodate all four of the phone lines. The four lines are composed of two school lines and two City library lines. The telephone number for the second City library line is published to the public. The fifth line is installed at the City Librarian's Office for a FAX machine. The City provides the FAX machine. 4.5.4.2.2 Librarians' Offices A telephone instrument with both of the school lines from the Circulation Desk is placed in the School Librarian's office. A telephone instrument with the first public library line from the Circulation Desk is placed in the City Librarian's office. The second City library line from the Circulation Desk is installed in the City librarian's office on the same telephone instrument. One telephone line in the City Librarian's office is provided with long distance access. 4.5.4.3 Wiring for New Technology When additional wiring or phone lines are required to accommodate new technology, details will be negotiated by both parties. 4.5.5. Signs 4.5.5.1 District will provide and maintain signage in a manner satisfactory to the City. Existing permanent interior signage, banners, pennants, flags, posters, and signs in the public service area ofthe library building should not be changed without mutual agreement between the District and the City. 4.5.5.2 Temporary Interior Signs Temporary banners, pennants, flags, posters, signs in public services areas of the Library Building must be posted within pre-designated areas for each respective party. The District and the City libraries are solely responsible for approval of posting in their own pre-designated areas. Contract August 27, 1999 Page 9 /7~~ 4.5.5.3 Permanent Exterior Signage Exterior of Library Building will be labeled "Library" in block letters in a prominent location near the main entrance of the building. 4.5.5.4 Day/Hours Signs City will permanently post a public library day and hours sign clearly visible at the main entrance to the Library Building. 4.5.5.5 Exterior Directional Signs The District will provide directional signage to the Library Building from the campus entrance at EastLake Parkway and from all parking lots. City to provide and District to install removable exterior sign hardware near the main campus entrance.. 4.5.6 Event of Termination In the event of termination of this agreement, City owned books and equipment will be removed and returned to the City at City expense within 90 days after contract is terminated. 4.6 Use Limitations It is expressly agreed that the Facilities licensed hereunder are to be used, and shall be used, for the purposes of providing library services and for such other related or incidental purposes as may first be approved in writing by the chief executive officer of the District, and for no other purpose whatsoever. The City shall not use the District's Facilities for any other purpose ("Use Duty"). 4.6.1 Specific Violations of Use Duty Without limitation as to other possible violations of the Use Duty, the City shall specifically not permit the following uses by themselves or their Sponsored Groups: 4.6.1.1 Political Activities The City shall not use and shall not permit or tolerate the use of a District Facility for campaigning or otherwise working for the nomination or election of any individual to any public office, partisan or nonpartisan, or for any ballot measure, Contract August 27, 1999 Page 10 17-/1 including any initiative, referendum, or advisory vote, except with the advance written permission of the District. 4.6.1.2 Regular Church Services The City shall not use and shall not permit the use of a District's Facility for regular church or religious services. 4.6.1.3 Alcohol and Drugs The City shall not allow alcohol or illegal drugs to be sold, used or consumed in, on or about a District Facility. The City shall not permit or allow any portion of a District Facility to be rented or utilized by any Sponsored Group that intends to provide or permit alcoholic beverages at an event or meeting. A Party shall make these facts known, in writing and through oral communications, to all staff members and users at a District's Facility. 4.7 Planning and Scheduling Meetings 4.7.1 Duty to Hold Planning and Scheduling Meetings The EastLake City and School Librarians shall meet weekly for planning and scheduling purposes. 4.7.2 Duty to Permit Other Group Use Both parties may permit other group use in the library_during their respective operating hours without obtaining a District Facility user's permit. 4.7.3 Programs City reserves the exclusive right to conduct Library programs such as story hours on the Library premises during City Library operating hours. 4.8 Duty to Supervise The City shall be responsible for any damage occurring during the City's use of the premises or by groups using the facility with the City's permission. Contract August 27, 1999 Page 11 /7-/5 4.9 Operation Expense, Maintenance and Repair Except as herein provided, the District agrees to operate, maintain and repair, at its expense, the Facilities in its condition as it exists upon completion of construction of such Facilities, or a functional equivalent of their condition as it exists upon completion of construction, normal wear and tear excepted. , City agrees to maintain computer hardware as well as furnishings provided by the City. District will allow access to the Library by City Staff and Authorized Repairmen. 4.9.1 Major Repairs To the extent that a Major Repair to the Facility is required, the District shall diligently attempt, in good faith to secure the repair of the Facility by estimating the cost of repair, budgeting funds for same, designing the repair, and implementing the design, all of which shall be done to the extent that funds are available to do so. 4.9.2 Identifiable Damage Notwithstanding the foregoing, if a City library staff member or patron or anyone of its Sponsored Groups, or one of their members, guests or attendees, has caused damage to the interior of the designated library area ofthe building during City Library Hours or the City library staff office, regardless of negligence the City shall pay for the repair of same. 4.9.3 Fee Waiver The District shall make their respective Facilities available to the City, or a Sponsored Group ofthe City, free of charge unless a fee is charged to the users or attendees at such event or activity. If such a fee is charged, unless the parties otherwise agree the District may impose a charge on the City for the use of the Facility, but not on a basis different from the rate at which the City charges the users or attendees, or in an amount in excess of the fee charged by the City. All groups, free or charged, must file a District Facilities User Permit prior to use. 4.10. Facility Modification or Removal Rights Except with the written consent of the other party to this Agreement, granted by written resolution of the governing board of said party, no Facility shall be modified or removed from servIce. Contract August 27, 1999 Page 12 /7~/~ 4.11 Operational Matters 4.11.1 Policy and Procedure Training 4.11.1.1 The City Library shall cause and train its employees to comply with procedures in a manual ("Procedures Manual") prepared by the District for the use of a District's Facility regarding utility turn-offs, alann responses, locking up/closing, key distribution, facility damage (including graffiti reporting). 4.11.1.2 City Library Staff will conduct training on the integrated online library system to District Library key staff and provide written documentation for procedures. 4.11.1.3 City staff will provide written policies for circulation procedures. 4.11.2 Key Distribution The District must provide a Library Building Grand Master key for Senior Librarian. Exterior door keys must be provided for Library Administration, Delivery Driver, Supervising Librarian, Librarian I, and Circulation Assistant. The District must also provide keys to any gates needed to access the campus. 4.11.3 Library Automation 4.11.3.1 The Integrated Online Library System and all bibliographical item and patron records are the property of the City. However, in the event that this agreement terminates, the City shall provide a machine readable version of the school libraries bibliography and item records. The cost, if any, to produce such records will be equally shared by the District and the City. 4.11.3.2 City will provide access to Integrated Online Library System circulation, OP AC and database maintenance functions in accordance with City Library procedures. 4.11.3.3 City staffwill cooperate with school to provide special computer- generated reports as requested and resources available. 4.11.3.4 District shall insure users respect integrity of electronic databases provided by the City, including online subscription services during the school day. Contract August 27, 1999 Page 13 /7~/? 4.11.3.5 District staff agrees to follow City Library procedures in the use of the system and provide information to the City Library staff to maintain the patron item database for currency and accuracy. 4.11.3.6 District agrees to follow City Library conditions regarding security of the integrated online library system and access to the system. District agrees to provide adequate adult supervision of student library assistants to ensure this securi ty. 4.11.3.7 District agrees to comply with State and Federal legislation regarding the provisions and use of Internet services in schools. City agrees to comply with State and Federal legislation regarding the provision and use of Intemet services in libraries. 4.11.3.8 Reasonable and ordinary maintenance and repair of City owned equipment will be the responsibility of the City. District will be responsible for damage to integrated online library system computer equipment due to gross negligence and vandalism during school operating hours. 4.11.3.9 City staff will be responsible for the functioning and maintenance of the integrated onlineJibrary system. Questions and maintenance problems will be addressed to City Library staff. 4.11.3.10 District shall be responsible for the functioning and maintenance of District's PC's in the library, including during intercession and school holiday periods. 4.11.4 Circulation Procedures 4.11.4.1 District must use City integrated online library system to checkout and checkin items in the Library collection. 4.11.4.2 District will comply with circulation policies regarding registration, loan periods, limits, restricting delinquent patrons, overdue notices established by the City. 4.11.4.3 District agrees to fines and fees policy in effect at City. These fines and fees are part of the City's master fee schedule. Contract August 27, 1999 Page 14 / 7'/~ 4.11.4.4 Each party will retain fines and fees collected during their respective hours of operation. 4.11.4.5 Money collected for lost books will be retained by party that collects the money. Both parties will issue and retain receipts for lost books regardless of ownership. 4.11.4.6 Any changes in circulation policy will be negotiated, but changes may not contradict a City policy. 4.11.4.7 Both parties agree to allow equal access and use to all patrons regardless of jurisdiction to all items in the collection at the EastLake Library regardless of ownership. School text books and media materials are excepted. 4.11.4.8 City Library staff will provide delivery service between library at EastLake High School and other City library outlets daily Monday through Friday. The District will provide accessible site for deliveries. 4.11.4.9 City staff will supply overdue notices and reports directly to the school in accord with regular City Library schedule. District will deliver overdue notices to its students. 4.11.4.10 City staff will cooperate with school to provide special computer generated reports and notices as requested and resources are available. 4.11.4.11 District may withhold EastLake High School student grades and transcripts for students with delinquent EastLake Library books only. City will provide District with a listing of these delinquencies in a timely manner. 4.11.4.12 Library patrons (students and City Library) may request inter- branch transfers from other City libraries. 4.11.4.13 District staff will deal with student patron issues and parent- student concerns regarding Library materials and their use. 4.11.4.14 All registration and circulation records in the integrated online library system are the property ofthe City. A printed and/or electronic copy ofthose registration and circulation records pertinent to EastLake High School students and staff will be provided to the District when this agreement is terminated. Contract August 27, 1999 Page 15 I 7~ /7 4.11.4.15 All registration and circulation records shall remain confidential and shall not be disclosed to any person, local agency, or State agency except as follows: a. By the City Library Director or hislher designee acting within the scope of his or her duties within the administration of the library. b. By a person authorized, in writing, by the individual to whom the records pertain. c. By order of the appropriate superior court. The District shall insure that this confidentiality is maintained. 4.11.4.16 Shelving. The responsibility of reshelving books and other library materials is shared between the District and the City. The District agrees to provide adequate supervision of student library assistants to ensure accuracy of their shelving work. 4.11.5 Collection Development and Cataloging 4.11.5.1 Both parties will agree to support their areas of responsibility in ongoing collection development and make reasonable fiscal commitment annually to build and maintain the book collection, including removing outdated materials on a regular, on-going basis. 4.11.5.2 Both parties will coordinate the selection process to avoid unnecessary duplicates or gaps. 4.11.5.3 City agrees to provide "]" (Juvenile) classed materials collection which will ultimately constitute 25% of the book capacity. 4.11.5.4 Both parties will use the Dewey Decimal system to classify the book collection. 4.11.5.5 District agrees to those collection designations (e.g., Spanish, Mystery, Picture Books) currently in use at the City Library. Any changes will be negotiated by both parties. 4.11.5.6 District agrees to designate EastLake High School materials by the collection codes in the integrated online_ library system. Contract August 27, 1999 Page 16 / 7---20 4.11.5.7 City will provide bibliographic and item records according to City specifications for library books and materials supplied by the District 4.11.5.8 The City will provide physical processing of all library materials supplied by the District according to procedures agreed in planning sessions. 4.11.5.9 District will maintain their portion of the database per procedures determined by the City Library. 4.11.5.10 District will inform City Library of any necessary maintenance needed for bibliographic data and item level data for City Library items. 4.11.6 Intellectual Freedom 4.11.6.1 The City Library subscribes to the American Library Association's Library Bill of Rights and Freedom to Read Statement. 4.11.6.2 Neither party shall remove, label, or prohibit access to any book, periodical, audio visual material, microfilm and/or public use computer and CD ROM software owned by the other party. 4.11.7 Hazardous Materials If a party knows, or has reasonable cause to believe, that any hazardous substance has been released on or beneath the premises on which any Facility is located or proximate to, that party shall give written notice to the chief executive officer of the Board of the other party within ten (10) days of receipt of such knowledge or cause for belief. Provided however, if a party knows, or has reasonable cause to believe that such substance is an imminent and substantial danger to public health and safety, said party shall notify the chief executive officer immediately upon receipt of this knowledge or belief and shall take all actions necessary to alleviate such danger. A party shall notify the other party immediately of any notice of violation received or initiation of environmental actions or suits, publicly or privately brought, relative to the premises. In addition, neither party shall utilize or sell any hazardous substance on the property without the prior written consent of the other, except for normal cleaning, construction or other similar types of supplies. 4.11.8 Standard of Employees The District and the City agree to staffthe Library facility with qualified, competent, professional, and team oriented employees that will strive to provide excellent customer service, work cooperatively, and keep the best interests of the students and public as their Contract August 27, 1999 Page 17 17'--e2j number-one priority. Additionally, the District and the City are committed to provide a safe and positive work environment, and will be responsible for handling personnel issues in a timely and professional manner while acknowledging employee representation, and compliance with federal, state and agency laws, policies and procedures. 4.11.9 Staffing The City shall provide sufficient staffing of events and programs to be held or conducted at a District Facility. 4.11.10 Campus Security and Alarm System 4.11.10.1 District is responsible for campus security and for the provision of a 24-hour monitored security system. 4.11.10.2 The District is responsible for intrusion alarm system. 4.11.10.3 The City will provide a security person during City Library Hours for interior of library only. 4.11.10.4 The District will secure portion of building which is unused during City Library operating hours. 4.11.11 Normal Cleanup Maintenance Both parties shall leave shared work areas clean and free of clutter at the end of their respective workday... The District shall provide custodial services in the Library building at times mutually agreed upon by the District and the City. The electrical/telecommunication room shall be cleaned weekly to remove dirt, bugs, cobwebs, etc. 4.12 Liability for Damage--Property and Personal Injury Except as to any liability and duties imposed upon or accepted by District under Section 4.13, City and District agree to defend, indemnify and hold harmless each other against any and all claims asserted or liability established for damages or injuries, including death, to any person or property, including an officer, agent or employee of one of the parties, which arise from or are connected with or are caused or claimed to be caused by the negligent acts or omissions of: (a) the District during District's use of the facilities, or, (b) the City (or a sponsored group defined in Section 3.3) during City's use of the facilities, in carrying out the terms of this agreement; provided, however, that no duty to indemnify or hold harmless one party shall arise or exist regarding the established sole negligence or willful misconduct ofthat party. Contract August 27, 1999 Page 18 ) 7 ~ elc2- 4.13 Liability for Design and Cpnstruction The City agrees with respect to the design, construction, maintenance or repair of the facility, except as to the City's duty to maintain or repair pursuant to Section 4.9, that District will indemnify, protect and hold harmless the City, its officers, agents and employees from and against all claims asserted and liability established for damages or injury, including death, to any person or property which arise from or are claimed to be caused by the acts or omissions of the District or by the State Architect in the design, construction (including building materials), maintenance or repair of the facility during any City use, use by a sponsored group defined in Section 3.3, or any other permitted use by the general public of the facilities. 4.14 LEFT BLANK 5 Rights Expressly Reserved by the Parties 5.1 Related Council Actions By the granting of this license, neither party is obligating itself to any other governmental agent, board, commission, or agency with regard to any other discretionary action relating to development or operation of a Facility. Discretionary action includes, but is not limited to rezoning, variances, environmental clearances or any other governmental agency approvals which may be required for the development and operation of the Facility. 5.2 No Liability for Lack of Quiet Enjoyment A degree of reasonableness governing on-site activities should prevail and every attempt to achieve mutually satisfactory solutions will be made by both parties through adequate communications, advance preparation and other measures to lessen the impact of on-site activities on optimal library use. 5.3 Eminent Domain Nothing herein shall be construed as an abandonment of a party's right of eminent domain. 6 Remedies for Breach 6.1 Default in Performance If a party shall default in the performance of any covenant or condition required by this Agreement to be performed by such party, then the other party will give the breaching party written Contract August 27, 1999 Page 19 J 7'- oZ] notice citing such default and demand the breaching party or any person claiming rights through breaching party to correct such default noticed, and upon giving such notice, the breaching party shall correct such default as soon as practicable, but in no event, later than 30 days. Failure of breaching party to correct default shall not result in termination ofthe License which is the subject matter of this Agreement, but may be the basis for an injunctive order, writ of mandate, or other equitable action. 6.2 Waiver Any waiver of a default by either party is not a waiver of any other default. Any waiver of a default must be in writing and be executed by the chief executive officer of the party in order to constitute a valid and binding waiver. Delay or failure to exercise a remedy or right is not a waiver of that or any other remedy or right under this lease. The use of one remedy or right for any default does not waive the use of another remedy or right for the same default or for another or later default. 6.3 Miscellaneous 6.3.1 Construction Against Draftsman This agreement has been fully negotiated by all parties, and no construction or interpretation is to be made hereof on the basis of draftsmanship of the document. 6.3.12 Time is of Essence; Provisions Binding on Successors Time is of the essence of all ofthe terms, covenants and conditions of this lease and, except as otherwise provided herein, all of the terms, covenants and conditions of this lease shall apply to, benefit and bind the successors and assigns of the respective parties, jointly and individually. 6.3.3 Assignment and Subletting Except as herein provided, neither party shall assign this license, or any interest therein, and shall not sublicense the real property or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person, except employees, agents, guests and permittee ofthe party, to use or occupy the real property or any part thereof, without the prior written consent of the other party in each instance. A consent to assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any such assignment or subletting without such consent shall be void. The license granted by this Agreement is personal to the grantee. Contract August 27, 1999 Page 20 /7/~,! 6.3.13 Encumbrance Neither party may encumber this license, its leasehold estate and its improvements thereon by deed of trust, mortgage, chattel mortgage or other security instrument during the terms hereof. 6.3.14 No Inverse Condemnation The exercise of any right under this lease shall not be interpreted as an exercise of the power of eminent domain and shall not impose any liability upon either party for inverse condemnation. 6.3.15 Notices All notices and demands shall be given in writing by personal delivery or first-class mail, postage prepaid. Notices shall be addressed as appears below for the respective Party; provided that, if any Party gives notice of a change of name or address, notices shall be appropriately modified to reflect such changes. Notices shall be deemed received seventy- two (72) hours after deposit in the United States mail. Notice to the District: Sweetwater Union High School District Superintendent 1130 Fifth Avenue Chula Vista, CA 92011 Notice to the City: City of Chula Vista City Manager 276 Fourth Avenue Chula Vista, CA 92010 6.3.16 Compliance with Law Both parties shall at all times in the maintenance, occupancy, and operation of a Facility, and in the provision of service, comply with all applicable laws, statutes, ordinances, and regulations of City, County, State, and Federal Governments, at that party's Contract August 27, 1999 Page 21 /7---2S- sole cost and expense. In addition, both parties shall comply with any and all notices issued by the other party under the authority of any such law, statute, ordinance, or regulation. 6.3.17 City Approval The approval or consent of City, wherever required in this license, shall mean the written approval or consent of the City Manager unless otherwise specified, without need for further resolution by the City Council. 6.3.18 Partial Invalidity If any term, covenant, condition, or provision of this license is found invalid, void, or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. 6.3.10 Captions The section headings, and captions for various articles and paragraphs shall not be held to define, limit, augment, or describe the scope, content, or intent of any or all parts of this lease. The numbers of the paragraphs and pages ofthis lease may not be consecutive. Such lack of consecutive numbers is intentional and shall have no effect on the enforceability of this lease. 6.3.11 Entire Understanding This license contains the entire understanding of the parties. Both parties, by signing this agreement, agree that there are no other written or oral understanding between the parties with respect to the licensed premises. Each party has relied on its own examination of the premises, advice from its own attorneys, and the warranties, representations, and covenants of the lease itself. Each of the parties in this license agrees that no other party, agent, or attorney of any other party has made any promise, representation, or warranty whatsoever which is not contained in this lease. The failure or refusal of any party to read the license or other documents, inspect the premises, and obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on these actions. No modification, amendment, or alteration of this lease will be valid unless it is in writing and signed by all parties. Contract August 27, 1999 Page 22 / 7 - .2~ 6.3.19 City Employee Participation Policy It is the policy of City that all City contracts, agreements or leases with consultants, vendors or clubs shall include a condition that the contract, agreement or lease may be unilaterally and immediately terminated by City if the contractor or District employs an individual who within the twelve months immediately preceding such employment did in his/her capacity as a City officer or employee participate in negotiations with or otherwise have an influence on the recommendation made to the City Council in connection with the selection of the contractor. 6.3.20 Disputes Any dispute involving this Agreement may be submitted in writing to the City's Library Director or his/her designee and to the District's Director of Operations and the District's High School Principal. The Parties, in good faith, shall attempt to resolve said dispute before arbitration may be sought by either Party. 6.3 .21 Arbitration Any controversy arising out of this Agreement or its breach shall be settled by arbitration if, prior to the commencement of any legal proceeding arising out of this Agreement or its breach, either Party demands by written notice that such controversy be arbitrated. After such demand, and within ten (10) days from such demand, the Parties shall attempt to designate a mutually acceptable individual to arbitrate the controversy. Ifwithin the ten (10) day period the Parties are unable to designate an individual, the controversy shall be arbitrated under the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator chosen by the Parties or used pursuant to the rules of the American Arbitration Association may be entered in any court having jurisdiction and shall be fully binding on the Parties. 6.3.22 Amendment This Agreement may only be amended by the written consent of all the Parties at the time of such amendment. 6.3.23 Entire Agreement This Agreement supersedes any prior agreement and contains the entire agreement of the Parties on the matters covered. No other agreement, statement or promise made by any Party or by any employee, officer or agent of any Party that is not in writing and signed by all Parties shall be binding. Contract August 27, 1999 Page 23 ! 7-2? 6.3.24 Exhibits All exhibits to which reference is made are deemed incorporated in this Agreement, whether or not actually attached. 6.3.25 Further Assurances Each Party hereto agrees to perform any further acts and to execute and deliver any further documents which may be reasonably necessary to carry out the provisions of this Agreement. 6.3.26 Governing Law This Agreement has been executed in and shall be governed by the laws of the State of California. 6.3.27 Headings and Interpretation This Agreement shall be construed as a whole and in accordance with its fair meaning. Captions and headings are for convenience and shall not be used in construing meanmg. 6.3.28 Counterparts The Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 6.3.29 Authority The City and the District represent that the individuals signing this Agreement have full right and authority to bind their respective Parties to this Agreement. 6.3.30 Invalidity If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. Contract August 27, 1999 Page 24 /7/0<5 6.3.31 No Strict Construction This Agreement shall not be strictly construed against any Party hereto. 6.3.32 Nothing herein gives rise to a recordable interest in real property to either party. No party shall cause or permit this Agreement to be recorded with the Recorder's Office. (End of page. Next Page is signature Page.) Contract August 27, 1999 Page 25 / 7 ',2; Signature Page to IN WITNESS HEREOF, the City and the District have executed this Agreement thereby indicating they have read and understood the same, and indicate their full and complete consent to its terms: Dated: , 1999 City ofChula Vista By: Shirley Horton, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: John Kaheny, City Attorney Dated: , 1999 Sweetwater Union High School District by: Jim Cartmill, President Board of Trustees by Dr. Ed. Brand District Superintendent Contract August 27, 1999 Page 26 /7/ ,10 Signature Page to IN WITNESS HEREOF, the City and the District have executed this Agreement thereby indicating they have read and understood the same, and indicate their full and complete consent to its terms: Dated: , 1999 City of Chula Vista By: Shirley Horton, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: John Kaheny, City Attorney Dated: , 1999 bYU~ Dr. Ed Brand District Superintendent Contract September 3, 1999 Page 26 / ).-;1/ ITEM#: September]A; 1999 /r MEETING DATE: FROM: Honorable Mayor and City Council Dave Rowlands, City ManagerGf>c/ Bob Leiter, Director of Planning and Building ~ TO: VIA: SUBJECT: Update on San Diego Air Commerce Center / Brown Field Proposal We have scheduled a briefing for the City Council with regard to the proposed San Diego Air Commerce Center project at your meeting of September 14, 1999. Last week, we were informed that the City of San Diego had extended the review period for the draft Environmental Impact Report on this project from September 7 to September 21. The City of Chula Vista's consulting team will be in attendance at the Council meeting to provide an update regarding the status of their review of the draft Environmental Impact Report and our requests for additional information. In addition, we have invited the project proponent to attend this meeting and make a presentation to the Council regarding the project. Please let me know if you have any questions on this matter. cc: Jim Sandoval, Assistant Planning Director Duane Bazzel, Principal Planner (FI51.em) /~// ~{f? ~: ~~~~ -~ ---- ClW OF (HUlA VISTA OFFICE OF THE CITY MANAGER September 8, 1999 Samuel Kahn Managing Director San Diego Air Commerce Center 750 "B" Street, Suite 3130 San Diego, CA 92101 Dear Sandy: As we discussed yesterday, you are invited to attend next week's Council meeting on September 14,1999 at 6:00 p.m., at which time the City Council will be discussing your Brown Field proposal. Specifically, we would like you to clarify the proposed flight pattern into and out of Brown Field, and if there will be any impacts upon Chula Vista. We have invited our consultants to attend this meeting and would encourage you, if possible, to be in attendance as well. Very truly yours, p~ David D. Rowlands, Jr. City Manager Cc: Mayor and Council members Bob Leiter 276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910. (619) 691.5031. FAX (619) 585.5612 ~~ Pl>>-Coranw ReqdId PIper -I' ~~/? ~~ ...."..;:....,;::-........... ---- -- --- C1lY OF CHUIA VISTA OFFICE OF THE MAYOR SHIRLEY HORTON September 7, 1999 Mr. William C. Withycombe Regional Administrator FAA Western Pacific Region 15000 Aviation Boulevard Lawndale, CA 90261 Dear Mr. Withycombe: The City of Chula Vista is in the process of reviewing the Environmental Impact Report/Environmental Assessment (EIR/EA) and the associated Master Plan for the San Diego Air Commerce Center at Brown Field. Our major concern is with the noise created by large jet cargo aircraft overflights at low altitude. The EIR/EA states that "the anticipated approach and take-off flight tracks have been the subject of review by Federal Aviation Administration (FAA) staff for feasibility and safety and have been found to be both feasible and safe." No corroborating documentation and/or elaboration of this statement appears to be available. The existence of a proposed precision ILS approach from the west, to supplement the present non-precision approach is not an airspace study. The Master Plan and EIR/EA state that the majority of large jet cargo aircraft will use this "west to east track" - opposing normal traffic on Brown Field (and other airports) under both VFR and IFR conditions. In order to determine how the FAA Air Traffic Organization would efficiently manage the flows associated with the proposed 48 large jet operations at Brown Field, plus all other traffic at airports with conflicts, such as Ream Field, an Air Traffic Airspace study would appear to be needed. As shown on Exhibit 3-13 of the Master Plan, the Brown Field flight tracks for Category C and D aircraft which include the Boeing B-767 and the Boeing B-747 will require down-wind patt~rn flight tracks that are located approximately 3.0 miles tot he north of the centerline of runway 8L/26R, directly over the City of Chula Vista at 1500 feet AGL. Sufficient airspace is not available for C and 0 aircraft flight tracks to the south of Brown Field due to the proximity of the Mexican border and the existing flight tracks in and out of Tijuana International Airport. Utilization of this traffic pattern depicted in the Master Plan to include arrivals and departures, 276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910. (619) 691-5044. FAX (619) 476.5379 ;', PO.I.Can.u"....' RecyCled Pape, -2- would be an integral part of an FAA airspace study and would shed light on what volume of large jet aircraft will overfly Chula Vista. The EIRlEA discusses a January 1998 "work shop" which generated significant comments related to the efficient use of the airspace in the San Diego area as a result of the Brown Field Expansion. Apparently, the FAA has not responded to these comments. The detailed airspace manaqement study to be conducted by the FAA-Western Pacific Region Air Traffic Division, and referenced in the EIR/EA, is necessary to substantiate the airspace procedures needed to operate the A TC System with the proposed Brown Field Expansion, and in turn to understand the flight track impacts on Chula Vista. We therefore respectfully request the Western-Pacific Region perform an airspace study in sufficient detail so we may ascertain the noise impact on Chula Vista of the proposed expansion of Brown Field into a Cargo Airport serving large jet aircraft. Your cooperation would be greatly appreciated. Sincerely, ~~ Mayor Cc: Councilmembers City Manager Bob Leiter Duane Bazzel CITY OF CHULA VISTA COUNCIL AGENDA STATEMENT Item: /j Meeting Date: 09/14/99 SUBMITTED BY: RESOLUTION APPROVING AGREEMENT WITH THE CITY OF IMPERIAL BEACH FOR ANIMAL CONTROL SERVICES, AMENDING THE FY 2000 BUDGET APPROPRIATING $53,473 FOR RELATED GENERAL FUND COSTS BASED ON UNANTICIPATED REVENUES, AND ADDING ONE ANIMAL CONTROL OFFICER POSITION, AND .25 KENNEL ATTENDANT POSITION Chief of Police V ITEM TITLE: /i . REVIEWED BY: City ManagerG?(L-- -:z/ (&11)1 (4/5ths Vote: Yes --L No_) BACKGROUND: Chula Vista provided animal control services to the City of Imperial Beach from 1993 to 1998. In January of 1998, Imperial Beach elected to contract with the County of San Diego for one year of animal control service. In May 1999, the City of Imperial Beach requested a bid for animal control services from both the County of San Diego and the City of Chula Vista. The police department submitted a proposal and entered into contract discussions with Imperial Beach. The proposal was based on established formulas that ensure full cost recovery associated with services to be rendered. There were no special allowances made in order to solicit or obtain the Imperial Beach Contract. Subsequently, the contract was awarded to Chula Vista contingent upon City Council approval. Staff is recommending approval of the contract to provide animal control services to Imperial Beach. RECOMMENDATION: That the City Council approve the Resolution authorizing the Mayor to enter into a three year agreement with the City of Imperial Beach for animal control services, beginning October 1, 1999 through July 30, 2002; amending the FY 99-00 budget appropriating $53,473 for related general fund costs based on unanticipated revenues, and adding one full time animal control officer, and .25 part time kennel attendant. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Since January, 1998, the City of Imperial Beach has contracted with the County of San Diego for animal control services. In May of 1999, Imperial Beach requested a bid from /9~/ Page 2, Item Meeting Date: 09/14/99 Chula Vista for those services. The contract for full animal control services was awarded to Chula Vista contingent upon Council approval. The proposed contract recovers all direct costs associated with staffing, services and supplies in addition to some indirect costs. A small amount ($5,504) of citywide overhead is recommended to be waived because the City of Imperial Beach has agreed to pay for shelter infrastructure. Ten additional kennels, estimated at $65,000, will be paid for by Imperial Beach and included in the new animal shelter construction. The City benefits from acquisition of an asset, which will provide extra capacity and remain the property of the City of Chula Vista. In addition, staff believes this is a good business decision in that the contract also allows the City to defray $29,467 of Chula Vista's existing fixed shelter costs, thus directly reducing operational costs for shelter services. If the City Council approves the proposed agreement, the City of Chula Vista would provide full animal control services to the City of Imperial Beach, 5 days a week from 9:00 A.M. to 5:00 P.M. Additionally, 24-hour emergency services will be provided seven days a week on an overtime basis, which would be fully reimbursed by Imperial Beach. Acceptance will require additional staff (one animal control officer, .25 kennel attendant and related overtime) of which Imperial Beach has agreed to pay all direct costs associated with the positions. No equipment purchases will be necessary to service Imperial Beach. The City of Imperial Beach has agreed to provide and maintain its own animal control vehicle in accordance with Chula Vista's fleet manager's standards. Existing shelter capacity will accommodate shelter service for Imperial Beach until construction of the new shelter. A variety of proactive interventions will be implemented to expedite the return of pets to owners and educate Imperial Beach residents on responsible pet ownership. Additionally, staff will use our adoption program, which has been very successful to find homes for Imperial Beach animals. Services To Be Rendered Services provided to Imperial Beach will encompass all sheltering services for lost and abandoned animals found in Imperial Beach, including holding, feeding, veterinarian care, adoption, redemption, collection of fees, selling of licenses, euthanasia and disposal Monday through Saturday. Full animal control patrol services will be provided five days a week from 9:00 A.M. to 5:00 P.M. and after hours and weekend emergencies will be handled on an overtime basis. Imperial Beach will pay for all overtime worked in the City of Imperial Beach. Animal control patrol services will include emergency transportation of injured and sick animals found without owners, issuance of citations for violations of animal related laws, investigation of biting and vicious dogs, beach patrol, impounding of strays, and picking up dead animals on public property. /9/2 Page 3, Item Meeting Date: 09/14/99 Excluded Services Services excluded from the agreement are the trapping and nuisance control of wildlife, the trapping or capture of non-biter stray cats and the removal of dead animals on private property. Staffina The staff needed to service this contract is one permanent full-time animal control officer, .25 hourly kennel attendant and overtime for the animal control officer to provide emergency service after hour calls and weekends in addition to planned special events. Imperial Beach has agreed to pay for all direct costs associated with staffing. Payments will be automatically adjusted for future salary and benefit increases associated with these positions. The contract includes $3,000 for anticipated overtime expenditures to service Imperial Beach. Overtime expenditures in excess of $3,000 will be billed to the City Imperial Beach. Services & Supplies No additional funds are requested to be appropriated for services and supplies. Staff anticipates that the existing animal control budget is sufficient. The services and supplies costs ($5,000) to service Imperial Beach are included in the contract amount. Services and supply increases may be adjusted annually up to 5% of the total contract. Based on an historical review of animal control service and supply account increases, staff believes the 5% cap on services and supplies will not impact the full recovery of costs associated with this contract. Licensing The Chula Vista Finance Department will provide animal licensing services for Imperial Beach. Finance has calculated the fee to be $4.25 per license. The $4.25 fee recovers all direct costs including full cost recovery associated with staffing, services, and supplies needed to process licenses for Imperial Beach. Approximately 1,500 animals are licensed to Imperial Beach. In addition, animal control staff will assist Imperial Beach with the implementation of a Rabies/Licensing Clinic Program which will encourage Imperial Beach residents to license their animals. In order to provide these services, the City of Imperial Beach has agreed to provide the City of Chula Vista with: Right-hand window envelops I mperial Beach letterhead and Dog tags subject to our approval /7~ Page 4, Item Meeting Date: 09/14/99 EauiDment Imperial Beach will provide an animal control vehicle including regular maintenance, fuel and vehicle insurance. Future replacement of the vehicle will also be the responsibility of Imperial Beach. The vehicle will be maintained and replaced in accordance with Chula Vista's vehicle maintenance and replacement schedules. The Chula Vista's Fleet Manager will approve any variances. Terms Under the agreement, Chula Vista will provide these services for three years. Either party may terminate this agreement for any reason giving specific written notice at least ninety (90) days before the effective date of such termination. If Imperial Beach terminates the agreement, Chula Vista shall be entitled to just and equitable compensation for all services performed prior to the termination date. Each year Chula Vista may review the cost for these services and adjust the fee structure up to 5% of the total cost of the contract to cover services and supply increases. All salary and benefit increases, including overtime expenditures, will be automatically charged to Imperial Beach. Additional Kennels Included in the new Animal Shelter CIP are three (3) banks of 28 kennels each, for a total of 84 kennels which allows the City to maintain the projected service levels for Chula Vista. The addition of ten (10) kennels will allow the City to increase its shelter capacity to service Imperial Beach. Staff is also working with other contract cities to purchase additional kennels and complete the fourth bank of kennels. The goal is to ultimately build 112 kennels to service the projected growth for the City and continue to service contract cities. Imperial Beach will pay for the construction of ten (10) kennels, which will be included in the new animal shelter plans. The cost of these kennels is estimated at $65,000. Imperial Beach will pay for the kennels in one payment of $65,000 due by November 1, 1999. The payment is non-refundable. This cost is based on the current estimates for construction of kennels for the new Chula Vista Animal Shelter. The additional ten (10) kennels will be built at the same time as the original three banks of kennels. If the actual cost increases or decreases, it is agreed that the payment amount will be adjusted accordingly. Method of Payment Beginning October 1, 1999, Imperial Beach will pay the City of Chula Vista $7,328.33 a month for the first year of the agreement in addition to $4.25 per license. Chula Vista will submit the billing to Imperial Beach on or before the 10th day of the month following the billing period, which will be payable upon receipt but no later than the last day of the billing month. Chula Vista will credit Imperial Beach monies received as redemption /9-Y Page 5, Item Meeting Date: 09/14/99 fees during the previous month. Redemption fees are anticipated to average approximately $200 per month. Reimbursement is appropriate since the service is included in the cost of the contract with the City of Imperial Beach. FISCAL IMPACT: The total revenue anticipated from this contract is $87,940 for the first year. This amount is approximately $5,504 less than the full costs of providing the services, including all direct and indirect cost and $34,467 more than the direct cost of providing the services. All direct staffing salary and benefit increases associated with this contract will be paid for by Imperial Beach. Additionally, the total cost of the contract may be adjusted annually up to 5% of the total contract for services and supply increases. Staff is requesting appropriation of $40,977 for one animal control officer position, $5,387 for .25 kennel attendant, $4,109 for workers' compensation and $3,000 in projected overtime costs. The total appropriation required to service the City of Imperial Beach is $53,473. J:\IBEACH-2.DOC 9111991QFinal2 /9// RESOLUTION RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT WITH THE CITY OF IMPERIAL BEACH FOR ANIMAL CONTROL SERVICES, AMENDING THE FY 2000 BUDGET APPROPRIATING $53,473 FOR RELATED GENERAL FUND COSTS BASED ON UNANTICIPATED REVENUES, AND ADDING ONE ANIMAL CONTROL OFFICER POSITION, AND .25 KENNEL ATTENDANT POSITION WHEREAS, Chula Vista has an animal shelter and provides animal control services to the citizens of Chula Vista; and, WHEREAS, Imperial Beach desires to enter an agreement with Chula Vista for FY 1999-2002 to provide animal shelter and control services for the impounding, adoption, redemption and disposition of dogs, cats and other small animals (Exhibit "A"); and, WHEREAS, Chula Vista agrees to amend its FY 99-00 budget to add one animal control officer who will work the Imperial Beach area five days a week from 9:00 a.m. to 5:00 p.m. and .25 kennel attendant; and, WHEREAS, Chula Vista agrees to amend its FY 99-00 budget to allow $3,000 to be used for overtime which will be reimbursed by the City of Imperial Beach; and, WHEREAS, Chula Vista agrees to amend the new animal shelter capital improvement project to provide for the construction of ten (10) kennels to be paid for by Imperial Beach in one payment of $65,000 by November 1 SI, 1999; and, WHEREAS, Imperial Beach will purchase and provide for the replacement of their own vehicle. NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the Agreement with the City of Imperial Beach for Animal Control Services., 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 and directed to execute said Agreement for and on behalf of the City of Chula Vista. BE IT FURTHER RESOLVED that the FY 2000 budget is hereby amended by appropriating $53,473 for related General Fund costs based on unanticipated revenues, and adding one Animal Control Officer position, and .25 Kennel Attendant position. Presented by: Approved as to form by: Richard P. Emerson Police Chief ~2~ John M. Kahe City Attorney H:\SHARED\IBEACH2.DOC /9/? AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE CITY OF IMPERIAL BEACH PROVIDING FULL ANIMAL CONTROL SERVICES. WHEREAS, Chula Vista has an animal shelter and provides animal control services to the citizens of Chula Vista; and, WHEREAS, Imperial Beach desires to enter an agreement with Chula Vista for FY 1999-2002 to provide animal shelter and control services for the impounding, adoption, redemption and disposition of dogs, cats and other small animals, and NOW, THEREFORE, IT IS AGREED by and between Chula Vista and Imperial Beach as follows: I. SERVICES 1. Chula Vista agrees to provide animal control services to residents of Imperial Beach in the form of shelter services, animal control patrol services and administrative services. SHELTER SERVICES: 2. Chula Vista agrees to permit the City of Imperial Beach the use of animal shelter facilities owned and operated by the City of Chula Vista and presently located at 690 Otay Valley Road for the impounding, adoption, redemption, and disposition of dogs, cats and other small animals subject to the provisions of the Imperial Beach Animal Ordinances. Chula Vista is in the process of building a new animal shelter which will be located at Fourth Ave and Beyer Way in Chula Vista. The City of Chula Vista plans on occupying the new shelter on or about July 1,2000. 3. Chula Vista agrees to provide shelter services for residents of Imperial Beach during normal shelter hours currently, Monday through Friday 10:00 to 5:00 and 10:00 to 4:00 on Saturday. The shelter will be closed on Sunday and all major holidays. Chula Vista agrees to notify Imperial Beach of changes in shelter hours in i9/J advance. Chula Vista reserves the right to make necessary changes to shelter hours as needed. 4. Chula Vista agrees to accept all stray animals from Imperial Beach residents at no charge. Appropriate fees, in accordance with Chula Vista's master fee schedule, will be charged for Imperial Beach residents wishing to relinquish owned animals to the shelter for euthanasia or adoption, or to redeem animals. 5. Chula Vista agrees to hold all dogs and cats for the minimum holding period pursuant to the California Food and Agriculture Code and other applicable State Law. As per applicable State code sections, animals with communicable diseases and severe injuries or illness may be euthanized prior to the normal holding period. Veterinary medical care will be provided for all impounded animals for the duration of their hold period as needed. Chula Vista will attempt to notify owners of identified animals as to the whereabouts of the animal and the holding period. Imperial Beach shall relinquish all animals not claimed or adopted to the City of Chula Vista for disposition in accordance with all applicable laws, policy or procedure as deemed appropriate by the Chula Vista Shelter Manager. Upon payment of redemption fees, Chula Vista will release to the legal owner, any impounded domestic animal. Chula Vista will have discretion to release animals under special circumstances regardless of payment of fees. Chula Vista will conduct all impound and administrative hearings as required by law. Imperial Beach will provide a hearing officer if Chula Vista is unable to due to conflict of interest or prejudice. 6. Chula Vista shall not be responsible to any resident of Imperial Beach, or to the City of Imperial Beach, because of the destruction of any animal delivered to and accepted by the shelter pursuant to this agreement, and the City of Imperial Beach agrees to hold harmless the City of Chula Vista from any claims arising from damage or injury to animals belonging to residents of the City of Imperial Beach and accepted by the Chula Vista Animal Shelter. 7. Chula Vista shall maintain its shelter in a humane manner and shall keep its shelter in a sanitary condition at all times. All services furnished by Chula Vista shall be provided in accordance with local laws and the laws of the State of California. Chula Vista shall use 2 /9-g' humane methods in the care, euthanasia, and disposition of any animal coming under its jurisdiction. 8. Chula Vista will not sell or give any live or dead animal to a medical research facility at any time or from any jurisdiction. 9. Chula Vista will ensure all dogs, cats and rabbits adopted from the shelter are spayed and or neutered at the time of adoption or a spay/neuter deposit will be collected in accordance with state law. Additionally, the Chula Vista Animal Shelter will provide the public with spay and neuter information and assistance. PATROL SERVICES: 10. Chula Vista agrees to provide a uniformed Animal Control Officer to patrol Imperial Beach five days a week in the manner and to the extent that Chula Vista deems appropriate pursuant to the guidelines described in paragraph 12. 11. Patrol services shall be conducted five (5) days per week Monday through Friday 9:00 a.m. to 5:00 p.m., or any combination of days such as Tuesday through Saturday as agreed upon by both parties. The patrol schedule may be rotational or seasonal. Patrol services shall include; emergency transportation of injured or sick animals, the issuance of citations for violations of state and local laws and ordinances, beach patrol, impounding of strays, investigation of biting and vicious animals, trapping of animals (except as noted below), investigating humane complaints, investigating barking dog or animal noise complaints, picking up dead animals on public property and educating the public about pet responsibility. Imperial Beach will pay for the overtime cost associated with emergency responses after normal business hours at the full cost recovery rate approved by the Chula Vista City Manager. 12. All requests for service will be handled in a reasonable time and manner based on a priority system, (see Attachment 2 Priority Response Chart). Chula Vista will provide staff as needed in emergency situations to assure reasonable response times. Chula Vista is excused from timely performance during equipment failures, 3 /9// strikes, labor disputes, personnel shortages, severe weather, road impediments, disasters and other forces out of the control of Chula Vista. 13. Livestock will be removed under contract with a separate agency, chosen by the Chula Vista Animal Shelter capable of removing livestock. Trailering, board and other fees will be paid by Imperial Beach. 14. Chula Vista agrees to conduct special enforcement animal control patrols as needed or requested by Imperial Beach providing there are no conflicts with the City of Chula Vista's needs. This will include special animal control patrol hours, sweeps and beach enforcement. Imperial Beach will pay all overtime associated with special enforcement services. 15. Chula Vista will provide Animal Control personnel for scheduled special events as requested provided there are no conflicts with the City of Chula Vista's needs. These events will be performed on an overtime basis and Imperial Beach will pay all overtime. ADMINISTRATIVE SERVICES: 16. Chula Vista may issue dog or other animal licenses to Imperial Beach residents and collect fees for same. 17. Chula Vista agrees to provide licensing services to Imperial Beach and maintain a Dog License Data Base System of Imperial Beach's licensed and delinquent dogs and owners. The cost for Chula Vista to provide licensing services to Imperial Beach is $4.25 per animal license issued. Imperial Beach currently has 1,500 animals licensed. The $4.25 per license fee recovers staffing and licensing services and supply costs, associated with providing this licensing service. Chula Vista Animal Control staff will assist Imperial Beach with the implementation of a Rabies/Licensing Clinic Program. In order to provide these services, Imperial Beach agrees to provide the City of Chula Vista the following: a) envelopes with a right-hand window b) letterhead with the Imperial Beach logo 4 /9//t) c) dog tags subject to our approval, because of U.S. postal restrictions on size of tag 18. Chula Vista will provide a representative to attend Imperial Beach meetings that involve animal control issues upon request and with reasonable notice. 19. A Chula Vista representative will meet and confer in good faith with an Imperial Beach administrator over operational issues associated with the administration of this contract. 20. Chula Vista will provide monthly reports to the City of Imperial Beach. These reports will include the number of impounds, redeems, euthanasia, licenses sold, service responses and adoptions. II. EXCLUDED SERVICES 1. Chula Vista will not trap skunks, opossums or other indigenous small animals for the purpose of nuisance control. Wildlife will only be handled for purposes of public safety or for humane reasons. Cats, feral or tame, will only be trapped when a bite has occurred or to protect the public health or safety. Cats in traps will be removed from the bird sanctuary at the city's request when staffing is available. Cat traps will be provided by I mperial Beach. Only dangerous snakes will be removed from private property. 2. Dead animals on private property are the responsibility of the property owner. Owned sick or injured animals are the responsibility of the animal owner. III. IMPERIAL BEACH RESPONSIBILITY PAYMENT OF SERVICES: 1. Imperial Beach will pay the Actual Cost for providing all services identified in this agreement. Actual Cost means all Customary charges including, without limitation, labor and indirect overhead charges, overtime, benefits, paid time off, administrative cost, supply and food costs, and clerical support as described in Attachment 1. 5 /<///1 2. Chula Vista will credit Imperial Beach's account for Redemption Fees collected under this Agreement. 3. Imperial Beach agrees to provide Chula Vista with a 4WD animal control vehicle that is white in color and is substantially similar to Chula Vista's existing animal control fleet. Vehicle replacement, maintenance, fuel and oil is the responsibility of Imperial Beach. The vehicle will be maintained at the same level of service as Chula Vista vehicles. Any variance of this maintenance schedule will be approved by the Chula Vista Fleet Manager. If Imperial Beach and Chula Vista agree to extend or not extend services beyond this Agreement, the animal control vehicle remains the property of Imperial Beach. The vehicle will be identified with appropriate lettering spelling out "Imperial Beach Animal Control" and appropriate Imperial Beach City Seal placed on the left and right doors and Chula Vista Animal Control phone number clearly displayed. 4. Chula Vista will automatically adjust Imperial Beach payments for future salary and benefit increases. In addition services and supplies may be adjusted annually up to 5% of the total contract. Overtime will be fully reimbursed by Imperial Beach. Commencing on October 1, 1999, and extending through July 30, 2002, Imperial Beach agrees to pay the City of Chula Vista the sum of $7,259 per month for the aforementioned services and facilities. At the end of FY 99-00 a review of this contract will be made and appropriate adjustments, services and supplies will be determined. Payments will be automatically adjusted for future salary and benefit increases associated with these positions. The City of Chula Vista shall, as of the first day of each month, credit Imperial Beach with the amount of monies received during the previous month from Imperial Beach residents as fees for redemption of Imperial Beach animals. The Finance Office shall submit the billing to Imperial Beach on or before the 10th day of the month following the billing period and that amount shall be due and payable within thirty (30) days of the invoice date. A penalty of ten percent (10%) will be assessed on late payments as well as a one and one half per cent (1 Yz%) finance charge per month on the original delinquent charge. 6 )q //J CONSTRUCTION OF 10 KENNELS The City of Chula Vista agrees to modify its design plans for its new animal shelter to add ten (10) kennels ("Additional Kennels") which shall be built with the same construction materials as the other kennels being built at the new animal shelter and to the same specifications. The parties acknowledge that the kennels would not be necessary but for Chula Vista's agreement hereunder to provide Imperial Beach animal shelter services. In consideration for Chula Vista's agreement to construct additional kennels, Imperial Beach agrees to pay $65,000 up front at the start of this contract to Chula Vista. Such cost may include construction materials and labor but does not include plans or architectural costs. Imperial Beach's payment obligation for the Additional Kennels is estimated to be $65,000 in actual cost. It is anticipated by the parties that the cost of the kennels should not exceed $65,000; however, if the construction costs increase or decrease, the payment amount will be adjusted accordingly. Imperial Beach acknowledges that if the kennels should exceed the current estimated construction costs, Imperial Beach is responsible for the overage. If the actual construction costs are less than the estimated $65,000, the payment will be adjusted down and reimbursed. Imperial Beach will make a payment of $65,000 for the kennels by November 1, 1999. A penalty of ten percent (10%) will be assessed if payment is not made by November 1st, 1999. In addition, for each thirty (30) day period or portion thereof this payment remains unpaid, Imperial Beach will be charged an additional one- half percent (~%) finance charge on the amount (including previous delinquent charges) then outstanding. The kennels shall be the permanent property of Chula Vista, and Imperial Beach's payment to Chula Vista for the costs of constructing the ten (10) kennels shall in no way give Imperial Beach any proprietary interest in the kennels or the animal shelter. Should Imperial Beach terminate or default in this agreement: Once payment is made the $65,000 shall not be refunded back to Imperial Beach. 7 )9//) Should Chula Vista terminate or default in this agreement: Failure to build the new shelter will result in the $65,000 being reimbursed back to Imperial Beach. SUPPORT SERVICES 1. Imperial Beach will provide Chula Vista with a current listing of all animal licenses issued, including permits or licenses for dogs, cats, dangerous dogs or animals, exotic animals, kennels, pet shops, ranches or farms, dog shows, obedience trials and circuses. 2. Imperial Beach will notify Chula Vista of any animal related issues which are or anticipated to be scheduled on an agenda for the City Council or any legislative or administrative body of Imperial Beach. 3. Imperial Beach agrees to provide all police services necessary for Chula Vista to carry out its duties including police backup upon request of the Chula Vista Animal Control Officer. 4. Imperial Beach agrees to permit Chula Vista Animal Control Officers to carry side arms within the City of Imperial Beach. Chula Vista Animal Control Officers are employees of the Chula Vista Police department and may carry a sidearm while on duty in their animal control uniform. Chula Vista Animal Control Officers also carry in their vehicle tranquilizer guns and equipment. 5. Imperial Beach agrees to adopt and/or follow the Master Fee Schedule established by Chula Vista. 6. Both parties agree to meet and confer in good faith with Chula Vista's Administrator regarding operational matters upon request. 7. Imperial Beach will provide legal representation in cases of Public Nuisance, Dangerous and Potentially Dangerous animal cases, and for lawsuits, claims or litigation pertaining to these cases. 8 /9~if IV. TERMS AND CANCELLATION RIGHTS TERMINATION OF AGREEMENT FOR CONVENIENCE Either party may terminate this Agreement at any time and for any reason, by giving specific written notice of such termination and specifying the effective date thereof, at least ninety (90) days before the effective date of such termination. If the Agreement is terminated by Imperial Beach as provided for in this paragraph, Chula Vista shall be entitled to receive just and equitable compensation for all services performed prior to the effective date of such termination. Chula Vista reserves all available remedies for costs and expenses attributable to Imperial Beach's termination or default in this agreement. Kennels paid for by the City of Imperial Beach become the permanent property of Chula Vista. TERMINATION OF AGREEMENT FOR CAUSE If, through any cause, either party shall substantially fail to fulfill in a timely and proper manner any obligation under this Agreement, or violate any of its covenants, agreements or conditions of this Agreement, the Parties shall have the right to terminate this Agreement by giving written notification of such termination and specifying the effective date thereof at least five (5) days before termination. If the Agreement is terminated by Imperial Beach as provided for in this paragraph, Chula Vista shall be entitled to receive just and equitable compensation for all services performed prior to the effective date of such termination. NOTICES AND DESIGNATION OF ADMINISTRATOR A. All notices and demands shall be given in writing by personal delivery or first-class mail, postage prepaid. Notices shall be addressed to the Administrator, or his/her designee, designated below for the respective Party; provided that, if any Party gives notice of a change of name or address, notices to the giver of that notice shall thereafter be given as demanded in that notice. Notices shall be deemed received seventy-two (72) hours after deposit in the United States mail. B. The following, including their respective addresses, are hereby designated as Administrators for the purposes of this Agreement only: /' /9/6 9 City of Chula Vista: Chief of Police, and/or his/her designee 276 Fourth Avenue Chula Vista, CA 91910 City of Imperial Beach: Director of Public Safety, and/or his/her designee 825 Imperial Beach Boulevard Imperial Beach, CA 92132 V. WAIVER 1 . The waiver by one Party of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered a waiver by him of any other covenant, condition or promise. The waiver by either or both Parties of the time for performing any act shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and any provision of this Agreement for any remedy shall not exclude the consistent remedies unless they are expressly excluded. VI. CONSTRUCTION 1. Entire Agreement. This Agreement supersedes any prior agreement and contains the entire agreement of the Parties on the matters covered. No other agreement, statement or promise made by any Party or by any employee, officer or agent of any Party that is not in writing and signed by all Parties shall be binding. 2. Amendment. This Agreement may only be amended by the written consent of all the Parties at the time of such amendment. 3. Governing Law. This Agreement has been executed in and shall be governed by the laws of the State of California. 10 )9 ~ / &, 4. Invalidity. If any term, covenant, condition or provIsion of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 5. Interpretation of Agreement. This Agreement shall be construed as a whole and in accordance with its fair meaning. Captions and organizations are for convenience and shall not be used in construing meaning. 6. No Strict Construction. This Agreement shall not be strictly construed against any party hereto. 7. Authority. Individuals signing this Agreement have full right and authority to bind their respective Parties to this Agreement. 8. Best Efforts and Cooperation. The parties promise to use their best efforts to satisfy all conditions to this Agreement and to take all further steps and execute all further documents reasonably necessary to put this Agreement into effect. 9. All persons employed in the performance of services and functions for the City of Imperial Beach shall be Chula Vista employees. No Imperial Beach employee shall perform services or functions that Chula Vista is obligated to provide under this agreement. All persons employed by Chula Vista to perform the services pursuant to this agreement shall be entitled solely to the rights and privileges given to Chula Vista employees and shall not be entitled, as a result of providing services pursuant to this agreement, to any additional rights and privileges given to Imperial Beach employees. Imperial Beach shall not be liable for the direct payment of any salaries, wages, or the compensation to any Chula Vista personnel performing services hereunder for Chula Vista or any liability other than that provided for in this agreement. Except as a specified otherwise, Imperial Beach shall not be liable for compensation or indemnity to any Chula Vista employee for injury or sickness or any other claims arising out of his or her employment. Chula Vista is an independent contractor and no agency relationship, either expressed or implied, is created by the execution of this agreement. 11 /9-/ 7 IN WITNESS WHEREOF, the Parties have executed this agreement on the date herein above set forth. 12 /~ ~/ % CITY OF CHULA VISTA Date: Shirley Horton, Mayor City of Chula Vista Attest: Susan Bigelow City Clerk Approved as to Form John Kaheny City Attorney CITY OF IMPERIAL BEACH Date: Barry Johnson, City Manager City of Imperial Beach Attest: Linda Troyan City Clerk Approved as to Form Lynn McDougal City Attorney 13 /7 ~/? ATTACHMENT 1 ANIMAL CONTROL SERVICES FOR IMPERIAL BEACH Patrol Cost Personnel Cost Salaries & Benefits $40,977 Direct cost of one ACO 40 hrs/week Equipment Maintenance 0 IB to provide animal control vehicle, fuel and maintenance including future replacement Workers Compensation 4,109 Direct cost for one ACO General Overtime 3,000 Direct cost for one ACO Sub-total Direct Cost $48,086 Citywide Indirect: 17% of Base Salaries 5,504 Indirect cost (Le., other Cost departments, liability insurance, legal etc. Departmental Indirect Cost 4,228 Indirect cost Sub-total Indirect Cost $ 9,732 Total Direct & Indirect $57,818 FY 99-00 Shelter Cost .25 hourly kennel attendant $ 5,387 Direct cost for .25 Kennel Attendant Supplies & services, food, etc. 5,000 Direct cost Sub-total Direct $ 10,387 Shelter services $ 25,239 Indirect cost - shelter cost for IB based on 13.3% usage including FCR. Total $ 35,626 FY 99-00 Full Service Personnel Costs $57,818 One ACO 40 hrs/week Shelter Costs 35,626 Shelter Direct & Indirect costs Discount (5,504) City-wide indirect cost discount Total $87,940 FY & 99-00 Rate 14 /~ ./ 020 F:IUSRIAOM/NlSCSIA 113SI/BEACHEX.OOC ATTACHMENT 2 Chula Vista Animal Control Response Levels Type of Service In Progress Not in Progress Dangerous Animal Threatening Human 1 3 Possible Rabid/Biter Animal At Large 1 3 Major Injury to Animal 1 3 Cruelty to Animal 1 3 Animal Inside Vehicle 1 3 Fighting Animals 1 3 Dogs Harassing Livestock 1 3 Sick or Minor Injury to Animal 2 3 Animal Welfare Investigation 2 3 Quarantine Biter Animal 3 N/A Confined Stay Animal 3 N/A Field Relinquished Animal 3 N/A Dog Running at Large 3 4 Patrol Service 3 4 Priority Level Response Guidelines Level 1 First priority, Officer will respond ASAP Level 2 Second priority, Officer make every effort to respond within 12 hours of receipt Level 3 Third priority, Officer will make every effort to respond within 24 hours of receipt Level 4 Fourth priority, Officer will make every effort to respond within 72 hours of receipt 9/2/99IQFinaI3 15 /9/cJ/ COUNCIL AGENDA STATEMENT Item 2tJ Meeting Date 9/14/99 ITEM TITLE: Resolution Accepting bids and awarding contract for the "Storm Drain Replacement Rohr Elementary School" in the City of Chula Vista, California (DR-147); and appropriating funds as a loan from the Trunk Sewer Capital Reserve Fund SUBMITfED BY: Director of Public wor~ REVIEWED BY: City Manager &t~'v (4/5ths Vote: YesX-No_) On August 31, 1999 in the Public Services Building, the Director of Public Works received sealed bids for the "Storm Drain Replacement at Rohr Elementary School" in the City of Chula Vista, California (DR-147)" project. A portion of the corrugated metal pipe (CMP) storm drain system traversing the school grounds of Rohr Elementary has collapsed and is in need of urgent repair (see locator map, attachment "A"). Due to the location ofthe drainage system, it is necessary that the work be done while the students are away on their quarter break, which starts on September 20 and ends on October 8. RECOMMENDATION: That Council: 1. Approve a resolution accepting bids and awarding contract for the "Storm Drain Replacement at Rohr Elementary School" in the City of Chula Vista, California (DR-147)" project to Fill Dirt, Inc. DBA Roberts Engineering Contractors, of Escondido, California, for $158,500.00 2. Appropriate additional funds from the Trunk Sewer Capital Reserve Fund as a loan to the Storm Drain Fund for $141,000.00. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The FY1999-00 CIP budget contains the first annual allocation for a multi-year, program to replace, on an as needed basis, CMP throughout the City. This program was created to address the need to replace CMP systems identified by Public Works staff because of last year's CMP collapse at Malta Avenue. The program, as envisioned, is to be a preventive measure and therefore, less costly to implement than reacting to actual CMP collapses. Unfortunately, a portion of the CMP system traversing Rohr Elementary collapsed before we were able to intervene proactively. It should be noted that this collapse is upstream of the section that collapsed off Malta Avenue last year. The collapse is confined within the playground of the school and needs to be repaired immediately. After viewing a film of the entire CMP system, Engineering staff decided that due to the condition of the pipe, the repair work would need to extend a distance of about 1040 linear feet. ~tJ~/ Page 2, Item Meeting Date 9/14/99 The work also repairs the section of CMP downstream of the school that passes between two houses and extends to Malito Court. To complete the repair work, it will be necessary to bring heavy equipment and material onto the school grounds. The construction activities, therefore, could create safety issues with the children if done while the school is in session. In addition, the ancillary noise created by the heavy equipment would affect severely classroom activities. Therefore, working with Mr. Charles Ernst, the principal of Rohr Elementary, staff prepared plans, specifications, and advertised the project with the goal of completing the work within the upcoming semester break, which runs from September 20 to October 8. This schedule requires that we use in-situ repair techniques or allow the contractor to work nights if a conventional remove and replace technique is used. The plans and specifications for this project provided for two basic repair techniques. They are: 1) a conventional open trench method for installation of a new reinforced concrete pipe system (to be done working in two shifts and on weekends); and 2) an is-situ rehabilitation method of the existing corrugated metal pipe by using one of three approved lining system (to be done working one shift and on weekends). The project was advertised for a period often days and bids were received as follows: CONTRACTORS BID AMOUNT 1 Roberts Engineering Contractors - Escondido, California $158,500.00 2 Insituform Technologies - Santa Fe Springs, California $253,235.00 3 Jimenez, Inc. dba MJC Construction- Chula Vista, California $343,361.00 4 Scheidel Contracting - La Mesa, California $455,700.00 The low bid for this project by Fill Dirt, Inc. DBA Roberts Engineering Contractors is below the Engineer's estimate of $325,000.00 by $166,500,00 or approximately 51 %. The Engineer's estimate was prepared conservatively to account for the fact that the work must be completed within a short period of time and the uncertainty of the system that the contractors would choose to bid. It should be noted that Fill Dirt, Inc. DBA Roberts Engineering Contractors was the company that repaired the failed section downstream last year. We believe that the knowledge and expertise they gained last year accounts for their excellent bid. All references were verified and their work has been satisfactory. Staff has reviewed the low bid and is recommending awarding the contract to Fill Dirt, Inc. DBA Roberts Engineering Contractors of Escondido, California, for $158,500.00. Disclosure Statement Attachment "B" is a copy of the contractor's Disclosure Statement Environmental Status The Environmental Review Coordinator has reviewed this project and has determined that the work is exempt Section 15301, Class 1 (c) of the California Environmental Quality Act (Repair of Existing Facilities). A Notice of Exemption has been filed in the Office of The County Clerk on July 9, 1999. 02 {J ,- :2- Page 3, Item Meeting Date 9/14/99 Wage Statement The source of funding proposed for this project is the Storm Drain Fund supplemented with a loan from the Trunk Sewer Capital Reserve Fund. No prevailing wage requirements were necessary as part of the bid documents. No special minority or women owned business requirements were necessary as part of the bid documents. Disadvantaged businesses were encouraged to bid through the sending of the Notice to Contractors to various trade publications. FISCAL IMPACT: Only $100,000 was allocated for CMP Storm Drain Replacement from the Storm Drain Fund. There are insufficient funds in the Storm Drain Fund to appropriate at this time. Therefore, a loan is needed from the Trunk Sewer Capital Reserve Fund to construct these urgently needed improvements. With this type of repair work, it is probable that unanticipated conditions will be encountered during the slip lining and grouting operations. For this reason, a thirty-percent (30%) contingency factor has been included in the Funds Required for Construction. FUNDS REQUIRED FOR CONSTRUCTION A. Contract Amount (Fill Dirt, Inc. DBA Roberts Engineering) $158,500.00 B. Contingencies (Approx. 30%) $47,500.00 C. Staff Costs (Design & Inspection) $35,000.00 TOTAL FUNDS REQUIRED FOR CONSTRUCTION $241,000.00 FUNDS AVAILABLE FOR CONSTRUCTION A. CMP Storm Drain Replacement CIP DR-147 (26591470) $100,000.00 B. Appropriation from Trunk Sewer Capital Reserve Fund as a $141,000.00 loan to the Storm Drain Fund TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $241,000.00 This project will be funded from the Storm Drain Fund and from a loan from the Trunk Sewer Capital Reserve Fund. Upon completion of the project, the improvements will require only routine City maintenance. Attachments: A. B. Locator map Disclosure Statement H:\HOME\ENGINEER\DESIGN\DR147\DR147A 113(2).DOC J. {) :J' RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "STORM DRAIN REPLACEMENT ROHR ELEMENTARY SCHOOL" IN THE CITY OF CHULA VISTA, CALIFORNIA (DR-147); AND APPROPRIATING FUNDS AS A LOAN FROM THE TRUNK SEWER CAPITAL RESERVE FUND WHEREAS, a portion of the corrugated metal pipe (CMP) storm drain system traversing the school grounds of Rohr Elementary has collapsed and is in need of urgent repair; and WHEREAS, due to the location of the drainage system, it is necessary that the work be done while the students are away on their quarter break, which starts on September 20 and ends on October 8, 1999; and WHEREAS, the following four bids for the project were received on August 31, 1999: CONTRACTORS BID AMOUNT Fill Dirt, Inc. dba Roberts Engineering $158,500.00 Contractors-Escondido, Ca. Insituform Technologies-Santa Fe Springs, Ca. $253,235.00 Jimenez, Inc. dba MJC Construction-Chula $343,361.00 vista, Ca. Scheidel Contracting - La Mesa, Ca. $455,700.00 WHEREAS, the low bid for this proj ect is below the Engineer's estimate of $325,000.00 by 51%; and WHEREAS, Fill Dirt, Inc. dba Roberts Engineering Contractors was the company that repaired the failed section downstream last year and due to the knowledge and expertise they gained last year which accounts for their excellent bid, staff recommends awarding the contract to them; and WHEREAS, the Environmental Review Coordinator has reviewed this project and has determined that the work is exempt from Section 15301, Class 1(c) of the California Environmental Quality Act (Repair of Existing Facilities); and WHEREAS, the source of funding for this project is the Storm Drain Fund supplemented with a loan from the Trunk Sewer 1 ~j)r t/ Capital Reserve Fund and no prevailing wage requirements are necessary as part of the bid documents; and WHEREAS, no special minority or women owned business requirements were necessary as part of the bid documents, however, disadvantaged businesses were encouraged to bid through the sending of the Notice to Contractors to various trade publications. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby accept bids and award the contract for the "Storm Drain Replacement at Rohr Elementary School" in the City of Chula vista, California (DR-147)" project to Fill Dirt, Inc. DBA Roberts Engineering Contractors, of Escondido, California, for $158,500.00. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista is hereby authorized and directed to execute said contract on behalf of the City of Chula vista. BE IT FURTHER RESOLVED that the amount of $141,000.00 be appropriated from the Trunk Sewer Capital Reserve Fund as a loan to the Storm Drain Fund. Presented by Approved as to form by John P. Lippitt, Director of Public Works H:\home\attorney\reso\rohr.emg 2 ___ :2tJ,> 4~~ /y; / N ).. I I I II I I I ,-- --l-+ --~ I hI I I I I I I I I t=jll I--- I I I I rl i I L - DRAWN BY: CESAR MAGBUHA T A: SH 1 AUG-99 OF 1 SHTS. TITLE: ATTACHMENT "Au CITY OF CHULA VISTA STORM DRAIN REPLACEMENT @ ROHR ELEMENTARY SCHOOL PROJECT FILE # 26591470 PREPARED BY: ROBERTO SOLORZANO AP Vi y. JAMES R. HOLMES -2t/;/~ .. ~.. You are required to file a Statement of Disclosure of certain ownership or financial interests, payments. or campaign contributions, on all matters which will require discretionary action on the part of the City Council, Planning Commission, and all other official bodies. The following information must be disclosed: THE CITY OF CHULA VISTA DISCLOSURE STATEMENT 1. List the names of all persons having a fmancial interest in the property which is the subject of the application or the Contract, e. g., owner. applicant, Contractor, subcontractor, material supplier. None 2. If any person* identified pursuant to (1) above is a corporation or partnership, list the names of all individuals owning more than 10% of the shares in the corporation or owning any partnership interest in the partnership. None 3. If any person* identified pursuant to (I) above is non-profit organization or a 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. None 4. Have you had more than $250 worth of business transacted with any member of the City staff, Boards. Commissions, Committees, and Council within the past twelve month? Yes _ No l If yes, please indicate person(s): 5. Please identify each and every person, including any agents, employees, consultants, or independent Contractors who you have assigned to represent you before the City in this matter. Victor N. Roberts, President 6. Have you and/or your officers or agents, in the aggregate, contributed more than $1,000 to a Council member in the current or preceding election period? Yes _ NoX X If yes, state which Council members(s): 7 ;; · .. (NOTE: Attached ad~l1. D~ Signature of Contractor/Applicant Victor N. Roberts, President Print or type name of Contractor/ Applicant Date: 8/25/99 15 c1tJ / l CITY COUNCIL AGENDA STATEMENT Item No.: c:<. } Meeting Date: 9/14/99 Resolution Approving the Olympic Parkway Landscape Master Plan including a deviation from the current City of Chula Vista Landscape Manual guideline for planting-to-paving ratios within the Olympic Parkway median. Director of Planning and Building ~,t' Director of Public W orks ~ City Manager & /tY (4/ths Vote: Yes_Nol) f~ 'P?--" The proposed construction of Olympic Parkway represents the single largest transportation infrastructure facility in the City's history. Olympic Parkway is proposed as a six-lane prime arterial road with a landscape parkway and median island approximately 8 miles long, extending from 1-805 to the Olympic Training Center. ITEM TITLE: SUBMITTED BY: REVIEWED BY: This report presents the Olympic Parkway Landscape Master Plan for City Council approval. The Master Plan was prepared by Estrada Land Planning, sub-consultants to Kimley-Hom and Associates, Inc. On April 13, 1999 the City Council accepted the Final Report from Kimley-Hom & Associates, Inc. for the Feasibility & Financing Study of Olympic Parkway. This study includes a requirement for the preparation of a Landscape Master Plan. The Mitigated Negative Declaration 18-99-20 for Olympic Parkway has been previously adopted by City Council. RECOMMENDATIONS: That the City Council adopt a Resolution approving the Olympic Parkway Landscape Master Plan including a deviation from the current City of Chula Vista Landscape Manual guideline for planting- to-paving ratios within the Olympic Parkway median. BOARDS/COMMISSIONS RECOMMENDATIONS: N/ A DISCUSSION: Background The Olympic Parkway Landscape Master Plan has been developed as a component of the Feasibility and Financing Plan for Olympic Parkway, prepared by Kimley-Hom and Associates Inc. (K.H.& A.), consultants to the City of Chula Vista. H:\SHARED\PLANNING\Maryr\Draft Op rptI a.doc 02/-/ Page 2, Item No.: Meeting Date: 9/14/99 The City of Chula Vista General Plan describes Olympic Parkway as a "Scenic Corridor" and includes policies that call for special treatment in establishing coordinated landscape plans along the entire length of the roadway. K.H.& A. appointed Estrada Land Planning (E.L.P.) as their landscape sub-consultants to prepare the landscape master plan document. In order to fulfill the City's requirement for a comprehensive landscape master plan, the scope of the Olympic Parkway Landscape Master Plan extends beyond the boundaries of the K.H.& A. Feasibility and Financing Study to cover the entire proposed road corridor from Oleander Avenue, to the Olympic Training Center and Wueste Road, in the east. It provides design guidelines which integrate street improvements; the trail system that links Sunbow, Otay Ranch and Eastlake; drainage channel landscape; and, the adjacent slope landscape. All of these elements are designed to co-exist with the mitigation planting proposed in the drainage channels and preservation of habitat on some Poggi Canyon Slopes. The Master Plan establishes a recognizable landscape identity for the entire road corridor while allowing the individual communities, which it passes through, to each have a separate and unique landscape identity. Design Concept The major theme for the road planting includes a grouping of five palm trees placed at regular intervals (approximately 750 ft.) along the entire length of the proposed Olympic Parkway (please see Exhibit A to the attached Resolution). The grouping of five trees, termed a "node" in the Master Plan document, is suggestive of the five circles of the Olympic rings. The streetlights in the center of the road at the node locations will be used to hang banners displaying Olympic themes. Each node is a strong geometric element, while most of the planting planned for the slopes adjacent to Olympic Parkway is naturalistic in style with considerable variation from one community to the next. The design not only relies on the node concept but also a continuous row of trees in the median together with ground cover planting in the parkways which relate to adjacent slope planting. The adjacent slope banks will take their planting themes from the individual community Sectional Planning Area (SPA) plans that they are adjacent to. Portions of the Poggi Canyon slopes will retain sensitive habitat and be blended with slope planting plans. A planned drainage channel running adjacent to the roadway will contain mitigation planting with species pre-determined as described in the Mitigation Monitoring Program prepared by Merkel Associates. Median Island Policy In 1985 the City Council established a policy limiting the amount of planting in median islands to 35% of the median, with the remaining 65% to be hardscape (City Council Policy No. 576-08). This policy was established during a time of extended drought in order to reduce maintenance costs, and also to increase the safety of maintaining these areas. The Council policy included criteria for exceeding the established percentages, including approval by the City's Landscape Architect, payment for installation costs integrated into the project budget to be borne by developers, and for maintenance to be paid for privately through assessment districts. It should be noted that in 1994, Council adopted revisions to the City's Landscape Manual (Resolution No. 17735), which included a change from Council Policy No. 576-08 to 40% planting and 60% hardscape. (Please see Attachments 2 & 3) H:\SHARED\PLANNING\Maryr\Draft Op rptlO.doc c1J /.2 STM-331 Page 3, Item No.: Meeting Date: 9/14/99 The proposed percentages for the Olympic Parkway median islands include 61 % planting and 39% hardscape. The Director of Planning and Building has reviewed the Landscape Master Plan and recommends approval of a deviation from the Landscape Manual to change the proposed percentages and design guidelines for this project. Tree planting within the median islands will include a deep watering irrigation system that will reduce long-term maintenance costs through efficient water use. There is no significant difference between the cost of installation of median planting and median paving. Median planting is normally more expensive to maintain than median paving. However, in this project the planting palette has been selected in part due to its lower cost to maintain. Analysis of maintenance costs for the Sunbow and Otay Ranch medians indicates that the maintenance of the proposed median planting is compatible with maintenance budgets for those maintenance districts. East of SR 125, there is the existing Landscape Maintenance District I (ELMD I) and several new districts which are being formed or will be formed due to the new Eastlake Trails and Eastlake Vistas, north of Olympic Parkway, and future Otay Ranch Village 11 developments, south of Olympic Parkway. The objective with the districts is that each community will contribute on a fair share basis to the landscape maintenance of Olympic Parkway whether it be through contributions to the maintenance district budget or by creating a Home Owners Association (H.O.A.) to maintain their portion of the landscape. In summary, developers will contribute to the cost of construction of Olympic Parkway, including median island landscape and irrigation. The landscape, including the median islands, will either be maintained by the existing City contract for services using funds from landscape districts or by direct H.O.A. maintenance. Staff recommends that Council approve the proposed deviation from the Landscape Manual to change the proposed percentages of planting to paving in these locations in order to enhance this key scenic roadway connection to the Olympic Training Center. Safety Standards The City wants to provide a safe environment for its citizens and wishes to achieve an enhanced scenic corridor through the use of a street tree planting design. City Engineering staff evaluated safety concerns regarding the proximity of trees to roadways. The posted speed limit on Olympic Parkway will be between 45 and 55 m.p.h. Staff researched current safety standards and practices in the State of California and also in other local cities including the City of San Diego and the City of Carlsbad. A comparison of standards revealed a variety of different guidelines (Please see Attachment 4). Given the variety of standards that exist, staff had to determine a reasonably safe standard to use for Olympic Parkway. After careful consideration, staff recommends, as a reasonably safe standard for Olympic Parkway, that trees be planted a minimum of 12 feet from the curb at the side of the road. Additionally, median trees shall be planted in the center of the 16 feet wide median. McGill, Martin, and Self, engineering consultants to the City, agree that staffs recommendation is, in their opinion, reasonably safe. These distances are the same as were used for the majority of the existing planting on Telegraph Canyon Road where the current accident rate has, to date, been lower than the State average for that road classification. The 1.3 miles between Paseo Ladera and Buena Vista have had 0.47 accidents per million vehicle miles compared with the State average of 2.28 accidents per million vehicle miles for a divided highway with four or more lanes. H:\SHARED\PLANNING\Maryr\Draft Op rptlO.doc o?/-y STM-331 Page 4, Item No.: Meeting Date: 9/14/99 Overall Maintenance Costs The projected cost of maintaining the parkways and medians is compatible with the respective landscape district maintenance budgets. The master plan refers to the adjacent slope planting described in the adjacent SPA plans. The cost of maintaining slope planting varies significantly depending on the type of plant material selected and the amount of irrigation that planting requires. It will be necessary to use more drought tolerant plant material in some locations to keep the slope maintenance costs within the budget. Conclusions The Landscape Master Plan has been prepared through close coordination with staff from affected City departments over a period of months in conjunction with the Development Community who support the proposals. This document will provide design guidelines for each of the landscape design consultants that will be preparing construction documents for the implementation of the Olympic Parkway project from Brandywine to the Olympic Training Center. Having such a document in place will help to create a consistent design aesthetic throughout this scenic corridor while allowing the individual communities it links to retain their individual identities. FISCAL IMPACT: Financial provisions for the construction and ongoing maintenance of the landscape proposed in the Landscape Master Plan are included with the Feasibility and Financing Study prepared for the City of Chula Vista by K.H.& A. The specific landscape costs are reflected in Table 1 of the previously approved Feasibility and Financing Study Executive Summary (Please see Attachment 1). This document was considered and accepted by the City Council on April 13, 1999. The K.H.& A. cost estimate has been re-examined with completion of the master plan document to produce a current probable cost of construction. The chart shown on the following page summarizes this current probable cost of landscape construction. H:\SHARED\PLANNING\Maryr\Draft Op rptIO.doc J/-tj STM-331 Page 5, Item No.: Meeting Date: 9/14/99 Current Landscape Construction Cost Estimate LANDSCAPE LANDSCAPE TOTAL CURRENT CONSTRUCTION COSTS CONSTRUCTION COSTS LANDSCAPE (Brandywine to Hunte Parkway) (Hunte Parkway to aTe) CONSTRUCTION COSTS Area of K.H. & A. studv (Brandvwine to aTe) R.a.W. landscape $9.6M Pro-rata estimate from Brandywine Landscape buffer $5.3M to Hunte Parkway portion Total $14.9 Million Total $3.4 Million Total $18.3 Million (This compares with the figure of $18.8 Million represented in the K.H.& A. studv - Table 1) Note: The above costs include mobilization, contingencies, design and inspection costs. The hardware for hanging banners is included in the construction costs but funding for the banners (approx $500 per pair) and possible art components will need to be identified. To put the landscape construction costs in context, the overall cost of construction of Olympic Parkway from Brandywine to Hunte Parkway (including landscape, engineering and financing) was estimated at $81 million in the K.H. & A. study - Table 1. The overall construction is being funded through a combination of Transportation Development Impact Fees (TDIF), Poggi Canyon Sewer Development Impact Fees, Otay Water District CIP and Developer Obligations. A Community Facility District will be formed to pay for portions of the roadway which will include the TDIF obligation. Maintenance costs for the proposed landscape are to be met by revenues generated from the respective landscape districts in which individual portions of the roadway are located. In CFD 97-1 the monthly maintenance assessment, for a medium sized house, has a cap of $41.66. Attachments: 1. Table 1 - (from Olympic Parkway Feasibility and Financing Study Executive Summary) 2. City Council Policy No. 576-08 3. Extract from the City of Chula Vista Landscape Manual- Approved by Resolution 17735 4. Comparative chart of tree planting standards on arterial roads H:\SHARED\PLANNING\Maryr\Draft Op rptIO.doc 02/'- ~ STM-33I RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE OLYMPIC P ARKW A Y LANDSCAPE MASTER PLAN INCLUDING A DEVIATION FROM THE CURRENT CITY OF CHULA VISTA LANDSCAPE MANUAL GUIDELINE FOR PLANTING- TO-PAVING RATIOS WITHIN THE OLYMPIC P ARKW A Y MEDIAN WHEREAS, the City of Chula Vista's General Plan identifies Olympic Parkway (formerly East Orange Avenue) as a Six-Lane Prime Arterial Roadway and a Scenic Highway; and WHEREAS, the General Plan establishes policies that emphasize the importance of special landscape treatment along identified Scenic Highways; and WHEREAS, the City Council entered into an agreement on March 31,1998 with Kimley Horn Associates, Inc. for the preparation of a Feasibility and Financing Study and Landscape Master Plan ("Landscape Master Plan") for Olympic Parkway; and WHEREAS, Kimley Horn, Inc. has selected Estrada Land Planning as a subconsultant to prepare said Landscape Master Plan for Olympic Parkway; and WHEREAS, the Landscape Master Plan provides design guidelines for landscape consultants preparing implementation drawings for the proposed Olympic Parkway; and WHEREAS, the Landscape Master Plan proposes a deviation from the current City of Chula Vista Landscape Manual guideline for planting-to-paving ratios within the Olympic Parkway median; and WHEREAS, the Director of Planning recommends approval of the deviation because Olympic Parkway is designated a scenic corridor; and WHEREAS, City staff recommend distances trees shall be planted :from the roadway which in their opinion represent a reasonably safe design. NOW, THEREFORE, BE IT RESOL YED THAT THE CITY COUNCIL ofthe City of Chula Vista does hereby approve the Olympic Parkway Landscape Master Plan, attached as Exhibit "A" and incorporated herein by this reference and does hereby approve of the deviation from the current City of Chula Vista Landscape Manual guideline for planting-to-paving ratios within the Olympic Parkway median. Presented by Approved as to form by C"M~ Jom . Kaheny, City Attorney Robert A. Leiter, Director of Planning and Building H:\SHARED\PLANNING\Maryr\OL YPKWY -1.Doe ;)J-? I I I I I I I I I I I I I I I I I I I ~~M~ ,. .. TABLE 1 OLYMPIC PARKWAY ESTIMATED CONSTRUCTION COSTS Brandywine to Hunte Parllway 1/4188 . .. ~:;-::t:.. . ..........: a<:<~<~,*,~' '.IX.... .<,~,mh" ..illi Brandvwlne to SD&GE LF 24 823 elvD C Davementt8.5"l Ton 121 040 $34 $41115 368 lAaa Base /20"\ Ton 284 801 516 $4 558 809 Curb and Gutter LF 99 294 ~ 5695 056 5' Sidewalk SF 161 569 $2.00 5323 138 Clear and Grub SF 10930374 SO.215 $2 732 594 10' Tral SF 200 140 $2.50 S500 38t EtJI'/Jrwor~ CutIFll . CY 4 709 562 51.50 ~ 064 3-43 Imr><>rt CY 0 $2.50 SO Remove and recamnacll5' A1lw1um CY 1 634 238 51.50 524151 387 Detenllan Basin CY 87631 51.50 $131 446 Dra/naaa Inlet EA 51 53 500 $178500 ~ EA 26 $2 400 $62 400 36"RCP LF 2490 $110 $273 900 24" RCP LF 980 S60 $58 800 18" RCP LF 590 $50 S29 500 60" RCP LF 610 S200 $122000 Box Culverts 2-60' PIoe Culverts 2-8'x8' Box Culverts LF 2160 $800 $1 728 DOO OraD structure-RkWi>. aroutlna lUter Iabrlc CY 4903 $150 $738 44" Trarrlc Slnnal EA 5 $125 DOO $625 DOO Interconnect condu. LF 24 823 $15 5372 382 Sltinan. & sti1nlna LF 24 823 $8.50 $210999 SIree/ Llnhliron nM med/anl EA 107 $4 000 'U28ooo Ulilltle& 18" Sanllarv Sewer LF 24 823 S60 $1 489 406 SanllaN Sewer Manholes 400' EA 62 53 DOO $186 DOO Potable WatN 54" Olav we No 2 Pin. LF 5738 $300 $1720500 16"Water LF 24 823 ~5 $1 861 758 Reclaimed Wat.... 16" BrandllWlne Avenue to La Media LF 14680 $75 $1 101 007 16" La Media to Easllaka LF 8173 $90 $738 611 12" La Media to Easllake LF 8173 $60 $490 408 Land$caDlna Median SF 358 246 ~.60 $2 722 667 UlIIlttes tor Landscsoa LF 24 823 $63.00 $1 563 8n CSS MlIIrnIlIan Land AC 65 $8 000.00 $390 DOO Emohallc Nade Landscsnlna 1750 Foot Soaclna\ EA 33 S22 070.00 m8 310 ParkWav /Includiftn landscs"" butter areas SF 1 023 498 53.32 $3.398 014 Main Channel SI~ Planllna .. .J SF 1 268 384 $1.42 $1 801 062 -.. t.AaaChannel Planllnn ICould be used as Envtronmental Mill SF 4154 950 $3.52 $1 601 424 Hvdroseed Non-I""'ated Secondarv Ditch Slooa Planllna SF 7 331 496 SO.15 $1 099 724 fivdraseed NOrHnlnated Secondarv Ditch Channel Plantina SF 1 283 072 SO. 15 $192 481 Subtotal Brandvwlne Avenue to SDG&E Easement $48 477 884 Subtotal SDG&E Easement to Hunte Pa_ISource: Eastlake\ $2821 713 SUBTOTAL BRANDYWINE TO HUNTE PARKWAY $81 098 297 Mobilization 8% $2423 878 Contlnaencles 18%\ $7 271 838 De.lan 7%\ $3 393 431 InsDec1lon 17%1 $3 393 431 TOTAL BRANDYWINE TO HUNTE PARKWAY $67 881 675 ......m.nt Dlstrlc1 Formation Co.l. 20% $13 818 335 TOTAL ESTIMATED PROJECT COSTS $81 098 010 ;!J-? ~ '~~, ( "-' J \......../ ~MENr 2- COUNCIL POllCY CITY OF CHUl.A VISTA SUBJECf: MEDIAN LANDSCAPING POLICY EFFECI1VE DATE 576-08 05-22-85 I DATED: 05-22-85 PAGE 1 OF 2 POLICY NUMBER ADQpTJ::ID BY: Resolution No. 12030 BACKGROUND On February 1974, the City Council accepted the report of the Director of Public Works recommending a policy on median island landscaping. POUCY Medians shall be installed on major roads only (100 foot right-of-way) as shown on Standard Drawing 101-A, Typical Street Sections. The Medians landscaping design shall be based upon: 1. Appearance 2. Maintenance costs 3. Installation Costs ! The surrounding environment 4. 5. Hardiness - the ability of the plants to survive The characteristic island design shall provide for both hardscape forms and planting areas. Islands shall be individually designed so as to enhance the surrounding street scene in the best possible way. 1. Median island hardscape is established as 65 percent of the surface area of the median including the area adjacent to the left-turn lane. 2. Median island plariing and irrigated area .is established as 35 percent of the surface area of the entire median. 3. These minimum public street standard proportions above may be exceeded-subject to the review and approval of the d'ty Landscape Architect; subject to the developer paying the added installation cost; and if the median is to be maintained privately through an open space assessment disn'ict or master homeowner's association, In accomplishing this, center islands should conform to the following criteria: 1. Plantins;{ a. Trees shall be limited to those in the City Street tree master plan. c2./-6' . COUNCIL POLICY CITY OF CHUlA VISTA SUBJECf: MEDIAN LANDSCAPING POUCY POLICY EFFECfIVE NUMBER DATE 576-08 05-22-85 T DATED: 05-22-85 PAGE 20F2 ADOPTED BY: Resolution No. 12030 b. Ground cover shall be limited generally to woody shrub varieties with low growing, disease resistant and automobile resistant characteristics. c. Plants used should have a proven tolerance for blade grass herbicides. d. Plants which require excessive labor for removal of unsightly seeds or stalks shall be avoided. 2. Irrisration a. Automatic irrigation system required, all medians. b. Vegetation shall be washed at maximum intervals of six (6) weeks between April 1st and October 30. Enough water should be applied to also rinse all decorative paving if applicable. 3. Hardscape . a. Hardscape features shall be used on all median islands. b. Materials for paving shall be limited to fixed brick or tiles, natural color concrete or stamped concrete. c. No synthetic plants, colored rocks, or painted surface shall be installed. d. Natural rock arrangements shall have maximum heights consistent with good safety practice for streets. s ORIGINAL RF..SOLU110N ADOPTING TIiIS POUCY WA5: 7214 APPROVED 03/0Sfl4. ~/- ~ ~to\eNT 3 i:;::i;:;:;:;:;::::~:;:;:;::~:~~:~::;:;:r:*:r.~;:;~*;:;:;:;:;;*:;:;::::,*;*;::::~:m;~::::;~r~:::;:;::::~:i::*~:;:;~f..:::~::::::::;:;;;:t:*~!;:;::~:::;:;;(:::~;:;:;:;~;~~:;:;~::::r:;:~::::::::a(::::1;~:::::::f:::r:::::;*~::r:*~:;&"<f:;*r:::;:;:;:;:;i:'~$:f:;:r:r:;m::::r::*,:.:;:;:::?:t.:::r.f.W.;:$.::::~~~~~~*f:;:~~:?::::;:;:::::::::::;:::*:(::::::: In addition to addressing the landscape issue, planning at this phase shall address the inclusion of trails or bike lanes as a component of the layout and the cross section, as per the City General Plan. See Section Six, "General Use and Recreation Trails" for specific information. 4.2 Specific 4.2.1 Medians: 4.2.1.1 Street medians in the City of Chula Vista are required by ordinance to conform to the 60/40 ratio of hardscape to planting area. Within the medians the plant material is to be comprised of trees, shrub's and groundcovers. No turf is to be proposed or installed in center medians. 4.2.1.2 Specific plant material shall be as proposed in the master plan of the project. When developing the plant palette, consideration shall be given to the location of the project (i.e. bayfront, valley, riparian, mesa, inland, etc.). Plant selection should reinforce or emulate the climatic and locational aspects of each street segment. 4.2.1.3 Hardscape for the medians shall reinforce and be consistent with the theme or concept that is being proposed with the plant palette. Actual layout and relationship of landscape to hardscape can be flexible based on the location and proposed design concept. 4.2.2 Parkways: .. 4.2.1.1 Parkways adjacent to the major roadways specified above shall reinforce the concept and image being created by the median design and plant palette. The minimum width of a parkway is 5', with a maximum width of 30'. When sufficient area is available or if a project planning document requires,_ a 10' wide recreational trail in a meandering layout shall be provided. This will provide for a sense of movement and create opportunities for the design of "drifts" or "masses" of plant material. 4.2.1.2 Specific plant material shall be as proposed in the master plan of the project. When developing the plant palette, consideration shall be given to the location ofthe project (i.e. bayfront, valley, riparian, mesa, inland, etc.). Plant selection should reinforce or emulate the climatic and locational aspects of each street segment. Turf can be proposed at intersections or in areas that merit the consideration of turf in relationship to adjacent projects. :~~~~:;~~:~;:~:~~~=~:,~~~!:~*!~':::~'~m!~{'f:*~~~';$:~f'~:'i'::m,.'#.m~~*:f,jmm~;!;M:~~!f.r:;!f.r:;~~~m~-w.$.~~f,:~;::~~: A-~M~\l.Jr 4 Comparative chart of tree planting standards on arterial roads. Caltrans City of San Die~o City of Carlsbad Highway Design Manual, 1995, Landscape Technical Manual Landscape Manual Section 4 - Chapter 900, Landscape Architecture Section Eight - Street Rights of Way Streetscape Program and & and Open Spaces Requirements Specific encroachment permit document Road Conventional Highway Major Primary Arterial Arterial road Classification (A highway w/out control of access Expressway which may not be divided. A lower (Assumed this includes all other classification than a freeway or lower classifications) expresswav) Posted Road Speed Greater than 35 m.p.h. No speed limit below 50 No specific information (Speed limit is usually m.p.h. available lower than design (i.e. 50 m.p.h. or greater) speed) Distance of *Small tree - 0.76m min 7ft from curb 3ft beyond a 10ft. R.O.W, Parkway Tree (2.5ft. behind the curb) (i.e.: 13ft from curb.) From Face of Curb (or travel way in some [**Large trees are only permitted if (Trees allowed in R.O.W in Beach standards) the speed limit is lower than 35 Zone) m.p.h. and then the tree must be 9m min. (29.52f1.), from the travel way.] Median tree Median tree planting is not No information provided Tree may be planted in the planting generally permitted. center of medians. Median Guidelines width typically 18ft. (The District Director can make exceptions if median planting can be safely maintained) [lfthe speed limit is less than 35 m.p.h. trees are permitted 1.82m (6ft) from the curb 1 Comment Most stringent standards. Caltrans These standards do not distinguish These standards do not distinguish mainly executes design and between large trees and small trees between large trees and small trees. construction of freeways and expressways. San Diego also has a draft Street Design Manual. This has not been *Small tree: Caltrans definition - a approved. This places trees 8-lOft tree which at maturity or at lOyrs will from the curb. It does permit trees in develop a trunk of 100mm (3.39in) or the median 7ft. from the curb less in dia. measured 1.219m (4ft) above the ground - usually large City of San Diego Standards give shrubs trained into tree form. greatest flexibility for landscape design. **Large tree: Caltrans definition - a tree which at maturity or at lOyrs will develop a trunk of 10.16cm (4in) or greater in dia. measured \.219m (4ft) above the ground ) C:\landarc\lapdprojects\Olympic Parkway\highway standards.doc 02/ -'J / August 26, 1999 E. r h ( b,- r A ~~/ Olympic Parkway Landscape Master Plan Prepared for: City of Chula Vista Department of Engineering and Development 276 Four HI Avenue Chula Vista, CA 91910 Prepared by: Estrada Land Planning, Inc. 85 Horton Plaza, Suite 300 San Diego, CA 92101 (619) 236-0143 (619) 236-0578 fax In cooperation with: Kimley-Horn & Associates 517 4th Ave., Suite 301 San Diego, CA 92108 (619) 234-9411 August 26, 1999 1 E:ISpecs&RepsI36501 IMPtextlCoverToc. 826 Olympic Parkway Landscape Master Plan Table of-Contents Text Introduction ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 Goal.. .. ....... .. . ..... .... . .......... . ., . . .. . ... . .. .. ., 1 Design Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 Proposed Theme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 Design Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 Trails and Sidewalks .................................. . . . . . 4 Grading ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 Plant Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 Public Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11 Installation Requirements .................................. 11 Phasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 Appendix Appendix A Phoenix dactylifera - Information on the Species Appendix B Examples of Banner Art and Emblematic Art Illustrations: Exhibit Landscape Design Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1 Typical Banner Node Planting Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . E-2 Typical Banner Node Configuration . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-3 Typical Banner Node Variations ............................. E-4a Typical Banner Node Variations ............................. E-4b Typical Median Planting Areas ............................... E-5 Typical Median Landscape Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-6 Typical Landscape Sections - Sunbow ......................... E-7 Typical Landscape Sections - Otay Ranch Condition A . . . . . . . . . . . . . E-8 Typical Landscape Sections - Otay Ranch Condition B . . . . . . . . . . . . . E-9 Typical Landscape Sections - Eastlake . . . . . . . . . . . . . . . . . . . . . . . . E-10 Typical Median Street Light! Banner. . . . . . . . . . . . . . . . . . . . . . . . . . E-11 Olympic Parkway Master Plan (simplified reduction of West Area) .. E-12a Olympic Parkway Master Plan (simplified reduction of East Area) . . . E-12b A 1" = 300' Master Plan Graphic Exhibit was prepared for this master plan. This 40" x 109" colored plan is available for viewing at The City of Chula Vista Planning and Building Department. ~ Olympic Parkway Landscape Master Plan Prepared by Estrada Land Planning, Inc. August 26, 1999 Introduction Olympic Parkway is a designated scenic roadway which traverses several distinct communities, each with its own Specific Plan. This Landscape Master Plan provides guidelines governing the landscape design and appearance of all portions of the Olympic Parkway from 1-805 to the Olympic Training Center. Guidelines are included for the design of medians, street right of ways, and adjacent landscape buffer easements. This document is to be provided to all adjacent developers and associated landscape architects as a basis for design of the landscape, lighting and paving. The master plan is to be used in conjunction with existing and proposed Sectional Planning Area (SPA) documents for adjacent developments to guide the preparation of final design and construction documents. Each SPA document and subsequent planning documents, provide the conceptual design for the adjacent slope planting and entry design concepts. Goal The Olympic Training Center (OTC) is an important regional destination unique to the City of Chula Vista. The City is proud of its affiliation with the OTC and would like to celebrate its presence with a ceremonial parkway leading to the facility. Olympic Parkway (East Orange Avenue) will be the direct access to the OTC from the Interstate 805 freeway and State Route 125. This connection provides an excellent opportunity to develop a grand ceremonial drive leading to the Olympic Training Center. Olympic Parkway will end at the intersection with Wueste Road, just east of the Training Center. The goal of the master plan is to provide a dramatic, distinguished, and functional streetscape including art, color, drama and Olympic spirit. The streetscape design must create a unifying element as it passes through the individual Planning Areas, but allow the character of the adjacent developments to be perceptible as the driver passes along the Parkway. The Parkway should provide a dramatic statement which can be used to market communities as well as enhance the visibility of the Olympic Training Center. The Parkway should be a source of civic pride. Design Process The Olympic Parkway Master Plan was developed over the course of the feasibility stage and into the construction documentation stage of the roadway design. The road alignment, adjacent land uses, SPA plans for adjacent developments, and existing landscape plans were reviewed prior to beginning the design process. The contrasting design themes of the adjacent projects were evaluated to determine a Parkway theme that could unify the existing diverse SPA plan designs. Conceptual studies were developed for review, incorporating landscape, hardscape and the potential for inclusion of public art. The design process included reviews by City Staff, and representatives of the developers of adjacent properties. The consultant met with City staff to review the progress of the plans, to obtain support for the design, and to address questions and issues raised by the staff. City organizations involved in reviewing the plan included Engineering/Land Development, Environmental Planning, Advanced ~ Page 1 of 12 E:ISpecs&RepsI36501 IMPTextl Text. 812 Planning, Community Planning, Landscape Architecture and Parks Development, Current Planning, Public Works, Tree Maintenance, Recreation Arts and Culture, Parks and Open Space Operations, Fire Prevention, and Crime Prevention. The design concept was presented to representatives of the adjacent developers with properties fronting on Olympic Parkway, including Ayres Land Company (Sunbow), Eastlake Development, McMillin Development Company, New Millennium Homes, and The Otay Ranch Company. Following the meetings, a review period was allowed for the developers to evaluate and critique the design. Responses and comments were addressed and incorporated into the master plan. The developers expressed support for the design. Proposed Theme The proposed Olympic Parkway theme is based on the Olympics and their ceremonial associations. The design was conceived to evoke a sense of excitement at the gathering of individuals of many nations and races to participate in friendly competition. The themes of the parkway design celebrate the history, cultural diversity, and the Mediterranean origins of the games. A number of thematic elements will be included along the roadway as follows: Ceremonial banners based on the colorful historic Olympic logos will accent the parkway. Sequencing will provide the opportunity for the inclusion of both historic and future Olympic logos. Alternatively, banners could be designed by artists to offer new expressions on Olympic themes. The Olympic logo featuring the five interlocking rings will be invoked to commemorate the Parkway's relationship with the OTC. These forms will be repeated in the banner art, and plant groupings. Public art symbolic of the Olympics is proposed to be located at key entry points to the Parkway from the adjacent freeways. Art can also be featured on the pedestrian bridges over the parkway. The art should be based on Olympic themes such as historic Olympic torches, medals, Olympic rings, or sporting events. Public art could also reflect the history of Olympic events in a progression through the site. To maximize the potential, the theme art should be of a grand scale, visible as one approaches the Parkway from the freeway exits. Plants and design elements from the Mediterranean will symbolize the first Olympic Games in Greece, the origin of the Olympics. Plants used at the Olympic Training Center will be extended through the parkway to provide a visual connection, unity and identity. Median paving will reflect the crushed rock of a stadium track. This exposed gravel aggregate concrete will provide a unifying color element leading down the Parkway. The material will match the existing medians outside the Olympic Training Center. Note: All use of Olympic logos are subject to the approval of the US Olympic Committee as represented by the Olympic Training Center (O.T.C.). The legal constraints of the International Olympic Committee dictate that all logos are required to have the letters "USA" appearing next to the five ring logo. It Page 2 of 12 Design Concept The Olympic Parkway Landscape Master Plan has been developed to allow each community along the parkway to retain its own specific landscape and thematic elements, while overlaying thematic elements to create a grand entrance into the Olympic Training Center. This will be accomplished by inclusion of the following elements: 1. The master plan for Olympic Parkway will superimpose the street theme planting over the context of the community slope and entry planting, allowing the aesthetic identity to remain clearly visible and distinct in each community. Impact and interference with current design plans for the adjacent developments will be minimized by maintaining the existing themes set forth in the planning documents for each community. 2. Enhanced "banner nodes" will be located at street light poles located in the center of the medians. The light standards are to be regularly spaced between intersections at approximately 250 feet on center. Every third light standard will be enhanced with dual banners suitably scaled to provide a dramatic theme element. The light posts provide a unique opportunity for banner art at equally spaced locations along the site. The banner art will be Olympic in theme and is to reflect the colors found in the Olympic ring emblem. 3. Emphatic tree groupings at all banner nodes will bracket the node and provide rhythmic unity along the length of the parkway. These symbolic trees lead the driver through the community and provide a rhythmic progression to the Olympic Training Center. 4. Accent shrub planting will be placed at the nodes along the parkway at approximately 750 foot intervals in association with the banner locations. This will unify the street scene in a ceremonial procession as these theme elements march down the parkway toward the Olympic Training Center. 5. Median trees will establish a regular pattern emphasizing the linear form of the street to provide a unique visual link to the Olympic Training Center. Two varieties of stately flowering trees alternate between each banner node to provide a rhythmic sequence of consistent and uniform street trees. 6. The repetition of the theme nodes will be interrupted at the major project entries to the adjacent communities to allow the themes of these projects to be visible as they become tangent with the parkway. 7. Spaces between median trees will be left at banner areas to allow visibility from vehicles. These spaces also provide the opportunity for maintenance vehicles to occasionally park on the median paving near the banner/art light poles to service the medians. The paving in these locations will be reinforced to support these vehicles. 8. Paving in the median and maintenance walk areas is to be an enhanced concrete to help identify and unify the parkway. . Median Paving: Medians will be paved with exposed aggregate paving to simulate gravel track surfacing. The median concrete is to be installed with an aggregate mix of 60% aggregate and 40% sand. The aggregate is to be 3/8" tan, rust, brown and grey colored crushed rock. The concrete shall be cured using a surface retardant and water washed to expose the aggregate. The concrete matrix is to be natural concrete color. All exposed aggregate median paving is to match the existing median paving located in Olympic Parkway 100 feet east of the Olympic Training .5 Page 3 of 12 Center entry drive. All median paving shall conform to the Standard Specifications for Public Works Construction as administered by the City. Curbs shall be standard portland cement concrete curbs, natural color. Colored concrete curbs are not permitted by the Public Works Department. Median drainage will be required per the standard City of Chula Vista detail CVCS-5. Drainage for tree pits is required if necessary to provide adequate drainage for the survival of the trees. Drainage should be designed based on soil conditions for each area of the parkway. Root barriers shall be provided in accordance with the City requirements. Underground utilities shall be located carefully to avoid conflict with the rootballs of the trees at nodes. Transformers, meter pedestals and other appurtenances shall not be located within the nodes. The node planting will be located within the right-of-way and beyond. The entire node should be included on the street improvement plans to simplify the coordination. Where the nodes outside the right-of-way project into an adjacent property, an easement shall be granted for the maintenance of these areas by the same entity that is responsible for maintaining the right-of- way. Similar easements are to be provided when the nodes coincide with mitigation areas. Easement widths will vary in the different communities along the parkway due to variations approved in the SPA plans. Some revised easement widths have been negotiated by the City to accommodate the trails, maintenance ways, and tree nodes proposed in this master plan. The resulting agreements will supercede the approved roadway sections illustrated on the Tentative Maps and in the Olympic Parkway Feasibility Study. The roadway sections provided in this document are typical and may vary significantly over the length of the right of way. Each section is drawn to indicate the proposed cross-section corresponding to the applicable SPA plan. The relationships of the trails, sidewalks and landscape in the sections differ due to the variations between each planning area. Trails and Sidewalks A regional trail is located on the north side of the Olympic Parkway, with a sidewalk on the south side. Trail arrangements differ in the respective communities along Olympic Parkway. The typical plans included in this Master Plan indicate the basic trail configurations and relationships. Trails are to be "meandering" as designated in the SPA plan documents. At the banner nodes, the trail location may need to be adjusted to allow the node to maintain its geometric integrity. Where possible the trail is designed to meander away from the node, but in some cases due to topography, the trail or maintenance way will need to pass between the node tree planting area and the curb. The concrete sidewalks on the south side of Olympic Parkway also meander and will typically pass between the node trees and the curb. Where a sidewalk and maintenance access way run parallel, it is proposed that they shall be combined into one using a 5' sidewalk with a 5' wide planted area to create a 10' wide access way. The planting in these areas shall be a low 6 Page 4 of 12 growing, sturdy material able to withstand periodic use by wheeled vehicles. When used as part of an access way, sidewalks shall be reinforced to support the weight of a maintenance vehicle. The edge of the planted maintenance trail is to be defined by a continuous flexible header such as a 2x6" recycled plastic header staked in place. Trails and maintenance roads are typically 1 0' in width and meander through the landscape. The trails narrow to 8', and the maintenance access ways to 9' when passing through the emphatic nodes. Sidewalks are typically 5 feet in width. Where passing through the nodes, sidewalks and trails shall be located 4' from the curb face to provide space for the node planting as shown in the illustrations. Where possible, the regional trail should be located outside of the nodes, meandering farther from the Parkway. A minimum 4' or wider separation between the curb face, and the sidewalk or trail is required along the entire length of trail. The parameters for trails delineated in this master plan take precedence over conflicting trail locations indicated in the SPA plans. Pedestrian bridges illustrated in the Otay Ranch SPA are to connect villages separated by Olympic Parkway, but are not a part of the regional trail system. The trails and sidewalks are shown on the attached Typical Node Sections for each community to indicate the design concept and relationship of the sidewalks, and trails to the nodes. The trail locations and connections are conceptual. Each designer will be required to resolve the specific details of the connections and transitions. Grading Grading for the slopes along Olympic Parkway is to conform to the SPA plans and related documents. A 20' minimum planting area adjacent to the Parkway right-of-way has been specified in some of the SPA plans, such as Eastlake Trails, where this area has been designated not to exceed 5: 1 in steepness. In locations where this planting area was not incorporated into the SPA plan, the City requires a minimum of 20' from the curb to the edge of the planting area on the north side and a minimum 24' on the south side where the sidewalk and maintenance access way run parallel. The grade in these areas will be 2% cross-slope for sidewalks, nodes, trails and maintenance access ways. The remaining areas between these items and the outer edge of the 20' to 24' planting area is typically 2%, and shall not exceed 5:1. Trails are to be accommodated behind the nodes wherever possible, meandering in the lower portions of the slopes outside the right of way and planting buffer area. The cross-slope on trails and the adjoining 2' on each side of trail is to be 2% in steepness. Concrete drainage structures and ditches shall not be placed immediately adjacent to the landscape buffer areas since planting setbacks from these structures would reduce the area useable for tree planting within the buffer area. Plant Materials Plant materials will create the feature emphasis of the Olympic Parkway. As they mature, plants will become the dominant dramatic elements. The repetition of plant species will help to unify the site, enhance the Olympic theme and provide texture and interest. The following plants have been selected: Emphatic Trees for Node Areas: This will be a single dramatic tree species used in groupings of five at the sides of the street to create an accent at each banner node to emphasize the banner locations. The repetition of 7 Page 5 of 12 these groupings will create a rhythm punctuating the parkway at regular intervals of approximately 750'. The selected species is: Phoenix dactylifera 'Medjool' Date Palm Date Palms shall be uniform in height, a minimum of 18' to the base of the terminal bud (base of the tallest frond). The height of the trees shall be selected to provide matching crown heights when installed. As subsequent phases of the street are constructed, the trees shall be installed to match the height of the existing trees so that height uniformity is maintained. Currently there is little or no price difference between 14' and 30' date palms. The appearance of the Date Palm is unique, and is distinct from the palms designated in the adjacent SPA master plans. Specifically, it differs from the taller, more slender Mexican Fan Palms (Washingtonia robusta) used in the transportation corridors of Otay Ranch. The massive scale, coloration and dramatic silhouette of the Date Palm will provide a contrast to the other palms in the area. A detailed discussion of the Date Palm addressing many issues is attached in the Appendix of this document. Median Trees: The median tree planting is to consist of alternating blocks of two moderate size flowering tree species with seasonal variation. The trees are to be planted 30 feet on center with one species continuing in the median for the distance between banner nodes (approximately 750 feet). Each banner node location defines the change to the alternate species. Median trees shall be 24" box size. Alternating species are as follows: Cassia leptophylla Chitalpa tashkentensis Gold Medallion Tree Tashkent Chitalpa 24" box 24" box Emphatic Shrubs: This upright shrub is an emblematic accent plant used at the Olympic Training Center. It will continue the established theme throughout the Parkway. Phormium tenax 'Bronze Baby' Compact Bronze New Zealand Flax 5 gal. Note: This plant is not to be used in sight lines or at intersections or turn lanes where it could obstruct the view of traffic. Accent Shrubs/Groundcovers: These flowering accent shrubs provide vibrant seasonal color at ends of the medians and around the banner posts. Agapanthus africanus 'All Blue' Hemerocallis hybrid us 'Gold' Pelargonium peltatum 'Balkan Pink' Blue Lily of the Nile Day Lily Ivy Geranium 1 gallon 1 gallon 1 gallon Structural Shrubs: These are flowering shrubs with compact forms to be used in masses under the median trees. For simplicity of effect, not more than one species should be used in anyone median opening. Carrissa G. 'Tuttle' Escallonia fradesi 'Teri' Pittosporum crassifolium 'compacta' Rhaphiolepis indica (compact varieties) Natal Plum Escallonia Dwarf Caro Indian Hawthorn 5 gallon 5 gallon 5 gallon 5 gallon & Page 6 of 12 Maintenance Access Way Sturdy Groundcover Plantinq: These low, sturdy, herbaceous, re- rooting groundcovers are suggested for the maintenance access way planting. The plants will be required to withstand occasional maintenance vehicle traffic and moderate irrigation. Achillea millefolium Trifolium fragiferum White Yarrow O'Connor's legume flats/seed seed Riparian Theme Species: In areas designated for riparian treatment in the Otay Ranch SPA plans, but outside the areas specifically designated for riparian mitigation, the plants shall be a combination of riparian and ephemeral streambed species with a hydroseeded ground cover. These areas typically consist of the upper slopes of the drainage channel, and low lying portions of the landscaping adjacent to the roadway. The riparian and transitional areas associated with the Olympic Parkway are detailed in the existing SPA plans. Much of this planting forms a buffer to the wetland mitigation planting in the channel bottom. Consequently, plant selections should be checked with the environmental consultant before specifying species on plans to avoid plants that may impact the mitigation areas. Species include: Trees Platanus racemosa Populus fremontii Quercus agrifolia Salix gooddingii Salix lasiolepis California Sycamore Fremont Cottonwood Coastal Live Oak Black Willow Arroyo Willow Shrubs · Anemopsis californica Baccharis salicifolia · Baccharis sarothroides Isocoma menzisii Ribes speciosum Rosa californica Rubus ursinus Sambucus mexicana Yerba Mansa Mule-fat Coyote Brush Coast Golden Bush Fuschia Flowered Gooseberry California Rose California Blackberry Mexican Elderberry Groundcover · Artemisia douglasiana · Artemisia palmeri · Ambrosia psilostachys · Elymus condensatus · Iva hayesiana Mugwort San Diego Sagewort Western Ragweed Giant Wild Rye San Diego Marsh Elder Secondary drainaqe channel planting: The secondary drainage channel is not a mitigation area. This is a temporary channel to be re-graded at a later date as part of the project grading plans. In the interim the area is to be planted with hydroseed and liner size shrub and herbaceous species that can withstand periodic mowing or brush removal to allow the channel to be maintained in an open condition. All species planted in this area shall be approved by the City Landscape Architecture staff, after review by Merkel and Associates to determine compatibility with environmental goals. The following list indicates suggested species recommended by Merkel and Associates, but is not an approved list: " Page 7 of 12 . Atriplex canescens Atriplex semibaccata Achillea millefolium Encelia farinosa Grindillea stricta Hemizonia fasciculatum Trifolium hirtum 'Hycon' Lupinus succulentus Eschscholzia californica Eriophyllum confertiflorum Baccharis pilularis 'Twin Peaks #2' Cistus ladanifer or purpurea Other species as approved Four Wing Salt Bush Australian Salt Bush Yarrow Desert Encelia Gum Plant Fascicled Tarplant Hycon Rose Clover Arroyo Lupine California Poppy Golden Yarrow Prostrate Coyote Bush (Liners) Rockrose (Liners) Inteqration of Community Plantinq Themes: All planting not defined in the above categories shall conform to the plant lists designated in the Specific Planning Area Document for each community. It is intended that the planting palette of each community continue to the curbs of Olympic Parkway, except at the banner nodes, which are to be planted in conformance with the typical details included in this plan. Based on the SPA plans and existing landscape plans, the featured trees for the perimeter of each community are as follows: Sunbow: Eucalyptus species Quercus agrifolia Gum Tree Coast Live Oak Otay Ranch: Eucalyptus species Quercus agrifolia Heteromeles arbutifolia Gum Tree California Live Oak Toyon Eastlake: Jacaranda mimosifolia Pinus canariensis Platanus racemosa Quercus agrifolia Jacaranda Canary Island Pine California Sycamore California Live Oak Coordination note: The trees shrubs and ground cover for areas associated with the Olympic Parkway are detailed in the existing SPA plans for each community. In the event that the plant lists contained in the SPA plans differ from the species indicated here, the SPA plans shall take precedence, except in median, node planting areas and mitigation planting areas. Drouqht tolerant plantinq for South facing slopes (Sunbow. Otav Ranch Villaqe 1 and 5) The City wishes to select the drought tolerant species from the Otay Ranch Village 1 and 5 SPA plan slope planting palette for use on the majority of these slopes. The upper portions of the slopes, near the homes, will be planted with ornamental irrigated planting from the unmodified SPA plan palette to meet brush management goals. The middle and lower portions of the slope will be planted with naturalizing mixed sage scrub species, as noted below, together with the 10 Page 8 of 12 drought tolerant plant material selected from the SPA plan. The proposed species include drought tolerant native and non-invasive species requiring no supplemental irrigation once established. This planting will help form a buffer between ornamental planting at the top of the slope and the mitigation planting which is typically located in the drainage channel. Once established it will require less intensive maintenance than ornamental landscape ensuring that future maintenance can be accommodated within the available budgets. The planting of trees within this area is encouraged to provide a setting for the Parkway. Trees must be supported by a deep watering system which will continue to operate after the shrubs and groundcover have been established, and the temporary irrigation turned off. The proposed plant materials for south facing slopes are as follows: Container Plants: Rhus integrifolia Malosma laurina Heteromeles arbutifolia Lycium andersonii Rosa californica Ribes indecorum Sambucus mexicana Rhamnus crocea Prunus i1icifolia Juglans californica Platanus racemosa Pinus torreyana Cupressus forbesii Populus fremontii Clematis pauciflora Calystegia macrostegia 'Anacapa pink' Salvia munzii Satureja chandleri Opuntia littoralis Opuntia prolifera Lemonade Berry Laurel-leaf Sumac Toyon Boxthorn California Rose White Flowering Currant Mexican Elderberry Redberry Holly Leaf Cherry Southern California Black Walnut Western Sycamore Torrey Pine Tecate Cypress Fremont Cottonwood Small Flowered Clematis Island Morning Glory San Miguel Mountain Sage San Miguel Savory Coast Prickly Pear Cholla Seed Mix: Artemisia californica California Sagebrush Eriogonum fasciculatum ' Fasciculatum' Flat-top Buckwheat Encelia californica California Encelia Eriophyllum confertiflora Golden Yarrow Viguieria laciniata San Diego Viguiera Nassella pulchra Purple Needlegrass Lotus scoparius 'Scoparius' Coastal Deerweed Isomeris arborea Bladderpod Salvia apiana White Sage Salvia mellifera Black Sage Lupinus succulentus Arroyo Lupine Eschscholzia californica California Poppy Plantago insularis Plantain Non-invasive Species from the Otay Ranch SPA plans: Quercus agrifolia Coast Live Oak Heteromeles arbutifolia Toyon Rhus integrifolia Sugar Bush " Page 9 of 12 Cistus species Artemesia californica 'Canyon Gray' Rosemarinus officinalis 'Prostrata' Salvia 'Dara's Choice' Myoporum parvifolium 'Prostrata' Rockrose Canyon Gray Sage Prostrate Rosemary Dara's Choice Sage Prostrate Myoporum Wetland Mitigation Planting (Per separately prepared Mitigation Planting Plans) Wetland Mitigation Areas: In areas designated for wetland mitiaation in the primary drainage channel, the following species are to be planted in conformance with the mitiGation plan prepared bv Merkel & Associates, Inc. In the event that the plant lists contained in the mitigation plans differ from the species indicated here, the mitigation plans shall take precedence. Species include: Woodland Canopy Trees: Platanus racemosa Populus fremontii Salix gooddingii Salix lasiolepis Salix lucida 'Lasiandra' California Sycamore Fremont Cottonwood Goodding's Black Willow Arroyo Willow Lance Leaf Willow Woodland scrub: Baccharis salicifolia Hymenoclea monogyra Salix exigua Mule-fat Desert Fragrance Narrow Leaf Willow Shrubs: Anemopsis californica Artemesia douglasiana Elymus condensatus Euthamia occidentalis · Iva hayesiana Juncus mexicanus Juncus acutus Rubus ursin us Verba Mansa Mugwort Giant Wild Rye Western Goldenrod San Diego Marsh Elder Mexican Rush Spiny Rush California Blackberry Wetland MitiGation. Coastal SaGe Scrub Riparian Transitional Species: Where the riparian areas transition to the drier upland slopes, plants shall be transitioned to a coastal sage scrub type revegetation, including Toyon, Rhus and Malosma species to match the adjacent native landscapes. In the event that the plant lists contained in the mitigation plans differ from the species indicated here, the mitigation plans shall take precedence. Species include: Artemisia californica Encelia californica Eriogonum fasciculatum Heteromeles arbutifolia Isocoma menzisii Lotus scoparius Lycium andersonii California sagebrush California Encelia Flat top Buckwheat Toyon Coast Golden Bush Deerweed Boxthorn . 12- Page 10 of 12 Malosma laurina Plantago ovata Rhus integrifolia Sambucus mexican a Simmondsia chinensis Laurel leaf sumac Plantain Lemonade Berry Mexican Elderberry Jojoba Public Art Public art can provide great enhancement to the Olympic Parkway. Incorporation of striking symbolic elements can elevate the status of the parkway to a triumphal passage honoring the Olympic Spirit. Eye catching art visible from the highways can attract travelers to the Training Center and provide regional identity. Art can strengthen civic identity and pride in the community. It makes a public space more vital and identifiable. This is an opportunity that should not be missed. Every effort should be made to support the creation of artistic elements that strengthen the Olympic theme. Locations for public art have been suggested and identified on the master plan graphic in the general vicinity of the freeway exits. Art is especially desirable to identify the Olympic parkway as a distinct corridor connecting the Olympic Training Center to the City and to provide identity at the exits from the freeways. These locations could be suitable for sculpture, color, textural, kinetic, or other art forms. In addition to the freeway exits, the pedestrian bridges could include an art element and possibly Olympic logos. Art projects could also extend to the graphics on the median banners. Incorporating art at these locations is a great opportunity to enhance the Olympic experience and create excitement for this special corridor. It is intended that the Art support the Olympic Parkway theme. Art should provide a connection with the Olympic training center by developing a theme which enhances the Olympic atmosphere. The current feasibility cost estimate does not include an allowance for public art, however, it is proposed that dialogue be commenced with the Olympic Training Center, corporate sponsors, and others to generate funding for such projects. The City's Cultural Arts Coordinator could play an important role in this activity. It is hoped that funding can be identified in the immediate future to take advantage of this opportunity to enhance civic pride, attract tourism to the Training Center and create a unique public image. Installation Requirements All installations shall conform with the City of Chula Vista requirements, Standard Drawings, Standard Specifications for Public Works Construction, and other applicable standards and codes. Plans shall be approved by the City of Chula Vista Public Works Department, Engineering Division, and the Department of Planning and Building. The designers are responsible for providing irrigation, soil amendments, and plant pit drainage as necessary to provide for the health of the plant material. A minimum of two bubblers in 4" diameter perforated deep watering standpipes shall be provided on opposite sides of each tree. All trees are required to have bubblers, including median trees, node trees and parkway trees. A 4" perforated drainage standpipe wrapped in filter fabric, and open to the bottom of the planting pit shall be provided to allow monitoring of soil moisture in the planting pit for each tree J'3 Page 11 of 12 including palms. See appendix "An for special recommendations for Date Palm planting and drainage. In addition to the standpipes and palm drains, supplemental drainage measures shall be provided for palms, median and parkway trees if percolation tests do not indicate adequate natural drainage in the plant pits. Plant pit drainage should be designed based on soil conditions for each area of the parkway and may consist of deep sumps, connections to the drain system, or other methods. Median surface drainage and drain inlets will be required per the standard City of Chula Vista detail CVCS-5. Root barriers for trees shall be provided in accordance with the City requirements. Phasing The implementation of the Olympic Parkway Landscape Master Plan is to be accomplished as part of the installation of each phase of the street improvements. The landscape improvement plans shall be prepared simultaneously with each set of street improvement plans. Street improvement construction should not be commenced until the corresponding landscape improvement plans are approved. At the initial installation, the level of landscaping will be as required by the City of Chula Vista Landscape Manual and as otherwise described in this document. Brackets for the banners are to be included in the installation. Provision for the banners themselves is still under discussion with the objective of identifying funding sources for installation and periodic replacement in advance of construction of the road. The following is a list of possible contributors who will be approached, including, but not limited to: the Olympic Training Center, corporate sponsors, and the development community. The City of Chula Vista may also wish to contribute to the provision of banners and their upkeep. The public art is to be installed when funding becomes available as described previously in this document. The Otay Ranch General Development Plan Includes provisions for arts and cultural facilities. Costs Costs for the proposed landscape construction and ongoing maintenance of the landscape proposed in this document were presented to the City Council as part of the Feasibilitv Study for Olvmpic Parkway prepared by Kimley-Horn and Associates. Conclusion This Landscape Master Plan for the Olympic Parkway provides guidelines for the development of the roadway in a unified manner, establishing goals, themes and materials. It promotes a unified visual image of the roadway as it traverses the diverse communities along its route. The design provides a visual connection from the major transportation routes to the Olympic Training Center. The success of the image is dependent on proper implementation by the individual developers installing the roadway. It is incumbent on the City Staff to assist the design consultants to achieve a unified result. ,+ Page 12 of 12 Appendix "A" Phoenix dactylifera (Date Palm) Information on the Species IS E:136501 ISpecs&RepsIMPT extlAppendix. 430 Appendix "A" Phoenix dactylifera (Date Palm) Information on the Species Compiled January 14,1999 Description: Phoenix dactylifera is a stately palm species from the Middle East typically grown as a single trunk specimen for commercial or ornamental purposes. The sweet, fleshy fruit is the result of thousands of years of human selection of the most desirable specimens. The plant thrives in alkaline soil conditions and is tolerant of a wide range of soil types. Once established little water is required for survival, however availability of water is necessary for fruit production. Date Palms are suited to the local climate of Poggi Canyon, although the coastal influence and lack of intense heat is likely to discourage fruiting. The tree is subject to few diseases in southern California and is a successful ornamental species. The date palm species is dioecious, with the male and female on separate plants. Both sexes carry flowers on long stalk-like inflorescences projecting from the crown. Male plants have creamy flowers, while females have yellow flowers. Dry, hot conditions are necessary for free fruiting, and a male tree must be present to pollinate the female. The best fruiting occurs in hot dry desert areas with temperatures of over 100 degrees. Fruit does not form readily in cooler moist coastal areas. Rain, coastal fog and humidity reduces pollination and fruiting. For commercial production, one male is planted per 30 female trees to maximize fruit production. If conditions are favorable and the fruit is pOllinated and sets, it takes approximately 6 months for fruit to mature. If produced, viable seed store for a long period of time and germinate with continuous heat. Date palms produced from seed are inconsistent in type and fruiting quality. In commercial production, Phoenix dactylifera is typically reproduced from offsets of shoots arising from the base of the trunk to provide offspring with qualities consistent with the parent plant. Offshoots are typically limited to 10 to 30 during the life of the palm and are produced primarily during a period of the tree's life when it is under 14 feet in height. Consequently, older palms can be expected to have few offsets. A Discussion of Relative Invasiveness: Unlike the related Phoenix canariensis (Canary Island Palm), Phoenix dactylifera (Date Palm) does not appear to be invasive in Southern California. Our research has not revealed any evidence of the species escaping cultivation in this area. Native and riparian areas appear to be free of the date palm. Reproduction by seed appears to be unlikely given the less favorable coastal influenced conditions west of the San Diego County Mountains. Planting of only male or female trees, will minimize the probability of pollination and subsequent fruiting. Yearly pruning to remove fruiting stems before the fruit becomes viable will eliminate viable seeds should pollination occur. Yearly removal of offshoots at the base of the trunk will eliminate the potential for spread by vegetative reproduction. In summary, it appears that spread of the date palms to nearby habitats is unlikely, especially if yearly maintenance is performed. Corroborating Evidence: We have not observed any spread of Phoenix dactylifera in our observations of native and decorative landscapes in San Diego County. We contacted several Biologists and Environmental consultants experienced with invasive species and habitat restoration in San Diego. None of the contacts had seen cases of Phoenix dactylifera invading native habitats, and could not identify instances of the plant growing from seed here. John Batina of W.O. " Young, the major supplier and grower of Phoenix Dactylifera located in Indio, stated that seedlings are not a problem in their growing grounds or in wetlands, and that all of their reproduction is accomplished through vegetative offsets. Howard Ohr, PHD, a plant pathologist in Riverside stated that he had never seen P. dactylifera naturalize, and considered that it did not appear to be invasive. Henry Donselman of H. Donselman Consulting, a palm expert, stated that sprouting of seedlings is not an issue. In his experience, seedlings do not germinate in lawn or other groundcovers, and the plant does not become a weed. Brad Burkhart of Burkhart Environmental Consulting had not observed any naturalization of the species in his extensive surveys of habitats. Christina Schaefer of KEA Environmental had not observed P. dactylifera growing in native areas of San Diego. Kyle Ince of Merkel & Associates, Inc. does not believe the species to be invasive based on his observations. Phoenix dactylifera is not listed in the California Exotic Pest Plant Council list of invasive species. The University of California Cooperative extension service could not provide any documentation relating to the escape of the Date Palm into native habitats. Maintenance: In ornamental situations, the production of viable seeds can be eliminated by annual maintenance. The yearly pruning and removal of old fronds can be done to coincide with the end of the flowering season which occurs in early summer. At that time all of the inflorescences should be removed by cutting off the long stalks at their base before fruit develops. The old fronds can be removed during the same operation. Timing is important. since removal of the flowering stalks too early may result in a second flowering. The City should expect to prune this species on a yearly basis. Maintenance costs have been incorporated into the cost estimate for the project contained in the Feasibility Studv for Olvmoic Parkway prepared by Kimley Horn Associates. The vegetative offshoots can be removed manually from around the base of the tree. The tree should be planted in a shrub bed so that the offshoots are hidden from view and a buffer zone of 2 to 3 feet between the tree and pedestrians should be allowed. This will provide sufficient space to allow the maintenance crew to remove the offshoots before they encroach on pedestrian areas. Since each tree has the capacity to produce no more than 10 to 30 offshoots in its lifetime, offshoot removal maintenance should not be needed as the trees mature. One source indicated that offshoots are produced primarily when the trees are less than 14 feet in height. consequently. if the trees are planted at 15 to 20 feet in height, few offshoots should develop. New trees need to be monitored during the establishment period so that sufficient water is provided to prevent drying out of the trunks while the roots establish. Planting Recommendations: Since the Phoenix dactylifera are dioecious (separate male and female plants), male only palms could be planted. thus eliminating the possibility that seed would be produced. However, male plants are less available. more expensive and not as consistent in form and quality. We recommend that only female plants be planted. Lacking a nearby male, the flowers will not be pollinated and viable seed will not be produced. Evidence indicates that the Phoenix dactylifera 'Medjool" cultivar would be preferable for planting in the Chula Vista Area, since it responds more favorably to coastal conditions than other varieties which prefer the desert. 1; Planting backfill should consist of pure washed concrete sand to allow good drainage around the rootball. The pit should be excavated with a low area not in direct contact with the rootball. A minimum of two 4" perforated drainage standpipes should be provided to the bottom of the planting pit for each palm. These should be connected to a circle of 3" perforated drain line at the bottom of the pit. The standpipes should be wrapped in filter fabric and left empty to allow the monitoring of moisture levels in the plant pit. Percolation tests should be performed to verify that the planting pit will drain and not hold water for more than 24 hours. Failing this. altemative drainage measures should be provided. The crown of the rootball should be at or slightly above finish grade. The trunks should not be buried. A 3" layer of organic mulch should be applied over the entire palm planting area. A minimum of two bubblers in deep watering standpipes shall be provided on opposite sides of each tree. Utilities should be carefully sited to avoid conflict with palm rootballs. Costs: A female Phoenix dactylifera from 14 to 30 feet in height costs approximately $1450 each, delivered to the site. A male of the same speCies costs approximately $2000 each, delivered. Maintenance consists of irrigation, fertilization and yearly pruning during which the flower spikes and the lower level of fronds would be removed. A power lift should be used to access the palms. The pruning can usually be accomplished at a rate of 20 to 30 minutes per tree. Annual maintenance costs based on one pruning a year can be estimated at $40 to $60 per tree for easily accessible mass planting such as Olympic Parkway. Conclusion: Phoenix dactylifera will provide a dramatic landscape statement linking the Olympic Training Facility to Interstate 805 and the City of Chula Vista. We could find no evidence that this species will become invasive in San Diego County native habitats even if not maintained. With yearly pruning maintenance the flowering stalks can be removed before viable fruit can form. Consequently this species is recommended as the "emphatic node" tree for the Olympic Parkway. I~ Appendix "B" Examples of Banner Art and Emblematic Art \c:lI . * JL C(95) NAGANO 19 9 8 Q5(9 -~..._&- o.........~.n i~~ z . CIl tP~-- <9R U c*" 1t ,,-- ~r A.LBERTVllLE 92 C(%) 1><:;:(:';"'" ~ljJ~2-~ ct~ ~D l'~id.ft.X)t~rl~~t..w.~H ~ ~ Barcel(:ma ~92 > >'. . ,.. SALT LAKE 2002 QSe9 XIII OLYMPIC O!}JC')~m~ ..~ LAKE PLACID 1980 l . I ~Q,Qy I I Lillehammer'94 I A GI' ATHENS 2004 .. 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J IJ ~ J f IHUH fJ 11~J J ij fnd if nil 1 .if ~ -t > ~ m Q ~ ~ :z: o ::J: i HI J r fJ I Ii J f ,11m · IJ Jr.] ~ ir fill n n'l 1" I if f 1 .it 't~ ~~ 1 F i '\ JlfJ Ui ~ ifhPi t Wi f J! i fll.f:, J l J J r i ~ - ~ t / baqu@ of California (iti@s Better Cities-A Better life 1400 K Street Sacramento, CA 95814 916.658.82.00 FAX 916.658.82.-10 wwwcacities.org July 1999 To: The Honorable Mayor and City Council From: Carolyn Ratto, League President, Mayor Pro Tern, Turlock Re: Designation of Voting Delegate for League Annual Conference This year's League Annual Conference is scheduled for Sunday, October 10, through Tuesday, October 12,1999 in San Jose. One very important aspect of the Annual Conference is the Annual Business Meeting when the membership takes action on conference resolutions. Annual Conference resolutions guide cities and the League in our efforts to improve the quality, responsiveness and vitality of local government in California. It is important that all cities be represented at the Annual Business Meeting on Tuesday, October 12, at 9:15 a.m. at the San Jose Convention Center. To expedite the conduct of business at this important policy-making meeting, each city council should designate a voting representative and an alternate who will be present at the Annual Business Meeting. League bylaws provide that each city is entitled to one vote in matters affecting municipal or League policy. A voting card will be given to the city official designated by the city council on the enclosed "Voting Delegate Form." If the mayor or a member of the city council is in attendance at the Conference, it is expected that one of these officials will be designated as the voting delegate. However, if the city council will not have a registered delegate at the Conference but will be represented by other city officials, one of these officials should be designated the voting delegate or alternate. Please complete and return the enclosed "Voting Delegate Form" to the Sacramento office ofthe League at the earliest possible time (not later than Friday, September 24, 1999), so that proper records may be established for the Conference. The voting delegate may pick up the city's voting card at the designated Voting Card Table located in the League Registration Area. The voting procedures to be followed at this Conference are printed on the reverse side of this memo. Your help in returning the attached "Voting Delegate Form" as soon as possible is appreciated. If you have any questions, please call Lorraine Okabe at 916/658-8236. 2J/J~ / C3 CITY: ~ ~ LEAGUE OF CALIFORNIA CITIES 1999 ANNUAL CONFERENCE VOTING DELEGATE FORM 1. VOTING DELEGATE: (NAME) (TITLE) 2. VOTING AL TERNA TE: (NAME) (TITLE) ATTEST: (NAME) (TITLE Please Complete and Return To: League of California Cities Attn: Lorraine Okabe 1400 K Street Sacramento, CA 95814 4FAX: 916/658-8240 Deadline: Fridav. Seotember 24.1999 10 J]A ,-~ L:\poJicy\acres\ yotedel.ltr ~