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Home My WebLink About2006/08/22 Agenda Packet I declare under penalty of perjury that I am employed by the City of Chula Vista in the OHice of the City Clerk and that I posted this ~,r., ,0 ment on the bulletin board according to::::2 .".... ct requirements. ~ 7tO&,1 "" "" --.;;;: ~tf/~'l7 Signed --;y ~; CHUlA VISTA Stephen C Padilla, Mayor Patricia E. Chavez, Councilmember Jim Thomson.. Interim City Manager John McCann, Councilrnember Ann Moore, City Attorney Jerry R, Rindone, Councilrnember Susan Bigelow, City Clerk Steve Castaneda, COllllcilmenlber August 22, 2006 6:00 P.M. Council Chambers City Hall 276 Fourth Avenue CALL TO ORDER ROLL CALL: Councilmembers Castaneda, Chavez, McCaIlll, Rindone, and Mayor Padilla PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . OATHS OF OFFICE: MaIlllY Ramirez, International Friendship Commission Elizabeth Scott, Charter Review Commission Pat Moriarty, Human Relations Commission Ricardo Macias, Resource Conservation Commission Jeremy Hogan, M.D., Design Review Commission Anthony David Angelo, J.D., Childcare Commission Sonny Chandler, Commission on Aging Elroy Kihano, Veterans' Advisory Commission Stephen Sprenkle, Veterans' Advisory Commission Karina Kay Corrales, Youth Advisory Commission . PRESENTATION OF A PROCLAMATION BY MAYOR PADILLA TO ROBERT WHITE, 2006 VETERAN OF THE YEAR . PRESENTATION BY ED VAN EENOO BUDGET AND ANALYSIS DIRECTOR OF RESULTS FROM THE NATIONAL RESEARCH CENTER CITIZEN SURVEY . DID YOU KNOW. .THAT THE CHULA VISTA POLICE DEPARTMENT HAS TWENTY SCHOOL RESOURCE OFFICERS DEDICATED TO FIFTY-THREE SCHOOLS IN CHULA VISTA? Presented by Leonard Miranda, Police Captain. CONSENT CALENDAR (Items 1 through 22) The Council will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed immediately following the Consent Calendar 1 APPROVAL OF MINUTES of the Special Meetings of June 13, June 20, and the Regular Meetings of July 11 and July 25, 2006 (Continued from August 8, 2006). Staff recommendation: Council approve the minutes. 2. WRITTEN COMMUNICATIONS A. Memorandum from Councilmember Rindone requesting excused absences from the City Council meetings of July 25 and August 1, 2006 (Continued from August 8, 2006). Staffrecommendation: Council excuse the absences. B. Memorandum from Councilmember McCann requesting an excused absence from the City Council meeting of August 8, 2006. Staff recommendation: Council excuse the absence. 3. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING MUNICIPAL CODE 15.20 AND ESTABLISHING MUNICIPAL CODE 5.39 REQUIRING HOTELS AND MOTELS TO HAVE A PERMIT TO OPERATE (SECOND READING) Adoption of this ordinance would require hotels/motels to obtain and post an annual permit to operate before renting rooms. This ordinance was introduced on August 8, 2006. (Acting Director of Community Development, Finance Director, Fire Chief, Planning and Building Director, Police Chief) Staff recommendation: Council adopt the ordinance. 4 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $50,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE CITY CLERK SERVICES & SUPPLIES BUDGET TO FUND UNANTICIPATED SERVICES OF THE REGISTRAR OF VOTERS FOR INCLUSION ON THE BALLOT OF TWO PROPOSED CHARTER AMENDMENTS TO BE SUBMITTED TO THE ELECTORATE AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON NOVEMBER 7, 2006 (4/5THS VOTE REQUIRED; Continued from August 8, 2006) Page 2 - Council Agenda http://www.chulavistaca.gov Augnst 22, 2006 On August 8, 2006, the Council adopted a resolution placing two proposed Charter amendments on the ballot for the November 7, 2006 Special Municipal Election. At that meeting, the resolution appropriating funds to the City Clerk's supplies and services budget to cover the Registrar's estimated costs for the placement of the measures on the ballot was continued to August 22, because adoption of the resolution requires a four- fifths vote, and only three Councilmembers were present. (City Clerk) Staff recommendation: Council adopt the resolution. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY ENGINEER TO ISSUE ENCROACHMENT PERMIT NO PE-704 FOR THE INSTALLATION OF A MONUMENT SIGN AND A RETAINING WALL PROPOSED TO BE CONSTRUCTED WITHIN THE EXISTING BIRCH ROAD GENERAL UTILITY EASEMENT The Town Center shopping center project is generally located at the northwest comer of Eastlake Parkway and Birch road, and will consist of major department stores and smaller commercial vendors sharing the site. General Growth Properties, owner of the project, is proposing to construct a monument sign and a retaining wall within the City's right-of- way. (Acting Engineering Director) Staff recommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND CANYON GATEWAY PLAZA, LLC, REGARDING INSTALLATION AND MAINTENANCE OF LANDSCAPING AND UTILITIES NECESSARY FOR THE COMPLETION OF THE TELEGRAPH CANYON ROAD/I-805 INTERCHANGE PROJECT (CY-l02) The Telegraph Canyon/I-805 Interchange Project (CY-l02) is nearing completion. The only remaining work to be done is the installation of new landscaping and related improvements along the frontage of the Canyon Plaza Shopping Center. This landscape work is being done to replace landscaping removed during the reconstruction of the Telegraph Creek Channel and the widening of Telegraph Canyon Road. (Acting Engineering Director) Staff recommendation: Council adopt the resolution. 7. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE CREATION OF AN EDUCATIONAL SERVICES MANAGER CLASSIFICATION IN THE UNCLASSIFIED SERVICE, SENIOR MANAGER GROUP 7. B. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 2.05.010 RELATING TO THE ESTABLISHMENT OF UNCLASSIFIED POSITIONS TO ADD THE POSITION OF EDUCATIONAL SERVICES MANAGER (4/5THS VOTE REQUIRED) Page 3 - Council Agenda http://www.chulavistaca.gov August 22, 2006 Since the Educational Services Division of the Library Department was created in 1999, the after school program budget has grown from $539,000 to approximately $2.1 million per year. STRETCH and DASH are now provided at 32 elementary school sites in Chula Vista. Later this fall the program will grow even larger when new after school funds are released by the state. Because of the program's complexity and the Education Services Manager's scope of responsibility, it is recommended that the position be moved from the Middle Management Group to the Senior Manager Group. Chula Vista City Charter section 500 requires that all unclassified positions not mentioned specifically in Charter section 500 be adopted by Ordinance. (Assistant City Manager Palmer, Human Resources Director) Staff recommendation: Council adopt the resolution and place the ordinance on first reading. 8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING FINAL REVISIONS TO THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND THE CHULA VISTA POLICE OFFICERS ASSOCIATION The City of Chula Vista Police Officers Association (POA) requested to revisit some of the language changes made in the July 1, 2005 - June 30, 2010 Memorandum of Understanding (MOU). Members of the City Management Negotiations Team and the POA Negotiations Team met and conferred and have reached agreement on the final MOU language. (Human Resources Director) Staff recommendation: Council adopt the resolution. 9 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT WITH THE CENTRE FOR ORGANIZATION EFFECTIVENESS FOR STAFF PROFESSIONAL DEVELOPMENT CONSULTANT SERVICES, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Adoption of the resolution approves an agreement with The Centre for professional staff development consultant services. The recommendation for waiving the consultant selection process is based on The Centre's qualifications and experience, knowledge of the City, consistency in training, and their exemplary work performance on previous Supervisor and Executive Leadership Academies. (Human Resources Director) Staffrecommendation: Council adopt the resolution. 10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING FUNDS BASED UPON UNANTICIPATED REVENUES TO REIMBURSE THE POLICE DEPARTMENT FOR SPECIAL EVENT SERVICES FOR THE SEVENTH ANNUAL OTAY RANCH DAY ON SEPTEMBER 16, 2006 (4/5THS VOTE REQUIRED; Continued from August 8, 2006) Page 4 - Council Agenda http://www.chulavistaca.gov August 22, 2006 On August 8, 2006, the Council approved the Otay Ranch Company's request for temporary street closure on East Palomar for the seventh Annual Otay Ranch Day from noon to 4.30 p.m. on Saturday, September 16, 2006. Because there were only three Councilmembers present during the August 8'\ 2006 City Council meeting, the appropriation portion of Resolution 2006-247 was removed and rescheduled for the August 22, 2006 Council meeting. Adoption of this resolution appropriates funds to the Fiscal Year 2007 Police Department Personnel Services budget for overtime related to police support of the event. (Communications Director) Staff recommendation: Council adopt the resolution. 11 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $27,000 AND CONTRIBUTING SAID FUNDS TO THE SAN DIEGO FIRE RESCUE FOUNDATION FOR THE PURCHASE OF AUTOMATIC EXTERNAL DEFffiRILLATORS TO BE PLACED IN CHULA VISTA SCHOOLS (4/5THS VOTE REQUIRED) The City of Chula Vista has been requested by County Board of Supervisor Greg Cox's office to contribute $27,000 to the San Diego Fire and Rescue Foundation in order to help fund the cost of automatic external defibrillators (AEDs) for placement in South Bay Schools. County of San Diego Supervisor Greg Cox's office is facilitating this project on behalf of South Bay residents. (Fire Chief) Staff recommendation: Council adopt the resolution. 12. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AFFORDABLE HOUSING REGULATORY AGREEMENT RELATED TO R-19, OTAY RANCH VILLAGE ELEVEN, BETWEEN THE CITY AND BROOKFIELD SHEA OTAY, LLC, AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT The developer, Brookfield Shea Otay, LLC, desires to satisfy its affordable housing obligation through a for-sale project located in the R-19 neighborhood in Otay Ranch Village Eleven. Adoption of the resolution approves the affordable housing agreement. (Acting Community Development Director) Staff recommendation: Council adopt the resolution. 13. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11, NEIGHBORHOODS MU-l AND R-19, ACKNOWLEDGING THE IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST GRANTED ON SAID MAP; AND ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE VARIOUS PUBLIC EASEMENTS AS GRANTED ON SAID MAP 13 B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN ENCROACHMENT AGREEMENT PE-702 FOR VARIOUS LOCATIONS WITHIN CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11, NEIGHBORHOODS MU-l AND R-19 Page 5 - Council Agenda http://www .chulavistaca.gov August 22, 2006 Adoption of the resolutions approves both a final map and an encroachment permit for Neighborhoods MU-I and R-19, a subdivision of Otay Ranch Village 11 Neighborhoods MU-l and R-19 consist of residential condominiums, mixed-use and commercial acres on three lots with three open space lots (lots A, B & C) along Eastlake Parkway This item is related to Item No. 12 on this agenda, and approval of the affordable housing agreement with Brookfield Shea Otay, LLC is necessary in order to approve the fmal map. (Acting Engineering Director) Staff recommendation: Council adopt the resolutions. 14. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RATIFYING CITY STAFF'S ACTION ON APPROVING CHANGE ORDERS WITH KOCH-ARMSTRONG GENERAL ENGINEERING, INC. TO COMPLETE THE "PAVEMENT REHABILITATION PROGRAM FISCAL YEAR 2004/2005 OVERLAY IN THE CITY OF CHULA VISTA, CALIFORNIA" PROJECT, A COMPONENT OF THE 2005 PAVEMENT REHABILITATION PROJECT (STL-310) 14 B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RATIFYING CITY STAFF'S ACTION ON APPROVING CHANGE ORDERS WITH AMERICAN ASPHALT SOUTH, INC. TO COMPLETE THE "SLURRY/CHIP SEAL PAVEMENT REHABILITATION FISCAL YEAR 2004/2005 IN THE CITY OF CHULA VISTA, CALIFORNIA" PROJECT, A COMPONENT OF THE 2005 PAVEMENT REHABILITATION PROJECT (STL-31O) During the course of construction, unforeseen circumstances caused an increase in quantities for the overlay project beyond what was anticipated during the preparation of the project specifications, which resulted in a change order that exceeds the Director of Public Works' authorized limits. Adoption of the resolutions ratifies staffs action of approving the change orders for these projects. (General Services Director) Staffrecommendation: Council adopt the resolutions. 15. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A REIMBURSEMENT REGARDING THE SALT CREEK RECREATION FACILITY FROM RUDOLPH AND SLETTEN IN THE AMOUNT OF $6,050, AND APPROPRIATING THE FUNDS TO CAPITAL IMPROVEMENT PROJECT PR271, SALT CREEK RECREATION FACILITY (4/5THS VOTE REQUIRED) 15 B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A REIMBURSEMENT REGARDING MINOR CAPITAL IMPROVEMENTS FROM THE SOUTH BAY LITTLE LEAGUE IN THE AMOUNT OF $19,604.80, AND APPROPRIATING THE FUNDS TO CAPITAL IMPROVEMENT PROJECT GG175, C&R MINOR CAPITAL (4/5THS VOTE REQUIREO) The General Services Department received two separate reimbursements for work related to two Capital Improvement projects. Staff is recommending that the reimbursements be appropriated to the projects from which the expenditure originally occurred. (General Services Director) Staff recommendation: Council adopt the resolutions. Page 6 - Council Agenda http://www .chulavistaca.gov August 22, 2006 16. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT WITH THE CITY OF LEMON GROVE FOR ANIMAL CONTROL SERVICES Chula Vista has provided animal control services to Lemon Grove since 1995. The existing agreement expired on June 30, 2005 Adoption of the resolution approves a new three-year animal control agreement with an option to extend administratively for two additional years upon mutual consent. (General Services Director) Staff recommendation: Council adopt the resolution. 17 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE COUNTY OF SAN DIEGO GRAND JURY REPORT ON FELONY WARRANTS, AND AUTHORIZING THE MAYOR TO SIGN THE RESPONSE ON BEHALF OF THE MAYOR AND CITY COUNCIL On June 1, 2006, the San Diego County Grand Jury filed a report entitled, "Felony Warrants - The Unsolved Problem" with the Clerk of the Court. The Grand Jury made seven specific recommendations directed in part to all Mayors, the County Board of Supervisors, Chiefs, and the Sheriff in San Diego County. Under State law, the City of Chula Vista and the Chief of Police must respond within 90 days to the recommendations contained in the Grand Jury report. (police Chief) Staff recommendation: Council adopt the resolution. 18. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING CONDITIONAL TEMPORARY CLOSURE OF A PORTION OF RANCHO DEL REY PARKWAY ON SEPTEMBER 9 AND 10,2006, FOR THE ORANGE CRATE DERBY The Bonita Orange Crate Derby Committee of the Bonita Valley Lions Club is requesting permission for temporary street closure on Rancho Del Rey Parkway on September 9 and 10, 2006 to conduct their 27th Annual Orange Crate Derby. (Police Chief) Staffrecommendation: Council adopt the resolution. 19. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE APPLICATION, AND IF AWARDED, ACCEPTANCE OF A RECREATIONAL TRAILS PROGRAM GRANT FROM THE STATE OF CALIFORNIA FOR REHABILITATION OF ROHR PARK RECREATIONAL TRAIL; AUTHORIZING THE COMMITMENT OF MATCHING FUNDS THEREFOR, AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO IMPLEMENT THE APPROVED PROJECT As part of the City's ongoing commitment to provide safe and accessible recreational facilities to residents, Public Works Operations (Parks & Open Space) plans to rehabilitate several sections of Rohr Park Recreational Trail for pedestrian and equestrian use. To help fund the project, staff proposes to apply for federal Recreational Trails Program grant funding from the California Department of Parks and Recreation. If awarded, the funds will become available in Fiscal Year 2007/2008. (Public Works Operations) Staff recommendation: Council adopt the resolution. Page 7 - Council Agenda http://www.chulavistaca.gov August 22, 2006 20. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE SUBMITTAL OF GRANT APPLICATIONS TO THE CALIFORNIA INTEGRATED WASTE MANAGEMENT BOARD (CIWMB) FOR ALL AVAILABLE CIWMB TIRE-RELATED GRANTS DURING THE FIVE-YEAR PERIOD ENDING JUNE 30, 2011; AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO SECURE LOCAL GOVERNMENT TIRE-RELATED GRANT FUNDS AND IMPLEMENT THE APPROVED GRANT PROJECTS In keeping with the City's policy to support the use of products manufactured with post- consumer recycled material, staff plans to dress city-owned landscaped facilities with a durable mulch product made from waste tire products. Adoption of the resolution allows staff to apply for a Tire-Derived Products Program Grant from the State of California to offset project costs. The resolution further authorizes application to any of California Integrated Waste Management Board's grant programs for a period of five years. (Public Works Operations Director) Staff recommendation: Council adopt the resolution. 21 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2007 BUDGET BY APPROPRIATING $33,486 FROM OPEN SPACE DISTRICT 20, ZONE 5, AND OPEN SPACE DISTRICT 8 FUNDS, AWARDING A LANDSCAPE MAINTENANCE CONTRACT PER THE TERMS AND CONDITIONS OF BID NO 01-04/05 TO AZTEC LANDSCAPING IN THE AMOUNT OF $242,378.24 FOR THE PERIOD OF SEPTEMBER I, 2006 THROUGH JUNE 30, 2007, FOR THE LANDSCAPE MAINTENANCE OF OPEN SPACE DISTRICT 20, ZONE 5, AND OPEN SPACE DISTRICT 8; AND AUTHORIZING THE PURCHASING AGENT TO RENEW THE AGREEMENT FOR FOUR (4) ADDITIONAL, ONE-YEAR OPTION PERIODS The current landscape maintenance contractor for Open Space Districts 8 and 20, Zone 5 is in default of their landscape maintenance contract. As a result, the second lowest bidder is being awarded the landscape maintenance contract for these open space areas, which represents an increase of $33,486 over the lowest bid. (Public Works Operations Director) Staff recommendation: Council adopt the resolution. 22. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF THE OT A Y LANDFILL The agreement between the County of San Diego and the City of Chula Vista regarding jurisdiction over and operation of the Otay Landfill contains certain provisions requiring the County to participate in the City's approval of General Plan Amendments affecting the landfill buffer area. The City and County agree these provisions should be removed. (City Attorney) Staff recommendation: Council adopt the resolution. Page 8 - Council Agenda http://www .chulavistaca.gov August 22, 2006 ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS Persons speaking during Public Comments may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for future discussion or refer the matter to staff. Comments are limited to three minutes. PUBLIC HEARINGS The following items have been advertised as public hearings as required by law If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 23 CONSIDERATION OF THE FISCAL YEAR 2006/2007 LEVY OF ASSESSMENTS AND COLLECTION AGAINST THOSE ASSESSMENTS FOR CITY OPEN SPACE DISTRICT 20 The City administers and maintains thirty-six open space districts and associated zones that have been established over the last thirty years. The districts provide a financing mechanism to maintain the public open space areas associated with each particular development. The levy of an annual assessment for Fiscal Year 200612007 enables the City to provide these ongoing services. Adoption of the following resolution approves the levy of the assessment and collectibles for Open Space District 20. (Acting Engineering Director) Staff recommendation: Council conduct the public hearing and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA LEVYING THE ASSESSMENTS AND COLLECTIBLES FOR OPEN SPACE DISTRICT 20 ACTION ITEMS The Item listed in this section of the agenda will be considered individually by the Council and is expected to elicit discussion and deliberation. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 24. REPORT ON THE EXECUTIVE SEARCH PROCESS FOR THE CITY MANAGER BY BOB MURRAY OF BOB MURRAY AND ASSOCIATES The City has contracted with Bob Murray and Associates to conduct an Executive Search for the next City Manager. Mr. Murray will speak to the Council regarding issues and recommendations related to the executive search, and seek Council input regarding those issues. Mr. Murray will report back to Council once he is prepared to recommend a group of finalists for the position. (Human Resources Director) Staff recommendation: Council provide direction to Mr. Murray. Page 9 - Council Agenda http://www.chulavistaca.gov August 22, 2006 25 SELECTION OF APPLICANTS TO BE INTERVIEWED FOR APPOINTMENT AS PORT COMMISSIONER At its August 8, 2006 meeting, the City Council accepted Port Commissioner Bill Hall's resignation, and approved an appointment process for selecting a new Port Commissioner The new Port Commissioner will serve for the balance of the current term, which expires on January 2, 2007, and will be eligible to apply for a full term at that time. (Interim City Manager Thomson) Staff recommendation: That Council 1) Individually submit to the City Clerk in writing the names of the candidates they wish to nominate for Port Commissioner; 2) Direct the City Clerk to announce the nominees and the names of Councilmernbers who made the nominations; 3) Determine whether to hold a special Council meeting on August 29, 2006 at 6:00 p.m., or select an alternate date(s) to interview those applicants who received two or more votes. 26. REPORT ON REQUESTS BY THE ROLLING HILLS RANCH COMMUNITY ASSOCIATION AND RESIDENTS TO AMEND THE TRUCK ROUTE DESIGNATIONS ON LANE A VENUE, PROCTOR VALLEY ROAD AND HUNTE PARKWAY Due to new major roadways in the eastern part of the City, there was a need to update the City's truck routes per Chapter 10.64 (Truck Routes) of the Chula Vista Municipal Code. On March 21, 2006, Ordinance 3033 was introduced to the City Council for a first reading, and on March 28, 2006 this Ordinance was adopted, thereby amending Ordinance 2482, dated 1991 Council will discuss the residents' concerns about Truck Route designations on Lane Avenue, Proctor Valley Road and Hunte Parkway (Acting Engineering Director) Staff recommendation: Based upon agreements made with the community at a meeting on July 31, 2006, that Council: 1) Maintain the designation of Lane Avenue, Proctor Valley Road and Hunte Parkway as Truck Routes; 2) Direct staff to proceed with a review of Truck Route signage along Lane Avenue; and 3) Direct staff to proceed with implementation of trial traffic safety alternatives for Lane Avenue as agreed to with the community and to return with recommendations for Council's consideration after a minimum two-month trial period. 27 STATUS REPORT ON THE MAJOR INTERSECTION SAFETY PROGRAM ALLOWING THE CITY COUNCIL TO PROVIDE POLICY DIRECTION REGARDING THE POTENTIAL USE OF RED LIGHT CAMERA ENFORCEMENT IN THE CITY (Continued from August 8, 2006) In 2005, the Neighborhood Traffic & Pedestrian Safety Program was created in order to focus on neighborhood traffic calming, major intersection safety and pedestrian and bicyclist safety. The importance of this effort was underscored by the results of the 2005 Chula Vista Police Department Resident Opinion Survey, which indicated that four of the five top areas of concern for our residents were traffic related. This item provides a status update on program efforts in this area and provides the opportunity for the City Council to have a policy discussion regarding the potential use of red light camera enforcement in our city. (Acting Engineering Director) Staff recommendation: Council adopt the resolution. Page 10 - Council Agenda http://www.chulavistaca.gov August 22, 2006 28. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE PARK MASTER PLAN FOR THE 7.6 ACRE PUBLIC NEIGHBORHOOD PARK SITE IN THE OTAY RANCH VILLAGE 7 SUBDIVISION AND APPROVING THE NAME OF THE PARK TO BE ALL SEASONS PARK This proposed park is located south of Birch Road, west of SR-125, east of La Media Road and within the Otay Ranch Village Seven Subdivision. The park site shares boundaries with an elementary school site, Wolf Canyon Open Space, Magdalena Avenue and Wolf Canyon Loop. The Village Greenway Trail, running along the northern boundary of the park site, links the park to the future Eastern Urban Center to the east and the future Otay Ranch 70-acre Community Park to the west as well as the City's Greenbelt Trail system. (General Services Director) Staff recommendation: Council adopt the resolution. OTHER BUSINESS 29. CITY MANAGER'S REPORTS 30. MAYOR'S REPORTS Ratification of appointment of John Liken to the Safety Commission. 31. COUNCIL COMMENTS A. Councilmember Rindone: Ratification of Seat No. 3's appointment of Brett Davis to the Mobilehome Rent Review Commission. B. Councilmembers Rindone and Chavez: Letter regarding elimination of position of Intergovernmental Affairs Coordinator from Department of Mayor and Council pursuant to Chula Vista Charter section 501. CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Attorney's office in accordance with the Ralph M. Brown Act (Government Code 54957.7). 32. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b) Three Cases 33. PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE PURSUANT TO GOVERNMENT CODE SECTION 54957 ADJOURNMENT to an Adjourned Regular Meeting on August 29,2006; and thence to the Regular Meeting on September 19, 2006 at 6:00 p.m. in the Council Chambers. Page 11 - Council Agenda http://www.chulavistaca.gov August 22, 2006 In compliance with the AMERICANS WITH DISABILITIES ACT The City of Chula Vista requests individuals who require special accommodations to access, attend, and/or participate in a City meeting, activity, or service request such accommodation at least forty-eight hours in advance for meetings and five days for scheduled services and activities. Please contact the City Clerk for specific information at (619) 691-5041 or Telecommunications Devicesfor the Deaf(TDD) at (619) 585-5655 California Relay Service is also available for the hearing impaired. Page 12 - Council Agenda http://www .chulavistaca.gov August 22, 2006 DRAFT MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA June 13,2006 5.30 P.M. A Special Meeting of the City Council of the City ofChula Vista was called to order at 5 19 p.m. in the Council Conference Room located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL. PRESENT Councilmembers: Castaneda, Chavez, McCann, Rindone, and Mayor Padilla ABSENT Councilmembers: None 1 PUBLIC EMPLOYEE APPOINTMENT PURSUANT TO GOVERNMENT CODE SECTION 54957 Title: Interim City Manager ACTION The Council voted 5-0 to appoint Assistant City Manager Thomson as Interim City Manager. ADJOURNMENT At 6:52 p.m., Mayor Padilla adjourned the meeting to the Regular Meeting on June 13, 2006 at 6:00 p.m. in the Council Chambers. ~ t.Ub..-U~(~ ~ Lori Anne Peoples, Senior Deputy City Clerk /A DRAFT MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA June 20, 2006 5.30 P.M. A Special Meeting of the City Council of the City ofChula Vista was called to order at 5:50 p.m. in the Council Conference Room located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL. PRESENT' Councilmembers: Castaneda, Chavez, McCann, Rindone, and Mayor Padilla ABSENT Councilmembers: None CLOSED SESSION I CONFERENCE WITH LABOR NEGOTIATORS PURSUANT TO GOVERNMENT CODE 54957.6 Agency designated representatives: Councilmembers Steve Castaneda and Jerry Rindone. Employee: Interim City Manager Jim Thomson. No reportable action was taken on this item. At 6'09 p.m., Mayor Padilla adjourned the meeting to the Regular Meeting of June 20, 2006 at 6'00 p.m., in the Council Chambers. ~ -=-- -'WW ~r:~~ Lori Anne Peoples, Senior Deputy City Clerk /8 . DRAFT MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA July 11, 2006 6'00 P.M. A Regular Meeting of the City Council of the City of Chula Vista was called to order at 6 10 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL. PRESENT Councilmembers: Chavez, McCann, Rindone, and Mayor Padilla ABSENT Councilmembers: Castaneda (excused) ALSO PRESENT Assistant City Manager Smith, City Attorney Moore, and City Clerk Bigelow PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO BUCK MARTIN, RECREATION DIRECTOR, AND PARKS AND RECREATION COMMISSIONERS KATHY CIEN-MAYER, DON SALCIDO, AND FRANCISCO RIOS, DECLARING JULY AS PARKS AND RECREATION MONTH Mayor Padilla read the proclamation and Deputy Mayor McCann presented it to Recreation Director Martin, Commissioners Cien-Mayer, Don Salcido and Francisco Rios. . PRESENTATION BY BUCK MARTIN, RECREATION DIRECTOR, OF A VIDEO OF THE GRAND OPENING OF MONTEV ALLE PARK Recreation Director Martin introduced the video of the recent Montevalle Park grand opening. Deputy Mayor McCann expressed his thanks to Mr. Martin and his staff for their work on the event, and he announced that the Mountain Hawk Park dedication is scheduled for July 20, 2006, at 5'00 p.m. . PRESENTATION BY DEVELOPER JIM PIERI, OF A REPLICA OF A BRONZE SCULPTURE ENTITLED, "MOTHER AND CHILD," BY JULKA DJURETIC, LOCATED IN THE NEW GA TEW A Y II BUILDING Mr. Pieri presented photographs of the one-of-a-kind sculpture, entitled "Mother and Child," by world-renowned artist Julka Djuretic. He announced that replicas of the sculpture would be available for sale to the public, and he presented the first replica to Councilmember Rindone, who accepted it on behalf of the City Ie - I , SPECIAL ORDERS OF THE DAY (Continued) . DID YOU KNOW THAT THE NATURE CENTER'S NEW WERGELAND F AMIL Y DISCOVERY CENTER WILL OPEN ON JULY 22? Presented by Ben Vallejos, Nature Center Specialist, and Joyce Remp, Registered Veterinary Technician. Nature Center Director Beintema introduced the Wergeland Family Discovery Center Project, and acknowledged Dr Larry Wergeland for his generous donations. Ben Vallejos, Nature Center Specialist, and Joyce Remp, Registered Veterinary Technician, then described highlights of the new exhibits. Mr. Beintema announced that the grand opening of the Discovery Center is scheduled for Saturday, July 22, at 11'00 a.m., and admission will be free. CONSENT CALENDAR (Items 1 through 6) Deputy Mayor McCann and Councilmember Chavez requested that Item 3 be pulled from the Consent Calendar for discussion. Councilmember Chavez stated that she would abstain from voting on Item. 4 due to the proximity of her residence to the schools. 1 APPROVAL OF MINUTES of May 9, May 16, and May 23, 2006. Staff recommendation: Council approve the minutes. 2. ORDINANCE NO 3037, ORDINANCE OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO THE EASTLAKE III PLANNED COMMUNITY DISTRICT REGULATIONS AND LAND USE DISTRICTS MAP FOR 18.4 ACRES AT THE SOUTHWEST CORNER OF OLYMPIC P ARKW A Y AND WUESTE ROAD INTERSECTION (SECOND READING) Adoption of this ordinance amends the Planned Community District regulations and Land Use Districts map for 18.4 acres at the southwest comer of Olympic Parkway and Wueste Road intersection. This ordinance was introduced on June 20, 2006. (Planning and Building Director) Staff recommendation. Council adopt the ordinance. 4 RESOLUTION NO. 2006-202, 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 DYNAMIC AFTER SCHOOL HOURS (DASH) AFTER SCHOOL RECREATIONAL PROGRAM, AND THE SAFE TIME FOR RECREATION, ENRICHMENT, AND TUTORING FOR CHILDREN (STRETCH) EXTENDED SCHOOL DAY EDUCATIONAL PROGRAM, AND AUTHORIZING THE MAYOR TO EXECUTE THE MEMORANDUM OF UNDERSTANDING (Continued from June 20, 2006) IC-2 Page 2 - Council Minutes July II, 2006 . CONSENT CALENDAR (Continued) Adoption of the resolution approves an updated Memorandum of Understanding (MOU) between the City and the Chula Vista Elementary School District for Fiscal Year 2006/2007, which includes expansion of the number of students served at one STRETCH site (Mueller). It also increases emollment of STRETCH students served at Lorna Verde and Mueller due to the additional funding received from the After School Education and Safety Program. The Chula Vista Elementary School District Board is expected to vote on the Fiscal Year 2006/2007 MOU at its June 20, 2006 meeting. (Assistant City Manager Palmer) Staff recommendation: Council adopt the resolution. 5 RESOLUTION NO. 2006-203, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING $97,048 FROM THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL AND APPROPRIATING SAID FUNDS TO THE FISCAL YEAR 2006/2007 BUDGET OF THE POLICE DEPARTMENT The Police Department received notice of a grant award from the Department of Alcoholic Beverage Control (ABC) to fund a one-year project that will identify and reduce the number of ABC licensees that serve alcohol to obviously intoxicated persons, provide minors access to alcohol, allow narcotic-related activity on their premises and fail to comply with City ordinances and regulations. (Police Chief) Staff recommendation: Council adopt the resolution. 6 A. RESOLUTION NO 2006-204, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CIlliLA VISTA RECITING THE FACT OF THE GENERAL MUNICIPAL ELECTION HELD IN SAID CITY ON JUNE 6, 2006, DECLARING THE RESULTS THEREOF, AND SUCH OTHER MATTERS AS ARE PROVIDED BY LAW B. RESOLUTION NO 2006-205, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CALLING AND GIVING NOTICE OF THE HOLDING OF A SPECIAL MUNICIPAL ELECTION ON TUESDAY, NOVEMBER 7, 2006 FOR THE PURPOSE OF ELECTING A MAYOR AND A MEMBER OF THE CITY COUNCIL, AS REQUIRED BY THE PROVISIONS OF THE CHULA VISTA CHARTER AND THE LAWS OF THE STATE OF CALIFORNIA RELATING TO THE CONDUCT OF ELECTIONS C. RESOLUTION NO 2006-206, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING REGULATIONS FOR CANDIDATES FOR ELECTIVE OFFICE PERTAINING TO MATERIALS SUBMITTED TO THE ELECTORATE AND THE COSTS THEREOF FOR THE SPECIAL MUNICIPAL ELECTION TO BE HELD IN SAID CITY ON TUESDAY, NOVEMBER 7,2006 Adoption of the resolutions declares the results of the General Municipal Election held on June 6, 2006, as submitted by the Registrar of Voters; gives notice of the upcoming Special Municipal Election on November 7, 2006; and adopts regulations pertaining to materials prepared by candidates and the costs thereof. (City Clerk) Staff recommendation: Council adopt the resolutions. Page 3 - Council Minutes /C-3 July ll, 2006 ~ CONSENT CALENDAR (Continued) ACTION Mayor Padilla moved to staff recommendations and offered Consent Calendar Items I, 2 and 4 through 6, headings read, texts waived. The motion carried 4-0, except on Item 4, which carried 3-1, with Councilrnember Chavez abstaining, due to the proximity of her residence to the schools. ITEMS REMOVED FROM THE CONSENT CALENDAR 3 ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 2.05.010 RELATING TO THE ESTABLISHMENT OF UNCLASSIFIED POSITIONS TO ADD THE POSITIONS OF EXECUTNE DIRECTOR OF THE REDEVELOPMENT AGENCY/CEO OF THE CYRC, CBAG EXECUTNE DIRECTOR, AND DEVELOPMENT PLANNING IMPROVEMENT MANAGER (SECOND READING, 4/5THS VOTE REQUIRED) Chula Vista City Charter Section 500 requires that all unclassified poslnons not mentioned specifically in that section be adopted by Ordinance. Adoption of the ordinance adds the unclassified positions of Executive Director of the Redevelopment Agency/CEO of the CVRC, CBAG Executive Director, and Development Planning Improvement Manager to Municipal Code Section 2.05.010. This ordinance was introduced on June 20, 2006. (Budget and Analysis Director) Staff Recommendation: Council adopt the ordinance. Deputy Mayor McCann requested to meet with staff for a briefing on the item to ensure that the proposed ordinance includes the staff positions that were supported at the June 20, 2006 Council ineeting. Councilmember Rindone requested that staff provide a written summary to the Council, delineating any questions and concerns raised at the briefing with Deputy Mayor McCann and Councilmember Chavez. ACTION Deputy Mayor McCann moved to continue the item to a future date. Councilmember Chavez seconded the motion, and it carried 4-0. Item No.7 was taken out of order and actually discussed at this time, prior to Public Comments. PUBLIC COMMENTS Patricia Lopez, a renter at Bayscene Mobilehome Park, stated that rents are constantly being raised above the established cap for low-income residents. She distributed copies of the park owner's revenue and expense statement ending December 31, 2004, pointing out some expenses listed she believed should not be included in the owner's operating expenses. She stated that the rent increases have caused her fmancial hardship. Patricia Aguilar, president of Crossroads II, spoke in support of the residents of Jade Bay Mobilehome Park. She stated that since the issue is a bankruptcy situation, it was her understanding that the property owner was not required to provide the relocation assistance required by the City's ordinance, although the Jade Bay property is designated as high density residential under the new General Plan, which gives the park owner a huge windfall. She urged the Council to step in and prove that Chula Vistans are compassionate and do whatever is necessary to assist residents who may have to move. Page 4 - Council Minutes IC-L/. I July 11, 2006 PUBLIC COMMENTS (Continued) Gary Damico, a homeowner in Jade Bay Mobilehome Park, stated that he is very stressed about the bankruptcy situation in the park. He stated that there are many low-income families, as well as seniors on fixed incomes, who live in the park and who do not deserve what the park owner is doing to them. Further, he believed that filing bankruptcy was an opportunity for the park owner to make a lot of money Jackie Lancaster spoke on behalf of the Jade Bay residents, stating that she did not believe that the judge considering the bankruptcy should be allowed to overlook relocation laws, and that the City should be in a position to address the judge regarding those laws. She stated that Chula Vista is first in so many ways, and she asked the Council to set a good precedent and stand up for its citizens. Steve Molski stated that he had approached the Council in the past requesting that land be set aside in different areas of the City for mobilehome parks, but nothing had happened. He stated that the Jade Bay residents have nowhere to go, and the only fair way to resolve the problem if the bankruptcy goes through is to provide the mobilehome owners with the fair market value of their units. He also stated that the City should not approve any use other than a mobilehome park at that location. He expressed the need for something to be done for the park residents. Walter Wade stated that he moved to the Jade Bay Mobilehome Park believing that it would be his [mal permanent residence. The current situation is affecting his health to the point of considering suicide, and two park residents have passed away as a result of the bankruptcy situation. Further, he stated that the senior citizens need someone to stand up for them. Rebeca Zazueta stated that she purchased a home in Jade Bay Mobilehome Park less than a year ago, only to find that she now has to move out. She stated that all her money went towards purchasing the home and she now has nothing left. Ms. Zazueta felt certain that the owner knew of the bankruptcy situation before she purchased her home. She asked Council for assistance for the residents. Xochitl Galvan stated that she purchased a home in Jade Bay Mobilehome Park in 1999, and attempted to sell her home in 2002 and 2004 but was denied the sale by the park owner Ms. Galvan stated that she has no place to go and no money to purchase another home. She asked for Council assistance in the matter. Joe Yount, representing his mother, who lives in Jade Bay, stated that the residents were being thrown out of their homes, for which they were offered only $3,000. He stated that what was happening to the residents was not right. Barbara Nunnely stated that the Jade Bay Mobilehome Park residents do not want to move someplace else; they are simple people who want to live a simple life in the park for their remaining years. She stated that the park owner has lied, cheated, denied, and is a fraud. She stated that the residents cannot take the situation much longer, and she asked for Council assistance to keep the residents in the park. Page 5 - Council Minutes !~-5 July 11, 2006 PUBLIC COMMENTS (Continued) Jeanne Ebacher, representing the Jade Bay Mobilhome Park Homeowners Association, stated that there are only a few units that would qualify for a re-location permit under California law, which requires that the units be less than 17 years old. She stated that the senior residents look at Jade Bay as a place for their retirement, and young families as a place to raise their children. She stated that she would like to see any public records the City may have received from the park owner regarding sewer repairs in the park, which was indicated in the bankruptcy letter. She asked for Council assistance on the matter, particularly in obtaining any written documentation. Emilia Perez, representing Bayscene Mobilhome Park, stated that the park owner has raised rents, claiming that he is losing money She stated that certain operating expenses of the park owner, such as legal fees, should not be included as justification for an operating income loss. Irene Amick, a homeowner in Jade Bay Mobilehome Park, said she is furious about losing her home and cannot get legal help. She believed that the situation was unfair and unjust. Fred Dufresne, representing the Mobilehome Committee, stated that he had not received any information on the outreach program that was mentioned in a City information memorandum dated May 25, 2006, and he suggested that a letter be sent to all mobilehome park residents explaining the program and asking them to elect a volunteer representative and alternate from each park. Sara Masson stated that the senior citizens of Jade Bay Mobilehome Park are in shock about the bankruptcy The park owner has offered the residents $3,000 for their homes, which she believed was not fair, and she said she would appreciate anything that the Council could do to help. Parks Pemberton stated that City government should be beating down doors to see what they can do for the Jade Bay Mobilehome Park residents. He stated that fewer rentals are becoming available to meet demands, low-income residents have no place to go, and little is being done to assist them. He suggested the undergrounding of overhead lines on Orange Avenue to place trailer parks in the area. He believed that the City had not listened or cared, and that what was going on was unethical. Michelle Rewerts stated that City staff has spent years finding land for a university campus and are now looking for a potential stadium site, when room cannot be found to accommodate 150 families that may be potentially displaced. She suggested that James Baldwin, President of the Western Manufactured Home Association, be contacted to get his view on the issue. Joe Frichtel, representing his mother-in-law, a past resident of Jade Bay Mobilehome Park, stated that the City cannot allow the displacement of park residents. He stated that the park is rent- controlled, so the City is partially responsible for the residents living there. Further, the situation is a crass example of erninent domain, and he asked the Council not to let the residents be thrown out on the street. A member of the public asked the Council for assistance in finding a solution to the Jade Bay issue, stating that she cannot afford to live elsewhere. A member of the public spoke in support of the residents of Jade Bay, stating that she felt that the bankruptcy issue would create a domino effect in other mobilehome parks. She stated that no new trailer parks would accept trailers older than 10 years and that the situation was unfair She asked the Council to help the residents. Page 6 - Council Minutes I c -;:, July 11, 2006 , PUBLIC COMMENTS (Continued) Mayor Padilla thanked everyone present for keeping the Council apprised as to what is going on and, on behalf of the Council, he stated that the City does care about the welfare of its residents, and staff is doing everything possible to ensure that the Jade Bay residents would be treated fairly Deputy Mayor McCann stated that the Council does care about the residents and current bankruptcy situation. He added that staff has been out to the park to meet with the residents, and the City has retained a bankruptcy attorney to see what role the City could play He stated that he would be available for anyone who wished to discuss the issues with him. Councilmember Rindone asked staff to bring back an information memo in one week regarding relocation assistance, including all associated policies and all funds available for relocation assistance. PUBLIC HEARINGS 7 CONSIDERATION OF APPROVAL OF AN APPLICATION FOR THE PROPOSED CONVERSION OF AN EXISTING 156-UNIT APARTMENT COMPLEX TO CONDOMINIUM UNITS FOR INDIVIDUAL OWNERSHIP (PCS 06-01, APPLICANT: MARK GOSSELIN TRUST) The applicant, Mark Gosselin Trust, submitted an application for a condominium conversion of an existing apartment complex that was constructed in 2001, and consists of 156 apartment units and common open space. The 7.95-acre project site is located at 1301 Medical Center Drive. (Planning and Building Director) Item 7 was taken out of order and actually considered prior to Public Comments. Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Padilla opened the public hearing. Project Planner Putnam presented the proposed apartment complex conversion. With no members of the public wishing to speak, Mayor Padilla closed the public hearing. ACTION Deputy Mayor McCann offered Resolution No. 2006-207, heading read, text waived: RESOLUTION NO 2006-207, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AND ESTABLISHING CONDITIONS OF A TENTATIVE SUBDIVISION MAP TO DIVIDE INTEREST IN 7.95 ACRES AT 1301 MEDICAL CENTER DRIVE FOR A ONE-LOT CONDOMINIUM PROJECT CONTAINING 156 RESIDENTIAL UNITS The motion carried 4-0. Page 7 - Council Minutes /C-7 July 11,2006 , At 7 41 p.m., Mayor Padilla announced a brief recess of the Council Meeting. At 8:03 p.m., the meeting was reconvened with all members present. ACTION ITEMS 8. CONSIDERATION OF ADOPTING A RESOLUTION COMPENSATION FOR THE INTERIM CITY MANAGER APPROVING On June 13, 2006, the Council appointed Jim Thomson as Interim City Manager, subject to approval of a compensation agreement, while a new, permanent City Manager is recruited and selected. Adoption of the proposed resolution approves a compensation package and thereby completes the appointment process for Interim City Manager. (City Attorney) Councilmember Rindone reported that the Council sub-committee met with Interim City Manager Thomson to discuss the agreement, and Mr. Thomson is in agreement with the proposed salary compensation. ACTION. Mayor Padilla offered Resolution No. 2006-208, heading read, text waived. RESOLUTION NO 2006-208, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING INTERIM CITY MANAGER COMPENSATION The motion carried 4-0. OTHER BUSINESS 9 CITY MANAGER'S REPORTS There were none. 10 MAYOR'S REPORTS Mayor Padilla stated he hoped everyone enjoyed the July 4th holiday Mayor Padilla requested that staff submit any additional applications received for the Planning Commission for Council review and schedule interviews for a third vacancy on the commission for Tuesday, July 18, 2006, at 5'00 p.m. in Council Chambers. A. Consideration of designation of a voting delegate and an alternate for the 2005 League of California Cities Annual Conference, to be held Wednesday, September 6 through Saturday, September 9, 2006 in San Diego. Council concurred to designate Mayor Padilla as voting delegate and Councilmember Chavez as an alternate to the 2005 League of California Cities Annual Conference. Page 8 - Council Minutes /~-'? July 11, 2006 OTHER BUSINESS (Continued) B. ACTION Ratification of appointment of Mark Minas to the Housing Advisory Commission. Councilmember Rindone moved to ratify the appointment of Mark Minas to the Housing Advisory Commission. Deputy Mayor McCann seconded the motion, and it carri ed 4-0. C. Ratification of appointment of Pedro De Lara to the Charter Review Commission. ACTION Coucilmember Rindone moved to ratify the appointment of Pedro De Lara to the Charter Review Commission. Deputy Mayor McCann seconded the motion, and it carried 4-0. II COUNCIL COMMENTS Councilmember Rindone congratulated city staff who participated in coordinating the Fourth of July celebration. Councilmember Rindone asked the City Attorney to provide a report to the Council regarding concerns expressed about the Christmas in October event and whether or not it is copasetic with the Political Reform Act. Deputy Mayor McCann spoke about the success of the Fourth of July event and congratulated the Chamber, City staff, and all who participated. Councilmember Chavez also congratulated all those who participated in the Fourth of July festivities. CLOSED SESSION 12. PUBLIC EMPLOYEE APPOINTMENT PURSUANT TO GOVERNMENT CODE SECTION 54957 Ratification of appointment of Deputy City Attorney III ACTION The Council concurred to ratify the appointment of Jill Maland as Deputy Attorney III. 13 CONFERENCE WITH LEGAL COUNSEL REGARDING INITIATION OF LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(c) One Case No reportable action was taken on this item. ADJOURNMENT At 9'15 p.m., Mayor Padilla adjourned the meeting to the Regular Meeting on July 18, 2006 at 6'00 p.m. in the Council Chambers. -=- at w ~.y...J ,Q - -' Susan Bigelow, MMC, Cityl€lerk Page 9 - Council Mioutes j/V ~ c..-:; July II, 2006 DRAFT MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA July 25, 2006 6:00 P.M. A Regular Meeting of the City Council of the City of Chula Vista was called to order at 6:20 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL. PRESENT Councilmembers: Castaneda, Chavez, McCann, Mayor Padilla ABSENT Councilmembers: Rindone (excused) ALSO PRESENT Interim City Manager Thomson, City Attorney Moore, and Senior Deputy City Clerk Peoples PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . OATH OF OFFICE Lisa Moctezuma - Planning Commission Deputy City Clerk Bennett administered the oath of office to Lisa Moctezuma, and Deputy Mayor McCann presented Ms. Moctezuma with a certificate of appointment. . INTRODUCTION BY POLICE CHIEF EMERSON OF RECENTLY HIRED AND RECENTLY PROMOTED EMPLOYEES Police Chief Emerson introduced the recently hired and promoted officers. Deputy City Clerk Bennett administered the oath of office to Officers Roberto Lemus and Christopher Bayless. . DID YOU KNOW CHULA VISTA IS GETTING A MAKEOVER. ONE HOME AT A TIME? Presented by Brad Remp, Assistant Director of Planning and BuildinglBuilding Official. Dr. Emerald Randolph gave a brief overview of the Christmas In October program that will take place on Saturday, October 7, 2006. She explained that the program is in its eighth year and during that time has provided home improvements to 65 elderly or disabled low-income homeowners. She thanked all the citizens and City staff volunteers involved in the program, and announced Patty Davis as the 2006-2007 Honorary Chairperson. She said that applications with contact information on the program would be available outside the Council Chambers. Assistant Director of Building and Housing Remp provided examples of some of the 2005 home improvements, and stated that the deadline to submit applications for this year's program is Monday, July 31st. /7)-/ SPECIAL ORDERS OF THE DAY (Continued) Deputy Mayor McCann recognized and thanked Dr. Randolph and former Councilmember Patty Davis for their dedication to the program. He encouraged the community to call 619/691-5213 for Christmas In October contact information and/or volunteer participation. Mayor Padilla expressed appreciation to all the community volunteers and sponsors of the Christmas In October program. He particularly recognized the ongoing legacy of former Councilmember Patty Davis' dedication to the program. CONSENT CALENDAR (Items I through 6) Deputy Mayor McCann stated that he would abstain from voting on Items IB and 3 due to the proximity of his property to the project areas. Councilmember Castaneda stated that he would abstain from voting on Item lA due to the proximity of his property to the project area. Mayor Padilla stated that he would abstain from voting on Item 4, due to the proximity of his property to the district. 1 A. ORDINANCE NO 2006-3038, ORDINANCE OF THE CITY OF CHULA VISTA AMENDING REDEVELOPMENT PLANS FOR THE MERGED BAYFRONT/TOWN CENTRE I REDEVELOPMENT PROJECT AREA (ONLY PERTAINING TO BAYFRONT ORIGINAL AND TOWN CENTRE 1), PURSUANT TO SENATE BILL 1096 (CHAPTER 211, STATUTES OF 2004) AS CODIFIED IN HEALTH AND SAFETY CODE SECTION 33333.6 (SECOND READING) B. ORDINANCE NO 2006-3039, ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE REDEVELOPMENT PLAN FOR THE MERGED CHULA VISTA REDEVELOPMENT PROJECT AREA (ONLY PERTAINING TO TOWN CENTRE II ORIGINAL AND OTAY VALLEY), PURSUANT TO SENATE BILL 1096 (CHAPTER 211, STATUTES OF 2004) AS CODIFIED IN HEALTH AND SAFETY CODE SECTION 33333.6 (SECOND READING During Fiscal Years 2004/2005 and 2005/2006, the Redevelopment Agency was required by Senate Bill 1096 (Chapter 211, Statutes of 2004) to make payments to a special state account - the Educational Revenue Augmentation Fund (ERAF). To compensate redevelopment agencies for these "ERAF shifts," the State Legislature (through Senate Bill 1096) authorized agencies to extend the effectiveness of their redevelopment plans by up to two years, provided the Agency can make certain findings. The proposed ordinances contain the necessary findings. These ordinances were introduced on July 18, 2006. (Acting Community Development Director) Staff recommendation: Council adopt the ordinances. Page 2 - Council Minutes /D-2 July 25, 2006 , CONSENT CALENDAR (Continued) 2. RESOLUTION NO 2006-223, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE LEVY OF MAXIMUM SPECIAL TAXES FOR FISCAL YEAR 2006/2007 WITHIN COMMUNITY FACILITIES DISTRICTS 97-1, 97-3, 98-1, 98-2, 98-3, 99-1, 99-2, 2000-1, 2001-1, 2001-2, 08-M, 08- I, ll-M, 12-1, 13-1, AND l2-M, AND DELEGATING TO THE CITY MANAGER THE AUTHORITY TO ESTABLISH THE SPECIAL TAX FOR EACH DISTRICT Adoption of the resolution authorizes the levy of a special tax in each of the districts to pay for the maintenance of open space, preserve areas, and public facilities, or to repay bondholders. (Acting Engineering Director) Staff recommendation: Council adopt the resolution. 3 RESOLUTION NO. 2006-224, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE LEVY OF MAXIMUM SPECIAL TAXES FOR FISCAL YEAR 2006/2007 WITHIN COMMUNITY FACILITIES DISTRICTS 06-1 AND 07-M, AND DELEGATING TO THE CITY MANAGER THE AUTHORITY TO ESTABLISH THE SPECIAL TAX FOR EACH DISTRICT Adoption of the resolution authorizes the levy of a special tax in each of the districts to pay for the maintenance of open space, preserve areas, and public facilities, or to repay bondholders. (Acting Engineering Director) Staff recommendation. Council adopt the resolution. 4 RESOLUTION NO. 2006-225, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE LEVY OF MAXIMUM SPECIAL TAXES FOR FISCAL YEAR 2006/2007 WITHIN COMMUNITY FACILITIES DISTRICTS 07-1, 09-M, AND 97-2; AND DELEGATING TO THE CITY MANAGER THE AUTHORITY TO ESTABLISH THE SPECIAL TAX FOR EACH DISTRICT Adoption of the resolution authorizes the levy of a special tax in each of the districts to pay for the maintenance of open space, preserve areas, and public facilities, or to repay bondholders. (Acting Engineering Director) Staff recommendation. Council adopt the resolution. 5 RESOLUTION NO 2006-226, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A l20-DAY EXTENSION TO THE DEFERRAL OF THE PORTION COMPREHENSIVE GENERAL PLAN UPDATE COMPRISED OF FUTURE VILLAGES 8, 9, lO/UNIVERSITY AREA OF OTAY RANCH On December 13, 2006, the Council approved the City's Comprehensive General Plan Update, with the exception of the area comprised of Villages 8, 9, and 10/University area within Otay Ranch, which was deferred. Adoption of the resolution approves a l20-day extension of the deferral to continue exploring the feasibility of potential land use changes with the affected property owners. (Director of Planning and Building) Staff recommendation. Council adopt the resolution. Page 3 - Council Minutes ID-3 July 25, 2006 , CONSENT CALENDAR (Continued) 6. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 2.05010 RELATING TO THE ESTABLISHMENT OF UNCLASSIFIED POSITIONS TO ADD THE POSITIONS OF EXECUTNE DIRECTOR OF THE REDEVELOPMENT AGENCY/CEO OF THE CYRC, CBAG EXECUTNE DIRECTOR, AND DEVELOPMENT PLANNING AND IMPROVEMENT MANAGER AND TO DELETE THE POSITIONS OF COMMUNITY LIAISON (ASSIGNED TO THE OFFICE OF THE MAYOR AND COUNCIL), BUILDING AND PARK CONSTRUCTION MANAGER, CBAG OPERATIONS/INTELLIGENCE COORDINATOR, AND DIRECTOR OF EMPLOYEE DEVELOPMENT (FIRST READING Chula Vista City Charter section 500 requires that all unclassified positions not mentioned specifically in Charter section 500 be adopted by ordinance. Adoption of the ordinance adds the unclassified position titles of Executive Director of the Redevelopment Agency/CEO of the CYRC, CBAG Executive Director, and Development Planning Improvement Manager to Municipal Code Section 2.05 010. The following positions are being deleted from Municipal Code Section 2.05 010: Community Liaison (Assigned to the Office of the Mayor and Council), Building and Park Construction Manager, CBAG Operations/Intelligence Coordinator, and Director of Employee Development. (Budget and Analysis Director) Staff recommendation: Council place the ordinance on first reading. ACTION' Mayor Padilla offered the Consent Calendar, headings read, texts waived. The motion carried 4-0 with the exceptions of Item lA, which carried 3-0-1 with Councilmember Castaneda abstaining due to the proximity of his property to the project area; Items IB and 3, which carried 3-0-1 with Deputy Mayor McCann abstaining due to the proximity of his property to the project areas; and Item 4, which carried 3-0-1 with Mayor Padilla abstaining due to the proximity of his property to the district. ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS Elroy Kihano, representing the Sunbow II Daybreak community, stated that his neighborhood would be submitting a petition on public safety to the Council. Over the past year and a half, the residents have experienced ongoing property crime, auto thefts and home burglaries that usually occur between midnight and 5:00 a.m. He stated that the purpose of the petition was to outline neighborhood concerns and questions. Mr. Kihano questioned whether other neighborhoods were experiencing similar problems, and he suggested that community members from both the east and west sides of the City be provided the opportunity to gather to discuss the issues among themselves and collaborate on methods to address the problems. Page 4 - Council Minutes / ])-'-1 July 25,2006 , PUBLIC COMMENTS (Continued) Joseph Mack, former manager of the Twin Oaks Villas Apartments, stated that the apartments had recently been purchased for condominium conversion, and the property owner kicked the tenants out with less than 30 days' notice. He stated that the conversion had somehow been approved by the City, with no notification provided to the tenants or neighbors. He suggested that the Council view the property, as its present condition is a disgrace, and he was hopeful that this would not happen to anyone else in the City Mayor Padilla asked that the appropriate City staff contact Mr. Mack on the matter. Marvin Winters spoke in support of the proposed lobbying ordinance brought forward by Councilmember Chavez, stating that it is essential for the City to move forward with the ordinance in a comprehensive manner. He asked that the City do the right thing by implementing a transparent lobbying reform act. He stated that other than Councilmember Chavez, no Councilmembers have returned his phone calls on the matter, and he expressed concern that there is hesitation among some Councilmembers about adopting a comprehensive lobbying act. He said he was hopeful he would hear from other Councilmembers. Deputy Mayor McCann, with concurrence by Mayor Padilla on behalf of Council, stated that he would make himself available to meet with Mr. Winters. Joycelin Thomas Gomez spoke regarding issues associated with the quality of life in the Lomas Verdes II neighborhood. She stated that her new home had been permeated with excessive dust from nearby land excavations, and the City had not held the developer, Baldwin Company, accountable. She then referenced three penal codes and a Chula Vista Police incident report, stating that she reported a noise complaint regarding the CORR off-road concert, demanding that the promoter be arrested, and has yet to be contacted by the Police Department regarding her complaint. She stated that there needed to be a cut-off point; the City is allowing developers to make millions of dollars at the expense of its citizens, and the Police Department is not doing its job. She asked the Council to hold everyone accountable. Peter Watry spoke regarding the displacement of residents of Jade Bay Mobilehome Park with the goal of offering suggestions on how the Council might solve this issue, as well as address all the properties from Jade Bay to H Street, between Broadway and Interstate 5 He stated that the Urban Core Specific Plan would up-zone all those properties, creating windfall gains. He believed that some of the windfall gains ought to be used to ensure that the people being displaced end up no worse than they are now. He explained the "gross rent multiplier" as a means to estimate Jade Bay's windfall gain. He suggested that the Council send a letter to the owner of Jade Bay, with copies to other property owners in the area, explaining that until the City finds a way to revitalize without hurting a lot of poor people, it is going to temporarily pull Jade Bay out of the Urban Core Specific Plan. He also suggested perhaps calling a meeting of all the property owners to see if there is some cooperative way that they and the City can use part of the windfall gains to help relocate tenants and assist mobilehome owners from losing all the value of their principle asset, their mobilehome. Parks Pemberton spoke in support of Mr Watry's suggestions, stating that people have already been hurt, and 20 to 30 thousand people will be pushed out of the City He suggested consideration of placing mobilehomes on the SDG&E right-of-way located near Southwestern College. He also expressed the need for the Council to be more involved in assisting citizens and be more transparent. Page 5 - Council Minutes /D-5 July 25, 2006 , PUBLIC HEARlNGS 7 CONSIDERATION OF ADOPTION OF AN ORDINANCE AMENDING CHAPTER 3.50 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO UPDATES IN THE PUBLIC FACILITIES DEVELOPMENT IMPACT FEES (PDIF) TO PAY FOR VARIOUS PUBLIC FACILITIES WITHIN THE CITY OF CHULA VISTA The Public Facilities Development Impact Fee (PFDIF) program enables the City to implement the intent of the Growth Management Oversight Commission (GMOC) program, and to ensure that existing residents do not bear the costs of new development. The last comprehensive update of this program was done in November 2002. Adoption of the ordinance and resolutions provides for an update of the program. (Budget and Analysis Director) ACTION. Deputy Mayor McCann moved to continue Item 7 to a future date at the request of staff. Mayor Padilla seconded the motion, and it carried 4-0. The public hearing was not conducted, and the item will be re-noticed for a future date. At 7 18 p.m., Mayor Padilla recessed the Council meeting to convene the Redevelopment Agency meeting. The Council meeting reconvened at 8 47 p.m. with all members present. 8. CONSIDERATION OF AMENDING THE CITY'S MASTER FEE SCHEDULE AND ESTABLISHING NEW GREENS FEES AT THE CHULA VISTA MUNICIPAL GOLF COURSE American Golf Corporation has requested rate changes to greens fees for the Chula Vista Municipal Golf Course. In accordance with the lease agreement, American Golf Corporation can submit rate changes on an annual basis for the City's review and approval. The current greens fees were requested in January of 2004, and have been in effect since December 1,2004 (Public Works Operations Director) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Padilla opened the public hearing. Deputy Mayor McCann stated that he would abstain from voting on the item due to the proximity of his residence to the golf course. He then left the dais. Public Works Director Byers presented the proposed rate changes. Parks Manager Class then illustrated the recent golf course upgrades. There being no members of the public who wished to speak, Mayor Padilla closed the public hearing. Page 6 - Council Minutes ID-b July 25, 2006 , PUBLIC HEARINGS (Continued) ACTION Mayor Padilla moved to adopt Resolution No. 2006-227, heading read, text waived: RESOLUTION NO 2006-227, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE CITY'S MASTER FEE SCHEDULE AND ESTABLISHING NEW GREENS FEES AT CHULA VISTA MUNICIPAL GOLF COURSE The motion carried 3-0-I,with Deputy Mayor McCann abstaining due to the proximity of his residence to the golf course. 9 CONSIDERATION OF THE PROPOSED ASSESSMENT OF CERTAIN DELINQUENT SEWER SERVICE CHARGES AS LIENS UPON THE RESPECTNE OWNER-OCCUPIED PARCELS OF LAND AND PLACEMENT OF THE DELINQUENT CHARGES ON THE NEXT REGULAR TAX BILL FOR COLLECTION Adoption of the resolution approves the placement of liens against affected properties in order to adequately protect the City's interest in delinquent sewer service charges and ensure that collection efforts are directed toward the responsible property owner in the event of a change in ownership. (Finance Director) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Padilla opened the public hearing. There being no members of the public who wished to speak, Mayor Padilla closed the public hearing. ACTION: Councilmember Chavez moved to adopt Resolution No. 2006-228, heading read, text waived. RESOLUTION NO 2006-228, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING CERTAIN DELINQUENT SEWER SERVICE CHARGES TO BE ASSESSED AS RECORDED LIENS UPON THE RESPECTNE OWNER-OCCUPIED PARCELS OF LAND, AND AUTHORIZING PLACEMENT OF DELINQUENT CHARGES ON THE NEXT REGULAR TAX BILL The motion carried 3-0 with Deputy Mayor McCann absent from the dais. Deputy Mayor McCann returned to the dais at 8.55 p.m. 10. CONSIDERATION OF THE PROPOSED ASSESSMENT OF CERTAIN DELINQUENT SOLID WASTE SERVICE CHARGES AS RECORDED LIENS UPON THE RESPECTNE PARCELS OF LAND AND PLACEMENT OF DELINQUENT CHARGES ON THE NEXT REGULAR TAX BILL FOR COLLECTION Page 7 - Council Minutes Iv-7 July 25, 2006 , PUBLIC HEARINGS (Continued) Adoption of the resolution approves the placement of liens against affected properties in order to adequately protect the City's interest in delinquent solid waste service charges and ensure that collection efforts are directed toward the responsible property owner in the event of a change in ownership. (Finance Director) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Padilla opened the public hearing. There being no members of the public who wished to speak, Mayor Padilla closed the public hearing. ACTION. Councilmember Chavez moved to adopt Resolution No. 2006-229, heading read, text waived: RESOLUTION NO 2006-229, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING DELINQUENT SOLID WASTE SERVICE CHARGES TO BE ASSESSED AS RECORDED LIENS UPON THE RESPECTIVE PARCELS OF LAND, AND AUTHORIZING PLACEMENT OF THE DELINQUENT CHARGES ON THE NEXT REGULAR TAX BILL The motion carried 4-0. ACTION ITEMS 11 CONSIDERATION OF APPROVAL OF THE PLANNING AND BUILDING DEPARTMENT STRATEGIC PLAN AND WORK PROGRAM The Planning and Building Department Five-Year Strategic Plan (2006-2010) describes the department's responsibilities in implementing the priorities of the Council and the City Manager's office. The strategic plan aligns Plarming and Building's functions and programs with the City Council strategic themes, the recently adopted General Plan, and the economic development strategy (plarming and Building Director) Planning and Building Director Sandoval presented the Strategic Plan, including the department's mission, responsibilities and duties, and organizational chart. He stated that the majority of the work is legally mandated, and that the majority of the budget is recovered through cost recovery fees. He added that the efficiency of the department stimulates the local economy and creates jobs, housing, and services. He also discussed the accomplishments by the department for the period 2000 through 2006. Development Process Manager Lytle presented the department's work program and strategic objectives for 2006 - 2010. Page 8 - Council Minutes /D-e July 25,2006 , ACTION ITEMS (Continued) Georgie Stillman, representing the Resource Conservation Commission, stated that the Commission was in full support of the strategic plan, with the following three recommendations that the Commission believed would strengthen the strategic plan and work program for the coming years: I) the language "harmonizing change" and "compatible design" should be included as principles that are key to the west-side development; 2) more monitors to check for chemicals and run-off in order to protect water quality and manage watersheds; and 3) historic preservation to protect the threat of permanent, damaging alterations or demolition of historic properties and resources. Ms. Stillman also suggested that the department allocate additional funding and increased staff resources to complete the Historic Resources Inventory prior to proceeding with the west-side development. Mayor Padilla commented on the importance from a strategic planning standpoint of maintaining flexibility with regard to planning documents in order to respond to changing realities. Deputy Mayor McCann spoke in support of the suggestions by Ms. Stillman, particularly with reference to harmonizing change, historic preservation, and ensuring protection of the City's heritage as it develops and is revitalized. ACTION Deputy Mayor McCann then moved to adopt Resolution No. 2006-230, heading read, text waived. RESOLUTION NO 2006-230, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE PLANNING AND BUILDING DEPARTMENT FNE-YEAR STRATEGIC PLAN FOR FISCAL YEARS 2006-2010 The motion carried 4-0. 12. CONSIDERATION OF ADOPTION OF A RESOLUTION APPROVING THE BALLOT QUESTIONS AND DIRECTING THE CITY ATTORNEY TO PREPARE THE IMPARTIAL ANALYSIS OF THREE PROPOSED CHARTER AMENDMENTS TO BE SUBMITTED TO THE ELECTORATE AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 7, 2006 At its meeting on July 18, 2006, the Council, after receiving a report from the Charter Review Commission and hearing public testimony, voted to place one amendment to Charter Section 300D and two amendments to Charter Section 303C on the November 7, 2006 ballot. (City Attorney) Assistant City Attorney Hull explained the proposed measures and stated that staff would return to Council at a future date to call the election and to appropriate the necessary funds. Mayor Padilla expressed continued concern that the proposed language does not make it simple for the voters to understand. Councilmember Castaneda concurred with Mayor Padilla's concerns. Mayor Padilla suggested that staff collaborate with the Office of Communications in drafting the language for the proposed measures. Page 9 - Council Minutes / D-0 July 25, 2006 ACTION ITEMS (Continued) ACTION. Mayor Padilla moved to continue the item with direction to staff to bring it back on August 8, 2006, with refined ballot language and within the timeframe necessary to place it on the ballot, and to call upon other resources to assist with the language for the ballot questions. Deputy Mayor McCann seconded the motion, and it carried 4-0. OTHER BUSINESS 13 CITY MANAGER'S REPORTS Interim City Manager Thomson recommended that the meeting of August 15,2006 be cancelled due to a light agenda; the workshop of August 3, 2006, be conducted as scheduled to discuss zoning implementation, and the workshop of September 7, 2006, be cancelled. The Council concurred in holding the August 3, 2006 workshop and canceling the September 7, 2006 workshop. 14. MAYOR'S REPORTS There were none. 15 COUNCIL COMMENTS Deputy Mayor McCann thanked General Services Director Jack Griffin, Recreation Director Buck Martin and their staff for their work with the recent grand opening of Mountain Hawk Park. Councilmember Chavez announced that the recent kick-off the traffic-calming program was a great success, and stated that many neighborhood groups are being formed to share information, compile newsletters and correspondence, and contacting Council. She directed staff to come back with an update within the next couple of months on the traffic calming program and associated community groups. Councilmember Chavez directed staff to work with local water districts to form a plan to work with the community to promote water conservation. Councilmember Chavez spoke about the recent heat wave and reported that the City does have cool zones, namely the public libraries and Norman Park Senior Center. She recommended that neighborhoods check in on elderly and disabled residents and assist them in seeking cooler locations, should the heat continue. CLOSED SESSION 16. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b) Two cases No reportable action was taken on this item. Page 10 - Council Minutes I .f)-I () July 25,2006 ADJOURNMENT At 11'00 p.m., Mayor Padilla adjourned the meeting to the Regular Meeting on August 1, 2006 at 4'00 p.m. in the Council Chambers. ---- Lorraine Bennett Deputy City Clerk Page 11 - Council Minutes I'b- II July 25, 2006 ~V~ :-~ ~ ~-,:~ Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO ClN OF CHUIA VISTA Wednesday, August 02, 2006 TO: Mayor and City Council VIA: FROM. Susan Bigalow, City Clerk R . d C il j:~~~ Jerry . Rin one, ounc mem . Request for Excused Absences for ouncil Meetings Held on July 25, 2006 and August 1, 2006 RE: I respectfully request an excused absence from the Tuesday, July 25,2006 and from the Tuesday, August 1, 2006 Council meetings. jr:sh .2 A- City of Chula Vista DEPUTY MAYOR JOHN McCANN MEMORANDUM FROM: SUBJECT August 14, 2006 CityClerk Susan Bigalow Mayor Stephen Padilla, Council member Steve Castaneda, Councilmember Jerry Rindone, Council member Patty Chavez Deputy Mayor John McCann Active Military Duty DATE. TO' CC: I will be on Active Military Duty from August 5' 2006 until August 20, 2006. Due to this I will be absent, and request to be excused, from the City Council meeting on August 8, 2006 and the CVRC meeting on August 10, 2006. JM:ag 2B ,o~ ~~~ ORDINANCE NO. ~~~ . ....;C~~ AMENDING MUNICIPAL CODE 15.20 A~rABLlSHING MUNICIPAL CODE 5.39 REQUIRING HOTELS AND MOTELS TO HAVE A PERMIT TO OPERATE WHEREAS the City of Chula Vista is committed to the health, safety and welfare of its residents; and WHEREAS it is also a high priority of the City Council to provide for the health, safety and welfare of visitors to the City; and WHEREAS hotels/motels can have disproportionately high rates of police and emergency calls for service, violence, prostitution and drug activity which can have a negative impact on health, safety and welfare of the community; and WHEREAS there is no common set of operating standards within the hospitality industry that defines and shapes the obligation of hotel and motel businesses to their guests and the surrounding community; and WHEREAS it is the intent of the City Council to proactively establish local health, safety and welfare standards for hotels/motels in the City of the Chula Vista that will help create a vibrant and robust environment for the enjoyment of its tourists, visitors, residents and businesses. NOW THEREFORE the City Council finds and determines that it is important for the health and safety of visitors to the City of Chula Vista that hotels/motels in the City meet the minimum operational standards of the City and to require hotel/motel operators to obtain an annual Permit to Operate to ensure that these standards are being adhered to and does hereby ordain: SECTION I That Chapter 15.20 of the Chula Vista Municipal Code is hereby amended to read as follows: Chapter 15.20 HOUSING CODE* Sections: 15.20.001 Severabilitv 15.20.002 Definitions 15.20010 Califomia Housing Code 1998 Edition and Uniform Housing Code 1997 Edition adopted by reference. , , 3-1 8 1 S 1101'/1 '701"1. W'i Ol.fA ''''II):~, 15.20 020 Sedr. ",.1 amended to designate assistant director of building a' " 'ng as building official. 15.20.030 Section 203.1~ed to designate board of appeals and advisors as housing advisory and appeals board. 15.20.040 Section 304 added to require annual housing permit. 15.20.050 Section 305 added to require housing permit fees to be set by city's master fee schedule. 15.20.060 Section 306 added to require suspension or revocation of annual housing permit where operation is nonconforming. 15.20.070 Hotel/motel- Permit to Ooerate 15.20.080 Hotel/motel - Guestroom - Minimum reouirements. . For statutory authority for cities to adopt codes by reference, see GOY Code 9 50022.1, et seq.. for statutory adoption of building codes and other codes to apply as housing construction reguiations throughout the state, see Health and Safety Code 9 17922. prtor legislation: prtor code 9916A.1, 16A.3, 16A.5, 16A6 and 16A.7; Ords. 1357, 1594,1606,1735 and 1817 15.20.001 Severabilitv. It is declared to be the intention of the city council that the sections. oaraoraohs. sentences. clauses and ohrases of this code are severable. and if any ohrase. clause, sentence. oaraoraoh or section of this code shall be declared unconstitutional by the valid iudoment or decree of a court of comoetent iurisdiction. such unconstitutionality shall not affect anv of the rema/nino ohrases. clauses, sentences. oaraoraohs and sections of this code. (Prior code & 1.5\. 15.20.002 Definitions. For the ouroose of this chaoter. unless otherwise exoresslv stated. the followino words and phrases shall have the meaninos resoectivelv ascribed to them by this section: A. "Guestroom" means a sleeoino room in a hotel/motel desioned and intended to be used as lodoino for transient visitors to the city as documented by the city buildino official or his desianee. B. "Hotel/motel" means anv buildino or orouo of buildinas or facility. containino six or more ouestrooms. which is occuoied or intended or desianed for occuoancv bv transients for lodoino or sleeoino ourooses for thirty days or less and is held out as such to the oublic. "Hotel/motel" does not mean any hosoital. convalescent home or sanitarium: C. "Residential rental unit" means an aoartment house. lodoino house. or dwellino that is not owner occuoied: 1 -S 1 4'" -3.-2 D. "Toilet Room" means a room that can be made erivate bv lockina a door that contains a toilet and shall comelv hall ways with the California Buildino Codes in effect uoon its construction. Toilet rooms mavalso contain lavatories. bathtubs or showers. E. "Transient" as defined in CVMC Section 3.40.020 15.20.010 California Housing Code 1998 Edition and Uniform Housing Code 1997 Edition adopted Qy reference. There is hereby adopted by reference that certain document known and designated as the California Housing Code 1998 Edition and Uniform Housing Code 1997 Edition as copyrighted by the International Conference of Building Officials. Said document is hereby adopted as the housing code of the city of Chula Vista, California, providing for the issuance of housing permits and providing the mlnirnum requirements for the protection of life, limb, health, property, safety and welfare of the general public and the owners and occupants of residential buildings in the city of Chula Vista, and the regulations, provisions, penalties, conditions and terms of said California Housing Code 1998 Edition and Uniform Housing Code 1997 Edition are hereby referred to, adopted, and made a part hereof, as though fully set forth herein, excepting such portions as are hereinafter deleted, modified or amended. (Orc!. 2784-8 ~ 1, 1999; Ord. 2645 S 1, 1995; Orc!. 2510 S 1, 1992; Orc!. 2344 S 1, 1989; Ord. 2159 S 1, 1986; Ord. 2046 ~ 1, 1983). 15.20.020 Section 201.1 amended to designate assistant director of building and housing as building official. Section 201 1 of the Uniform Housing Code, as it applies in Chula Vista, shall read as follows: Section 201 1 Authority The bunding officlalls hereby authorfzed and directed to enforce all the provisions of this code. For such purpose, the building official shall have the powers of a law enforcement officer The building official shall have the power to render interpretations of this code and to adopt and enforce rules and regulations supplemental to this code as may be deemed necessary in order to clarify the application of the provisions of this code. Such interpretations, rules and regulations shall be in conformity with the intent and purpose of this code. The building official shall be the assistant director of planning and building. (Ord. 2784-8 g 1,1999; Ord. 2645 ~ 1, 1995; Ord. 2506 ~ 1, 1992; Ord. 2439 g 6, 19912; Ord. 2344 g 1, 1989; Orc!. 2046 g 1, 1983). 15.20.030 Section 203.1 amended to designate board of appeals and advisors as housing advisory and appeals board. ., " II 16 :;3-3 Section 203.1 of the Uniform Housing Code, and the title precedent thereto. as it applies in Chula Vista. is hereby amended to read as follows: Board of Appeals and Advisors. Section 203.1 General. In order to provide for reasonable interpretation of the provisions of this code, to m~igate specific provisions of the code which craate practical difficulties in thair enforcement and to hear appeals provided for hereunder, there is hereby established a board of appeals and advisors consisting of seven members who are qualified by experience and training to pass upon matters pertaining to building construction, use and occupancy of residential structures. The assistant director of planning and building shall be an ex-officio member who shall not be entifled to vote and who shall act as secretary to the board. The board of appeals and advisors shall be appointed by the mayor and confirmed by the city council. The board shall render all decisions and findings in writing to the assistant director of planning and building with a duplicate copy to the appellant Appeals to the board shall be processed In accordance w~h the provisions contained in Section 1201 of this code or in accordance with such procedures as may be prescribed by the city attomey of the city of Chuia Vista. The decision of the board is final. The board of appeals and advisors shall recommend to the city council such new legislation deemed necessary to govern construction, use and occupancy of residential structures, in the city of Chula Vista. (Ord. 2784-8 S 1, 1999; Ord. 2645 S 1, 1995, Ord. 2510 S 1, 1992; Ord. 2344 S 1, 1989). 15.20.040 Section 304 added to require annual housing permit. Section 304, and the title precedent thereto, is added to the Uniform Housing Code, as it applies in Chula Vista, which section shall read as follows: Annual Housing Permit. Section 304 1 It shall be unlawful for any person, firm, partnership, or corporation, either for himself or Itself, or for any other person, firm, partnership, or corporation to own or operate an apartment house, lodging house or hotel/motei without first Obtaining a housing permit therefor Section 304.2 The annual housing permit provided for In this code shall be due and payabie to the city of Chula Vista on the first day of January of each year in advance. The housing permit fee shall be paid concurrently with the business license fee. Section 304.3 If any person, firm, partnership or corporation commences the operation of an apartment house or hotel/motei during the calendar year, the housing permit shall be prorated on a quarterly pro rata basis for the caiendar year Section 304 4 A permil to operate and maintain an apartment house or hotel/motel is not transferable. if S-1li 3~'t (Ord. 2784-8 ~ 1,1999; Ord. 2645 ~ 1, 1995, Ord. 2510 S 1, 1992; Ord. 2506 ~ 1, 1992; Ord. 2344 S 1, 1989; Ord. 2159 ~ 1, 1986; 2046 ~ 1, 1983). 15.20.050 Section 305 added to require housing permit fees to be set by city's master fee schedule. Section 305, and the title precedent thereto, is added to the Uniform Housing Code, as it applies in Chula Vista, which section shall read as follows: Housing Permit Fees - Residential rental units, Apartment Houses, Lodging Houses, Hotels and Motels. Section 305.1 The fee for a housing permit required by Section 304 of this code shall be as presently designated, or as it may hereafter be amended, as set forth in the master fee schedule of the city of Chula Vista. For the purpose of this section, a 'unit" shall mean each rental dwelling in an apartment house, each sleeping room in a hotel, motel, and lodging house, and each apartment and each hotel/motel sleeping room in a building containing both apartments and hoteVmotel sleeping rooms. Separate residential rental units and separate hotel/motel building!, or combination thereof, located upon a single parcel of land or contiguous parcels of land, under the same ownership, shall be treated as one apartment house, or hotel, for the purpose of computing the fee prescribed by this section. Section 305.2 Penalty for Delinquent Payment. If the housing permit is not paid on or before the thirtieth day of the month following the date when it became due, then a penalty in an amount equal to twenty-five percent of the permit fee due and payable shall be added thereto, and no such permit shall be issued until such penalty has been paid. Section 305.3 The assistant director of planning and building shall cause to be made such inspections, at such Intervals, as shail be deemed necessary to insure compliance with the provisions of this code. (Ord. 2784-8 ~ 1,1999; Ord. 2645 S 1, 1995, Ord. 2510 ~ 1,1992; Ord. 2344 ~ 1,1989; Ord. 2159 ~ 1,1986; 2046 ~ 1, 1983). 15.20.060 Section 306 added to require suspension or revocation of annual housing permit where operation is nonconforming. Section 306, and the title precedent thereto, is added to the Uniform Housing Code, as it applies in Chula Vista, which section shall read as follows: Suspension and Revocation of Housing Permit. Section 306 Whenever it is found that any apartment house, lodging house, hotel or motel is not being conducted In conformity with this code, the annual housing !: B 17 :3-5 penn it to operate shall be subject to revocation or suspension by the building official. (Ord. 2784-8 ~ 1, 1999; Ord. 2645 ~ 1,1995, Ord. 2510 ~ 1, 1992). 15.20.070 Hotel/motel- Permit to ODerate. In addition to the reQuirements of CVMC 15.20.060. hotel/motels must have a Permit to Ooerate as reQuired bv CVMC Chapter 5.39. 15.20.80 Hotel/motel- Guestroom - MInimum reaulrements. No person or hotel/motel mav offer for rent. use. or occupancY anv Questroom that does not meet or exceed the followina minimum eQuipment and amenities: A. An American standard double size mattress or laroer made with 100% new material restino on a box sorina and suooor!ed on a frame or pedestal and maintained in a sanitarv. nondefective condition: B. Clothes closet with clothes rod: C. Luooaoe rack or luooaae suooor! counter: D. Toilet room: E. Lavatarv: F. Bathtub or shower: G. Heatina and air conditionino under ouest control: H. Mirror securelv attached to a wall and witl1 minimum dimensions of 12" x 12": I. Securitv dead bolt on the entrv door inconooratina no soeclal knowledae oanic release hardware and in comolJance with Cal~omja Code of Civii Procedures Section 1941.3: J. Solid core entrv door securelv mounted w~hin ~s frame: K. Doorouard constructed of solid brass or stainless steel: L. Door viewer with 160. view In all directions installed In the aueslroom entrv door: . Exceotion: 1 Sidelioht or window in close oroximitv to the door is also acceotable. M. Twenlv-four (241 hour free emeroencv teleohone access to the front desk and to 911 services: N. A rate schedule for services oosted in each oueslroom in a consoicuous o/ace In comollance with Camomla Code of Civil Procedures Section 1863: 8 18 -3~ 0, Insect screens on all ooerable windows: P. Functional lock/no mechanisms on all ooerable windows and slidino olass doors In comoliance with California Code of Civil Procedures Section 1941.3: Q, Window coverinas on each transoarentlv olazed window that orovlde for comolete orlvacv when closed and that are free of holes. tears, and fraved areas. defined as in excess of a 1 Inch souare combined total area. and that meet the California Title 19 reaulrements for fire ~ SECTION II. That Chapter 5.39 of the Chula Vista Municipal Code is hereby established to read as follows: 5.39.020 Severability. It is declared to be the intention of the city council that the sections, paragraphs, sentences, clauses and phrases of this code are severable, and if any phrase, clause, sentence, paragraph or section of this code shall be declared unconstitutional by the valid judgment or decree of a court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this code. 5.39.030 Definitions. For the purpose of this chapter, unless otherwise expressly stated, the following words and phrases shall have the meanings respectively ascribed to them by this section: A. "Calls for Service" includes but is not limited to any and all calls to emergency services, (police, fire, medical) that result in a representative being dispatched or directed to the hotel/motel. This shall include any calls for service within the surrounding neighborhood that, through infonnation or investigation, can be traced to the hotel/motel staff and or registered guest(s) and/or visitor(s). Calls for service includes any self initiated activity and/or investigation based on the observation(s) of an emergency services representative. B. "Drug-related arrests" include, but are not limited to, those that involve the manufacture, cultivation, importation into the state, transportation, possession, possession for sale, sale, fumishing, administering, or giving away, or providing a place to use or fortification of a place involving, any controlled drug, narcotic or drug paraphemalia. C. "Guest" shall mean any person that occupies a guestroom. D. "Guestroom" shall mean a sleeping room in a hotel/motel designed and intended to be used as lodging as documented by the city building official or his designee. II 19 3-7 E. "Guestroom minimum requirements" shall mean those requirements as set forth in CVMC 15.20. F. "Hotelfmote'" means any building or group of buildings or facility, containing six or more guestrooms, which is occupied or intended or designed for occupancy by guests for lodging or sleeping purposes and is held out as such to the public. "HoteVmotel" does not mean any hospital, convalescent home or sanitarium. G. "HoteUmotel operation" means the occupancy of any guestroom or use of any hotel/motel facility regardless of compensation or remuneration. H. "Kitchen" shall mean a discrete area completely separate from the bathroom and toilet room, containing a sink, refrigerator, and cooking appliance. I. "Manager" means any person who, in connection with the activities of a hoteVmotel, manages the business's operations, including but not limited to the collection of rental charges, issuing of keys, direction of maintenance personnel, assigning of rooms to guests, and handling guest affairs and overseeing security The term shall also include Resident Manager and Assistant Manager. J. "Operator" means any person, who is the proprietor of any hoteVmotel, whether in the capacity of owner, lessee, receiver, sublessee, franchisee, mortgagee in possession, manager or agent of any of the aforementioned, who offers and accepts payment for rooms, guestrooms, sleeping accommodations, or board and lodging, and retains the right of access to, and control of, the dwelling unit. K. "Owner" shall mean any person, firm, association, partnership, or corporation, which is the record owner of real property as listed on the last equalized assessment roll as maintained by the San Diego County Assessor. It shall also mean any part owner, joint owner, or lessor of the whole or part of the land or buildings situated thereon. L. "Person" shall mean any natural person, firm, partnership, corporation, receiver, trustee, estate trust, business trust, organization, or association. M. "Prostitution-related arrests" include, but are not limited to, those that involve prostitution or prostitution-related crimes such as, pimping or pandering, in violation of Section 647(b), 315, 316, 653.22. and 653.23 of the California Penal Code. N. "Toilet room" means a room that can be made private by locking a door that contains a toilet and shall comply in all ways with the Califomia Building Codes in effect upon its construction. Toilet rooms may also contain lavatories, bathtubs or showers. 5.39.040 Permit to Operate - Application deadline and fee. The annual permit to operate shall be applied for to the City Manager, or his designee, on a yearly basis by the operator of each hotel/motel. The deadline for submitting the application shall be November 1, or, if this date falls on a Saturday or Sunday, on the next business day of the City of Chula Vista. The application shall be submitted with a processing fee, as identified in the City's master fee schedule. The permit shall be issued or denied within 60 days. The first operating permit will be required as of January 1, 2008, and on a yearly basis thereafter. In the event that a new hotel/motel operator applies for a permit during the year prior to November 1 , the permit will be issued or denied within 60 days. Any subsequent permit may be applied for on November 1 of the following year and issued or denied within 60 days. 5.39.050 Permit to Operate - Application required - Contents. All persons applying to the City Manager, or his designee, for a permit to operate a hotel/motel shall file with the city Chief of Police, or his designee, a swom application with processing fee therefore on forms provided by the city and containing information as follows: A. Business license in accordance with Chapter 5 13 "Rental Businesses." B. The name of the applicant and trade name, if any, of the business; the name of the corporation and the name and address of its agent for service; C The business name, address, and phone number of the hotel/motel, and the emergency contact phone information for the hotel/motel. D. The number of toilets in the hotel/motel. E. The number of kitchens in the hotel/motel. F. Proof of liability insurance, if applicable, including the carrier, policy number, agent's name, address and phone number or a statement of self-insurance. G. Annual inspection report, on the form(s) provided by the City, by an Environmental Health Specialist registered with the Califomia Department of Health Services, certifying that the facility is in compliance with Califomia public health requirements. H. Transient occupancy tax bond if required by the city finance director. See Chapter 3.40. 8 21 ;3-0 Any material misrepresentation in the application for the Permit to Operate a hotel/motel or a failure to provide the required information shall be grounds for denial. 5.39.060 Permit to Operate - Grounds for Denial. The permit to operate may be denied for any of the following reasons: A. The applicant is unable to establish a degree of financial responsibility required by CVMC Chapter 3 40 "Transient Occupancy Tax" or has an outstanding debt to the city incurred under Section 3.40.090. B. The hotel/motel property has an unabated Notice of Violation, in excess of thirty (30) days, of the City Municipal Code that cites violations of the State of Califomia Housing Law C Such other relevant facts as the chief of police, or his designee, may discover or deem advisable or necessary in the course of the review of the application, such as: a. Drug-related arrests b. Prostitution-reiated arrests c. Calls for service D Non-compliance with federal, state, and City Municipal Codes. 5.39.070 Permit to Operate - Denlal- Appeal Hearing. Whenever the City denies a Permit to Operate for a hotel/motel, as provided in this chapter, the owner or operator of said hotel/motel shall have a right to a hearing to appeal the denial in accordance with CVMC Chapter 1 40 5.39.080 Permit to Operate - Display. The operator shall display the Permit to Operate in an open and conspicuous place on the premises. 5.39.090 Permit to Operate - Non-transferability. Each Permit to Operate issued pursuant to CVMC 5.39.030 through 5.39.170 shall be separate and distinct from all others and shall not be transferable from the person, firm or corporation to whom issued to any other person, firm or corporation. (Ord. 886 ~ 1, 1964, prior code ~ 31.54). When a change of operator occurs at an existing hotel/motel, the new operator shall apply for a Permit to Operate within 10 business days of opening of escrow If the prior operator's Permit to Operate for the hotel/motel was denied or revoked, a provisional Permit to Operate may be issued with special conditions designated by the Chief of Police or his designee.n s-:n 3-}O 5.39.100 Permit to Operate - Report of changes to the application. Whenever an owner sells or transfers title to, or assigns the lease of or subleases, a hotel/motel, then the owner shall notify the city manager in writing within five (5) business days of such transfer Every operator of a hotel/motel shall report any change in the information required by CVMC 5.39 030 through 5.39.170, including but not limited to any change in the manager(s) and/operator(s) and/or owner(s) as defined in Section 5.39.030 fF1ill, fGtW, tI=I1l!9 to the chief of police in writing within five business days after the change has occurred. A change in the information on the application is subject to review by the chief of police and may be grounds for suspension or revocation of the Permit to Operate. 5.39.110 Permit to Operate - Revocation The annual permit to operate shall be subject to revocation by the City Manager, or his designee, and/or Chief of Police, or his designee, upon good cause shown that the operation of the hotel/motel is such that it is or has negatively impacted the health, safety and/or welfare of its guests or the residents or businesses of the neighboring community by any of the following: A. Non-compliance with Federal, State, and City Municipal Codes B. Drug-related arrests C Prostitution-related arrests D Calls for seNice E. Any other conditions, problems, issues, concerns or facts that are deemed relevant. In processing a revocation the Chief of Police, or his designee, shall prepare an investigation report that details the circumstances that have lead to the revocation. It may include any or all of the following that are applicable: 1 Frequency or occurrence of violation(s), arrest(s), call(s) for seNice, 2. Seriousness of the violation(s), arrest(s), call(s) for seNice; in relation to its threat or impact upon public health, safety or welfare, 3. History of the violation(s), arrest(s), call(s) for seNice; 4 Good faith efforts taken by the responsible party to correct, reduce and or alleviate violation(s), arrest(s), call(s) for seNice; 5. Any activity, action or effort taken by the responsible party to obstruct or interfere with correction of the problem; 6. The impact of the violation(s), arrest(s), call(s) for seNice; on the surrounding property and community; 7 The financial impact to the City ..w- 3-11 5.39.120 Notice of Hearing Upon good cause shown in the Revocation Investigation Report issued by the Chief of Police, or his designee, the City Manager, or his designee, shall issue a Notice of Hearing for Revocation of Permit to Operate in accordance with CVMC 1.40.030 and shall schedule a hearing before the hearing examiner in accordance with CVMC 1 40.020 (8). 5.39.130 Notice of Revocation of Permit to Operate Upon confirmation and final decision issued by the hearing examiner, the Chief of Police, or his designee shall, in addition to the requirements of CVMC 1 40.020 (H), post a copy or copies of the Notice of Revocation of Permit to Operate at the hotel/motel. 5.39.140 Notice of Revocation of Permit to Operate - Removal or Tampering with Posted Notice A posted Notice of Revocation of Permit to Operate may only be removed by an authorized City official. Any removal, covering, defacing, altering or tampering by unauthorized person(s) may be prosecuted as a misdemeanor. 5.39.150 Permit to Operate - Surrender following revocation. Whenever a Permit to Operate has been revoked by the City, the operator of the hotel/motel for which such permit was issued shall surrender such permit to the city forthwith. The hotel/motel operation shall cease within 72 hours of the posting of the Notice of Revocation of Permit to Operate in accordance with CVMC 5.39.140. 5.39.160 Permit to Operate - Reissue after revocation. A Conditional/Permit to Operate that is revoked shall not be reissued for a period of three (3) years from the date of such revocation. 5.39.170 Violation - Penalty. It is unlawful to operate a hotel/motel without a valid Permit to Operate or to fail to comply with any of the requirements established by this chapter Violations of this section shall be subject to enforcement by any and all remedies listed in Title 1 of the Chula Vista Municipal Code, including a fine of up to $1,000 and/or six months in the county jail. SECTION III. This Ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. 21 ;:3-/2- p~ Richard Emerson -.l Chief of Police erry Chief of Fire ;;;;;;i~ Ann Moore r City Attomey ~ 6--/;:3 Item No. Meeting Date 08/22/06 4 COUNCIL AGENDA STATEMENT SUBMITTED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $50,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE CITY CLERK SERVICES & SUPPLIES BUDGET TO FUND UNANTICIPATED SERVICES OF THE REGISTRAR OF VOTERS FOR INCLUSION ON THE BALLOT OF TWO PROPOSED CHARTER AMENDMENTS TOBE SUBMITTED TO THE ELECTORATE AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON NOVEMBER 7, 2006 (4/5THS VOTE REQUIRED) An Susan Bigelt~ity Clerk ITEM TITLE. On August 8, 2006, the Council adopted a resolution placing two proposed Charter amendments on the ballot for the November 7,2006 Special Municipal Election. At that meeting, the resolution appropriating funds to the City Clerk's supplies and services budget to cover the Registrar's estimated costs for the placement of the measures on the ballot was continued to August 22, because adoption of the resolution requires a four-fifths vote, and only three Councilmembers were present. RECOMMENDATION Council adopt the resolution. BACKGROUND: The proposed resolution appropriates funds in the amount of $50,000 to the City Clerk's supplies and services budget to cover the estimated cost of Registrar services to include two proposed Charter amendment measures on the November ballot. Funding for a third measure, relating to affordable housing, will be requested by separate resolution. FISCAL IMPACT: Sufficient funds were included in the City Clerks fiscal year 2007 budget for the cost of the November 7, 2006 election to fill the positions of Mayor and Council Seat I The Registrar of Voters has estimated the cost of a ballot measure for the November election to be approximately $25,000. It is, therefore, necessary to appropriate $50,000 from the General Fund to the City Clerk's supplies and services budget to cover the cost of these unanticipated services. 4-1 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $50,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE CITY CLERK SERVICES AND SUPPLIES BUDGET TO FUND UNANTICIPATED SERVICES OF THE REGISTRAR OF VOTERS FOR INCLUSION ON THE BALLOT OF TWO PROPOSED CHARTER AMENDMENTS TO BE SUBMITTED TO THE ELECTORATE AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON NOVEMBER 7, 2006 WHEREAS, on August 8, 2006, the City Council adopted a resolution placing three measures on the ballot for the November 7, 2006 Special Municipal Election; and WHEREAS, the Registrar of Voters has estimated the cost of placing a measure on the November 7, 2006 ballot to be approximately $25,000; and WHEREAS, funds for one of the three measures to be included on the ballot, regarding affordable housing, have been appropriated under separate resolution. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby appropriate $50,000 for unanticipated professional services of the Registrar of Voters to the City Clerk's Fiscal Year 2006 services and supplies budget from the available balance of the General Fund. Presented By Approved as to form by Susan Bigelow City Clerk 4-2 COUNCIL AGENDA STATEMENT Item ~ Meeting Date 08/22/06 ITEM TITLE: Resolution Authorizing the City Engineer to issue Encroachment Permit No. PE-704 for the installation of a monument sign and a retaining wall proposed to be constructed within the existing Birch Road general utility easement. SUBMITTED BY: Acting Director OfEng~ng~ REVIEWED BY: Interim City Manager 1/ (4/S'b. Vote: Yes _ No..L) The Final Map (No. 15037) for The Town Center shopping center project ("The Town Center"), along with a Subdivision Improvement Agreement and Supplemental Subdivision Improvement Agreement, was approved by City Council on May 24, 2005 (Resolution 2005-165). The project is generally located at the southwest comer of Olympic Parkway and Eastlake Parkway, just east of future SR-125 (Exhibit "A"), and will consist of major department stores and smaller commercial vendors sharing the site. General Growth Properties (GGP), owners of the project, are proposing to construct a monument sign and a retaining wall within City's general utility easement. The retaining wall and monument sign was included in the project approval by the City's Design Review Committee and will be maintained by GGP, Otay Ranch L.P Tonight's action is pursuant to Section 12.28 of the Municipal Code. RECOMMENDATION: That Council approve the resolution. BOARDS/COMMISSIONS RECOMMENDATION: None. DISCUSSION: The Town Center is located at the southwest comer of Olympic Parkway and Eastlake Parkway, just east of future SR-125 Due to the design and size of the project monument wall proposed to be located near the intersection of Birch Road and Eastlake Parkway, and its proximity to the approved location of the onsite Market building, a portion of the monument wall will need to be located within the existing Birch Road general utility easement. There are no utilities located within this area of the easement and the monument sign therefore does not pose any conflicts with utilities. The location of the proposed monument sign is shown on the attached exhibit (Exhibit "&"). Also, due to site design constraints for the Town Center project, some slope grading and retaining wall construction will be required within the existing Birch Road general utility easement along the southwesterly edge of the project. The retaining wall will vary in 5-1 Page 2, Item ..!:2....- Meeting Date 08/22/06 height from 1 to 7 feet and approximately 193 feet of the overall retaining wall is proposed to be located within the Birch Road general utility easement. The location of the proposed retaining wall is shown on the attached exhibit (Exhibit "B"). After the review of the application for encroachment permit and the corresponding construction plans, staff is recommending the approval of the encroachment permit. This encroachment permit (Exhibit "C") will include an indemnity clause holding the City, its agents and employees harmless from any damage that might result from the construction and maintenance of the retaining wall and monument wall. In addition, the permit will contain the necessary maintenance, removal and hold-harmless clauses. GGP, Otay Ranch, L.P. has also added provisions in their CC&Rs ensuring the maintenance of the retaining wall and monument wall, including graffiti eradication. According to Section 12.28.020 of the Chula Vista Municipal Code, a Council resolution must authorize the issuance of this encroachment permit. FISCAL IMPACT: GGP, Otay Ranch, L.P. has paid the required application fee for processing the encroachment permit and has an account with the City that will cover the costs for City inspection. CONFLICT OF INTEREST: Staff has reviewed the property holdings of the City Council and has found no such holdings within 500' of the property, which is the subject of this action. Attachments: Exhibit "A" Vicinity Map Exhibit "B": Request for Encroachment Permit, Plat showing locations of wall monument and retaining wall. Exhibit "c'" Encroachment Permit PE-704 J:\Engineer\AGENDA\CAS2006\08~22-06\Al13 for Encroach. Pennit for Town Center. doc 5-2 EXHIBIT 'A' OT A Y RANCH TOWN CENTER BIRCH ROAD ENCROACHMENT MONUMENT SIGN AND RETAINING WALL l ... Q ----- REGIONAL MAP NO SCALE . ;,11 IiI " """ ~-t' ~(~ FREIEWA Y COMMEflCIAL i FC-2 1 r' ___~ )!':~~~~ii\ j J\\\ffi)c. ~ ul\1~ '\~ :i'Hf:::::::r~~_:~'~'[:::::;'! !f'~" I " l-------J~\-----Jm" I 'I \' -~ I \,~ I:: ~,\j "..~-'''' \'1 \\11 , ", I g __t.l"'~""'"''''' ;' I r--- J - :...,,~..EJ._~-:~;:.::\ r I i 1\\ __ EASTeRN URBAN CENTER \-, 'oil " 0 VIllAGE tJ .~,-, \ VICINITY MAP SCALE: 1"=1000' Tes ' ',(,,{)M \1: " I , 5-3 d IfilJW o P&D CONS1JLT....STS 8g~4 RIO SAN OIEGO DRIVE. SUITE 610 SAN DIEGO. CALIFORNIA 92108 T 619.29t.H-7~ F 819.291.1476 WWN.TC8.AECO~.COt.l IN 17~84a AUGUST 9. 2008 << j) EXHIBIT B TCB I AECOM P&D Consultants 8954 Rio San Diego Drive, Suite 610, San Diego, California 92108 T 619,291 1475 F 619.291.1476 www.tcb.aecom.com August 2, 2006 Mr Jim Newton CITY OF CHULA VISTA Engineering Department 276 Fourth Avenue Chula Vista, CA 91910 Subject: Otay Ranch Town Center - Grading Permit Number OR-254G Encroachment Permit for Birch Road Dear Jim, On behaif of the owner, General Growth Properties, we are requesting an encroachment permit for a monument sign and retaining wall proposed to be constructed within the existing Birch Road general utility easement. These walls are to be built in conjunction with grading and other improvements along Birch Roat(, for the above referenced project. Due to the design and size of the project monument wall proposed to be iocated near the intersection of Birch Road and Eastiake Parkway, and its proximity to the approved iocation of the onsite Market building, a portion of the monument wall wiil need to be iocated within the existing Birch Road easement. There are no utilities located within this area of the easement and the monument sign therefore does not pose any conflicts with utilities. The location of the proposed monument sign is shown on the attached exhibit. We estimate the cost of the portion of the monument located within the easement to be approximateiy $60,000. Aiso, due to site design constraints for the Town Center project, some siope grading wiil be required within the existing Birch Road easement along the southwesteriy edge of the project. In order to maintain proper clearances from utilities and also allow room for the Birch Road sidewaik, a retaining wall varying in height from 1.0 to 7.0 feet is proposed. Approximately 193 feet of the overall retaining wali is proposed to be located within the Birch Road easement. The location of the proposed retaining wall is aiso shown on the attached exhibit. We estimate the construction cost for the portion of the retaining wall within the easement to be approximately $18,500. Owner information is as follows: GGP - Otay Ranch, L.P 35 Century Park Way Salt Lake City, UT 84115 (801) 486-3911 Based on prior discussions with you, we understand that this is considered a major encroachment which will require City Council action. In our last conversation you indicated that you expect to have this item placed on the consent calendar for the August 22 Council meeting. 5-4 Mr Jim Newton August2,2006 Page 2 If you have any questions about this application, please call me. We appreciate your assistance with this matter Sincerely, P&D CONSULTANTS -\~ Paul R. 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City Clerk City of Chula Vista POBox 1087 Chula Vista, CA 91912 [Xl This document benefits permittee. Recording fee required. [ (This space for Recorder's use, only) Affects Assessor's Parcel No(s) 643-061-01 C. V File No. 0710-40-PE-704 AUTHORIZATION FOR ENCROACHMENT IN CITY RIGHT OF WAY Permit No. PE-704 Pursuant to Chapter 12.28 of the Chula Vista Municipal Code, permission is hereby granted by the City of Chula Vista (hereinafter "City") to: GGP - Otay Ranch, L.P (hereinafter "Permittee"), an affiliate of General Growth Properties, Inc. which Permittee has a mailing address is 35 Century Park Way, Salt Lake City, UT 84115, to do work within.a portion of-Gity-right-of-way All terms and conditions of this permit as to the Permittee shall be a burden upon Permittee's land and shall run with the land. All conditions apply to Permittee and all his/her/their heirs, assigns, successors or transferees. Whereas, the Permittee has requested the permission from City to encroach on said City's easement adjacent to and for the direct benefit of the following described property' ADDRESS: 2015 Birch Road LEGAL DESCRIPTION: See Exhibit" A", Legal Description, attached hereto and by reference made a part hereof. PERMISSION IS HEREBY GRANTED to do the following work: install a monument sign and a retaining wall proposed to be constructed within the existing Birch Road general Utility and Access easement. Said retaining walls and monument sign shall be constructed under Grading Permit No. OR-254G within the 12' general utility and access easement in accordance with attached Exhibit "B" attached hereto and incorporated herein by this reference. (hereinafter "Encroachment") Now, therefore, in consideration of their mutual promises, and other good and valuable consideration, the parties hereto agree as follows: Permission is hereby granted to Permittee by City to install the above-mentioned Encroachment on the City Property at the location specified in accordance with the following terms and conditions: I. Encroachment shall, in no way interfere with any existing utility, including the maintenance or operation of existing water meters, CATV and telephone pedestals, public storm drains and sewer lines. Any costs arising from changes of or to any facility due to the Encroachment of the Permittee's private facilities shall be the sole responsibility of Permittee and subject to placement of a lien on the property if incurred by the City Page 1 5-15 2. Maintenance, removal or relocation of Encroachment shall be the sole responsibility of Permittee, and/or Permittee's lessee, should there be any, at no expense to City 3 Encroachment shall conform to all standards and specifications as stated in the Chula Vista Municipal Code and in accordance with Grading Permit No. OR-254G. Walls shall be built and permitted under Grading Permit No. OR-254G. The permittee shall install the retaining walls as shown on the exhibit and not to cause pedestrian hazard as required by City Inspector 4 Permittee shall call Underground Service Alert (One call mark-out service) at 1-800-422-4133 a minimum of two working days prior to any excavation being done in the public right-of-way, including postholes or footing excavations. Mark-out of existing underground facilities shall be made prior to making any excavations. 5 Encroachment shall be installed and maintained in a safe and sanitary manner by Permittee as determined by City 6. Permittee shall not allow Encroachment to block the existing course of surface drainage to the extent that it may endanger the public or the surrounding properties or cause ponding of water. 7 Permittee shall apply an anti-graffiti material to the encroaching object of a type and nature that is acceptable to the Director of Public Works. Permittee shall immediately remove any graffiti from the encroaching object. 8. City shall have the right to remove graffiti or paint the encroaching object, the paint being provided and the cost of labor paid by Permittee. 9 Permittee shall call the Engineering Construction Inspection Section at (619) 397-6128 at least 24 hours (one working day) prior to doing any work at the site in the City right-of-way This permit is revocable upon thirty (30) days written notice to the Permittee, and upon such notice, the installation must be removed or relocated, as and when specified by the City, at Permittee's cost. If Permittee fails to remove or relocate Encroachment within the period allotted, the City may cause such work to be done and the cost thereof shall be imposed as a lien upon Permittee's property Permittee shall defend, indemnify, protect, hold harmless and release the City, its elected and appointed officers and employees, from and against all past, present or future claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising out of or in anyway related to the encroachment or the conduct of the Permittee, or any agent or employee, subcontractors, or others (including third parties) in connection with the execution of the work covered by this agreement. Except only for those claims arising from the sole negligence or sole willful conduct of the City, its officers, or employees. Permittee's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its 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 any such suit or action brought against the City, its officers, agents, or employees. Permittee's indemnification of City shall not be limited by any prior or subsequent declaration by the Permittee. Permittee hereby agrees to and shall release, hold harmless and defend City, its elective and appointive boards, officers, agents and employees against any claim, and in any suit or proceeding, at law or in equity, for damages caused, or alleged to have been caused, by actions taken or alleged to have been taken, or in anyway related to or arising from actions taken, under this permit by Permittee directly or by hislher/their agent(s), contractor(s), or agents or employees of same. Permittee further agrees to and shall indemnify and hold harmless City, its elective and appointive boards, officers, agents and employees, as indemnities, for any claim, suit or proceeding submitted, brought or instimted against City as a result of actions taken, or alleged to have been taken, or in anyway related to or arising from actions taken, under this permit, including, but not limited to, any asserted liability for loss of or damage to property or for personal iI1iury, including death. Page 2 5-16 The undersigned Permittee hereby accepts the foregoing Encroachment permit upon the terms and conditions stated herein and agrees to comply with all stated terms and conditions and with all applicable laws, including any applicable provision of the Chula Vista Municipal Code. It is further agreed that if any part of Permittee's Encroachment or Permittee's rights under this Encroachment Permit should interfere with the future use of the City's right of way by the general public, it must be removed or relocated at Permittee's expense and such right shall be terminated as and when indicated by City In the event of a dispute arising as to the terms or interpretation of this permit, the City Engineer shall resolve said dispute \TI his sole and unfettered discretion, reasonably applied. (End of page. Next page is signature page.) [J:\Engineer\PERlVIITS\PE . Encroachment Permits\PE704encroachmentpermitOtay Ranch Town Center.doc Page 3 5-17 SIGNATURE PAGE CITY OF CHULA VISTA: Permit approved by' Date: Mathew Little Acting City Engineer (City Clerk to attach acknowledgment.) PERMIlTEE: GGP-OT A Y RANCH, L.P , a Delaware limited partnership By' GGP-OTAY RANCH L.L.C., a Delaware limited liability company, its general partner By' GGP/Homart II L.L.C., a Delaware limited liability company, its sole member ./(a/0A-~uL- /I' An Authorized ficer Date:~ By' (Notary to attach acknowledgment for each signature.) (Corporate Authority required for each Signatory, if applicable.) [C:\Documents and Settings\ltomabeni\Local Settings\Ternporary Internet Files\0LK2366\EncroachmentPermitOtay Ranch 8M14-06.doc P5~e148 Acknowledgment: STATE OF ILLINOIS ) ) ss COUNTY OF COOK ) On this ~day of Av---.1v~t ,2006 beforepe a Nqtaf)' Public in and for the jurisdiction aforesaid,~r~pnally appeaJ-~ ~~rf A. Wc..tiA..tl.,~._, who is known to me to be the l!lrl1A flv\1Ml O~ of GGP/Homart II l.l.C, a Delaware limited liability company, being the sole member of GGP-Otay Ranch l.L.C., a Delaware limited liability company, being the general partner or GGP-Otay Ranch, l.P , a Delaware limited partnership, and the identical person who signed the foregoing instrument on behalf of said limited partnership and acknowledged such execution to be the voluntary act and deed of said limited partnership. G'''" ""de' my hood ,"d ,eal 'he day ,"d you:: ~"'" Notary Public My commission expires: \ \ --04. --oq "OmClAL SEAL" LESLEE C TORNABENI Notary Public, State or Illinois My COIIIIIIiRlou Expires 11/412009 5-19 EXHIBIT 'A' OTA Y RANCH TOWN CENTER BIRCH ROAD ENCROACHMENT MONUMENT SIGN AND RETAINING WALL LEGAL DESCRIPTION Lot 1 of Map No. 15037, Chula Vista Tract No. 05-02, Otay Ranch Freeway Commercial Sectional Planning Area, recorded June 30,2005 in the office of the County Recorder of San Diego County APN. 643-061-01 5-20 "t ./ I --- 'Vl-ld ])1\;7'715\;7'] I ---% ~ '" A If. >lQv _ _ _ _ _ ~ - .....r1== == ~ r == ~ ~ ~ Cl :>.~ (.)c:i ~<: t~ t)"Q :). 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G a ~ G ~ C'l m!~ . 1/ r~ . =g; po ~ ~~!~~ ! w ....J ~~ .~I ~ ...: ~t, ~ () Ul ~h:1 ~ () :I: 11. ~ ...: a:: 0 " U L.U <( co U I- -l -l 0:: ~ ~ C.9 Z Z LLlOZ () <( <( ZOI- ~Dd~ I-I I IU~ ()O:::UJ Z-:2: ~COI >- ~ ~ 0 o 5 Z LLl ~ 1-("1') l1lu.. IO G)C\J ~"~ I I '" 0 I ! ~ "/ij !--", ,I [; <::> ~;/ 1L:~ti)::o ~~ /// II "-'.1" ~ ~ >- (.:i //:: I" -'" '" OQ / _ I 1"-::::::> /;;1;/ I' (~ /;: I~rr--~_ ~ - -I- II , II~ " ,!- -- _ r; ~ ~ i S-- 1,--__ IILe.- ~~L..! I ,_-- ,Zit Uji!::::l r "J" a: ~<.:i I 0, I 8::::; l...~ , o~ 1'1 o~ C5~ I I ~ r III-t-I ~g'~~ I r I ~~~~I('~r~1 ~(.) V) <::> /111 - ....." CleJi'i: I bJct. ~ I 0......... , &..... ::r:: 1,-" O::~~ V ct.z-i-~ [ I -,,- ~~~ Fj [ ~~~ I III1 (.j~l:ill ~:::l V) I Bi ~ I I x (.) k. (,j ~ f-Lr I I, l!) '<--, '" (') t:l I() he:; Q<: -1 Cl..- ~ II I '" I I~ .......,.I~b "'>- i:::!~ .;)~3:: , n;; "",~ r'~ ~ b N b N , ~' "'-.: ,~ I~ ~-::: "'-.: I I '-"1' ~I -, ~;:: ~-r::_ ~~~ ~tr r-1- I I I:f "H:: ~ CJ -V ~ @ C3 G~ ~^ ,~ 0::: 1- I~ I.;). Bi ':::C:: ' - ~ ~ ~II ~ OS Il/~: ~ 0/ III ,,~ - "" ~ 1"- NO .M \.0 1>- ~ 1 ~ ~~ "\ ~\ 0-'" I~ :r\ - - b ('oj II o :0 ~ G Gg ~ ~ Ul:!:!: ..... ~;:;;; i l!5OZ~ ~~ I;; oZiii::t; :s ~~e~~ ~ ;J~~~8 ~o8;;;~ ! aiE~~~ ~ ~~~:I ~ . ~ W ....l <I: U U'l U I c... <I: a::: t:l ~ o u w <( CO ~ ...J ...J ~ ~ ~ <.9 Z Z WOZ o <( <( ZOI- ~o::~ I-I I I()!z Oo::W Z_~ ~COI o ~ <( I- 0 o 5 Z W Co 1-('1') [Qu. IO ~('I') GGPIHOMART II L.L.C. Assistant Secretary's Certificate I, the undersigned, do hereby certif'y that I am the duly elected, qualified and acting Assistant Secretary of GGPlHomart II L.L.C., a Delaware limited liability company (the "Company"), and as such am authorized to execute and deliver this Certificate in the name and on behalf of the Company, and that: 1 The Company is the sole member of GGP-Otay Ranch L.L.C., a Delaware limited liability company ("Otay LLC") which is the sole general partner of GGP-Otay Ranch L.P., a Delaware limited partnership ("Otay LP"). 2. Attached hereto as Exhibit A-I is a true, correct and complete copy of the Certificate of Formation of the Company, filed with the Delaware Secretary of State, which Certificate of Formation has not been amended and is in full force and effect on the date hereof. 3 Attached hereto as Exhibit A-2 is a true, correct and complete copy of Article VII of the Operating Agreement of the Company Article VII sets forth the authority of the Officers of the Company to execute any and all documents, instruments and agreements to be executed and delivered by the Company as the sole member of Otay LLC, in its capacity as the sole general partner of Otay LP Except as evidenced by the document contained in Exhibit A-2, this document has not been further amended and is in full force and effect as of the date hereof. 4 Attached hereto as Exhibit B-1 is a true, correct and complete copy of the Certificate of Formation of Otay LLC, filed with the Delaware Secretary of State, which Certificate of Formation has not been amended and is in full force and effect on the date hereof. 5 Attached hereto as Exhibit B-2 is a true, correct and complete copy of the Operating Agreement of Otay LLC. Except as evidenced by the document contained in Exhibit B-2, this document has not been amended and is in full force and effect as of the date hereof. 6. Attached hereto as Exhibit C-l is a true, correct and complete copy of the Certificate of Partnership of Otay LP, filed with the Delaware Secretary of State, which Certificate of Formation has not been amended and is in full force and effect on the date hereof. 7 Attached hereto as Exhibit C-2 is a true, correct and complete copy of the Partnersmp Agreement of Otay LP Except as evidenced by 5-24 the document contained in Exhibit C-2, this document has not been amended and is in full force and effect as of the date hereof. 8. Attached hereto as Exhibit C-3 is a true, correct and complete copy of the Certificate of Registration of Otay LP issued by the California Secretary of State. Except as evidenced by the documents contained in Exhibit C-3, this document has not been amended, modified or terminated and is in full force and effect as of the date hereof. 9 Attached hereto as Exhibit D are the names of the persons that are duly elected, qualified and acting officers of the Company as of the date hereof and the signature of each such person set forth opposite hislher respective name and title is a true and genuine or facsimile specimen ofhislher signature. [Signature on Following Page] 5-25 IN WITNESS WHEREOF, the undersigned, has executed and caused this Certificate to be delivered as of the I Y"" day of August, 2006. 5-26 Exhibit A-I GGP/Homart II L.L.c. Delaware Certificate of Formation (see attached) 5-27 .. State afDelaware Office of the Secretary of State PAGE 1 I, EDWARD J. FREEL, SECRETARY OF ST~E OF THE STATE OF DELAWARE, DO HEREBY CERrIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERrIFICATE OF FORMATION OF "GGP/BOMlI.RT II L.L.C.", FILED IN THIS OFFICE ON THE SIXTH DAY OF AUGUST, A.D. 1999, AT 12:30 O'CLOCK P.M. . , : 3080085 8100 tuH~ Edward J. Freel, Secretary of State AUTHENTICATION: 0057286 DATE: U-01-99 991463156 5-28 01-06-89 ,'0.... "....NEJl. GERBER' ElSEftllEPG 6 31116iIUT T-IS. P 03/03 '-III CERTIFICATE OF FORMA nON OF GGP/HOMART II L.L..C. This Certfficare of Formation of GGP/Homal11l L.L.C. (the 'Company') is being executed by the undel$ignecl for the purpose of forming a limited liability company pu~ant totne Delaware Wrnited Liabaity Company Act. 1. Tne name of the company is: GGP/Homart II L.l.C. 2. The addre&& of the registel'8Cl office of Ine Company in Delaware is 1013 Centra Road, Wilmingtan, New Castle County. Delaware. 19805-1297. The name of its Registered Agent at that acldress is Corporation Service Company. ~ ~ IN WITNESS WHEREOF, the undersigned, an authoriZed per50n of the. Company, lias caused this Certificate of formation to be duly executed as of the 6"' day' of August, 1999. -~~~~ Certificate of Formation 0I'l bellalf of Company this the C~"'a'3.Il3o\GCP .,o_T" CERTI~ICATE OF FORMATION.OOC STAn OF llELAliARl: Sl.'CU2'.iIlr OF S2'An DIVISION aT C'ORPORAf'IONS FILED I2:30 EW 06/06/1999 991327Z83 - 3080065 5-29 Exhibit A-2 GGP/Homart II L.L.C. Section VII of the Operating Agreement of the Company (see attached) 5-30 -;- OPERATING AGUEHENT OF GGP/BOHART II L.L.C. -9 . -4 5-31 .'It OPERATING AGREEMENT OF GGP/lIOMART II L.L.C. Table of ~ontents 1.1 Definitions ARTICLE I DEFINED TERMS ,~. 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 3.1 3.2 3.3 3.4 3.5 ARTICLE II FORMATION OF COMPANY Formation of Company Name . . . . Principal Place of Business Purpose and Busines~ of the Company Classes of Units .... Tet1ll . . . . . . . . . . . . . . . Nature of the Company . .... Members' Names and Addresses; Classification Registered Office and Registered Agent Organization Certificates . . . . Concurrent Transactions . . . . . Restrictions on Other Agreements ARTICLE III COMPANY CAPITAL . . . . Initial Contributions of Members No Additional Capital Contributions. Withdrawal; Return of Capital; Interest Priority .... ..... . . . Development Project Funding/Acquisition Financing; Etc. . . . . . . . . . . . ARTICLE IV ALLOCATION OF COMPANY ITEMS 4.1 Maintenance of Capital Accounts 4.2 Net Income and Net Loss. 4.3 Special Allocations. . . 4.4 CUrative Allocations 4.5 Tax Allocations. . . . . 4.6 Allocations Subsequent to Assignment .. ARTICLE V COMPANY DISTRIBUTIONS . . i 5-32 Page 1 1 21 21 21 21 21 22 22 22 22 22 23 23 23 24 24 24 24 24 24 2S 2S 2S 26 27 27 28 29 ARTICLE VI ACCOUNTING MATTERS 6.1 Fiscal Year; Designation of Auditors 6.2 Books and Records ; 6.3 Reports and Statements 6.4 Tax Matters Member 6.5 Tax Elections and Returns 6.6 Interim Accounting " . 7.1 7 2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 . 8.1 8 2 8.3 8 4 8.5 8.6 8.7 8.8 8 10 8.11 8 12 '. '9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 ARTICLE VII GOVERNANCE; BOARD OF DIRECTORS Action by Members to Effectuate this Agreement Board '" " Officers; Management; Rights in the Event Cause. Chairman of the Board Committees " .. Certificate of Formation; By-Laws. Actions by Board Meetings of the Board Conduct of Business Other Activities of Members Right of Public to Rely on Authority of Members. . Standard of Care . Waiver and Indemnification the 30 30 30 31 33 33 33 34 34 34 of 35 39 39 40 40 46 46 48' 49 SO SO 51 51 52 52 52 56 58 58 59 59 60 60 60 60 60 61 62 62 62 66 69 ARTICLE VIII TRANSFERS OF COMPANY UNITS Certain Restrictions .. . Compliance with Securities Laws Transfer of Ownership Interests in Affiliates Transfers of Units by Members Certain Prohibited Transfers of Units by Members Expenses of Transfer . Indemnification by Transferor Acceptance of Prior Acts Certain Conditions to Transfer Dissolution of Company upon Transfer Effect of Initiation of Certain Procedures ARTICLE IX PUT OPTION Put Option . . . Exercise '" . Dissolution Value of the Company Right of Offerors to Withdraw Put Notice Option of Class A Members Purchase of Offerors' Units Sale of Company Priority . . ii 5-33 -- . 10.1 10.2 10 3 10.4 10.5 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11 8 ARTICLE -X BUY-SELL RIGHT Buy-Sell Right Exercise Option of Class B Members Purchase Price; Payment Closing Priority of Purchase Price; ARTICLE XI SPECIAL DISSOLUTION RIGHT Special Dissolution Right Exercise . . . Dissolution Value of the Company . . . . . . . Right to Withdraw DiSSOlution Commencement Notice Option of Class A Members . Purchase of Class B Members' Units Distribution of Properties Priority. . ARTICLE XII DISSOLUTION AND TERMINATION 12.1 Dissolution 12 2 Accounting. . 12 3 Winding-Up 12 4 Liquidating Distribution 12.5 Distributions in Accordance with Capital Accounts 12.6 Negative Capital Accounts 12.7 Distributions in Kind 12.8 No Redemption 12.9 Governance . 12.10 Return ot Capital . 13.1 13.2 13.3 13.4 13 .5 14.1 14.2 ARTICLE XIII MATTERS RELATING TO RETAINED DEBT ..... Payment of Retained Debt . . .. ..... Failure to Make Payments in Respect of Retained Debt . . . . . . . . . . . . . Indemnification . . . .. .... Securi ty Interest . . . . Other Matters Relating to Retained Debt ARTICLE XIV ADDITIONAL CAPITAL CONTRIBUTIONS . . . . Additional Capital Contributions Failure to Make Additional Capital Contributions ARTICLE XV MISCELLANEOUS 15.1 Injunctive Relief. . . 15.2 Successors and Assigns 15.3 Amendment; Waiver. . Hi 5-34 69 69 69 70 70 72 73 73 73 73 73 73 73 74 76 80 80 80 81 81 81 82 82 82 82 82 83 83 83 83 84 84 86 87 87 88 88 88 89 89 . 15 4 Representations by Members 15 5 Notices . . . . . . 15 6 Further Assurances 15 7 Confidentiality . 15 8 APPLICABLE LAW 15.9 Headings . . . . 15.10 Entire Agreement 15 11 Severability . . 15 12 Counterparts . . 15.13 Arbitration 15.14 Consent to Jurisdiction 15.15 Waiver of Partition. 15,16 Brokerage. . . . 15.17 Company Name . . . . . . 15.18 Litigation; No Dissolution 15.19 Ownership of Company Property 15.20 Time of the Essence. . . 15 21 Status Reports . . . . . 15.22 Disposition of Documents 15.23 Calculation of Days 15 24 Attorneys ....... 89 90 91 91 91 91 91 92 92 92 93 93 93 94 94 94 95 95 95 96 96 . . iv 5-35 . . . \ OPERATING AGREEMENT OF GGP/HOMART II L.L.C. Operating Agreement, dated November 10, 1999, between GGP Limited Partnership, a Delaware limited partnership ("GGPLP"), The Comptroller of the State of New York as Trustee of the Common Retirement Fund ("NYSCRF" and, together with GGPLP, the "Members") and GGP/Homart II L.L.C., a Delaware limited liability company (the "Company") . WIT N E SSE T H: A. The Members have formed the Company and own all of the issued and outstanding Units (as defined below) . B. Each of the Members desires to promote the interests of the Company and the mutual interests of the Members by establishing herein certain terms and conditions upon which the Units will be held, including provisions relating to election of members of the board of directors of the company, governance of the Company, dissolution of the company, the transfer of Units and other matters contained herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: ARTICLE I DEFINED TERMS 1.1 Definitions As used in this Agreement, the following terms shall have the respective meanings indicated below: "Act" shall mean the Delaware Limited Liability company Act, as amended from time to time. "Accredited Investor" shall mean any institutional accredited investor as defined in Rule SOl(a) (1), (2), (3) or (7) under the 33 Act or as defined under Rule SOl{a) (8) under the 33 Act (if all of the equity owners of such investor are Persons defined in Rule SOl (a) (1), (2), (3) or (7) under the 33 Act); provided that such institutional accredited investor has total assets in excess of $200,000,000 "Ad;usted Caoital Account Deficit" shall mean, with respect to any Member, the deficit balance, if any, in such Member's Capital 5-36 . ARTICLE VII GOVERNANCE: BOAlUl OP DIRECTORS 7.1 Action bv M~~ers to Effectuate this Aqreement. Each Member agrees to take all actions necessary to carry out and effectuate the provisions of this Agreement, including to vote in a manner consistent with this As;-eement and to cause any Board Member elected by it to take such actions as are required to be taken by this Agreement. 7.2 Board. (a) Except as otherwise e~ressly set forth herein, the Board of Directors of the Company shall consist of six members, and the holders of Class A Units (by majority vote) shall have the right from time to time at their election to designate three members to the Board (the "Class A Board Members"), and the holders of Class B Units (by majority vote) shall have the right from time to time at their election to designate three members to the Board (the "Class B Board Members" and, together with the Class A Board Members, the "Board Members") . . (b) Members of the Board (other than Independent Board Members) shall not receive compensation for serving as members as the Board. Independent Board Members may be paid reasonable and customary compensation as determined by the Board. If he or she elects, a Board member shall be entitled to the reasonable reimbursement of his or her actual out-of-pocket expenses in attending Board meetings. (c) To carry out the provisions of this Section 7.2, GGPLP, as the sole Class A Member, and NYSCRF, as the sole Class B Member, hereby elect the following designated persons as the initial Class A Board Members and the initial Class B Board Members, respectively: Class A Board Members Matthew Bucksbaum John Bucksbaum Robert A. MiChaels Clas~ B Board Members Marjorie Tsang Yvonne D. Nelson Frank L. Sullivan, Jr. (d) Subject t'o Section 7.2 Ie), either the Class A Member or Class B Member may. by delivering written notice to the other, remove any Board Member designated by it and fill any vacancy in one or more of its Board Member positions. No Board Member otherwise may be removed and no vacancy otherwise may be filled. . 34 5-37 . (e) Notwithstanding anything to the contrary contained herein, every Class A Board Member shall also be an executive officer of GG Properties holding the office of executive vice president or higher, including Chairman of the Board. (f) Except as exPressly provided herein, no Member shall have any right to approve any action of or have any voice in the management of the Company, and no Member shall have authority to bind or otherwise act for the Company. (g) Subject to the provisions of Section 7 3 (aI, the Members agree that so long as GGPLP holds more than the Class A Minimum Investment, the Class A Board Members shall have the right and authority to designate and remove all of the officers and directors or trustees of the Subsidiaries, subject to the approval of the Class B Board Members, which approval shall not be unreasonably withheld. 7.3 Officers. MAnaaement. Riahts in the Event of Cause. . (a) Subject to the provisions of Sections 7 2 (g) and 7.3(b), the officers of the Company and the Subsidiaries (to the extent the Subsidiaries have officers) shall consist of the Persons designated by the Board in the manner provided herein for Board actions, and such Persons shall serve in the offices designated by the Board until their respective successors are duly appointed by the Board, they resign, die or are removed (which the Board may do with or without cause in the manner provided herein for Board actions). Officers of the company may not be removed except as expressly provided herein. (b) So long as GGPLP holds more than the Class A Minimum Investment and provided both the Class A Member and Class B Member are entitled to designate Board Members in accordance with the provisions of this Agreement, the Members agree to cause the Class A Board Members and Class B Board Members to (i) designate the Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Treasurer and Secretary of GG Properties to serve ex officio as the Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Treasurer and Secretary of the Company and of the Subsidiaries (to the extent that the Subsidiaries have officers) (the "General Growth Officers") (and to remove any such Person who no longer is serving in such capacity as an officer of General Growth) and (ii) designate certain persons identified by any of the General Growth Officers as. vice presidents, assistant treasurers or assistant secretar~es of the Company and/or its Subsidiaries (and remove any such Person that is designated to be removed by the General Gr~wth Officers). Notwithstanding anything to the contrary contall;ed herein and unless and to the extent the Board otherw~se . 35 5-38 . determines, from and after the date on which GGPLP no longer holds the Class A Minimum Investment, the Members agree that the General Growth Officers shall no longer be the officers of the Company, they shall no longer manage the Company or the Properties, they shall no longer be entitled to the fees set forth in the Schedules attached hereto (except as expressly provided therein) and the officers shall be selected by the Board as reconstituted pursuant to Section 8.4(cl. . (c) Subject to Section 7.7 hereof, the officers of the Company and the Subsidiaries shall be authorized to manage the business and affairs of the Company and the Subsidiaries in accordance with all Key Documents, legal requirements and the terms hereof; and, subject to the foregoing, the officers of the Company and the Subsidiaries shall have the right to take all actions on behalf of the Company and the Subsidiaries. The General Growth Officers, so long as they shall serve as the management of the Company, shall manage the day to day operations of the Company and each of the Properties in a manner substantially consistent with the management of GGPLP and GG Properties. Without in any way limiting the generality of the foregoing, the officers of the Company and the Subsidiaries shall manage the day to day operations of the Properties in accordance with the policies and other matters set forth on Schedule II. All costs and expenses incurred in connection with the management of the Company and the Subsidiaries and the ownership, operation, management and development of the Properties shall be paid by the Company and the Subsidiaries, or if paid by GGPLP or any of its Affiliates, the Company and the Subsidiaries shall reimburse GGPLP or its Affiliates therefor to the extent such costs and expenses were incurred by reason of acts which (i) are for or on behalf of the Company, (ii) within the scope of the authority granted hereunder and (iii) did not constitute gross negligence or willful misconduct on the part of GGPLP or its Affiliates; provided, however, that for so long as the General Growth Officers are the officers of the Company, the costs and expenses of the Company and the Subsidiaries listed on Schedule III shall be paid by GGPLP or its Affiliates and shall not be reimbursed to GGPLP or its Affiliates or charged to the Company or the Subsidiaries or paid from Company Assets. So long as the General Growth Officers are the officers of the Company, the Company and/or the Subsidiaries shall pay to GGPLP and its Affiliates (as provided below) the fees and reimbursable amounts with respect to the Company Assets in the amounts and in the manner set forth on SChedule :rl. Unless otherwise approved by the Board, and except as may otherwise be provided in this Agreement, no other fee or compensation shall be paid by the Company and/or the Subsidiaries to GGPLP, GG Properties or any of their Affiliates in connection with the management of the Company and/or the SUbsidiaries and the Company Assets. So long as '. 36 5-39 e the General Grow~h Offic~r~ a!e the officers of the Company, the Company and 1tS Subs1d1ar1es shall be authorized to enter into one or more agreements with GGPLP and any of its Affiliates to delegate all or any portion of the managerial responsibilities of the General Growth Officers to such entities; provided that, (i) the General Growth Officers shall not be relieved of their obligation to manage the Company or any other obligation or responsibility under this Agreement by reason of such delegation, (ii) the Company shall not incur any additional cost by reason of such delegation and (iii) GGPLP and any such Affiliate shall be obligated to carry out their delegated managerial responsibilities in accordance with the policies set forth on Schedule II to the extent applicable and (iv) and Board shall not lose any rights provided hereunder. Any such agreement entered into by the Company and/or its Subsidiaries, on the one hand, and GGPLP' and/or any of its Affiliates, on the other hand, may provide that all or any portion of the fees and reimbursable amounts set forth on Schedule IV shall be paid to an Affiliate of GGPLP, rather than to GGPLP, and may contain customary indemnities from the Company and its Subsidiaries to GGPLP and such Affiliate against claims, losses, liabilities, costs and expenses arising out of the operation or management of Company Assets to the extent such management was within the scope of the authority expressly granted to GGPLP or such Affiliate hereunder or thereunder, other than claims, losses, liabilities, costs and expenses caused by the gross negligence or willful misconduct of GGPLP or such Affiliate and shall also contain customary indemnities by GGPLP or such Affiliate to the Company with respect to GGPLP's or such Affiliate's gross negligence or willful misconduct. Any such agreement shall be terminable by the Class B Board Members, in their sole discretion, immediately following the General Growth Officers ceasing to serve as the Company's management, GGPLP ceasing to own the Class A Minimum Investment or the Development Manager or the Property Manager ceasing by operation of law or otherwise to be GGPLP, GG Properties or an Affiliate of GGPLP or GG Properties (and otherwise are only terminable as expressly provided herein). Unless otherwise provided herein or approved by the Board, the Company shall not have any employees. Notwithstanding anything to the contrary contained herein, the Company shall (and shall cause the Subsidiaries to) continue to engage the existing property manager (s) for Carolina Place and Montclair Plaza through December 31, 1999 pursuant to the existing management agreement (s) for such Properties, and the Company and ~he Subsidiaries shall not commence paying GGPLP and/or 1ts Affiliates the property management fees for Montclair Plaza and Carolina Place (which fees are set forth in Section 1 of Schedule IV) until January 1, 2000. e e 37 5-40 \ . (d) The Class B Members shall have the right, in their sole discretion, to exercise the rights under Article IX or XI hereof in the event that Cause exists. (e) For purposes of this Agreement, "Cause" shall mean, (i) the failure of the General Growth Officers to submit an Annual Business Plan to the. Board as provided in Section 7.7(c) hereof, (ii) the failure of the General Growth Officers to obtain prior Board approval (as part of an approved Annual Business Plan or otherwise) for any of the matters enumerated in Section 7.7(d) hereof (unless Board approval is not required pursuant to the provisions of this Agreement), (iii) the General Growth Officers taking or causing the Company to take any action materially in contravention of an approved Annual Business Plan (other than actions otherwise permitted hereunder), (iv) a willful and material violation by GGPLP or GG Properties of the provisions of Section 7.10 hereof or (v) the engaging by any General Growth Officers, GGPLP, GG Properties, or the Property Manager, if any, in willful misconduct, including fraud, embezzlement or theft which is demonstrably and materially injurious to the Company; provideli that Cause shall not be deemed to exist until the procedures set forth in Section 7.3(f) below have been complied with. . (f) If the Class B Member or Class B Board Members believe that an event giving rise to Cause has occurred, the Class B Members or Class B Board Members shall deliver a notice (the "Cause Notice") to the General Growth Officers setting forth with particularity the event giving rise to Cause and the applicable clause of Section 7.3 (e) . If the event giving rise to Cause is one enumerated in Section 7.3(e) (i), (ii) or (iii), the General Growth Officers shall have fifteen (15) days from the date of the delivery of such notice to cure the action or failure to act (or if such action or failure to act, or consequence of such action or failure to act, is curable but is of such a nature that it cannot be cured within such fifteen (15) day period, the General Growth Officers shall commence such cure and proceed diligently to Complete the curing thereof as promptly as practicable). The General Growth Officers shall promptly, and, in any event, by the end of the fifteen (15) day cure period, notify (the "Cure Notice") the Class B Member or any Class B Board Member that either (i) the event giving rise to Cause has been cured and specifying the actions taken in respect thereof or (ii) the event giving rise to Cause is curable but cannot be cured within fifteen (15) days and specifying the actions that have been taken and will be taken in respect thereof, in which case upon such cure the General Growth Officers will deliver a second notice stating that the event giving rise to Cause has been cured and specifying the actions that have been taken in respect thereof (the "Second Cure Notice"). Unless the Class B Member or such Class B Board Member reasonably objects in . 38 5-41 . . . writing to the Cure Notice or the Second Cure Notice, as the case may be, within ten (10) days of delivery thereof, the event giving rise to Cause (to the extent such Cure Notice or Second Cure Notice states that the events giving rise to Cause have been cured) shall be deemed to be cured. If GGPLP wishes to contest the existence of Cause, the General Growth Officers shall within ten (10) days of .receipt of the Cause Notice, or, if the Class B Member or such Class B Board Member has reasonably objected to the Cure Notice or the Second Cure Notice, as the case may be, the Class B Member or any Class B Board Member shall within ten (10) days of receipt of the Cure Notice or the Second Cure Notice, as the case may be, submit the existence of Cause to arbitration pursuant to Section 11.13 hereof. If the question of Cause or the cure thereof has been submitted to arbitration, Cause shall not be deemed to have occurred unless and until the arbitrators have reached a final decision that Cause exists or has not been cured. If the General Growth Officers neither submit the question of Cause to arbitration nor deliver a Cure Notice within the fifteen (lS) day period following the date of the delivery of the Cause Notice, then Cause shall be deemed to exist on the day immediately following such fifteen (lS) day periOd: During any arbitration proce~ding, the General Growth Officers shall use all diligent and good faith efforts to act or cease from acting in the manner that is the subject of the dispute. Arbitration costs shall be charged to the losing party. (g) As to the allocation among the officers of the rights, powers, authority and duties of the officers as a group hereunder, each officer shall have the rights, powers, authority and duties as generally pertaiils to his or her office or as may be specified by the Chief Executive Officer or the President of the Company unless otherwise provided herein. The Secretary shall have the duty to record the proceedings of the meetings of the Board and any committees in a book to be kept for that purpose. The Board may require any officer, agent or employee to give security for the faithful performance of his or her duties. 7.4 CbairmAft of the Board. So long as the General Growth Officers are the officers of the Company, the Members agree to cause the Class A Board Members and Class B Board Members to designate as the Chairman of the Board and the Subsidiaries the Boar~ Member elected by GGPLP who holds the most senior position at GG Properties (the "General Growth Chairman") . 7.5 Committees. The Board shall have the power to create committees, inCluding an executive committee and an audit committee, to designate, remove and replace committee members and to delegate to such committees such powers and authority as the Board may determine and as may then be permitted by the Company's Certificate of Formation and the Act; provided, however, that so 39 5-42 . e . long as the Class A Member and Class B Member are entitled to designate Board Members in accordance with the provisions of this Agreement, (i) any committee established by the Board shall have at least one member designated by the Class A Board Members and at least one member designated by the Class B Board Members unless the Board determines otherwise and (ii) subject to Section 7.2(e), the Class A Board Members shall be exclusively entitled to designate, remove and replace the Class A committee members and the Class B Board Members shall be exclusively entitled to designate, remove and replace the Class B committee members. Except as provided herein and unless the Board otherwise provides, each committee may adopt, amend or repeal rules for the conduct of its business that are consistent with the terms hereof Each committee shall otherwise conduct its business in the same manner as the Board conducts its business pursuant to this Agreement. 7.6 Certificate of Formation, Bv-Laws. Each Member shall take all other actions necessary and appropriate to ensure that the Company's Certificate of Formation and By-Laws do not at any time conflict with the provisions of this Agreement or any Key Document and shall not consent to or approve of any amendment to the Certificate of Formation or By-Laws which would be inconsistent with this Agreement or any Key Document. 7.7 Actions bv Board. (a) Actions bv Directors. (a) Except as otherwise provided herein, at such times as both Class A Units and Class B Units shall be outstanding, at all meetings of the Board a quorum shall exist for the transaction of business if at least two (2) Class A Board Members and two (2) Class B Board Members are present At such times as both Class A Units and Class B Units shall be outstanding, at all meetings of any committee of the Board a quorum shall exist for the transaction of business if at least one member designated by the Class A Board Members and one member designated by the Class B Board Members are present, unless the Board shall determine otherwise. At all other times (Le.. when the Board is constituted pursuant to Section 8.4(C)), a quorum shall exist for the transaction of business if at least a majority of Board or committee members are present. Actions of the Board or any committee thereof may be taken at meetings or by written consent, and any written consent shall be filed with the minutes of proceedings of the Board or the appropriate committee thereof. Attendance at any meeting may be by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each another. In case at any meeting of the Board or a committee thereof a quorum shall not be present, the members of the Board or such committee present may adjourn the meeting from time to time until a quorum shall be present. 40 5-43 . (b) When action is to be taken by vote of the Board or any committee thereof and except as otherwise provided herein. each member of the Board or such committee shall be accorded one vote Except as otherwise provided herein (including Section 7.2 and Section 8.4(c) hereof), each and every corporate action taken by vote of the Board or any committee thereof shall be authorized .only by the affirmative vote of the majority of the Board or committee members. as the case may be, present at a duly constituted meeting at which a quorum is present and acting throughout; provided that, at such times as both Class A Units and Class B Units shall be /outstanding and entitled to elect Board Members pursuant to tl1is Agreement. at least one Class A Board Member and one Class B Board Member (in the case of Board meetings), or one Class A committee member and one Class B committee member (in the case of committee meetings), has voted in favor of such action. . (c) On or before December 15 of each year, commencing December 15, 2000, for each Property that is operating, is then under construction or development or is in the planning stage, the General Growth Officers will cause to be prepared and submitted to the Board for approval a proposed annual business plan (including an annual capital budget and operating budget and leasing guidelines to permit the execution of leases on behalf of the Company and its Subsidiaries without specific Board approval, which shall include figures for minimum square foot base rental, maximum tenant improvement allowances, maximum obligations on lease take-overs and any other leasing criteria proposed by the General Growth Officers) for the following fiscal year, such plan to be substantially in the form of the "Annual Business Plans" for 1999 delivered pursuant to the Stockholders Agreement (unless otherwise provided herein) or otherwise approved by the Board (each, an "Annual Business Plan") (and the General Growth Officers will cause to be prepared and submitted to the Board for approval a proposed Annual Business Plan for 2000 within 60 days following the date hereof). The proposed Annual Business Plan also shall itemize each transaction or matter requiring approval of the Board pursuant to Section 7.7(d) below. The General Growth Officers also shall cause the Board to be provided with quarterly updates to the Annual Business Plans. A meeting of the Board to consider an Annual Business Plan for approval shall, unless the Board otherwise determines, be held no sooner than 4S days following submission of the proposed Annual Business Plan to the Board and no later than 7S days following submission thereof. Prior to such meeting, the General Growth Officers shall ma~e available to the Class B Board Members and theJ.r representatives and advisors such backup information with respect to the Annual Business Plan as the Class B Board Members shall reasonably request and shall be reasonably . 41 5-44 . available to consult with the Class B Board Members regarding the details of the Annual Business Plan. If the Board shall consider for adoption a proposed Annual Business Plan for any year and shall fail to adopt it in its entirety because of disagreement as to one or more items although the Board shall agree on other items, then the Board shall adopt as the Annual Business Plan for such year su.ch proposed Annual Business Plan exclusive of the items as to which there is disagreement, provided, however, that if there is disagreement over any item of expenditure in such Annual Business Plan that is nondiscretionary, then the Board shall adopt such Annual Business Plan as it relates to such nondiscretionary item of expenditure, and provided further, however, that if there is disagreement over any discretionary item of operating expenditure in such Annual Business Plan, then the Board shall adopt such Annual Business Plan including such discretionary item of operating expenditure in an amount equal to the amount reasonably proposed for such operating expenditure item by the General Growth Officers (and, in the event that the Annual Business Plan otherwise has not been approved for any year, the General Growth Officers may cause the Company to mak.e discretionary operating expenditures in such amounts as they reasonably deem appropriate and to expend funds for nondiscretionary items until such Annual Business Plan is approved). Although the General Growth Officers shall use reasonable efforts to include all nondiscretionary items in the Annual Business Plan, expenditures for nondiscretionary items shall not be limited by amounts set forth in an approved Annual Business Plan. "Nondiscretionary items" shall mean items that must be paid by the Company to avoid a material adverse effect on the business, operations or value of the assets of the Company and/or its Subsidiaries. Without limiting the generality of the foregoing, the Members acknowledge and agree that nondiscretionary items include the minimum amount of funds needed to (i) pay and perform when due all of the obligations of the Company and/or its Subsidiaries under any notes, mortgages and other instruments to which the Company or any Subsidiary is or shall be a party or by which the Company and/or its Subsidiaries or its or their assets are bound in connection with any financing, (ii) pay when due real estate and other taxes affecting the Company and/or its Subsidiaries and insurance premiums for the Company and/or Subsidiary assets and the Company and/or its Subsidiaries, and (iii) comply with all laws now or hereafter in force which shall be applicable to all or any part of the assets of the Company and/or its Subsidiaries and the operation and management thereof (including the making of capital expenditures required for such compliance) if the failure to comply would (A) expose the Company, any Subsidiary, any Member or any employee, agent, officer, director, trustee or contractor of the Company and/or any Subsidiary, any Member, GG Properties, the Development Manager or the property Manager . . 42 5-45 . to the risk of criminal prosecution, (B) entitle any enforcing entity to take any action which could materially and adversely affect the business, operation or value of the Company and/or its Subsidiaries or (C) invalidate or impair any of the insurance maintained by the Company and/or its Subsidiaries (d) Notwithstanding anything to the contrary contained herein, the following matters will require approval of the Board (either as part of an approved Annual Business Plan or by separate Board action) unless any such matters have been specifically approved pursuant to this Agreement (including Articles VIII, IX, X or XI) or otherwise: (i) The purchase or other acquisition by the Company and/or its Subsidiaries of any material asset or property or any direct or indirect interest therein, but excluding purchase options where the cost of the option does not exceed $500,000; Iii) the sale, transfer, assignment, exchange or other disposition by the Company or any of its Subsidiaries of any Property or any direct or indirect interests therein or any part thereof; . (iii) expansion by Properties; the the development, Company or any redevelopment Subsidiary of or the (iv) the incurrence by the Company or any Subsidiary of any indebtedness for borrowed money, whether secured or unsecured, or the refinancing of any indebtedness for borrowed money, whether secured or unsecured (including any capital lease obligation) in excess of $500,000 in the aggregate in any fiscal year (excluding indebtedness for borrowed money that has been approved by the Board); (v) the pledge, encumbrance or liens or mortgages by the Company or any any Property in connection with a refinancing; subjecting Subsidiary financing to of or . (vi) with respect to each "Major Expense Category" (as so denominated in the Annual Business Plan), the expenditure by the Company and/or any Subsidiary of amounts in excess of those set forth in an approved Annual Business Plan, unless (A) the aggregate of all such amounts (excluding nondiscretionary items and emergency expenditures referred to below in excess of the amount budgeted therefor) do not exceed lOSt of the total expenditures set forth in such Annual Business Plan for such Major Expense Category (but the amount of the fees 43 5-46 e identified on Schedule IV may not be increased) or (8) ,such amounts are nondiscretionary items (as defined in Section 7.7(c)) or otherwise are required. in the reasonable judgment of the Company's management. to be expended because of an emergency involving an immediate threat to the health, safety or condition of persons or property and the Company's management is hereby authori~ed to spend such amounts without further Board action (but only such amounts as are required to alleviate such immediate threat); (vii) the merger. consolidation, reorgani~ation or other similar transaction involving the Company or any Subsidiary with or into another Person. in any such case, whether in a single transaction or a series of related transactions; e (viii) except as provided in 7.7 (d) (xiv). any Company or Subsidiary transaction or agreement (or amendment or modification to any transaction or agreement) with, involving or benefitting GGPLP, Gq Properties. or an Affiliate of GGPLP or GG Properties; (ix) other than a dissolution pursuant to Article XI. the taking of any action. including the filing of a petition. with respect to (x) an assignment for the benefit of creditors of the Company or any Subsidiary, (y) the bankruptcy. insol veney. reorgani~ation, dissolution or any similar occurrence of the Company or any Subsidiary or (~) a liquidation or any other similar occurrence, that might result in the termination of the Company or any Subsidiary; (x) the admission of additional Members or the issuance. grant or entry into an agreement or arrangement providing for options, warrants or other rights. interests or securities convertible into or exchangeable for any equity interests in the Company or any Subsidiary; (xi) except as otherwise expressly provided herein (including the provisions of ArtiCle V), the determination of the amount and timing of distributions of Net Disposition Proceeds and Operating Cash Flow; (xii) the determination of Reserve Amounts for any fiscal year; (xiii) with respect capitali~ation the establishment of the Company's policy to the appropriate levels of debt of the Company; . 44 5-47 e . . IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth a~ove. GGP LIMITED PARTNERSHIP, a Delaware limited partnership By: General Growth Properties, Inc., a Delaware corporation, general partner By: ~~ Name: "':::Ol c.. ,8 '" ""'f'Z _ Title: e.<"~,-.JN":' L/ ,.'-e.... ;;:>r(O~cT~~ THE COMPTROLLER OF THE STATE OF NEW YORK AS TRUSTEE OF THE COMMON RETIREMENT FUND By Name: Title: GGP /HOMART II L L C., a Delaware limited liability company By (~~ Name/' .J '- JOC C_ /0,<>. v "-c. Titl'e: (/. t' __ ~::>:-"5"aJ'u,...-r- 97 5-48 . e IN WITNESS WHEREOF, che undersigned have execuced t:his Agreement: as of t:he dace set: fort:h above. GOP LIMITED PARTNERSHIP, a Delaware limiced part:nership By: General Gro~h Inc., a Delaware general part:ner l?ropert:ies, .corporat:ion, By: Name: Ticle: THE COMPTROLLER OF THE STATE OJ;' NEW YORK AS TRUSTEE OF THE COMMON RETIREMENT FUND By: of . Delaware . By: Name: Tit:le: . 5-49 . . e (xiv) the consent to any amendments or supplements to, or the making of elections or grant of waivers of conditions or the enforcement of rights under, any Contribution Agreement, provided, however, that in connection with any Board resolutions with respect to such matters and so long as the Class A Member and Class B Member are entitled .to designate Board Members in accordance with the provisions of this Agreement. (A) the Class B Board Members shall have the exclusive right to vote (and the Class A Board Members shall not have the right to vote and the vote of the Class A Board Members shall not be required) for the approval of any such action that relates to the obligations of GGPLP and its Affiliates under any Contribution Agreement and (B) the Class A Board Members shall have the exclusive right to vote (and the Class B Board Members shall not have the right to vote and the vote of the Class Board Members shall not be required) for the approval of any such action that relates to the obligations of NYSCRF or its Affiliates under any Contribution Agreement; (xv) the engagement, retention or termination by the Company of any property or development manager for the Properties other than GGPLP, GG Properties, or any of their Affiliates; (xvi) the engagement or retention by the Company of any financial advisor or investment banking firm for any major capital transaction or any legal counsel for any material litigation; (xvii) the amendment of any of the pOlicies set forth in Schedule II or any of the fees or other matters set forth in Schedule IV, in each case as they relate to the Company or any Subsidiary; (xviii) the adoption, modification or deviation from (Al an approved Annual Business Plan (except as permitted hereunder, including as specified in Section 7.7 (d) (vi)) and (B) any development budget, inCluding the Stonebriar Development Plan. (xix) any action not in furtherance of the Company's purpose set forth in Section 2.4. (e) The Members hereby approve, and the Company shall be authorized to undertake, (i) the development and leasing of the Stonebriar Development Project and the expenditure of funds in connection therewith pursuant to the development plan and budget attached hereto as Exhibit C (such development plan and budget, as the same may be modified in accordance with the terms of this Agreement, the "Stonebriar Development Plan") 45 5-50 . and (ii) the operation of the Company Assets (other than the Stonebriar Development Project) and the expenditure of funds and/or incurrence of indebtedness in connection therewith pursuant to the existing 1999 business plans for the Company Assets for remainder of 1999 (and each such plan shall be deemed to be an Annual Business Plan hereunder) . 7.8 Meetinqs of the Board. (a) The Board shall meet not less frequently than three times per year, at such times as the Board may determine, and, if so determined, no notice need be given. Any failure to so meet shall not give rise to any presumption or inference that the Members shall have any liability for the obligations of the Company. '. (b) In addition, the Board shall meet upon the request of any Board Member conveyed in writing to each other Board Member, at a time no fewer than two (2) and no more than twenty-one (21) business days after such notice is given, and at the Company's principal offices or such other place as is determined by the Board. (c) Meetings of the Board shall be presided over by the Chairman of the Board or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the President, or in their absence by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary, an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairman of the Board shall choose a person to act as Secretary. (d) Whenever notice is required to be given to the Board members under any provision of this Agreement, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board or members of a committee of the Board need be specified in any written waiver of notice. 7.9 Conduct of Business. . (a) To the extent consistent with the other provisions of this Agreement, the Company and its Subsidiaries shall 46 5-51 . endeavor to conduct their affairs in a manner that will not cause the Company or any Subsidiary to be deemed to be, and will not make any investment which could cause it to become, an "investment company" for purposes of the Investment Company Act. (b) The Company and it& Subsidiaries shall operate in a manner that will enable GG Properties and Natick Trust to (il satisfy the requirements for qualifying as a real estate investment trust under the Code and (iil avoid any federal income or excise tax liability. The foregoing is not intended to, and shall not, alter the relative distributions payable to the Members as set forth in Article V although it may affect the overall amount of distributions made in any year. (cl The Company shall at all times, commencing with the date of its formation, qualify, and each Member shall cause the Company to operate in a manner so that it will at all times qualify as an "operating company" under Pension and Welfare Benefits Administration Regulation ~ 2510.3-101 (the "Plan Asset Regulations.) issued by the Department of Labor under Title I of the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time ("ERISA") as long as equity participation by Benefit Plan Investors (as defined in the Plan Asset Regulations) is "significant," as defined therein. . . (d) The Company and each of its Subsidiaries shall operate its business and structure its investments in a manner necessary to avoid the realization of any "unrelated business taxable income" within the meaning of Section 512 of the Code ("UBTI") to any Member, or the realization of income that would be UBTI were a Member subject to the provisions of Section 511 through 514 of the Code regardless of its actual status thereunder, unless the Board otherwise approves. Without limiting the generality of the foregoing and without Board approval, the Company and each Subsidiary shall not knowingly, and each Member shall not knowingly, take any action to cause the Company or any Subsidiary to (i) incur any indebtedness other than (A) indebtedness that is incurred to acquire or improve real property within the meaning of Section 514(c) (9) (A) of the Code and that is not described in Section 514(c) (9) (8) (ii) of the Code, or (B) other indebtedness that will not give rise to UBTI to any Member or will not give rise to income that would be UBTI if a Member were subject to the provisions of Sections 511 through 514 of ~he Code regardl~ss of its actual status thereunder (prov1ded that noth1ng contained in this Section 7.9(d) (i) shall prohibit the financing or refinancing of Properties, including the consummation of the CMBS Financing, and the distribution of all or a portion of the proceeds thereofl, (ii) guarantee the obligations of others unless such guarantee does not cause the 47 5-52 . obligation guaranteed to become a "recourse liability" within the meaning of Treasury Regulation Section 1.7S2-1(a)), or (Hi) incur any indebtedness that would be included as a "partner non-recourse debt" as set forth in Treasury Regulations Section 1.704-2(b) (4) (provided that nothing contained in Section 7.9(d) (ii) or (iii) shall prohibit guarantees or indebtedness that is "partner non-recourse debt" .(as defined above) merely because of guarantees by any of the Company, the Subsidiaries, GGP/Homart and/or the subsidiaries of GGP/Homart of Obligations of any of the others or because any such person is otherwise liable for the obligations of any of the others). In furtherance of the foregoing and not in limitation thereof and without Board approval, the Company shall not knowingly, after making due inquiry (i) enter into any lease with, or borrow any amounts for the acquisition or improvement of any property (or any portion thereof) from, any person described in Section S14(c) (9) (B) (iii) or (v) of the Code; or (ii) enter into any lease or other arrangement with respect to any Property or any portion thereof if such lease or arrangement would result in (A) the payment of rent or any other amount to the landlord which depends in whole or in part on the income or profits derived by any person (including a tenant or a subtenant) from any portion of such Property (other than an amount based upon a fixed percentage of the receipts or sales of the tenant and, if any, the subtenants), (B) an obligation of the landlord to furnish or render any service not customarily furnished or rendered in connection with the rental of space for occupancy, as determined under Section S12(b) of the Code and any applicable Treasury regulations or (C) any portion of the Company's income (or loss) otherwise being UBTI. In the event that NYSCRF determines, in its reasonable judgment, that (i) as the result of any change in applicable statute, regulation or administrative or judicial interpretation thereof (including private letter rulings, technical advice memoranda and other similar pronouncements), any lease would cause the Company to have UBTI or (ii) any other arrangement entered into with respect to a Property or any portion thereof would cause the Company to have UBTI, the parties hereto agree to use their reasonable efforts (without any obligation to pay any amount or incur any obligation) to reform such lease or other arrangement, or to take any other action necessary or appropriate, to prevent the Company from having any UBTI. '. 7.10 Other Activities of MAm~ers. . (a) Neither GGPLP nor GG Properties nor any of their Affiliates shall, directly or indirectly, as an owner, managing or general partner, majority or controlling stockholder, consultant, jOint venturer, manager or otherwise, acquire, develop, redevelop, improve, construct or manage any regional shopping mall project, that is, in any such case, 48 5-53 . . . \ located within the -trade area (as shown in red on the maps attached hereto as Exhibit E) of any of the mall shopping centers listed on Exhibit E hereto (the "Relevant Trade Area"); provided, however, that nothing herein shall prohibit or restrict GGPLP or GG Properties or any of their Affiliates from owning, operating, developing, improving, expanding or managing any of the mall shopping centers owned (in whole or in part), operated, being developed or managed, directly or indirectly, by any of them on the date hereof and listed on Schedule V hereto. (b) Notwithstanding anything to the contrary in Section 7.10 (a), neither GGPLP nor GG Properties shall be in breach of Section 7.10(a} if, in connection with the acquisition of a portfolio of three or more regional shopping malls or management contracts therefor, GGPLP, GG Properties or any of their Affiliates acquires directly or indirectly, or becomes the property manager or development manager for, any regional shopping mall project that is located within the Relevant Trade Area (the "Competing Asset"); provided GGPLP, GG Properties or such Affiliate terminates any management position with respect to such Competing Asset as soon a's possible but no later than within one year after acquiring the same. (cl Subject to Section 7.10(a) and (b), each Member and its Affiliates may engage or invest in any other activity or venture or possess any direct or indirect interest therein independently or with others. None of the Members, the Company or any other Person employed by, related to or in any way affiliated with any Member or the Company shall have any duty or obligation to disclose or offer to the Company or any of the Members, or obtain for the benefit of the Company or any of the Members, any such other activity or venture or interest therein None of the Company, the Members, the creditors of the Company or any other person having any interest in the Company shall have (i) any claim, right or cause of action against any of the Members or any other Person employed by, related to or in any way affiliated with, any of the Members by reason of any direct or indirect investment or other participation, whether active or passive, in any such activity or venture therein or (ii) any right to any such activity or venture or interest therein or the income or profits derived therefrom. 7.11 Riaht of Public to Relv on Authoritv of the Members. Nothing herein contained shall impose any Obligations on any Person or firm doing business with the Company to inquire as ~o whether,or not a Member or a General Growth Officer has exceeded ~ts author~ty in executing any contract, lease, mortgage, deed or other instrument on behalf of the Company, and any such third person shall be fully protected in relying upon such authority. 49 5-54 . 7.12 Standard of Care. Subject to the other provisions hereof (including Section 7 13), each of the Board Members and officers shall discharge his or her duties in that capacity in good faith, with the care that a director or officer, as the case may be, of a Delaware corporation would be required to exercise and in a manner he or she believes to be in the best interests of the Company. 7.13 Waiver and Ind-~"ification. . (a) Notwithstanding anything to the contrary contained in this Agreement (including Section 7.12 and the SChedules attached hereto). neither the Members nor any Person acting on their behalf pursuant hereto (including the Board Members and General Growth Officers), shall be liable, responsible or accountable in damages or otherwise to the Company, any Subsidiary or to any Member for any acts or omissions performed or omitted to be performed by them (or any Person acting on their behalf, including the Board Members and the General Growth Officers) in connection with the management of the Company and/or the Subsidiaries and within the scope of the authority conferred upon them by this Agreement, the Boar~ and/or the Act, provided that the Member's or such other Person's conduct or omission to act was taken in good faith and in the belief that such conduct or omission was in the best interests of the Company and/or the Subsidiaries and, provided further, that the Member or such other Person shall not be guilty of intentional misconduct or gross negligence. The Company shall, and hereby does, indemnify and hold harmless the Members and their Affiliates and any individual acting on their behalf (including the Board Members and the General Growth Officers) from any loss, damage, claims or liability, including reasonable attorneys' fees and expenses, incurred by them (i) by reason of any act performed by them or any Person acting on their behalf (including the Board Members and the General Growth Officers) in connection with the management of the Company and/or its Subsidiaries and/or any predecessors or successors thereof or thereto and in accordance with the standards set forth above or (ii) in enforcing the provisions of this indemnity. For purposes of this 7.13, the term "General Growth Officers" shall include the officers, directors and trustees of the Subsidiaries. (b) Any Person entitled to indemnification under this Agreement shall be entitled to receive, upon application therefor (such application to include (i) a written affirmation of such person's good faith belief that he or she met the standard of conduct necessary for entitlement to indemnification by the Company and (ii) his or her written agreement to immediately repay such amount if it should ultimately be determined that he or she has not met such standard), advances to cover the reasonable costs of defending any proceeding against such Person; provided, however, that . 50 5-55 . . . such advances shall be immediately repaid to the Company, without interest, if such Person is found by a court of competent jurisdiction upon entry of a final judgment not to be entitled to such indemnification. (cl The indemnity obligations under this Section '.13 shall be in addition to any liability which the Company otherwise may have to any Person entitled to receive indemnification under this Agreement, shall extend upon the same terms and conditions to the stockholders. officers, directors, partners, employees and controlling Persons of any such Person, and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company, any Member, and any such other Person. The foregoing provisions shall survive any termination of this Agreement or dissolution of the Company. (d) The Company and the other Members shall be indemnified and held harmless by each Member from and against any and all claims, demands, liabilities, costs, damages, expenses (including reasonable attorneys' fees an9 disbursements) and causes of action of any nature whatsoever arising out of or incidental to the fraud, willful misconduct or gross negligence of such Member or any Affiliate of such Member. ARTICLE VIII TRANSPERS OP COKPANY UNITS 8.1 Certain Restrictions. No Member shall, directly or indirectly, Transfer any Units to any Person (any such Person in whose favor a Transfer of Units is made, and all subsequent permitted transferees of any such Person being referred to collectively as "Transferees" and individually as a "Transferee"), unless approved by the Board or unless such Transfer is made pursuant to this Article VIII or Article IX, X or XI hereof; provided, however, that nothing in this Agreement shall restrict the Transfer of any ownership interest in any Member unless such Member's assets consist substantially of its membership interest in the Company, in which case the Transfer shall be deemed a Transfer of Units. Each Member hereby agrees that it will not Transfer all or any portion of its Units except as permitted by this Agreement, that the Company shall not reflect on its books any Transfer of Units to any Person except in accordance with this Agreement, and that any Transfer of Units not permitted by the provisions of this Agreement shall be null and void aQ initio. 8.2 Comcliance with Securities Laws. Notwithstanding anything to the contrary contained herein, no Member shall Transfer any Units, and the Company shall not reflect on its books any Transfer of Units, unless (a) the Transfer is pursuant to an 51 5-56 Exhibit B-1 GGP-Otay Ranch L.L.c. Delaware Certificate of Formation (see attached) S-S7 PAGE 1 'I1ie :First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF FORMATION OF "GGP-OTAY RANCH L. L. C. " , FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF DECEMBER, A.D. 2004, AT 3:50 O'CLOCK P.M. 3901047 8100 040927835 , . . ...~~~. /(f~~~,~~~,:? :;?:,,~,r;':-.<o~.'!{'"'""'\'?'~\ y Jf~~~2~ ' " R~,~-' " '~~;~~~i~1 ...1t~ ~~, _: ~ ~ -91z:- eJ 4.~-..) HarTlet Smith Windsor. Secretary of Stale AUTHENTICATION: 3569771 DATE: 12-22-04 5-58 . . CERTIFICATE OF FORMATION OF GGP-OTAY RANCH L.L.C. This Certificate of Formation of GGP-Otay Ranch L.LC. (the 'Company; is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Umited Uabinty Company Act. 1. The name of the company is: GGP-Otay Ranch L.L.C. 2. The address of the registered office of the Company in Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware, 19808. The name of its Registered Agent at that address is Corporation Service Company. IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has caused this Certificate of Formation to be duly executed as of the 201ll day of December, 2004. Is! Marcela Godov Marcela Godoy, authorized to sign this Certificate of Formation on behalf of the Company NGEDOCS; 015179_0001 :1111569.2 st<ote ~ llIol~ Sec::ntazy ~ St<ot. Divisi"" ~ Co<po....ticns L\t.1.i.......:l 03:48 1'N 1.2/21/2004 FILED 03 :50 PM 1.2/21/2004 SR<7040927835 - 3901047 FJIE 5-59 Exhibit B-2 GGP-Otay Ranch L.L.C. Operating Agreement (see attached) 5-60 OPERATING AGREEMENT OF GGP-OT A Y RANCH L.L.C. NGEDOCS: 1 tll969.1 5-61 TABLE OF CONTENTS Page ARTICLE I ............................................................................................................. DEFINITIONS 1 ARTICLE II ............................................................................................................. FORMATION 3 2.1 Fonnation of the Company .................................................................................... 3 2.2 Name ................. .................... ................... ................. .................. ................. ... ....... 3 2.3 Principal Office. ...... .............................. .............. ........ ............................... ............ 3 2.4 Registered Agent and Registered Office................................................................ 3 2.5 Tax Status of Company...................................................................................... .... 3 ARTIC~E III......................................................................................PURPOSES AND POWERS 3 3.1 Purposes ............. ..... ............. ..... ............ ......... ........... ....... ........... ................... ........ 3 3.2 General Powers .................................................................................................... 3 ARTICLE N ................................................................................................................MEMBERS 3 4.1 Membership Interest .............................................................................................. 3 4.2 Meetings............. ...... ............ .......................... ......... .................... ........................... 3 4.3 Place of Meeting .................................................................................................... 4 4 4 Notice of Meetings.. .............. .... ............ ......... ............................. ........................... 4 4.5 Closing of Transfer Books or Fixing of Record Date............................................ 4 4.6 Quorum .............. ..... .............................. .................. ....... ........................................ 4 47 Voting ....................................................................................................................4 4.8 Action by Written Consent .................................................................................... 4 4.9 Telephone Meetings ................................ ...... ......................................................... 4 ARTICLE V ...............................:........................................................................ MANAGEMENT 5 5.1 Management....... ..... ......... ..... ............... ........ ............ ...... ................................. ....... 5 5.2 No Exclusive Duty to the Company...................................................................... 5 5.3 Compensation ....... ................... ............. ......... ........... ............ ......... ............. ...... ..... 5 5.4 Expenses ............. .... .............. .... ..... ......... ............... ..................... ................. .......... 5 ARTICLE VI................................. LIMITATION ON LIABILITY AND INDEMNIFICATION 5 6.1 Limitation on Liability........................................................................................... 5 6.2 Indemnification of Members...... .......... .................... .................... .......................... 5 6.3 Payment of Expenses in Advance.......................................................................... 5 6.4 Provisions Not Excluslve.......................................................................................6 NGEDOCS: 1111969.1 -i- 5-62 TABLE OF CONTENTS (continued) Page 6.5 Insurance .................................... ................. ....................................................... .... 6 6.6 Continuation.................................................... ............................ .................. ......... 6 6.7 Other Persons Covered .......................................................................................... 6 6.8 Notice of Indemnification and/or Advancement of Expenses............................... 6 ARTICLE VII ................................................CONTRIBUTIONS AND CAPITAL ACCOUNTS 6 71 Capital Contributions.............................................................................................6 7.2 Member Loans ....................................................................................................... 6 7.3 Interest; Priority; Return of Capital....................................................................... 7 7 4 Negative Capital Accounts .................................................................................... 7 ARTICLE VIII........ ............................................................. ........... ...... ............... ALLOCATIONS 7 8.1 Distributions............................... ..................... ......... ..... ................................. ........ 7 8.2 Computation and Determination............................................................................7 ARTICLE IX .................................................................. ACCOUNTING AND TAX MATTERS 7 9.1 Fiscal Year ............................................................................................................. 7 9.2 Tax Assessed or Amounts Withheld...................................................................... 7 9.3 Books of Account and Records.............................................................................. 8 9.4 Financial and Tax Information............................................................................... 8 ARTICLE X..........................................................RESTRICTIONS ON TRANSFER OF UNITS 8 10.1 Transfer of Units .................................................................................................... 8 10.2 Approval of Substitute Members ........................................................................... 9 10.3 Record Owner of Unit....................................................................... .....................9 ARTICLE XI DISSOLUTION AND TERMINATION, FINAL ACCOUNTING AND DISTRIBUTIONS ..................... ......... ..................... .............. ............................. ...... .... ..... 9 11.1 Dissolution and Termination of the Company....................................................... 9 11.2 Distributions After Dissolution and Termination ................................................10 ARTICLE XII ........................................................................ AMENDMENT OF AGREEMENT II ARTICLE XIII................................................................................................MISCELLANEOUS 11 13.1 Notices ................................................................................................................ 11 13.2 Law Governing .................................................................................................... 11 13.3 Representatives and Assigns................................................................................ 11 NGEDOCS: 1111969.1 -ii- 5-63 TABLE OF CONTENTS (continued) Page 13.4 Entire Agreement................................................................................................. 11 13.5 Counterparts .................. .................... .................. ....................... .................. ........ II 13.6 Severability .......................................................................................................... II 13.7 Construction .................... .................. ....................... ............................................ 11 13.8 Third Party Beneficiary........................................................................................12 13.9 Waiver of Action for Partition............................................................................. 12 13.10 Attorneys' Fees .................................................................................................... 12 NGEDOCS: 11 I J969.\ -iii- 5-64 OPERATING AGREEMENT OF GGP-OTAY RANCH L.L.C. This Operating Agreement, dated December 21, 2004, is made and entered into by GGP/Homart II L.L.C., a Delaware limited liability company, and any other Persons who may be admitted to the Company and become signatories hereto. RECIT ALS WHEREAS, the parties hereto desire to form a Delaware limited liability company known as GGP-Otay Ranch L.L.C. (the "Company") pursuant to the Delaware Limited Liability Company Act, as amended (the "Act"), and to set forth herein their understandings in respect of the Company NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I Definitions The following are definitions of certain terms capitalized and used throughout this Operating Agreement: "Act" shall have the meaning set forth in the recitals. "Affiliate" shall mean, as to any Member (or as to any other Person the affiliates 9f whom are relevant for purposes of any of the provisions of this Agreement), any Person controlled by, under common control with or controlling, directly or indirectly through one or more intermediaries, such Member or such other Person. "Agreement" shall mean this Agreement as originally executed and as amended In writing from time to time. "Capital Contribution" shall mean the amount of cash or property contributed to the capital of the Company by each Member. "Certificate" shall mean the certificate of formation, articles of organization or other similar document of the Company, as the same is amended from time to time. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time (or the corresponding provisions of succeeding law). "Company" shall have the meaning set forth in the recitals. NGEDOCS: 1111969.1 5-65 "Entitv" shall mean any partnership, corporation, trust, limited liability company, business association, court, governmental agency or other entity. "Fair Market Value" or "Fair Market Value of the Companv" shall mean the maximum amount that a single buyer would reasonably be expected to pay to acquire the Company, an asset of the Company or a Unit in the Company, as the case may be, on the date of detennination, free and clear of all liens and encumbrances, in a single cash purchase, taking into account the current condition and use of the asset or all of the assets and business of the Company, as the case may be. In situations under .this Agreement in which it is necessary to determine Fair Market Value, such determination shall be made in good faith by the Members (or, if specified, by the Liquidating Trustee). "Fiscal Year" shall mean the Company's fiscal year, which shall be the calendar year. "LiQuidatim! Trustee" shall have the meaning set forth in Section 11.2. "Member" shall mean each of the Persons listed on Schedule A and each party who may hereafter become an additional or substituted Member. "Person" shall mean any individual or Entity. "Regulations" shall mean Department of Treasury Regulations, including Temporary Regulations and Proposed Regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Securities Act" shall mean the Securities Act of 1933, as amended. "State" shall mean the State of Delaware. ''Transfer'' shall mean any assignment, sale, transfer, conveyance, pledge, grant of an option 'or other disposition or act of alienation, whether voluntary or involuntary or by operation ofIaw. "Unit(s)" shall mean a unit of membership interest entitling the holder to an equal share, with every other holder of a Unit, in the allocations and distributions ofthe Company pursuant to Article VIII and the rights of management, consent, approval or participation, if any, granted to holders of Units as provided in this Agreement. All other capitalized terms not specifically defined in this Agreement shall have the meanings ascribed to them in the Act. NGEDOCS: 1111969.1 -2- 5-66 ARTICLE II Formation 2.1 Formation of the Comoanv. The parties do hereby agree to form the Company as a limited liability company under and pursuant to the provisions of the Act and all other laws of the State for the purposes and upon the terms and conditions hereinafter set forth. The rights and liabilities of the Members, except as expressly stated herein or in the Certificate, shall be as provided in the Act. 2.2 Name. The name of the Company is "GGP-Otay Ranch L.L.C." or such other name as may be selected by the Members from time to time. 2.3 Princioal Office. The principal office of the Company shall be located at 110 North Wacker Drive, Chicago, Illinois 60606. The location of the Company's office may be changed from time to time by the Members. 2.4 Registered Agent and Registered Office. The Company shall at all times maintain a registered agent and a registered office in the State as provided in the Act. 2.5 Tax Status of Company. The parties intend that the Company shall be disregarded for federal and state income tax purposes. ARTICLE III Purposes and Powers 3.1 PUrPoses. The purposes of the Company are to, directly or indirectly (through a partnership or other entity), engage in any lawful transaction or conduct any lawful business for which limited liability companies may be organized under the Act. 3.2 General Powers. The Company shall have all powers granted to limited liability companies under the Act. ARTICLE IV Members 4.1 Membership Interest. The names and addresses of the Members and the number of Unit(s) owned by each are set forth on attached Schedule A, which Schedule shall be revised from time to time as necessary to reflect the admission of additional or substitute Members and the withdrawal of Members. 4.2 Meetings. Meetings of the Members may be called at any time by any Member. The Member calling a meeting shall cause notice of such meeting to be given to the Members. NGEDOCS: II 11969.1 - 3 - 5-67 4.3 Place of Meeting. Unless othelWise agreed by all Members, the place of meeting shaH be the principal office of the Company in the state oflllinois. 4.4 Notice of Meetings. Notice stating the place, day and hour of any meeting of Members and the purpose(s) of the meeting shall be given to each Member not less than five (5) days before the meeting. A waiver of notice in writing, signed at any time by the Member entitled to such notice, shall be deemed equivalent to the giving of such notice. 4.5 Closing of Transfer Books or Fixing of Record Date. For the purpose of determining Members entitled to notice of or to vote at any meeting of the Members or payment of distributions or for any other purpose, the Members may provide that the records relating to Transfers of Units shall be closed for a stated period not to exceed sixty (60) days. In lieu of closing such Transfer records, the Members may fix, in advance, a date as the record date for any such determination of Members, such date in any case to be not more than sixty (60) days prior to the date of such meeting or the payment of such distributions. If such Transfer records are not closed and no record date is fixed for the determination of Members entitled to notice of or to vote at a meeting of Members or to receive payment of a distribution, the date on which notice of the meeting is mailed or on which the Members adopt a resolution to pay such distribution, as the case may be, shall be the record date for such determination of Members. 4.6 Quorum. The holders of a majority of the Units, present in person or represented by proxy, shall constitute a quorum of the Members for all purposes except in those instances where a larger number shall be required by law or by the Certificate. If a quorum of Members is not present at any meeting, such meeting may be adjourned by those present to any day, not exceeding thirty (30) days thereafter, and no further caH or notice of such adjourned meeting shaH be necessary. 4.7 Voting. Each outstanding Unit shall be entitled to one vote upon each matter submitted to a vote of the Members. A Member may vote in person or by proxy appointed in writing by such Member or its duly authorized attorney-in-fact. Such proxy shall be filed with the Company prior to the vote in question. No proxy shall be valid after eleven (II) months from the date of its execution, unless othelWise provided in the proxy. The affirmative vote of the holders of a majority of the Units shaH be the act of the Members, unless the vote of a greater number or class thereof is required by law, the Certificate or this Agreement. 4.8 Action bv Written Consent. Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting and without a vote if a consent in writing, setting forth the action so taken, shaH be signed by the holders of outstanding Units having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which aH Units entitled to vote thereon were present and voting. 4.9 Teleohone Meetings. Any meeting of the Members may be held, or any Member may participate in any meeting of the Members, by conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other. NGEDOCS, 1111969.1 - 4. 5-68 ARTICLE V Mana2ement 5.1 Mana2ement. The business and affairs of the Company shall be vested in and directed and managed by the Members, and the Members shall have the full, complete and exclusive authority, power and discretion to make any and all decisions with respect to the business and affairs of the Company. All actions shall be taken only with the approval of the Members as provided in Article IV or other applicable sections hereof. Any Member shall have the power to act for or bind the Company 5.2 No Exclusive Dutv to the Companv. No Member shall be required to manage the Company as its sole and exclusive function. A Member may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have any right, by virtue of this Agreement, to share or participate in other investments or activities of any Member or to the income or proceeds derived therefrom. 5.3 Compensation. No Member shall receive compensation for its services to the Company in such capacity. 5 4 Expenses. Upon proper substantiation, any Member shall be entitled to reimbursement out of Company funds of any amounts paid by it personally on behalf of the Company. ARTICLE VI Limitation on Liabilitv and Indemnification 6.1 Limitation on Liability. No Member shall be liable to the Company or any other Member for any act or omission in connection with the management of the business or affairs of the Company unless such act or omission was taken or made in bad faith or constitutes gross negligence or willful misconduct. 6.2 Indemnification of Members. The Company shall indemnify and hold harmless each Member against any losses, judgments, liabilities or expenses incurred in settling any claim or incurred in any'finally adjudicated legal proceeding, including reasonable attorneys' fees and costs of removing any liens affecting property of the indemnitee, and/or amounts paid in settlement of any claims sustained by it arising from or relating to the management of the Company, provided that the same were not the result of actions or omissions of such Member taken or made in bad faith or which constitute gross negligence or willful misconduct. 6.3 Payment of Expenses in Advance. Expenses incurred in <jefending a civil or criminal action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding, as authorized by the Members in the specific case, upon receipt of an undertaking by the Member or Members, as the case may be, to repay such amount unless it shall ultimately be determined that such Member or Members are entitled. to be indemnified by the Company NGEOOCS: 1111969.1 - 5 - 5-69 6.4 Provisions Not Exclusive. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any statute, agreement, vote of Members or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office. 6.5 Insurance. The Company shall have the power to purchase and maintain insurance on behalf of the Members against any liability asserted against it or incurred by it in such. capacity or arising out of its status as such, whether or not the. Company would have the power to indemnify it against such liability under the provisions of this Article. 6.6 Continuation. The provisions of this Article shall continue as to a Person who has ceased to be a Member as to claims arising out of activities related to its prior capacity and shall inure to the benefit of il$ successors and obligors. The provisions of this Article also shall survive the liquidation, dissolution and termination of the Company and the termination of this Agreement and shall be binding on the Company's successors and assigns. 6.7 Other Persons Covered. The provisions of this Article shall apply in all respects to any Liquidating Trustee appointed pursuant to Section 11.2. 6.8 Notice of Indemnification and/or Advancement of Exoenses. If the Company has indemnified and/or advanced any expenses to any Person pursuant to this Article VI, the Company shall, within 30 days of such indemnification or advancement or sooner as required by the Act, provide the Members with written notice thereof. ARTICLE VII Contributions and CaDi tal Accounts 7.1 CaDital Contributions. (a) Each Member has made, or is deemed to have made, a Capital Contribution to the Company of the cash and/or property set forth in the books and records of the Company (b) No further contributions of capital to, or financial accommodations for the benefit of, the Company shall be required. 7.2 Member Loans. (a) The Company may borrow funds from any Member for proper business purposes at any time and from time to time on such terms and conditions, including, without limitation, the rate of interest, any participation rights and any security, as the Members deem appropriate. Any such loan shall not increase such Member's Capital Account but shall be a debt due from the Company to such Member payable in accordance with its terms. In the event of default, the Member, as lender, shall be entitled to exercise and pursue all rights and remedies available to it in accordance with such terms or applicable law. NGEDOCS: II 11969.\ - 6 - 5-70 (b) Notwithstanding the foregoing, no Member shall be required to loan funds to the Company. 7.3 Interest: Prioritv: Return ofCauital. No interest shall be paid by the Compapy on Capital Contributions. No Member shall be entitled to priority over any other Member as to a return of its Capital Contribution or as to allocations of net profits, net losses or distributions. No Member shall be entitled to the return of its Capital Contributions except (a) as provide~ for herein, (b) as required by law, (c) to the extent, if any, that distributions made pursuant to the express terms of this Agreement may be considered as such by law, or (d) upon dissolution of the Company, and then only to the extent expressly provided for in this Agreement. No Member shall have any right to demand or receive property other than cash in return for its Capital Contribution. 7.4 Negative Caoital Accounts. No Member shall have an obligation to the Company to restore to zero any negative balance in its capital account, if any. ARTICLE vm Distributions: Etc. 8.1 Distributions. The timing and amount of distributions to the Members shall be determined by the Members. All distributions shall be made pro rata to the Members in accordance with the number of Units then owned by each Member in relation to the total number of Units then outstanding. 8.2 Comuutation and Determination. The Members.may rely upon, and shall have no liability to the Members or the Company if they rely upon, the advice of the independent public accountants retained by the Compapy from time to time with respect to all matters (including disputes with respect thereto) relating to computations and determinations required to be made under this Article. ARTICLE IX Accounting and Tax Matters 9.1 Fiscal Year. The Company's Fiscal Year shall be the calendar year or such other period as the Members shall determine. 9.2 Tax Assessed or Amounts Withheld. Any tax assessed on the Company with respect to any Member's allocable share of the income of the Company and/or all amounts required to be withheld with respect to the income of the Company allocable to any payment or distribution to the Company or the Members pursuant to the Code or any provision of any state or local tax law, shall be treated as amounts distributed to the Members for all purposes under this Agreement. The Company may allocate any such amounts among the Members in any manner so that the capital account, if any, of the Member whose status gives rise to such assessment or withholding is properly debited or credited. , NGElXlCS: 1111969.\ -7- 5-71 9.3 Books of Account and Records. The Members shall cause proper and complete records and books of account of the Company to be kept in which shall be entered fully and accurately all transactions and other matters relating to the Company's business in such detail and completeness as is required by the Act and is customary and usual for businesses of the type engaged in by the Company. The books and records at all times shall be maintained at the principal office of the Company (and, to the extent required to be kept at the registered office, also maintained at the registered office) and shall be open to the reasonable inspection and examination of the Members or their duly authorized representatives during reasonable business hours. 9.4 Financial and Tax Information. Within ninety (90) days after the end of each Fiscal Year, the Company shall furnish to each Person who was a Member during such period financial statements of the Company and all other information necessary for the preparation of such Person's federal income tax return. ARTICLE X Restrictions on Transfer of Units 10.1 Transfer of Units. A member may Transfer a Unit only in accordance with the following terms: (a) the Company shall not be required to recognize any Transfer of all or any portion of a Unit until the instrument conveying such Unit has been delivered to the non-Transferring Member for recordation on the books of the Company; (b) unless an assignee is admitted to the Company as a substitute Member in accordance with Section 10.2, such assignee shall not be entitled to any of the rights granted to a Member hereunder other than the right to receive the distributions and return of contributions to which the assignor otherwise would be entitled with respect to the Unit (or portion thereot) Transferred; (c) the assignor shall notify the non-Transferring Member of such Transfer and provide it with such information regarding the assignee and the Transfer (including, but not limited to, the name, address and taxpayer identification number of the assignor and assignee and the date of the Transfer) as is required under Section 60S0K of the Code (if the transfer is a sale or exchange described in Section 7S1(a) of the Code) and Regulations promulgated thereunder in the manner and at the time prescribed by law; (d) the assignor shall deliver to the other Member an opinion of counselor other evidence satisfactory to such Member that the Unit to be Transferred is registered under the Securities Act of 1933, as amended, and applicable state securities laws or that exemptions from such registration are available; and (e) the assignee shall pay all costs and expenses reasonably incurred by the Company in connection with such Transfer. NGEDOCS: 1111969.\ - 8- 5-72 The effective date of any Transfer shall be the date on which all of the prerequisites to the Transfer specified in this Section have been made, provided that for purposes of any required amendment by the Company of the Certificate and of any filings made in other jurisdictions, the Company may refuse to recognize the effectiveness of a Transfer until the end of the current monthly, quarterly, semi-annual or annual accounting period. 10.2 Approval of Substitute Members. An assignee of a Unit shall be admitted to the Company as a substitute Member entitled to all the rights of a Member if, and only if, all of the following requirements are met: (a) the assignor agrees to such substitution; (b) the holders of all outstanding Units (other than the Unites) being Transferred) approve such substitution, which approval may be granted or withheld in the sole discretion of each Person from whom such approval is sought; ( c) the assignee pays to the Company all costs and expenses incurred in connection with such substitution, including, without limitation, costs incurred in making any required amendment to any filings; and (d) the assignee executes and delivers such instruments, in form and substance satisfactory to the non-Transferring Member, as such Member may deem necessary or desirable to effect such substitution and to confirm the agreement of the assignee to be bound by all of the terms and provisions of this Agreement. 10.3 Record Owner ofUni!. The Company shall be entitled to treat the Person whose name appears on the records of the Company as the absolute owner of a Unit in the Company in all respects, and shall incur no liability for distributions of cash or other property made in good faith to such record owner, until such time as a written assignment of such Unit has been received and accepted by the non-Transferring Member and recorded on the books of the Company. ARTICLE XI Dissolution and Termination, Final Accounting and Distributions 11 I Dissolution and Termination of the Companv. (a) The term of the Company shall end, and the Company shall be immediately dissolved, upon the occurrence of any of the following: (i) the death, bankruptcy, retirement, resignation, expulsion, liquidation or dissolution of, or court declaration of incompetence with respect to, the last remaining Member or upon the occurrence of any other event that terminates the continued membership of the last remaining Member in the Company; NGEOOCS: 1111969.1 -9- 5-73 (ii) the sale of all or substantially all assets of the Company; or (iii) the decision of the holders of a majority of the outstanding Units to dissolve. (b) Upon the dissolution of the Company, no further business shall be conducted by the Company except the taking of action necessary for the winding up of the affairs of the Company and the liquidation and distribution of its assets. Actions taken by the Company to effectuate or facilitate the orderly winding up of the Company's affairs shall not be construed to involve a continuation of the Company. 11.2 Distributions After Dissolution and Termination. (a) Upon the dissolution of the Company, the Members shall appoint a Person (who may be a Member) who shall act as liquidating trustee (the "Liquidating Trustee") and shall proceed to wind-up the business of the Company The Liquidating Trustee shall first determine or have determined the Fair Market Value of the Company The Liquidating Trustee shall use its best efforts to sell such Company assets (except cash and current receivables) as are necessary to satisfy the claims of creditors or as cannot be readily divided among the Members at such prices, and on such terms, as the Liquidating Trustee, in the exercise of its best judgment under the circumstances then presented, deems in the best interest of the Members. The Liquidating Trustee is specifically authorized to accept an installment obligation in connection with the sale of any assets of the Company if the Liquidating Trustee, in its sole discretion, deems it to be in the best interest of the Members. Any Member shall have the right to purchase any Company property to be sold on liquidation, provided that the terms on which such sale is made are no less favorable than would otherwise be available from third parties. (b) In settling accounts after dissolution of the Company, the assets of the Company shall be paid to creditors of the Company and to the Members in the following order: (i) to creditors, including Members who are creditors, to the extent permitted by law, in satisfaction of liabilities of the Company in the order of priority as provided by law; (ii) to the establishment of reserves for payment of creditors pursuant to clause (i) above; and (iii) to the Members, pro rata in accordance the number of Units owned by them relative to the total number of Units outstanding. NGEDOCS: 1111969.1 - 10- 5-74 ARTICLE XII Amendment of Agreement Units. This Agreement may be amended only upon the approval of the holders of all outstanding ARTICLE XIII Miscellaneous 13 I Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered as properly given when deposited in the United States mail, first class postage prepaid, addressed to a Member at its address as it appears in the records of the Company or when delivered personally (including delivery by messenger or overnight courier service) to the Member at such address. 13.2 Law Governing. The construction and enforcement of this Agreement shall be governed by the laws of the State (without regard to the conflicts oflaw principles thereof). 13.3 Reoresentatives and Assigns. This Agreement shall be binding upon and inure to the benefit of the Members and their respective heirs, personal or legal representatives, successors arid permitted assigns. 13.4 Entire Agreement. This Agreement contains the entire understanding among the parties with respect to the subject matter hereof and supersedes any prior understandings or written or oral agreements among them, or any of them, respecting the subject matter contained herein. 13.5 Counteroarts. This Agreement may be executed in multiple counterparts, each of which shall be an original, but all of which shall constitute one document. 13.6 Severabilitv. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any Person or circumstance is, for any reason and to any extent, invalid or unenforceable, the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected thereby, but rather shall be enforced to the fullest extent permitted by law. 13 7 Construction. The Article and Section titles used in this Agreement are solely for convenience and neither modify nor limit the provisions of this Agreement. Any references herein to Articles and Sections shall be deemed to refer to the Articles and Sections hereof, as the case may be, unless otherwise specified. If the context so requires, the masculine shall include the feminine and the neuter, and the singular shall include the plural, and vice versa. NGEDOCS: 1111969.1 - 11 - 5-75 13.8 Third Partv Beneficiarv No Person other than a Member shall have any legal or equitable right, remedy or claim under or in respect of this Agreement or be entitled to status as a third party beneficiary of any obligation arising under this Agreement or to enforce the obligation of any Member under this Agreement. ] 3.9 Waiver of Action for Partition. Each Member irrevocably waives any right that it may have to maintain any action for partition with respect to the property of the Company. 13.]0 Attornevs' Fees. If any legal action, including an action for declaratory relief, is brought to enforce any provision of this Agreement, the prevailing party or parties, as the case may be, shall be entitled to recover his, its or their respective reasonable attorneys' fees from the non-prevailing party or parties, as the case may be. These fees, which may be set by the court in the siune action or in a separate action brought for that purpose, are in addition to any other relief to which any prevailing party may be entitled. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] NGEDOCS: 1111969.1 - 12- 5-76 IN WITNESS WHEREOF, the undersigned has executed this Agreement on the date first above written. GGPIHOMART n L.L.C., a Delaware limited liability com any Gem, Executive Vice President By: NGEDOCS: 1111969.1 5-77 Member GGP/Homart II L.L.C. 110 North Wacker Drive Chicago, lllinois 60606 NGEDOCS: 1111969.1 SCHEDULE A TO OPERATING AGREEMENT OF GGP-OTAY RANCH L.L.C. A-J 5-78 Number of Units Owned 100 Exhibit C-l GGP-Otay Ranch L.P Delaware Certificate of Partnership (see attached) 5-79 PAGE 1 'Tne :first State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO Jw.J)l7.~Y CERTIFY THE ATTACHED IS A TRUE' AND CORRECT COPY OF THE CERTIFICATE OF LIMITED PARTNERSHIP OF "GGP-OTAY RANCH, L.P. ", FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF DECEMBER, A.D. 2004, AT 3:51 O'CLOCK P.M. 3901055 8100 040927848 ,. .. - ~ ~~~..~>~, ~. 0i '4,1;:.."",- .')\,,~,' ' ~ .~~.- ~r"". --,..:,.}{,~,.~'Bt _.~,' t ::~~l ~~~ 'F~'; ~'''.)." ,~i]1"J \:,-~:i:'t._~-:..';..;x:.:". %. ,~C::?::r-J..>.i>'_'Y ~~'~~-'-~ ~~~9f-~ Harriet Smid1 Windsor, Sec.....ry of S...., AUTHENTICATION: 3569795 DATE: 12-22-04 5-80 '1 . '. CERTlRCATE OF LIMITED PARTNERSHIP OF GGP-OTAY RANCH, LP. This Certificate (the "Certificate") of Limited Partnership of GGp.otay Ranch, L.P., a Delaware limited partnership (the "Partnershipj, is being executed on December 20, 2004. It is. therefore. certified as follows: 1. ~. The name of the Partnership is: GGP-Otay Ranch, L.P. 2. Realstered Office and Realstered AaenL The registered office of the Partnership in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware. 19808. Tha nama of the rsglstered agent of the Partnership for Service of Process at such address is Corporation Service Company. 3. Name and Address of General Partner. The name and address of the General Partner of the Partnership is as follows: GGP-Otay Ranch L.L.C. 110 North Wacker Drive Chicago, Illinois 60606 4. Certificate. This Certificate has been duly executed and filed in accordance with the provisions of Section 17-201 of the Delaware Revised Uniform Limited Partnership Act IN WITNESS WHEREOF, the undersigned has duly executed this Certificale as of the day and year first above written. GGP-OTAY RANCH L.L.C., a Delaware limited liability company, its general partner By: Is! Marcela Godov Marcela Godoy, authorized person State of J:le:L-= Se-=-f:azy ae seat. DivisiOD o-f Cozp;t.nlt:iOAS Dalivezacf 03:48 m 12/2l!2/X)' l'IUD 03:'1. PH 12/21/2004 SfN 040927848 - 3901055 EIIE NGECOCS: 0151711.llOO1:11115702 5-81 Exhibit B-2 GGP-Otay Ranch L.P Partnership Agreement (see attached) 5-82 AGREEMENT OF LIMITED PARTNERSHIP OF GGP-OTAY RANCH, L.P. NGEOOCS: 1111855.1 5-83 TABLE OF CONTENTS Page DEFINITIONS; ETC ... ..................... ................................. ................... ........... 1 Definitions............ ............................................................................. ..................... I Exhibit, Etc ....... .................... ............................. ............... ...... ... ............................ 3 FORMATION OF PARTNERSHIP................................................................ 3 Formation of Partnership ... ....................................... ...........~..... ..... ........... ............ 3 Documents .......... ......... ........ ............. .................. ................. ......... ......................... 4 Name ................................................... ............................................ ....................... 4 Character of the Business.. ............... ............ ............................................... ...........4 Location of the Principal Place of Business ..........................................................4 Registered Agent and Registered Office................................................................ 4 Tax Status... ..... ............................................................................................ ........... 4 TERM ..............................................................................................................5 Commencement. ................ ................ ... .................... ................. ............................ 5 Dissolution ......... .............. ............ .......................................................................... 5 CONTRIBUTIONS TO CAPITAL ...............................................................5 Capital Contributions...................................................................................... ....... 5 Additional Contributions. .... ........................... ...... .......................... ........ ............... 5 No Third Party Beneficiary....................................................................................5 No Interest; No Return........................................................................................... 5 DISTRIBUTIONS ................................................................................ ........... 6 RECORDS, REPORTS AND ACCOUNTING ............................................6 Books of Account .................................................................................................. 6 Annual Statements ................................................................................................. 6 RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER .......................................................................................................7 7.1 Powers and Duties of General Partner ............................m.................................... 7 "'.2 Duties and Conflicts............................................................................................... 9 7.3 Authority ofthe General Partner.......................................................................... 10 7.4 Additional Partners .............................................................................................. 10 7.5 Waiver and Indemnification ............................................................................... 10 ARTICLE I 1.I 1.2 ARTICLE II 2.1 2.2 2.3 2.4 2.5 2.6 2.7 ARTICLE III 3.1 3.2 ARTICLE N 4.1 4.2 4.3 4.4 ARTICLE V ARTICLE VI 6.1 6.2 ARTICLE VII ARTICLE VIII DISSOLUTION, LIQUIDATION AND WINDING-UP.............................. 11 8.1 Accounting...........................................................................................................11 8.2 Distribution on Dissolution.................................................................................. 11 NGEDOCS: 1111855.1 -)- 5-84 TABLE OF CONTENTS (continued) Page 8.3 No Obligation to Restore Deficit Capital Account Balance ................................ 11 8.4 Sale of Partnership Assets.................................................................................... 1 I ARTICLE IX TRANSFER OF PARTNERSHIP INTERESTS ......................................... 12 9.1 Restriction on Transfer ........................................................................................12 9.2 Substituted Limited Partners ...............................................................................12 ARTICLE X RlGHTS AND OBLIGATIONS OF THE LIMITED PARTNER................ 13 10.1 No Participation in Management ......................................................................... 13 10.2 Bankruptcy, Death, Dissolution or Termination of the Limited Partner ............. 13 ARTICLE Xl GENERAL PROVISIONS ............................................................................ 13 11.1 Notices .................................................................................................................13 11.2 Waiver of Right of Partition ................................................................................ 14 11.3 Successors ............................................................................................................ 14 11.4 Effect and Interpretation ......................................................................................14 11.5 Counterparts ................. ....................... .................. ............................................... 14 11.6 Partners Not Agents ............................................................................................. 14 11.7 Entire Understanding ...........................................................................................14 11.8 Severability ..........................................................................................................14 11.9 Assurances ........................................................................................................... 15 NOEOOCS: 1111855.1 -11- 5-85 WARNING: This section retains the original formatting, including headers and footers, of the main document If you delete the section break above this message (which is visible ONLY in Normal View), any special formatting, including headers and footers for the Table of Contents/Authorities section will be lost. If you delete the section break above the Table of Contents/Authorities, you will overwrite the headers and footers of the main document with Table of Contents/Authorities headers and footers. To delete the Table of Contents/ Authorities, begin your selection at the section break above the TOCrrOA section and continue through the end of this message. NGEDOCS: IlIlSSS.\ 5-86 AGREEMENT OF LIMITED PARTNERSHIP OF GGP-OTAY RANCH, L.P. THIS AGREEMENT OF LIMITED PARTNERSHIP is made and entered into as of the 21st day of December, 2004, by and between the undersigned parties. RECITALS WHEREAS, the parties hereto desire to form a Delaware limited partnership known as GGP-Olay Ranch, L.P. (the "Partnership") pursuant to the Delaware Revised Uniform Limited Partnership Act, as amended (the "Act"), and to set forth herein their understandings in respect of the Partnership. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I Definitions: Etc. 1.1 Definitions. Except as otherwise herein expressly provided, the following terms and phrases shall have the meanings set forth below: "Act" shall have the meaning set forth in the recitals. "AlO'eement" shall mean this Agreement of Limited Partnership, as the same may hereafter be amended, modified, supplemented or restated from time to time, .as the context requires. "Caoital Contribution" shall mean, with respect to any Partner, the amount of money and the initial fair market value of any property (less the amount of indebtedness, if any, of such Partner which is assumed by the Partnership and/or the amount of indebtedness, if any, to which NGEDOCS, 11118.55.1 5-87 such property is subject, as of the date of contribution) actually contributed to the Partnership by such Partner as well as any additional contributions actually made or deemed made by a Partner. "Cash Flow" shall mean, with respect to any fiscal period, (a) all cash receipts of the Partnership received from any source during such period less (b) cash expended for Partnership debts, costs and expenses (including, without limitation, capital expenditures and interest and principal payments on any indebtedness) and reasonable operating and replacement reserves for such fiscal period, all as determined in the sole and absolute discretion of the General Partner to be reasonably necessary in the conduct of the Partnership's business; provided, however, reserves previously set aside, shall, where and to the extent the General Partner no longer regards such reserves as necessary, be considered cash revenues of the Partnership as of the time of such determination. "Certificate" shall mean the Certificate of Limited Partnership of the Partnership, as the same may be amended from time to time. "General Partner" shall mean GGP-Otay Ranch L.L.C., a Delaware limited liability company, its duly admitted successors and assigns, or any Person who is a general partner at the time of reference thereto. "Limited Partner" shall mean GGP/Homart II L.L.C., a Delaware limited liability company, its duly admitted successors and assigns, or any Person who is a limited partner at the time of reference thereto. "Liouidating Trustee" shall mean such individual as is selected by the General Partner with the written approval of the Limited Partner, which individual may include an affiliate of the General Partner. The Liquidating Trustee shall be empowered to give and receive notices, reports and payments in connection with the dissolution, liquidation andlor winding-up of the ' Partnership, and shall hold and exercise such other rights and powers as are necessary or required NOEDOCS: 1111855.1 2 5-88 to permit all parties to deal with the Liquidating Trustee in connection with the dissolution, liquidation and/or winding-up of the Partnership. "Partners" shall mean the General Partner and the Limited Partner, their duly admitted successors or assigns, or any Person who is a partner at the time of reference thereto. "Partnershiu" shall have the meaning set forth in the recitals. "Partnershiu Interest" shall have the meaning ascribed to it in Section 9.1 hereo[ "Percentage Interest" shall mean, with respect to each Partner, the percentage interest of such Partner in the Partnership as set forth opposite its respective name under the heading "Percentage Interest" on Schedule A. "Person" shall mean any individual, partnership, corporation, limited liability company, trust, business association or other entity. "Substituted Limited Partner" shall have the meaning set forth in Section 9 I hereof 1.2 Exhibit. Etc. References to an "Exhibit" or a "Schedule" are, unless otherwise specified, to one of the Exhibits or Schedules attached to this Agreement, and references to an "Article" or a "Section" are, unless otherwise specified, to one of the Articles or Sections of this Agreement. ARTICLE II Formation of Partnership 2.1 Formation of Partnership. The Partners do hereby agree to form the Partnership as a limited partnership under and pursuant to the provisions of the Act and all other pertinent laws of the State of Delaware for the purposes and upon the terms and conditions hereinafter set forth. The Partners agree that the rights and liabilities of the Partners shall be as provided herein and, to the extent not provided herein, in the Act. NGEDOCS.1111855.1 3 5-89 2.2 Documents. The Partnership shall cause such notices, instruments, documents or certificates as may be required by applicable law and which may be necessary to form the partnership and enable the Partnership to conduct its business and to own its properties in the Partnership name (including without limitation to the Certificate) to be filed or recorded in all appropriate public offices. 2.3 Name. The business of the Partnership shall be conducted under the name of "GGP-Otay Ranch, L.P." or such other name as the General Partner may select. 2.4 Character of the Business. The purpose of the Partnership shall be to own, redevelop, operate, finance, sell and otherwise deal with real and personal property and to engage in one or more other businesses as are permissible under the Act. The Partnership shall have all powers necessary or desirable to accomplish these purposes. 2.5 Location of thePrinciDal Place of Business. The location of the principal place of business of the Partnership shall be at 110 North Wacker Drive, Chicago, Illinois 60606, or such other location as shall be selected from time to time by the General Partner in its sole discretion. 2.6 Rel!istered Al!ent and RCl!istered Office. The Registered Agent of the Partnership shall be Corporation Service Company or such other Person as the General Partner may select in its sole discretion. The Registered Office of the Partnership shall be 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808, or such other location as the General Partner may select in its sole and absolute discretion. 2.7 Tax Status. The parties intend that the Partnership shall be disregarded for Federal tax purposes. NGEOOCS: 1111855.1 4 5-90 ARTICLE III Term 3.1 Commencement. The Partnership shall commence business on the dale hereof. 3.2 Dissolution. The Partnership shall continue until dissolved upon the occurrence of the earliest of the following events: (a) Partner; The dissolution, tennination, removal or bankruptcy oflhe General (b) The affirmative decision of the General Partner and the Limited Partner during the term of the Partnership to terminate the Partnership; or (c) Dissolution required by operation oflaw. ARTICLE IV Contributions to Capital 4.1 Capital Contributions. The Partners have made, or are deemed to have made, Capital Contributions as set forth in the books and records of the Partnership. 4.2 Additional Contributions. The Partners shall not be obligated to contribute any additional amounts to the Partnership. 4.3 No Tbird PartY Beneficiary No creditor or other third party having dealings with the Partnership shall have the right to enforce the right or obligation of any Partner to make Capital Contributions or to pursue any other right or remedy hereunder or at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto and their respective successors and assigns. 4.4 No Interest; No Return. No Partner shall be entitled to interest on any Capital Contribution to the Partnership. Except as provided herein or by law, no Partner shall have any right to demand or receive the return of its Capital Contribution to the Partnership. NGEOOCS: IllmS.1 5 5-91 ARTICLE V Distributions Subject to the provisions of Section 8.2 hereof respecting distributions on the dissolution of the Partnership, the Cash Flow of the Partnership shall be distributed to the Partners, at such times as shall be determined in the sole and absolute discretion of the General Partner, pro rata in accordance with their Percentage Interests. ARTICLE VI Records. Reports and Accountine 6.1 Books of Account. At all times during the continuance of the Partnership, the General Partner shall cause proper and true books of account to be kept, such books of account to be of the types usually kept by Persons engaged in a business of a like kind and character. In addition, the Partnership shall keep all records as required to be kept pursuant to the Act. The books and records of account shall be kept at the principal office of the Partnership, and each Partner shall at all reasonable times have access to such books and records and the right to inspect the same. 6.2 Annual Statements. The Partnership's books of account shall be closed promptly after the end of each fiscal year. Promptly thereafter, a written report shall be made to each Partner by the General Partner, which may include a balance sheet of the Partnership as of the end of such year, a statement of income and expenses for such year, a statement of Partners' equity as of the end of such year and such statements with respect to the Partnership as shall be necessary to advise all Partners properly about their investment in the Partnership for federal income tax reporting purposes. NGEDOCS; II 1 1855.1 6 5-92 ARTICLE VII Ril!hts, Duties and Restrictions of the General Partner 7.1 Powers and Duties of General Partner The General Partner shall be responsible for the management of the Partnership's business and affairs and shall devote such time and effort to the Partnership as it shall deem reasonably necessary. Except as otherwise herein expressly provided, the General Partner shall have, and is hereby granted, full and complete power, authority and discretion to take such action for and on behalf of the Partnership and in its name as the General Partner shall, in its sole and absolute discretion, deem necessary or appropriate to carry out the purposes for Which the Partnership was organized, including, but not limited to, the following: l I ,. (a) To manage, control, invest, reinvest, acquire by purchase, lease or otherwise, sell, contract to purchase or sell, grant, obtain, or exercise options to purchase, options to sell or conversion rights, assign, transfer, convey, deliver, endorse, exchange, pledge, mortgage, abandon, improve, repair, maintain, insure, lease for any term and otherwise deal with any and all real property of whatsoever kind and nature, and wheresoever situated, in furtherance of the purposes of the Partnership; (b) To acquire real estate of any kind and of any type, and any and all kinds of interests therein, and to determine the manner in which title thereto is to be held; to manage, insure against loss, protect and subdivide any of the real estate, interests therein or parts thereof; to improve develop or redevelop any such real estate; to participate in the ownership and development of any property; to dedicate for public use, to vacate any subdivisions or parts thereof, to resubdivide, to contract to sell, to grant options to purchase, to sell on any terms; to convey, mortgage, pledge or otherwise encumber said property, or any part thereof; to lease said property or any part thereof from time to time, upon any term.s and for any period of time, and to renew or extend leases, to amend, change or modify the terms and provisions of any leases and to grant options to lease and options to renew leases and options to purchase; to partition or to exchange said real property, or any part thereof, for other real or personal property; to grant easements or charges of any kind; to release, conveyor assign any right, title or interest in or about or easement appurtenant to said property or any part thereof; to construct and reconstruct, remodel, alter, repair, add to or take from buildings on said premises; to insure any person having an interest in or responsibility for the care, management or repair of such property; to direct the trustee of any land trust to mortgage, lease, conveyor contract to convey the real estate held in such land trust or to execute and deliver deeds, mortgages, notes, and any and all documents pertaining to the property subject to such land trust or in any matter regarding such trust; and to execute assiguments of all or any part of the beneficial interest in such land trust; NGEDOCS: 1111855.1 7 5-93 (c) To employ, engage or contract with or dismiss from employment or engagement persons deemed necessary by the General Partner for the operation and management of the Partnership business, including but not limited to, contractors, subcontractors, engineers, architects, surveyors, mechanics, consultants, accountants, attorneys, insurance brokers, real estate brokers and others; (d) To enter into and/or assume contracts on behalf of the Partnership; (e) To borrow money, procure loans and advances from any person for Partnership purposes, and to apply for and secure, from any person, credit or accommodations; to contract liabilities and obligations, direct or contingent and of every kind and nature with or without security; and to repay, discharge, settle, adjust, compromise, or liquidate any such loan, advance, credit, obligation or liability; (f) To pledge, hypothecate, mortgage, assign, deposit, deliver, enter into sale and leaseback arrangements or otherwise give as security or as additional or substitute security, or for sale or other disposition any and all Partnership property, tangible or intangible, including, but not limited to, real estate and beneficial interests in land trusts, and to make substitutions thereof, and to receive any proceeds thereof upon the release or surrender thereof; to sign, execute and deliver any and all assignments, deeds and other contracts and instruments in writing; to authorize, give, make, procure, accept and receive moneys, payments, property, notices, demands, vouchers, receipts, releases, compromises and adjustments; to waive notices, demands, protests and authorize and execute waivers of every kind and nature; to enter into, make, execute, deliver and receive written agreements, undertakings and instruments of every kind and nature; to give oral instructions and make oral agreements; and generally to do any and all other acts and things incidental to any of the foregoing or with reference to any dealings or transactions which any attorney may deem necessary, proper or advisable; (g) To acquire and enter into any contract of insurance which the General Partner deems necessary or appropriate for the protection of the Partnership, for the conservation of the Partnership's assets or for any purpose convenient or beneficial to the Partnership; (h) To conduct any and all banking transactions on behalf of the Partnership to adjust and settle checking, savings, and other accounts with such institutions as the General Partner shall deem appropriate; to draw, sign, execute, accept, endorse, guarantee, deliver, receive and pay any checks, drafts, bills of exchange, acceptances, notes, obligations, undertakings and other instruments for or relating to the payment, of money in, into, or from any account in the Partnership's name; to execute, procure, consent to and authorize extensions and renewals of the same; and to make deposits and withdraw the same and to negotiate or discount commercial paper, acceptances, negotiable instruments, bills of exchange and dollar drafts; (i) To demand, sue for, receive, and otherwise take steps to collect or recover all debts, rents, proceeds, interests, dividends, goods, chattels, income from property, damages and all other property, to which the Partnership may be entitl~d ~r which are or may become due the Partnership from any person or orgarnzatIon; to commence, prosecute or enforce, or to defend, answer or oppose, NGEOOCS: 1111855.1 8 5-94 contest and abandon all legal proceedings in which the Partnership is or may hereafter be interested; and to settle, compromise or submit to arbitration any accounts, debts, claims, disputes and matters which may arise between the Partnership and any other person or organization and to grant an extension of time for the payment or satisfaction thereof on any terms, with or without security; U) To make arrangements for financing, including the taking of all action deemed necessary or appropriate by the General Partner to cause any approved loans to be closed; (k) To take all reasonable measures necessary to insure compliance by the Partnership with applicable arrangements, and other contractual obligations and arrangements entered into by the Partnership from time to time in accordance with the provisions of this Agreement, including periodic reports as required to lenders and using all due diligence to insure that the Partnership is in compliance with its contractual obligations; (I) To maintain the Partnership's books and records; (m) To prepare budgets and forecasts with respect to the cash needs of the Partnership; (n) To prepare and deliver, or cause to be prepared and delivered by the Partnership's accountants, (i) all financial and other reports with respect to the operations of the Partnership and (ii) any Federal and state tax returns and reports; and (0) To pay all expenditures of the Partnership and to invest the funds of the Partnership in such interest bearing or non-interest bearing accounts, including, without limitation, checking and savings accounts, certificates of deposit and time or demand deposits in such institutions, or in other safe and liquid investments as the General Partner shall deem appropriate. 7.2 Duties and Conflicts. The General Partner shall devote such time and efforts to the business and activities of the Partnership as the General Partner shall deem reasonably necessary to promote adequately the interests of the Partnership and the Partners. Each Partner recognizes that each other Partner has or may have other business interests, activities and investments, some of which may be in conflict or competition with the business of the Partnership, and that each Partner is entitled to carry on such other business interests, activities and investments. Each Partner may engage in any activities, whether or not competitive with the Partnership, without any obligation to offer any interest in such activities to the Partnership or to any Partner. NGEDOCS: 1111 855.1 9 5-95 7.3 Authority of the General Partner Nothing herein contained shall impose any obligation on any Person or firm doing business with the Partnership to inquire as to whether or not the General Partner has properly exercised its authority in executing any instrument on behalf of the Partnership, and any such third Person shall be fully protected in relying upon such authority. 7.4 Additional Partners. Additional partners may be admitted to the Partnership only with the prior written consent of all Partners. 7.5 Waiver and Indemnification. Neither the General Partner nor any Person acting on its behalf, pursuant hereto, shall be liable, responsible or accountable in damages or otherwise to the Partnership or to any Partner for any acts or omissions performed or omitted to be performed by them within the scope of the authority conferred upon the General Partner by this Agreement and the Act provided that the General Partner's conduct or omission to act was taken in good faith and, provided further, that the General Partner shall not be guilty of fraud, willful misconduct or gross negligence. The Partnership shall, and hereby does, indemnify and hold harmless the General Partner and its affiliates and any individual acting on their behalf from any loss, damage, claim or liability including, but not limited to, reasonable attorneys' fees and expenses incurred by them by reason of any act performed by them in accordance with the standards set forth above or in enforcing the provisions of this indemnity; provided, however, no Partner shall have any personal liability with respect to the foregoing indemnification liabilities, any such indemnification to be satisfied solely out of the assets of the Partnership. NGEOOCS: 1111855.1 10 5-96 ARTICLE VIII Dissolution. LiQuidation and Windine-Uo 8.1 Accountine. In the event of the dissolution, liquidation and winding-up of the Partnership, a proper accounting (which need not be certified) shall be made of the net income or net loss of the Partnership from the date of the last previous accounting to the date of dissolution. 8.2 Distribution on Dissolution. In the event of the dissolution and liquidation of the Partnership for any reason, the assets of the Partnership shall be liquidated for distribution in the following rank and order: (a) Payment of creditors of the Partnership (including, but not limited to, Partners) in the order of priority as provided by law; (b) Establishment of reserves to provide for contingent liabilities, if any; and Interests. (d) To tjJ.e Partners in accordance with their respective Percentage Whenever the Liquidating Trustee reasonably determines that any reserves established pursuant to subsection (b) above are in excess ofthe reasonable requirements of the Partnership, the amount determined to be excess shall be distributed to the Partners in accordance with the provisions of this Section 8.2. 8.3 No Oblieation to Restore Deficit Caoital Account Balance. No Partner shall have an obligation to restore a deficit balance in its capital account, if any, at dissolution and termination of the Partnership or at any other time. 8.4 Sale of Partnershio Assets. To the extent that it is required to payor provide for payment of Partnership debts, the Liquidating Trustee may, without the consent of the Partners, sell Partnership property. The Liquidating Trustee shall in good faith solicit bids from unrelated third parties and obtain independent appraisals before making any sale that has not been consented to by all of the Partners. Subject to the foregoing, all sales, leases, ~cumbrances or NGEDOCS: 1111855.1 11 5-97 transfers of Partnership assets shall be made by the Liquidating Trustee solely on an "arms- length" basis and on the best price, terms and conditions reasonably available at the time and under the circwnstances. ARTICLE IX Transfer of Partnershio Interests 9.1 Restriction on Transfer. Except to the extent permitted by this Article IX or as otherwise provided herein, no Partner may sell, assign, pledge, encumber or othelWise dispose of all or any portion of his or its interest in the Partnership (the "Partnership Interest") without, in the case of a transfer by the Limited Partner, the prior written consent of the General Partner, and, in the case of a transfer by the General Partner, the prior written consent of the Limited Partner. Upon the transfer of a Partnership Interest in accordance with the provisions of this Section 9.1, the transferee Partner, in the case of a transferee General Partner, shall become vested with the powers and rights of the transferor General Partner once such transferee has executed such instruments as may be necessary to effectuate such admission and to confirm the agreement of such transferee to be bound by all the terms and provisions of this Agreement with respect to the Partnership Interest so acquired, and, in the case of a transferee Limited Partner, shall become a substituted limited partner entitled to all the rights and benefits of the transferee under this Agreement (the "Substituted Limited Partner") only in accordance with the provisions of Section 9.2 hereof. 9.2 Substituted Limited Partners. (a) The General Partner may, but need not, in its sole and absolute discretion, permit an assignee or transferee (whether such assignee or transferee has acquired its Partnership Interest by virtue of a voluntary transfer or assignment pursuant to Sections 9.1, an involuntary transfer or assigrunent or a transfer or assignment by operation of law) of a Partnership Interest (or a part thereof) of the Limited Partner to be and become a Substituted Limited Partner in the Partnership. NGEDOCS: 1111855.1 12 5-98 (b) Each Substituted Limited Partner, as a condition to its admission as a Substituted Limited Partner, shall execute and acknowledge such instruments, in form and substance satisfactory to the General Partner, as the General Partner shall deem necessary or desirable to effectuate such admission and to confirm the agreement of the Substituted Limited Partner to be bound by all the terms and provisions of this Agreement with respect to the Partnership Interest acquired. All reasonable expenses, including attorneys' fees, incurred by the Partnership in this connection shall be borne by such Substituted Limited Partner. ARTICLE X Ril!hts and Oblil!ations of the Limited Partner 10.1 No Participation in Manal!ement. The Limited Partner shall not take part in the management of the Partnership's business, transact any business in the Partnership's name or have the power to sign documents for or otherwise bind the Partnership. 10.2 Bankruptcv. Death. Dissolution or Termination of the Limited Partner. The bankruptcy, death, dissolution or termination of the Limited Partner shall not cause a dissolution of the Partnership, but, the rights of the Limited Partner to share in the net income or net loss of the Partnership, to receive distributions of Partnership funds and to assign its Partnership Interest or cause the substitution of a Substituted Limited Partner shall, on the happening of such event, devolve on its successors or assigns, and the Partnership shall continue as.a limited partnership. ,. However, such designee(s) shall not become a Substituted Limited Partner without the prior written consent of the General Partner ARTICLE XI General Provisions 11.1 Notices. All notices, offers or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered as properly given or made if delivered personally, mailed from within the United States by first class United States mail, postage prepaid, or sent by prepaid telegram or facsimile transmission (with written receipt NGEDOCS, 1111855.1 13 5-99 .. of confirmation) to the addresses of the parties as set forth on Schedule A. The address of any party hereto may be changed by a notice in writing given in accordance with the provisions hereo f. 11.2 Waiver of Rie:bt of Partition. Each of the Partners does hereby agree to and does hereby waive any right it may have to cause the Partnership's property to be partitioned or divided among the Partners, or to file a complaint or institute any proceeding at law or in equity to cause the Partnership's property to be partitioned or otherwise divided among the Partners. 11.3 Successors. This Agreement and all the terms and provisions hereof shall be binding upon and shan inure to the benefit of all Partners, and their legal representatives, heirs, successors and assigns, except as expressly herein otherwise provided. 11.4 Effect and Internretation. This Agreement shall be governed by and construed in conformity with the laws of the State of Delaware (without regard to its conflicts of law principles). 11.5 Counternarts. This Agreement may be executed in counterparts, each .of which shan be an original, but an of which shall constitute one and the same document. 11.6 Partners Not Ae:ents. Nothing contained herein shall be construed to make any Partner the agent of another Partner, except as specifically provided herein, or in any manner to limit the Partners in the carrying on of their own respective businesses or activities. 11.7 Entire Understandine:. This Agreement constitutes the entire understanding among the Partners and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter within. 11.8 Severabilitv. If any provision of this Agreement, or the application of such provision to any person or circumstance, s.hall be held invalid by a court of competent jurisdiction, the remainder of this Agreement, or the application of such provision to persons or NGEDOCS: 1111855.1 14 5-100 circumstances other than those to which it is held invalid by such court, shall not be affected thereby. 11.9 Assurances. Each of the Partners shall hereafter execute and deliver such further instruments and do such further acts and things as may be required or useful to carry out the intent and purpose of this Agreement and as are not inconsistent with the terms hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement to be executed as of the date and year first above written. GENERAL PARTNER: GGP-OT A Y RANCH L.L.C., a Delaware limited liability company By: GGP/HOMART II L.L.C., a Delaware limited liability com any, its sole member LIMIT GGP/HOMART II LP L.L.C., a Delaware limited liability company NOEDQCS: 1111855.1 15 5-101 SCHEDULE A TO AGREEMENT OF LIMITED PARTNERSHIP OF GGP-OTAY RANCH, L.P. General Partner Percentage Interest 0.5% GGP-Otay Ranch L.L.C. 110 North Wacker Drive Chicago, Illinois 60606 Limited Partner GGPIHomart II L.L.C. 110 North Wacker Drive Chicago, Illinois 60606 99.5% A-I NGEDOCS: 1111855.1 5-102 Exhibit B-2 GGP-Otay Ranch L.P California Certificate of Registration (see attached) 5-103 . . ~" "'- 4. SECRETARY OF STATE ta I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 2... page(s) has been compared with the record on file in this office, of which it purports to be a copy, and that it is full, true and correct. SeclStm. Form CE-101 {f811. 1103) IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of JAN 2 5 2005 7(:::m~ 5$; OSP0380510 . " '. . State of California FII.POOS024OOOO8 .. . . . & . Kevin Shelley .:.:". Secretary of State ENDORSED. FILED In the office Of lhe Secretary 01 Slale al1l1e State of CaUfornla FOREIGN LIMITED PARTNERSHIP JAN 1 9 2005 APPLlCA TrON FOR REGISTRA TJON KEVIN SHELLEY A $70.00 lifing lee must accompany this fonn. Seoretary of State IMPORTANT - Read instrucUons balon! completing thIS forin. ThIs Space For FII&w Use OnlY ENTITY NAME (EnD tJ1e riame./n Item ,_ "'e word. 'UmIle<l Partnelsh/p" or!he..-a1lDn "\..P.') 1. NAME UNDER WHICH llfE FOREIGN LIMITED PARTNERSHIP PROPOSES TO REGSn:R AHD TRANSACT BUSINESS IN CAUFDRNlA GGP-Ollly RJIncb, 1..P. 2. NAME OF mE FOREIGN LIMITED P~TNERSHIP.IF DIFFERENT FROM ntAT ENTERED IN ITEM , ABOVE OFFICE ADDRESSES (Do nolabbrevfalelhe name of II1e city.) 3. ADDRESS OF THE PRINCIPAl EXECUTlIIE OFRCE CliY AND STATE ZIP CODE 110 Nann Wacker Drive, Chicago,lIIinai. 60606 .. ACDRES!rOF THE PRINClPAl OFFlCE.IN CALIFORNIA. IF ANY CliY STATE .ZlPCOOE I CA DATE AND. PLACE OF OR~rtON 5. nilS FOREIGN LIMITED PARTNERSHIP WAS FORMED ON -1L - -lL - ...llL- IN Delaware (IIONTH) (04') (YEAR) (STATEatOJlMTRY) AND IS AUTHORIZED TO EXERClSE rTS POWERS ""0 PRMLEGES IN THAT STATE OR COUNTRY. AGENT FOR SERVICE OF PROCESS (1ft"" ;,genii. on Individuill, the agent nillS/reslde In cellli>mla and both Items 6 and 7 must be colT1llele<l. Ir lI1e agent Is a oorpora1lon. !he agetll must have en /iIe will1l11e CaJIIcmla seaetal'f Of Sl;J1e a c:er1Incate purouanl to Corporations Code IIOl:Iion 1505 and Item 6 mtlS' be ccmplefed (leave It.... 7 btanl<).) .. NAME OF AGENT FOR SERVICE OF PROCESS Corporation Service Company whi<;/! will do businc;ss.in California as CSe-Lnwyers Inool'Jl9mting Service 7. IF AN lNOMOUAI.. ADDRESS OF AGENT FOR SERVICE OF PROCESS. IN CALIFORNIA CITY STATE ZJPCOOE CA APPOINTMENT (The IoItcwlng .latement Is requlied by staMltand mal' net be _.) .. IN THE EVENT TIiE ABOVE AGEHT FOR SERVICE OF PROCESS RESIGNS AND IS NOT REPLACED, OR IF THE AGENT CANNOT BE FOUNO OR SERVEO WITH THE EXERCISE OF Re;,soiJAsLE DIUGENCE, THE SECRETARY OF STATE OF THE STATE OF CALIFORNIA IS HERESY APPOlNTED AS THE AGENT FOR SERVICE OF PROCESS OF THIS FOREIGN LlMITED.PARTNERSHIP, GENERAL PARTNERS IEntertlle ..me....nd ad_ uf an oIl1le.general par1ners. _maddilonal pages.lr"""""..ry.) go. NAME ADDRESS ClTY AND STATE ZIP COOE GGP-OUlY Ranch LL.C. 110 Nonh Wacker Drive Chicago, Dlinoi. 60606 9" NAME ADORESS CITY AND STATE ZlPcOoE EXECUTION 10. I DECLARE I AM THE PERSON \'MO I;XECUTED THIS INSTRUMENT. WHICH EXEGUTlON IS MY ACT AND DEED. ~AP a~~~rhmA"~ A TYPE OR PRINT NAME OF GENERA!- PARTNER SIGNA TUm; OF GENERAL PARTNER DATE . RETURN TO (Enter !he name and Ihe address olthe _ or firm to wIlem.a copy clll1e Died document sIloultlbe returned.) , 11. NAME r M:ucel. Godoy 1 RRM Neal, Gerber & Eisenberg LLP ADDRESS Two Nonh LaS.lle Slree!, Sic. 2200 Chicago, lIIinQis 60602 ClTYISTATEIZlP L J , ,,~ (REV 1212OO4} APPROVED BY SeCRETARY OF STATE 5-105 , ....... ... ATTACHMENT A TO FOREIGN LIMITED PARTNERSHIP APPLICA 1ION FOR REGISTRA TlON OF GGP-OT A Y RANCH. .L.P. 10. GGP-OTA Y RANCH, L.P.. a Delaware limited partnership By: GGP-OTA Y RANCH LL.C., a Delaware limited liability Company, its general partner By: GGP/HOMART II L.L.C., a Delaware limited liability comParr> its sol~ m.Tbn By: ~~ ~~ Bem3rd Freibaum, Executive Vice President Dated: January~, 2005 NCiEOOC'_"i: OISJ7I).OOOl:112C78l.1 5-106 NAME John Bucksbaum Robert A. Michaels Bernard Freibaum Ronald L. Gem Carol A. Williams Linda J. Wight Chief Executive Officer n./ /J , '-1'-1'" /L._./,/ ~~ Executive Vice President n J ( and Treasurer ~~ Exhibit D GGPIHomart II L.L.C. Incumbency Signatures TITLE President SIGNATURE Senior Vice President and Secretary Assistant Secret Assistant Secretary 5-107 . ~1~V RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY ENGINEER TO ISSUE ENCROACHMENT PERMIT NO. PE-704 FOR THE INSTALLATION OF A MONUMENT SIGN AND A RETAINING WALL PROPOSED TO BE CONSTRUCTED WITIllN THE EXISTING BIRCH ROAD GENERAL UTILITY EASEMENT. WHEREAS, General Growth Properties (GGP), owners of the Otay Ranch Town Center, located at the southwest corner of Olympic Parkway and Eastlake Parkway, just east of future SR-125, are proposing to construct a monument sign and a retaining wall within City's general utility easement; and WHEREAS, due to the design and size of the project monument wall proposed to be located near the intersection of Birch Road and Eastlake Parkway, and its proximity to the approved location of the onsite Market building, a portion of the monument wall will need to be located within the existing Birch Road general utility easement; and WHEREAS, due to site design constraints for the Town Center project, some slope grading and retaining wall construction will be required within the existing Birch Road general utility easement along the southwesterly edge of the project; and WHEREAS, the retaining wall will vary in height from 1 to 7 feet and approximately 193 feet of the overall retaining wall is proposed to be located within the Birch Road general utility easement; and WHEREAS, according to Section 12.28.020 of the Chula Vista Municipal Code, a Council resolution must authorize the issuance of this encroachment permit, since the retaining wall exceeds 5 ft in height. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Chula Vista that it authorizes the issuance of Encroachment Permit PE-704 for installation of a monument sign and a retaining wall proposed to be constructed within the existing Birch Road general utility easement. BE IT FURTHER RESOLVED, that the City Clerk is directed to record this Resolution and Encroachment Permit No. PE-704 Presented by Approved as to form by '---f"~ tL ,~IA .-?.:b- Ann Moore City Attorney Leah Browder Acting Director of Engineering H:\ENGINEER\RESOS\Resos2006\08~22-06\Reso for Encroachment Permit Otay Ranch Town Center 5-108 COUNCIL AGENDA STATEMENT Item G Meeting Date: 08/22/06 ITEM TITLE: Resolution Approving an Agreement between the City of Chula Vista and Canyon Gateway Plaza, LLC, regarding Installation and Maintenance of Landscaping and Utilities necessary for the completion of the Telegraph Canyon Road/I-80S Interchange Project (CY-I02). SUBMITTED BY: Acting Director OfEn~ring~ Interim City Manager d / (4/5ths Vote: Yes_NoX) REVIEWED BY: The Telegraph Canyon/I-80S Interchange Project (CY-102) is nearing completion. The only remaining work to be done is the installation of new landscaping and related improvements along the frontage of the Canyon Plaza Shopping Center. This landscape work is being done to replace landscaping removed during the reconstruction of the Telegraph Creek Channel and the widening of Telegraph Canyon Road. RECOMMENDATION: That Council adopt the Resolution approving an Agreement between the City of Chula Vista and Canyon Gateway Plaza, LLC, regarding Installation and Maintenance of Landscaping and Utilities necessary for the completion of the Telegraph Canyon Road/I-80S Interchange Project (CY-102). BOARDS/COMMISSIONS RECOMMENDATION: N/ A DISCUSSION: The widening of the westbound Telegraph Canyon Road approach to I-80S (CY-I02) along the Canyon Plaza Shopping Center frontage to provide for an additional westbound lane for the I-80S northbound ramp is nearing completion. The widening of Telegraph Canyon Road was identified by the City Council as one ofthe most vital projects to facilitate congestion relief. In 1998, as part of the Traffic Development Impact Fee (TDlF), Telegraph Canyon Road widening was identified as Facility No.3 of the original TDlF program. This project was a requirement for four eastem territory developers with each developer financing 25 percent of the cost of the project. Two of the three phases of construction are now finished. Phase I was for the open channel modifications and Phase II was for the roadway widening work. It is now necessary to approve an agreement with the shopping center owner in order to complete the last phase of work, which is the landscaping. With the completion of this final phase of the project each developer's share will be just over $1 million. This phase requires the acquisition of an easement for landscaping purposes from the Canyon Gateway Plaza. This easement consists of approximately 6,300 square feet and is already encumbered with a City drainage easement. The owners of the shopping center are responsible for the maintenance and the upkeep ofthe completed landscaping pursuant to City Ordinance No. 1516 and per Council direction as a part of the original shopping center conditions of approval. Since this is the case, and because the owners recently completed the refurbishment and landscaping oftheir center, it was agreed upon between the parties that it would be more practical and aesthetic for them 6-1 Page 2, Item ~ Meeting Date: 08/22/06 to construct these improvements using their own contractor and materials. The Agreement that is the subject of this action provides for the conveyance of the required easement and for the construction by the shopping center owner of the planned improvements. Staffhas reviewed and approved the landscaping plans and the cost estimate for the work. The cost estimate for the complete landscaping project is $294,472. Because there are some enhancements being done by the owner, the City has agreed, subj ect to Council Approval, to reimburse the owner $250,000 for the easement and landscape construction. All costs above that amount will be borne by the owner The consideration will be paid to the owner as follows: Fifty Percent (50%) within 30 days of the execution of the subject Agreement by both parties and final approval by the City Council, Forty Percent (40%) when one half (1/2) of the new landscaping has been installed and the remaining Ten Percent (10%) payable after completion of all work and final inspection and approval by the City. The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the project was covered in the previously adopted MND IS-02-35 DECISION MAKER CONFLICTS: Staff has reviewed the property holdings of the City Council and has found no such holdings within 500' of the property that is the subject of this action. FISCAL IMPACT: No impact to the General Fund. This project is entirely funded by CFD proceeds from four developers. Attachments 1 Agreement Regarding Installation and Maintenance of Landscaping and Utilities J :lEngineer\AGENDA \CAS2006\08-22-06\Telegraph gateway ful.doc 6-2 RESOLUTION NO RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND CANYON GATEWAY PLAZA, LLC, REGARDING INSTALLATION AND MAlNTENANCE OF LANDSCAPING AND UTILITIES NECESSARY FOR THE COMPLETION OF THE TELEGRAPH CANYON ROADII-805 INTERCHANGE PROJECT (CY-l02). WHEREAS, the widening of Telegraph Canyon Road was identified by the City Council as one of the most vital projects in terms of congestion relief; and WHEREAS, the Telegraph Canyon/I-805 Interchange Project (CY-l02) is nearing completion with the only remaining work being the installation of new landscaping and related improvements along the frontage of the Canyon Plaza Shopping Center; and WHEARAS, this phase of the project requires the acquisition of an easement for landscaping and utility purposes from the Canyon Gateway Plaza shopping center; and WHEREAS, it was agreed upon between the parties that it would be more practical and aesthetic for the owners of Canyon Gateway Plaza to construct these improvements using their own contractor and materials; and WHEREAS, the agreement that is the subject of this action provides for the conveyance of the required easement and for the construction by the shopping center owner of the planned improvements; and WHEREAS, The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the project was covered in the previously adopted MND IS-02-35 NOW, THEREFORE, the City Council of the City Of Chula Vista does resolve that: I The Agreement between the City of Chula Vista and Canyon Gateway Plaza, LLC, regarding Installation and Maintenance of Landscaping and Utilities necessary for the completion of the Telegraph Canyon RoadlI-805 Interchange Project (CY-102) ("Agreement") is approved. A copy of said Agreement is attached hereto and by reference made a part hereof. 2. The Mayor and City Clerk are authorized to execute the Agreement on behalf of the City. 6-3 3 The City Manager or his designee is authorized to execute any other documents necessary to complete the transaction pursuant to the Agreement. Presented by Approved as to form by Leah Browder Acting Director of Engineering J:\Attorney\MichaeISh\Agreement:s\GAM Gateway Canyon Plaza LS Maintenance-081406.Reso.doc 6-4 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPRO V AL BY THE CITY COUNCIL rv1t Dated. 8/16/06 Agreement regarding Installation and Maintenance Of Landscaping and Utilities by and between Canyon Gateway Plaza, LLC and the City of Chula Vista 6-5 AGREEMENT REGARDING INSTALLATION AND MAINTENANCE OF LANDSCAPING AND UTILITIES This AGREEMENT REGARDING INSTALLATION AND MAINTENANCE OF LANDSCAPING AND UTILITIES ("Agreement") is executed as of , 2006, (the "Effective Date") by and between CANYON GATEWAY PLAZA, LLC, a California lirnited liability company ("Owner"), and the CITY OF CHULA VISTA, a municipal corporation ("City"), further identified herein as Party or Parties, with reference to the following facts: RECITALS A. Owner is the owner of that certain real property commonly known as Canyon Plaza Shopping Center ("Owner's Property"), in the City ofChula Vista, County of San Diego, State of California, more particularly described as Parcels I through 5 shown at Page 11390 of Parcel Maps filed in the Office of the County Recorder of San Diego County, June 12, 1981. B. Owner's Property is encumbered by, among other things, the following easements in favor of the City: (i) Grant of Easement For Drainage Purposes dated August 31, 1978 and recorded December 18, 1978 as Instrument No. 78-542547 in the Official Records of San Diego County, California (the "Storm Drain Easement"). The area affected by the Storm Drain Easement is referred to herein as the "Storm Drain Easement Area," and the storm drain and related improvements installed in the Storm Drain Easement Area are referred to herein as the "Storm Drain Improvements." (ii) Easement for Street Purposes dated June 10, 1978 and recorded December 18, 1978 as Instrument No. 78-542545 in the Official Records of San Diego County, California (the "Telegraph Canyon Road Easement"). The Telegraph Canyon Road Easement includes, but is not limited to, installation of curbs, gutters, medians, roadway and other improvements constituting Telegraph Canyon Road (the "Telegraph Canyon Roadway Improvements''). C. Owner's Property has street frontage (the "Street Frontage") along Telegraph Canyon Road extending from Crest Drive on the East to within approximately 150 feet of Halecrest Drive on the West. The Storm Drain Easement and the Telegraph Canyon Road Easement each run the length of the enhre Street Frontage, and the Telegraph Canyon Road Easement overlaps the Storm Drain Easement by approximately ten (10) feet, as depicted on the attached Exhibit "B" D Commencing in approximately January 2004, the City illldertook to make certain improvements to the Storm Drain Improvements, and to widen Telegraph Canyon Road (collectively, the "Project;'). As part of the Project, a portion of the Telegraph Canyon Roadway Improvements were extended to the northerly boundary of the Telegraph Canyon Road Easement. Canyon Plaza/City o{Chu]a Vista Landscaping Agreement 33528-??oo2/ LFHS Doc. No. 3705451.8 8/14/06 6-6 E. Pursuant to the Telegraph Canyon Road Easement, the City has the right to install and maintain landscaping in the area covered by the Telegraph Canyon Road Easement. Historically, the City has installed and required the maintenance of landscaping and certain utilities in a strip of land between the Telegraph Canyon Roadway Improvements and the Storm Dram Improvements. The Storm Drain Easement itself does not authorize using the Storm Drain Easement Area for landscaping or utilities. The Project resulted in the removal of the historically maintained landscaping and utilities affecting approximately the western half of the Street Frontage. The Parties desire to cause the replacement of all of the landscaping and hardscape improvements along the entire Street Frontage that were destroyed, damaged or adversely affected by the Project (the "Old Landscaping"), with new landscaping and hardscape improvements (the "New Landscaping") along the entire Street Frontage in accordance with the Approved Plans described in this Agreement. Further, the Parties desire to establish the right of City to install and the right but not the obligation to maintain the New Landscaping and the right to install and maintain certain utilities located in the western portion of the Street Frontage beyond the boundary of the Telegraph Canyon Road Easement, by granting to City a new easement in the form attached hereto as Exhibit "c" (the "Landscape and Utility Easement") in accordance with the terms and provisions of this Agreement in the area legally described in Exhibits "A-I" and "A-2" (the "Landscape and Utility Easement Area"), which Landscape and Utility Easement Area is graphically depicted on Exhibit "B" F Pursuant to City Ordinance 1516 (amending City Ordinance 1419), Owner is required to maintain certain landscaping along the Street Frontage. Such ordinance also requires that the Parties enter into an agreement with respect to such maintenance. The Parties desire to enter into this Agreement in part to satisfy the requirements of City Ordinance 1516. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: I Consideration. In consideration of Owner's entering into this Agreement and granting the Landscape and Utility Easement referenced in Recital E above, and to reimburse Owner for the Old Landscaping, City shall pay to Owner the sum of Two Hundred Fifty Thousand, Dollars ($250,000.00.) (the "Consideration"). The Consideration represents a fixed sum payment as full and complete compensation to Owner for the destruction of the Old Landscaping and the granting of the Landscape and Utility Easement. The Consideration shall be paid to Owner as follows: Fifty Percent (50%) of the Consideration shall be paid to Owner within thirty (3D) days of the execution of this Agreement by both Parties and final approval of this Agreement by the City Council of the City; Forty Percent (40%) of the Consideration shall be paid to Owner when one-half (112) of the New Landscaping has been installed by Owner; and the remaining Ten Percent (IO%) of the Consideration shall be payable upon the final inspection and approval by City ofthe New Landscaping. Owner shall not be required to execute or deliver the Landscape and Utility Easement until full payment of the Consideration. Upon full payment of the Consideration, Owner shall, within five (5) working days, execute the Landscape and Utility Easement and deliver the same to City for recordation. Owner hereby acknowledges that said Consideration constitutes the total settlement between the Parties and includes any and all c.anyon PlazaiCity ofChula Vista Landscaping Agreement 33528..QOOOZI LFHS Doc. No. 3705451.8 2 8/14106 6-7 claims and/or damages of every nature and kind, including but not limited to, value of the real property, value of all improvements, interest, and all costs and fees, including all attorney fees, incurred in connection with this Agreement. 2. Landscaping Plans. The installation of the New Landscaping shall be in accordance with the plans and specifications prepared by Environs Landscape Architects designated project 01-030-01 dated 3/21/2006, consisting of 19 sheets, which plans were approved by the Director of Planning and Building of the City on March 27, 2006 (the "Approved Plans"). 3 General Provisions. (a) In the event either Party commences any proceeding for the interpretation, enforcement, termination, cancellation or rescission hereof, or for damages for the breach hereof, including appeals, the prevailing Party shall be entitled to an award or judgment against the other for an amount equal to reasonable attorneys' fees and court and other costs incurred. (b) The term "Owner" as used herein means the owner or owners at the time in question of the fee title to the Property. In the event of a transfer of Owner's title or interest in the Property, the prior Owner shall be relieved of all liability accruing after such transfer with respect to, and the new Owner shall become liable for, the performance of all of the obligations and covenants of Owner hereunder to be performed after the date of such transfer. The foregoing is not intended to prevent City from enforcing any obligations with respect to maintenance or repair of the Landscape and Utility Easement Area against the then-current owner of Owner's Property Subject to the foregoing, all terms of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, and against, the Parties hereto and their respective successors and assigns, including all future owners of the Property. (c) Time is of the essence of this Agreement. Without limiting the generality of the foregoing, the Parties agree that each of the provisions of this Agreement relating to the time on or before which a covenant is to be performed or a condition is to be fulfilled are bargained-for provisions as to which a breach or failure shall be material. (d) No person shall have any enforceable rights under this Agreement other than the Parties hereto and their respective successors and assigns, notwithstanding the provisions hereof by which other persons may exercise certain rights or privileges. (e) Owner hereby waives and releases City, its Council, officers, employees, agents, and representatives from and against any and all claims, actions, demands and suits for damages caused by any of the following: (i) the City's removal of any prior landscaping from Owner's Property in the course of construction and completion of the Project; (ii) any reduction, suspension, interference, or temporary blockage of Owner's access to Owner's Property that occurred during the construction and completion of the Project; and (iii) any dust, noise, vibration; interference with operations, and claims of tenants for diminution in business during the construction and completion of the Project (collectively, "the Released Claims"). This release extends to all such Released Claims which now exist, whether or not such Released Canyon Plaza/City ofChula Vista Landscaping Agreement 33528-00002 f LFHS Doc_ No. 3705451.8 3 8114106 6-8 Claims are known to Owner, and Owner hereby expressly waives rights under California Civil Code Section 1542 which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which ifknown by him must have materially affected his settlement with the debtor" (f) Any notices or documents to be mailed or delivered shall be addressed to or delivered as follows: Owner: Canyon Gateway Plaza, LLC cia Gateway Property Management, LLC 3914 Murphy Canyon Road, Suite A-I07 San Diego, CA 92123 Attention: Mr. Scott B. Robinson City: City ofChula Vista Engineering Division Richard A. Ryals, Real Property Manager 276 Fourth Avenue Chula Vista, CA 91910 (g) This Agreement and the Landscape and Utility Easement contain the entire agreement between the Parties concerning the subject matter of this Agreement, and neither Party relies upon any warranty, promise, representation, or agreement not contained in writing herein concerning the subject matter of this Agreement. (h) The Parties warrant each to the other that the person whose signature appears on its behalf below has the authority to bind such Party to the terms of this Agreement, and that by entering into this Agreement, such Party is not thereby in breach of any other agreement or contract. Owner agrees to provide to City upon request, copies of its Operating Agreement, Articles of Organization and other documents (including any required resolutions or authorizations) that evidence the authority of the person signing on behalf of Owner to execute this Agreement and the Landscape and Utility Easement. [Remainder of page intentionally left blank) Canyon PlazalCity of Chub. Vista l.2ndscaping Agreement 33528-??oo2/ LFHS Doc. No. 3705451.8 4 8114/06 6-9 WITNESS WHEREOF, the Parties hereto have executed this Easement Agreement as of the date flTSt above written. CANYON GATEWAY PLAZA, LLC, a California limited liability company By: GATEWAY ASSET MANAGEMENT, LLC, California limited liability company, Sole Manager By- Scott B. Robinson, Sole Manager CITY OF CHULA VISTA, a municipal corporation By. Stephen C. Padilla, Mayor ATTEST Susan Bigelow, MMC, City Clerk APPROVED AS TO FORM. Ann Moore, City Attorney J;\Atlom~y\MichaclSh\Agrecments\GAM Gateway Canyon P[a:zll LS Main[C~81406-Final.doc Canyon Plaza/City of Chula Vista Landscaping Agreement 33528..Q(XX}21 LFHS Doc. No. 3705451.8 5 8fl4/{)6 6-10 Canyon Plaza/CityofCl\ula Vista Landscaping Agreement 33528..000021 LFHS Doc. No. 3705451.8 EXHmIT "A-I" EXHIBIT A-I 6-11 ._._..---_.~ 8114/06 ]-14038 EXHIBIT "A" General Landscape and Utility Easement Telegraph Canyon Road Parcel "A" All of that portion of Parcell of Parcel Map No. 11390 in the City of Chula Vista, County of San Diego, State of California, recorded AprillO, 1981 in the Office of the Recorder of San Diego County, being more particularly described as follows: Beginning at a point of intersection of the Southerly boundary of said Parcell and the Easterly boundary of that certain land described in deed recorded September 12, 2000 as Document No. 2000-0489436 in the Office of the Recorder of San Diego County; thence Northerly along the Westerly boundary of said Parcell North 16028'17" East 12.94 feet to the TRUE POINT OF BEGINNING; thence continuing along said Westerly boundary North 16028'17" East 8.00 feet; thence leaving said Westerly boundary, parallel with said Southerly boundary of said Parcell South 73031'43" East 225.50 feet to the beginning of a tangent 3929.00 foot radius curve concave Northeasterly; thence continuing parallel with said Southerly boundary Southeasterly along the arc of said curve through a central angle of 04009'50" a distance of 285.54 feet; thence radially South 12018'27" West 8.00 feet to the beginning of a concentric 3937.00 foot radius curve concave Northeasterly; thence Northwesterly along the arc of said curve through a central angle of 04009'50" a distance of 286.12 feet; thence North 73031'43" West 225.50 feet to the TRUE POINT OF BEGINNING. Containing 0.094 acres more or less. ~-Zf. -:!:If~ .2-$""-2ot1f Seffrey J. afford, L.S. 67 3 Jb/14038.001 6-12 Canyon Pla:zalCity of Chula Vista Landscaping Agreement D528.o0002 I LFHS Doc. No. 3705451.8 EXHIBIT "A-2" EXHIBIT A-2 &/14106 6-13 J-14038 EXHIBIT ~ A" General Landscape and Utility Easement Telegraph Canyon Road Parcel ~B" All of that portion of Parcell of Parcel Map No. 11390 in the City of Chula Vista, County of San Diego, State of California, recorded April 10, 1981 in the Office of the Recorder of San Diego County, being more particularly described as follows: Beginning at a point of intersection of the Southerly boundary of said Parcell and the Easterly boundary of that certain land described in deed recorded September 12, 2000 as Document No. 2000-0489436 in the Office of the Recorder of San Diego County; thence along said Southerly boundary of said Parcell South 73031'43" East 225.50 feet to the beginning of a tangent 3950.00 foot radius curve concave Northeasterly; thence continuing along said Southerly boundary Southeasterly along the arc of said curve through a central angle of 04009'50" a distance of 287.06 feet; thence leaving said Southerly boundary radially North 12018'27" East 13.00 feet to the TRUE POINT OF BEGINNING; thence continuing radially North 12018'27" East 8.00 feet to the beginning of a concentric 3929.00 foot radius curve concave Northerly; thence Southeasterly along the arc of said curve through a central angle of 04001'36" a distance of 276.12 feet; thence radially South 08016'51" West 8.00 feet to the beginning of a concentric 3937.00 foot radius curve concave Northerly; thence Northwesterly along the arc of said curve through a central angle of 04001'36" a distance of 276.69 feet to the TRUE POINT OF BEGINNING. Containing 0.051 acres more or less. ~... tJ. ~~ .:; -5"- 20(/ P effr y J. Ztford, L.S. 03 Jbjl4038.001 6,...14 Canyon Plaza/City of Chula Vista Landscaping Agreement 33528-000021 LFHS Doc. No. 3705451.8 EXHIBIT "B" EXHIBIT B 8114106 6-15 ---- .----...---...-.--- EXHIBIT MBM LEGEND ~ INOCATES PNlCa "X- GDlE:fW. UNDSCJPE AND Urlurr E)sEJJEHT COIfT AlNING O/J!H /alEs. 1N00000ES PG/Nr OF BEGINNING INOICVES TNE POINT OF BEGINNING INOCATES RJlJ/AL lJEN<JNG INDlCITES ASSESSllR'S PNlCEL NUMBER PJJ.& T l' JJ.& IRJ N'N REFERENCE DRAWINGS PNlCEL M#' NO. I13so, M#' NO. 9066, fls.108S BASIS OF BEARINGS THE 8J.S/S OF BEJRINGS FOR THIS OHMING IS THE UNE BETWEEN !:.'OPS-5lJI3 )ND t:.'{;PS-5D2D, ILl N2S'1:!22W PI I I -/"Is"e J --~S:!fJ , I - ~I ')>1 a ~ iii rJl t!/J !II ., ?I ~ :i?1 !> ~ I q ~I I LDT 4 MAp ND. 9066 ,..>'~!-""""",,, , . 8 ' < . i i t" : ~r& VICINITY MAP NO SC'lE 1'JJ.& PN/CE " ~ ~ ~lufrlg ::t:~~"" ~t;;",:<! '" "', _ ",:g!i! l'J1:,,~ ~e~~ ~~~~ ~~~~ ~!:!H l.ULuU,", PARCEL J PARCEL MAP J J390 APN,6JS.08tH;2 HlZ1S'zrE(RJ 8.DO' fJ' WIDE STREET EASEMENT P~R DEED REC. f(r12.-T978. AS FILE NO.78-400954.0R. . 100 50 GRAPHIC SCALE f'= 100' 100 ,- I I I I I I I I I I I I I I I I I I I I I I I I I CeNTERUN€ 35' wIDE DRAJNK;E EASEMENT PER DEED REC.I2-1S.1978, AS FIlE: NO.7S-S42545.0JI. : : -~ g-CCMB<.NY ;,~t~#.~~~" O...T[ .". ~o GENERAL LANDSCAPE AND UTIUTY EASEMENT OVER A PORTION OF PARCEL 1 OF PARCEL MAP NO. 11390 ;; DESCRIPTION IT 4PP1lOVEO Q.&.lE FILW€D CITY OF CHULA VISTA. CALIFORNIA SWEETt OF1 SHEET aUQ1HIl1" FOR cln ENGLNEER DaTE ST.l.TlIS "'\.4,.lolllH\i..'.'.."""'I__ "...._-',...__-1.....',-.......'_- ....._.__'1 G 1 C . __ z o ..0. NO. I./4II8EJlT COOROlNArE:S -8 EXHIBIT ~B~ LEGEND - INDlUTES PNTCEJ. -e"~ GElfEP.AL. LANDSCN'E NlD lITlUTY EASEJlEKT CDNT NNtNG 005l./ICRES. INDICATES POIHr OF BeGINNING INDICATES TRl/E POJ/ff OF BEGINNING II1DIC<TES FWJiN.. BE)RING INDIr:/iTES ASSESSCR'S PNif:EL NlJI/BEI/ PIJ.B. T.PIJ.B. IRJ N'N REFERENCE DRAWINGS PNfCEL M)P NO. 11~1 M-'P NO. S066. R.S. 1086 BASIS OF BEARINGS THE: BASIS OF BENlIHGS FOR THIS CNlKING IS THE: UHE BETWEEN CYGPs-5OtJ HID ClGPS-502tJ. I.E.. N2!I'I2'22Vt LOT 4 MAP NO. 9066 IJ'W/DE srREET EASEI/ENT-== PER DeED REC.1O-12-197'8, AS FlU NO.78-<<XJ954.DR. l....~~ , . 8 <.""..", < xi i ~ rEL<<MAhfCANra'fllA. ,(( NlZ18'27"E.(RJ 81>> t VlCINfTY MAP NO SCAlE . rg C) ..., :/ . ~ z KlO .. . N8'16'5r'ElR) 81>> GRAPHIC SCALE 1"= 100' = II-~ GENERAL LANDSCAPE AND UTJUTY EASEMENT OVER A PORTION OF PARCEL 1 OF PARCEL MAP NO. 11390 0; ;; O~OlI~llJfrl ClRllldMAl. aT' ~ROYED D.foTIi: ,. B,JED CITY OF CHULA VISTA, CALIFORNIA SH&:Ef 1 CF 1 SHEET '.0. NO. FOR CITY ENlOI~ ...." l.MIIIEltT CClaf\OlllAt';,S -8 STATUS .......'~J.,~......._....-l.... ""'--''''-'''''''''''--'-- "_-_I_'Z 6 17 ,. .; <; 0 ~~~~ ;;t:"'C rd "'1;;0.., ~'"ltj~ ",,,0 ~I-ct:~ ,-ek:~ '" ~~,<V1 :t:;$.~ ~\ll~~ t;;~~... ~~'"C,. 1.(Jl.t.it.>,., KlO r- I I I I I I I I I [ I I [ I I I I I I I I I I I I EXHIBIT "c" Form of Landscaping and Utility Easement RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City ofChula Vista P.O. Box 1087 Chula Vista, CA 91912 This instrument benefits City, only No fee re uired. APN(s) 639-080-62, 639-080-64 SPACE ABOVE FOR RECORDER'S USE ONLY C.V File No. CY-I02 GRANT OF EASEMENT FOR LANDSCAPlN"G AND GENERAL UTILITIES PURPOSES FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CANYON GA TEW A Y PLAZA, LLC, a California limited liability company ("Owner"), hereby grants to the CITY OF CHULA VISTA, a municipal corporation ("City"), in the County of San Diego, State of California, a non-exclusive easement (the "Easement") for general landscaping and general utilities purposes in, upon, over and across that certain real property situated in the City ofChula Vista and more particularly described on Exhibits "A-I" and "A-2" attached hereto and made a part hereof (the "Easement Area"). The Easement Area is depicted on Exhibit "B" attached hereto and made a part hereof for reference purposes only. Owner hereby further grants to the City the right of access, beyond the limits of the Easement Area where required for the construction, installation and maintenance of the landscaping and utilities permitted hereby All utilities installed in the Easement Area shall be primarily underground to the extent practical. Any utilities installed in the Easement Area shall generally serve the lighting, watering, traffic control and other needs of the Easement Area and of the various road, sidewalk, traffic signal and other public facilities, installations and equipment in the vicinity of the Easement Area, including without limitation the landscape medians and frontages of Telegraph Canyon Road, and the traffic control devices serving Telegraph Canyon Road at the intersections of Crest Drive, the driveway(s) serving Owner's property, and Hillcrest Drive. Should any of City's activities in constructing, installing, maintaining, replacing or renovating any of the utilities contained in the Easement Area disturb the surface of the Easement Area or Canyon Plaza/City ofChula Vista Landscaping Agreement 33528-00002/ LfHS Doc. No. 3705451.8 EXHlB1T C 1 8/14106 6-18 any of the landscaping or other improvements therein, City shall at its cost restore the same to its condition prior to such activities. Owner shall take reasonable precautions not to interfere with any utilities eXlstmg in the Easement Area, and shall repair and replace any damage thereto caused by Owner's gross negligence or willful misconduct. Each party warrants that the person subscribing hereunder has the power and authority to bind said party, his heirs, assigns, personal representatives, or their successors in interest. The singular shall include the plural and the masculine the feminine and vice-versa as used herein. Signed this _ day of ,2006 CANYON GATEWAY PLAZA, LLC, a California limited liability company By: GATEWAY ASSET MANAGEMENT, LLC, a California limited liability company, Sole Manager By: Scott B. Robinson, Sole Manager Canyon PIaza/CityofCbula Vista Landscaping Agreement 33528-00002/ LFHS Doc. No. 3705451.8 EXHIBIT C 2 8114106 6-19 This is to certify that the interest in real property conveyed herein to the City of Chula Vista, a governmental agency, is hereby accepted by the undersigned, City Clerk, on behalf of the Chula Vista City Council pursuant to authority conferred by Resolution No. 15645 of said Council adopted on , and the grantee(s) consent(s) to the recordation thereof by its duly authorized officer. SUSAN BIGELOW, CITY CLERK By' Date: Canyon Pla.za1CityofChula Vista Landscaping Agreement 33528-00002' LFHS Doc. No. 3705451.8 EXHIBIT C 3 8/14/06 6-20 STATE OF CALIFORNIA ) ) 55. COUNTY OF SAN DIEGO ) On , before me, , a notary public for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. [Seal] [Signature] 6-21 COUNCIL AGENDA STATEMENT Item: '7 Meeting Date: August 22. 2006 ITEM TITLE: RESOLUTION APPROVING THE CREATION OF AN EDUCATIONAL SERVICES MANAGER CLASSIFICATION IN THE UNCLASSIFIED SERVICE, SENIOR MANAGER GROUP SUBMITTED BY: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 2.05.010 RELATING TO THE ESTABLISHMENT OF UNCLASSIFIED POSITIONS TO ADD THE POSITION OF EDUCATIONAL SERVICES MANAGER Assistant City Manager/Library Directori~ Director of H~esources /)f2- - City Manager '1/ (4/5ths Vote: YES X NO ~ REVIEWED BY: Since the Educational Services Division of the Library Department was created in 1999, the after school program budget has grown from $539,000 to approximately $2.1 million per year. STRETCH and DASH are now provided at 32 elementary school sites in Chula Vista. Later this fall the program will grow even larger when new after school funds are released by the state. Because of the program's complexity and the Education Services Manager's scope of responsibility, it is recommended that the position be moved from the Middle Management Group to the Senior Manager Group. Chula Vista City Charter section 500 requires that all unclassified positions not mentioned specifically in Charter section 500 be adopted by Ordinance. Adoption of the ordinance adds the unclassified position title of Educational Services Manager to Municipal Code Section 2.05.010 STAFF RECOMMENDATION: That Council adopts the resolution approving the moving of the Educational Services Manager from the Mid-Manager group to the Senior Manager Group. That City Council establishes the following new unclassified position, Educational Services Manager. This Council action will be the first reading of the proposed Ordinance amendment. BOARD/COMMISSION RECOMMENDATION: N/A 7-1 Page 2, Item 1 Meeting Date: August 22. 2006 DISCUSSION: The Manager of the Educational Services Division of the Library Department is responsible fOf" ~ The Chula Vista Literacy Team ~ Safe Time for Recreation Enrichment and Tutoring for Children (STRETCH) ~ Dynamic After School Hours (DASH) The Manager currently supervises six full-time employees directly and indirectly supervises two additional full-time employees and over 100 part-time employees at the Literacy Center, STRETCH/DASH Headquarters, and at 32 elementary school sites. . This fall the number of employees will very likely increase when Proposition 49 funds are released. Proposition 49 was a ballot initiative sponsored by now-Governor Arnold Schwarzenegger and was approved by the voters in 2002. Proposition 49 will quadruple state funding for after school programs from its current $121 million to $550 million. However, this funding could not be appropriated until state general fund spending increased to a certain level. That happened this fiscal year (FY 07). A bill authored by Senator Torlakson (SB 638), currently making its way through the state legislature, is intended to allow easier access to Proposition 49 funds by raising the daily per child rate from $5 to $7.50, raise grant caps, allow for direct grants instead of reimbursement system, and reduce the 50 percent grant match called for in Proposition 49 to 33.3 percent. It is expected that SB 638 will pass the legislature this month. Since the bill was amended to urgency status, it will immediately become law as soon as Governor Schwarzenegger signs it. Funds are expected to be available by late fall. The Library Department is actively working with the Elementary School District to better understand the impacts of the Proposition 49 trigger and SB 638. Although many questions remain, staff anticipates considerable changes and expansion of the program. Staff expects to return to Council with the details in October or November. All of this change and uncertainty is happening at the same time the City attempts to recruit to fill the now vacant Educational Services Manager position. The first recruitment, at the Middle Management level, was not successful. However, in anticipation of the upcoming program changes and in recognition of the Educational Services Manager's scope of work and level of responsibility, staff is recommending that the position be moved to the Senior Manager Group. It is expected that this change in classification will allow us to recruit a highly qualified candidate for the job. This amendment will only add the Educational Services Manager to the Ordinance, and is consistent with established city policy, which places all Senior Manager positions in the unclassified service. All other titles listed in the Ordinance remain.. as previously adopted. 7-2 FISCAL IMPACT: For the remainder of FY 07, it will cost an additional $2,577 in benefits to move the Educational Services Manager position from the Middle Manager Group to the Senior Manager Group. The Library will absorb these and anyon-going costs through salary savings. 7-3 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE CREATION OF AN EDUCATIONAL SERVICES MANAGER CLASSIFICATION IN THE UNCLASSIFIED SERVICE, SENIOR MANAGER GROUP WHEREAS, the Manager of the Educational Services Division (Manager) of the Library Depart=nt is responsible for the Chula Vista Literacy T earn, Safe Time for Recreation Enrichment and Tutoring for Children (STRETCH), and Dynamic After School Hours (DASH); and WHEREAS, the Manager currently supervises six full-time employees directly and indirectly supervises two additional full-time employees and over 100 part-time employees at the Literacy Center, STRETCH/DASH Headquarters, and at 32 elementary school sites; and WHEREAS, with the release of Proposition 49 funds this fall it is anticipated that the number of employees will increase; and WHEREAS, Proposition 49 is a ballot initiative sponsored by now-Governor Arnold Schwarzenegger and approved by voters in 2002 which will quadruple state funding for after school programs from it current $121 million to $550 million; and WHEREAS, a bill authored by Senator Torlakson (SB638), currently making its way through the state legislature, is intended to allow easier access to Proposition 49 funds by raising the daily per child rate from $5.00 to $7.50, raise grant caps, allow for direct grants instead of reimbursement system, and reduce the 50 percent grant match call for in Proposition 49 to 33.3 percent; and WHEREAS, staff while actively working with the Elementary School District on the realization of these initiatives anticipates considerable changes and expansion of the after school program; and WHEREAS, an attempt to recruit for the pOSItIon of Educational Services Manager at the Middle Management level was unsuccessful; and WHEREAS, in anticipation of the upcoming program changes, and in recognition of the Educational Services Manager's scope of work and level of responsibility, staff is recommending that the position be moved to the Senior Manager Group; and 1 7-4 WHEREAS, for the remainder ofFY 07, it will cost an additional $2,577.00 in benefits to move the Educational Services Manager position from the Middle Manager Group to the Senior Manager Group, which the Library Department will absorb through salary savings. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the creation of an Educational Services Manager classification in the Unclassified Service, Senior Manager Group. Presented by Approved as to form by ~,'''''\\~~'b..\}, Ann Moore City Attorney David Palmer Assistant City ManagerlLibrary Director J:\attorney\reso\classification\reclass - educational services mgr 2 7-5 ORDINANCE NO ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION 2.05010 RELATING TO THE ESTABLISHMENT OF UNCLASSIFIED POSITIONS TO ADD THE POSITION OF EDUCATIONAL SERVICES MANAGER WHEREAS, the Library and Human Resources Departments have reviewed the classification for Educational Services Manager and are recommending changing this position from the middle management group to senior management to better reflect the duties and level of responsibility associated with this position; and WHEREAS, Charter Section 500(a) requires that all new unclassified management level positions be adopted by ordinance and a four-fifths vote of the Council, NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows. SECTION I: That Section 2.05.010 of the Chula Vista Municipal Code is hereby amended to read as follows: 2.05.010 Unclassified positions established. In addition to those unclassified positions specifically delineated in Section 500 of the Charter of the City, there are established the unclassified positions entitled Administrative Services Manager, Advanced Planning Manager, Animal Control Manager, Assistant Chief of Police, Assistant Director of Budget and Analysis, Assistant Director of Building and Housing, Assistant Director of Community Development, Assistant Director of Finance, Assistant Director of Human Resources, Assistant Director of Planning, Assistant Director of Public Works and Operations, Assistant Director of Recreation, Assistant Library Director, California Border Alliance Group (CBAG) Deputy Executive Director, CBAG Budget Manager, CBAG Executive Assistant, CBAG Executive Director, CBAG Graphics DesignerlWebmaster, CBAG Management Assistant, CBAG Methamphetamine Strike Force Coordinator, CBAG Network Administrator I, CBAG Network Administrator II, CBAG Network Manager, CBAG Program Analyst, CBAG Regional Computer Forensic Laboratory Network Engineer, Chief Learning Officer, Chief of Staff, Coastal/Environmental Policy Consultant, Communications Manager, Community Relations Manager, Constituent Services Manager, Cultural Arts & Fund Development Manager, Deputy Building Official, Building Services Manager, Deputy City Manager, Deputy Director of Engineering, Deputy Director of General Services, Deputy Director of Planning, Deputy Fire Chief, Development Planning & Improvement Manager, Development Planning Manager, Director of Budget and Analysis, Director of Communications, Director of Conservation and Environmental Services, Educational Services Manager, Executive Director of the Redevelopment Agency/CEO of the CVRC, Fiscal Operations Manager, Human Resources Operations Manager, Intergovernmental Affairs Coordinator, Office Specialist (Mayor's Office), Parks and Open Space Manager, Police Captain, Purchasing Agent, Real Property Manager, Risk Manager, Senior Council Assistant, Traffic Engineer, Transit Coordinator, Treasury Manager 7-6 Ordinance No. Page 2 SECTION II: This ordinance shall take effect and be in full force thirty days from its adoption. Submitted by: Approved as to form by: David J Palmer Assistant City Manager/Library Director ~~ \{ ~'(\~ \'\C\ {~<;).~ Ann Moore City Attorney 7-7 COUNCIL AGENDA STATEMENT Item Meeting Date 8/2206 ?? ITEM TITLE: Resolution Approving Final Revisions To The Memorandum Of Understanding Between The City of Chula Vista And The Chula Vista Police Officers Association Director of HU~ Resources IfT2-- City Manager (jJ (4/5ths Vote: Yes_ No-Xl SUBMITTED BY: REVIEWED BY: Summary' The City of Chula Vista POA requested to revisit some of the language changes made in the July 1, 2005 - June 30, 2010 Memorandum of Understanding (MOU.) Members of the Management Team and the Negotiations Team met and conferred and have reached agreement on the final MOU language. RECOMMENDATION: That Council adopts the resolution. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: In September 2005 Council approved the Memorandum of Understanding (MOU) with the Chula Vista Police Officers Association for FY 2006 through FY 2010, and it was also approved by POA. In approximately January 2006, the POA requested the City Management Negotiations Team meet and confer over some minor language revisions. The City Management Negotiations Team and the POA Negotiations Team met and conferred in good faith over the period of a few months and reached agreement on the proposed changes. Attached for your review are both the strikeout version of the previously approved POA MOU and the completed version of the revised POA MOU, which includes all proposed language changes. Some of the key changes are: Maintained previous City and POA Rights Agreement to discuss bilingual pay criteria Modified criteria for Recruitment Incentive Pay Clarified various other minor provisions FISCAL IMPACT: There is no fiscal impact to the General Fund resulting from approval of this resolution. Exhibits: A: Current (July 1,2005 - June 30,2010) approved POA MOU with strikeouts B: Proposed final version of the POA MOU (same term of contract) 8-1 RESOLUTION NO 2006-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING FINAL REVISIONS TO THE MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE CITY OF CHULA VISTA AND THE CHULA VISTA POLICE OFFICERS ASSOCIATION WHEREAS, the City of Chula Vista Police Officers requested to revisit some of language changes made in the July 1, 2005 - June 30, 2010 Memorandum of Understanding (MOU); and WHEREAS, members of the Management Team and the Police Officers Association (POA) Negotiations Team met and conferred and have reached agreement on the fmal MOU language; and WHEREAS, in September 2005 Council approved the MOU with the Chula Vista POA. In January 2006, the POA requested the City Management Negotiations Team meet and confer over some minor language revisions. The City Management Negotiations Team and POA Negotiations Team met and conferred in good faith over the period of a few months and reached agreement on the changes proposed by the POA. NOW, THEREFORE, BE IT RESOLVED the City Council of the CityofChula Vista does hereby approve the fmal revisions to the Memorandum of Understanding between the City of Chula Vista and the Chula Vista Police Officers Association, a copy of which will 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 Memorandum of Understanding on behalf of the City of Chula Vista. Presented by Approved as to form by Marcia Raskin Director of Human Resources ~ '{"\I\\\~J( ~~\\\ Ann Moore City Attorney J:\AttomeyIRESOIMOll\MOU Rev POA 8-2 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~{~"~\,\<l,A\\}. ~ Ann Moore City Attorney Dated: 8/16/06 Memorandum of Understanding with the Chula Vista Police Officers Association 8-3 ~~f?- ~ ~--- -------- ~ -- ----- - -- ---- CllY OF CHUlA VISTA MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND CHULA VISTA POLICE OFFICER'S ASSOCIATION FY 2005/06 throue:h 2009/10 , 8-4 MEMORANDUM OF UNDERSTANDING CONCERNING WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT BETWEEN THE CITY OF CHULA VISTA AND THE CHULA VISTA POLICE OFFICER'S ASSOCIATION FROM JULY 1,2005 THROUGH JUNE 30, 2010. SECTION I ARTICLE 1.01 ARTICLE 1.02 ARTICLE 1.03 ARTICLE 1.04 ARTICLE 1.05 ARTICLE 1.06 ARTICLE 1.07 ARTICLE 1.08 ARTICLE 1.09 ARTICLE 1.10 ARTICLE 1.11 SECTION II SUBSECTION A ARTICLE 2.01 ARTICLE 2.02 ARTICLE 2.03 ARTICLE 2.04 ARTICLE 2.05 ARTICLE 2.06 ARTICLE 2.07 ARTICLE2.08 ARTICLE 2.09 ARTICLE 2.10 ARTICLE 2.11 ARTICLE 2.12 ARTICLE 2.13 ARTICLE 2.14 ARTICLE 2.15 TABLE OF CONTENTS Pae:e )lI)~STIlJlTION.......................................................... 4 PREAMBLE................................................................ ..... 4 RECOGNITION............ ......... .................. ...... .................. 4 CIT1{ FlIGIlTS.................................................................. 4 POA FlIGIlTS...... ......... ......... ......... ........ ....... ...... ......... .... 5 EMPL01{EE FlIGIlTS......... ... ..... .... ......... ......... ............ ..... 5 LABOR-MANAGEMENT COOPEIlJlTION............................ 6 TERM AND EFFECT OF TIDS MOU.................................... 6 MOU RE"ISIONS............................................................. 7 REOPENER..................................................................... 7 RETENTION OF BENEFITS............................................... 7 SA "INGS CLAUSE................ .................... ............... ......... 7 COMPENSATION... ... .... ..... ......... ... ...... ... ...... ......... ......... 8 WAGES.......... ........... .... ........ .......... ........ ............... ........ 8 WAGES.......................................................................... 8 O~RTIME.................................................................... 8 COMENSATOR1{TIME.................................................... 9 CALLBACK P A 1{ ....... .............. ...... .................. ................ 10 STANDB1{ P A 1{......... ............... ......... ............ ............. ...... 10 OUT -OF-CLASS ASSIGNMENT........ ............. ............. ........ 10 FIELD TIlJlNING OFFICER PA1{........................................ 11 SPECIAL ASSIGNMENT PA1{............................................ 11 BILINGUAL PA1{............................................................. 11 SIlIFT DIFFERENTIALS............ ..... ....... ......... .................. 11 MILEAGE REIMBURSEMENT.......................................... 12 UNIFORMS... ..... .... ......... ......... ..... ... ...... .... ... ......... ... ...... 12 PROFESSIONAL ENFlICIlMENT ......... ......... ...... ....... ......... 12 EDUCATION I P.O.S.T.INCENTIVE PA1{............................. 13 RECRUITMENT INCENTIVE PROGRAM............................ 13 Page 2 POA. MOD 7/1/05 - 6/30/10 8-5 SECTION II SUBSECTION B ARTICLE 2.16 ARTICLE 2.17 ARTICLE 2.18 ARTICLE 2.19 ARTICLE 2.20 SECTION ill ARTICLE 3.01 ARTICLE 3.02 ARTICLE 3.03 ARTICLE 3.04 ARTICLE 3.05 ARTICLE 3.06 ARTICLE 3.07 ARTICLE 3.08 ARTICLE 3.09 SECTION IV ARTICLE 4.01 ARTICLE 4.02 ARTICLE 4.03 ARTICLE 4.04 ARTICLE 4.05 ARTICLE 4.06 ARTICLE 4.07 ARTICLE 4.08 ARTICLE 4.09 TABLE OF CONTENTS (coot.) Paee COMPENSATION... ......... ... ........................... ... ...... ...... ... 15 BENEFITS...................................................................... 15 EMPLOYEE BENEFITS... ...... ........ ................... ................ 15 GROUP TERM LIFE INSURANC........................................ 18 RETIRE~NT................................................................. 18 DEFERRED COMPENSATION......... ...... ................ ..... ....... 19 RETIREMENT HEALTH SAVINGS ACCOUNTS................... 19 HOURS........................................................................... 20 WORK PERIOD...... ......... ................... ............... ..... ......... 20 FLEXIBLE WORK SCHEDULES........................................ 20 VACATION TIME.............................................;.............. 20 SICK LEAVE...... ........ ...................... ........... ......... ...... ..... 21 BEREAVEMENT LEAVE................................................... 24 HOLIDAYS. ..... ......... ....... ... .......... ...... .............. ............... 24 JURY DUTy......... ...... ................... ................ ......... ......... 25 COURT LEAVE.. ....... ..... ................. ............................ ..... 26 LEAVE OF ABSENCE - MILITARY LEAVE......................... 27 WORKING CONDITIONS............... ................... ...... ......... 28 PROIDBITED PRACTICES.. ....... '" ... ....... ............... ....... .... 28 ADVANCE NOTICE...... ................. ..... .............. ....... ......... 28 DRIVING ELIGIBILITY...... ........... ................. ....... ........... 28 PHYSICAL ABILITY TESTING.......................................... 29 FITNESS FOR DUTY... ............. ...... ..... .................... ......... 30 SUBSTANCE ABUSE POLICy............................................ 30 PAYROLL DEDUCTION............... ....... ............. ....... .......... 30 DIRECT DEPOSIT...... ......... ............ ......... ..... ................... 30 GRIEVANCE PROCEDURE................ ....... ..... ................... 30 POA. MOD 7/1/05 - 6/30/1 0 Page 3 8-6 SECTION I ADMINISTRATION ARTICLE 1.01 PREAMBLE This Memorandum of Understanding (MOU) is entered into by the City of Chula Vista (City) and the Chula Vista Police Officers Association (POA) as a result of meeting and conferring in good faith concerning the wages, hours and other terms and conditions of employment, pursuant to the Employer-Employee Relations Policy of the City of Chula Vista and the California Government Code Sections 3500 et. seq., known as the Meyers-Milias-Brown Act. ARTICLE 1.02 RECOGNITION The City recognizes the POA as the certified representative for all employees of the Police Department who are employed in the classifications of, or have the working titles of: Peace Officer, Police Agent, Police Sergeant, and Police Lieutenant. ARTICLE 1.03 CITY RIGHTS The PO.^< agrees that the City has the right to lIDilaterally make aeeisisas sa all slI6jsets that are sutside the ses]le sfbargaining.Nothing contained herein shall be construed to restrict anv legal or inherent exclusive City rights with respect to matters oflegislative or managerial policv. The exclusive rights of the City shall include, but not be limited to, the right to' A. Establish, plan for, and direct the work force toward the organizational goals of the City government. B. Determine the organization, and the merits, necessity, and level of activity or service provided to the public. C. Determine the City budget. D Establish, regulate, and administer a merit or civil service system which provides for all types of personnel transactions, including, but not limited to, determining the procedures and standards for the hiring, promotion, transfer, assignment, layoff, retention, and classification of positions in accordance with the City Charter, Civil Service Rules, and established personnel practices. E. Discipline or discharge employees for proper cause. F Determine the methods, means, numbers, and kinds of personnel, and the job or position content required to accomplish the objectives and goals of the City. POA. MOU 7/1/05 - 6/30/10 Page 4 8-7 G. Effect a reduction in authorized positions. H. Take actions necessary to carry out the mission of the City in emergencies and in other situations of unusual or temporary circumstances. 1. Continue to exercise efficient and productive management practices consistent with tIederal and s-S.tate laws and in compliance with the City Charter and City ordinances. Terms and eeflaitiofls set forth. if! this MOD re]9reseBt the full and seffij3lete lffiderstandiflg l3etv;eefl the parties. Durin.g the term efthis MOD, the PO.^-, eK]9ressly wai'les the right te meet and somer with respest to any subject covered if! this MOD, 1tilless modified thr01igh the vollffitaI1', IffiItuaI seRseRt of the parties in a written amendment. This MOD terminates and s1i]gersedes Those flartial ]9Faotises, agreemeflts, proeedares, traaitiens, and rules Elr regulatioRs iRconsisteat with any matters soverea in.the MOD. The parties agree that duriRg the RegetiatieRs that eulmiRatea iR this MOD, eaeh party eRjoyed the opportunity te make demands ana ]9repesals er eouater ]9re]gesals '.yith res]gect to any matter, e';eR though seme !Battem '.yere ]9re]gesed acd later withdraviH, and that the 1iRaerstandiRgs ana agreelReRts arrived at after the exercise of that right acd op]9ortu-!l.ity Eli"e el,ecuted in this MOD, The City's exercise of its managemeRt rights is Rot subjeet te ehalleRge threugh the grie'!acee proeedure or iR any ether forum., eKseflt 'linere other/Ase ill eeRFliet with a spesifie term of this MOD.In exercising these rights the City shall complv with all applicable provisions of this agreement. The establishment or exercise of City rights shall not be subiect to meeting and conferring; provided. however. the POA shall not be precluded from meeting and conferring with representatives of the City when the consequences of decisions on matters of City rights directlv affect wages. hours. and other terms and conditions of emplOYment. ARTICLE 1.04 POA RIGHTS 1. Authorized representatives of the POA shall be allowed reasonable access to unit employees at their work locations during working hours for the purpose of consulting with employees in the unit regarding the employer-employee relationship, provided that: (1) the work of the employee and the service of the public are not unduly impaired, and (2) the authorized representatives shall have given advance notice to the Chief of Police or his or her designated representative when contacting unit employees during the duty period of the employees. The Chief of Police or his or her designee shall determine the appropriate time for such access. II. The POA may be granted use of City facilities by the appropriate Appointing Authority for meetings composed of unit employees, provided such meetings are held outside regularly scheduled working hours for the group which is meeting, and provided space can be made available without interfering with the City needs. III. A reasonable amount of space shall be provided to the POA on City bulletin boards for legitimate communications with members. The POA shall be responsible to maintain space provided in an orderly condition and shall promptly remove outdated materials. Copies Elf sasR POA. MOD 7/1/05 - 6/30/1 0 Page 5 8-8 eommurueations saall be furnisaed to the Direetor sf Hlffilan Resorn-ees f-or review. V The City shall continue to bill the POA $.10 per member per pay period for the actual costs incurred for dues deductions on behalf of the POA. ARTICLE 1.05 EMPLOYEE RIGHTS I. Employees may form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation in matters of employer-employee relations. II. City agrees that no officers, agents, representatives, members or anyone connected with either party will in any manner intimidate, coerce, restrain or interfere with employees to form, join or assist labor organizations or to refrain from any of these activities, specifically including the rights of employees to withdraw, revoke or cancel POA membership, or because of the exercise of any right provided to the employee by this MOU. ARTICLE 1.06 LABOR-MANAGEMENT COOPERATION The parties agree that during the term of this MOU, they will continue to support the Pride At Work Program. In addition they will continue to participate in efforts to contain health care costs. The City and POA agree that they will continue to have open discussions on matters of concern to the parties during the term of this MOU ARTICLE 1.07 TERM AND EFFECT OF TillS MOD I. This MOOMOU shall remain in full force and effect from July 1,2005 through June 30, 2010 (the date closest to July 1 that is the end of a pay period) and it is understood and agreed that the terms and conditions, wages, and all provisions of this MOOMOU shall continue in effect until a new MOOMOU is negotiated and subsequently ratified by the POA and the City Council. Said terms and conditions as outlined in this MOU shall remain in effect from Julv 1. 2005 until the last pav period of June 2010. not encompassing Julv 1. 2010. unless one of the parties notifies the other in writing not later than March 1.2010. of its desire to modify or terminate the MOU and provides written proposals for such modifications no later than March 30. 2010. City agrees that if said written proposals are received from the POA bv March 30. 2010 that the Citv will be prepared to commence negotiations on those proposals bv April 15. 2010. If either party proposes to modify or termiRate afty of the terms or eOflditioHS set forth in tflis MOD for iflelusioll in a slolbsequeRt MOU, they must notify the other party iR writing aet later than Mareh 1,2010. WritteR proposals for sush proj3osed moaif.ieatiolls must be swmitted by PO.\ to the City Rot later than Mareh 39,2019. Proposed modifisations Rot swmitted to the City iR writing by Marsh 30,2010 '.'fillnst be diseussed during the meet and sORfer j3roeeGs. City POA. MOU 7/1105 - 6130/10 Page 6 8-9 agrees that if.:ffittenproposals are reGeived Hem POi\. BY Maroll.30, 2010, City ':;illee prepared te GOmmeHGe Hegetiatiens en these prejlesals ey .'\j3rillS, 2010. II. The provisions of this MOOMOV shall be subject to fEederal, sS,tate and local law. III. This MOU fully and completely incorporates the understandings of the parties hereto for the full term of this MOU constituting the sole and entire understanding between the parties. It is further understood. however. that nothing herein prohibits the parties from changing and amending the terms of this MOV during the period of its effectiveness by further meet and confer sessions by mutual agreement. Nothing contained herein shall affect rights and privileges of parties as established by the laws of the State of California. as contained in the Government Code of the State ofCalifomia under those provisions known as the Meyers-Milias-Brown Act. unless specifically referred to herein. IV. If at any time during the term of this MOU, through causes beyond the control of the City, the City does not have a sufficient amount of anticipated budgeted revenues or is required to make substantial unanticipated expenditures, then, in such event, the City may, with mutual agreement of the PGAPOA, re-negotiate this MOOMOU and meet and confer on wages, hours and other terms and conditions of employment. This section, however, in no way affects the existing right of the City to lay_off employees. ARTICLE 1.08 MOU REVISIONS The City and POA agree that during the term of the MOU they will continue to meet and confer on changes to the format and language of the MOV if necessary The purpose of the proposed changes is to reconcile the MOU with the Civil Service Rilles, the Employer/Employee Relations Policy, and other City policies and procedures, and to insure the language of the MOU accurately reflects City practice. Any proposed changes to the MOU that involve monetary issues will be deferred to meet and confer in 2010, except those issues specifically reserved for discussion during the 2008 reopener period. Additionally, this language will not prohibit the POA from requesting the City meet and confer on monetary issues where manifest inequities have arisen. Reselatien of outstaading issaes net reselved ey DeGemeer 31, 209S 'Nill ee def-crree!_til meet ane! Gonfer in 2010. ARTICLE 1.09 REOPENER This MOU shall be in full force and effect from Jilly 1, 2005 through June 30, 2010. POA and the City agree that during the third year of the MOV a reopener on issues involving base wages, health care benefits, longevity pay, and the Retirement Health Savings plan will be initiated. No other issues will be considered during the reopener period. The City agrees that before discussions begin on the reopener issues it will research additional funding mechanisms for the RHS plan. Additionally, the City agrees it will conduct salary and benefit surveys and provide the surveys to POA during the meet and confer POA. MOD 7/1105 - 6/30/10 Page 7 8-10 period. ARTICLE 1.10 RETENTION OF BENEFITS The represented employees covered by this MOU shall retain all benefits provided herein for the full term of this MOU and for any such additional period of time as provided in Article 1.07, provided, however, benefits, rights, or privileges not specifically covered by this MOU, but subject to the Meyers- Milias Brown Act, may be acted upon by the City without mutual consent after meeting and conferring with the POA. ARTICLE 1.11 SAVINGS CLAUSE If any article or section of this MOU is held to be invalid by operation oflaw or by any court of competent jurisdiction, or if compliance with, or enforcement of, any article or section is restrained by such court, the remainder of this MOU shall not be affected by such action. The parties shall, if possible, meet and confer or meet and consult as the case may be for the purpose of arriving at a mutually satisfactory replacement for any article or section invalidated by operation of law. POA. MOD 7/1/05 - 6/30/10 Page 8 8-11 SECTION II SUBSECTION A COMPENSATION WAGES ARTICLE 2.01 WAGES I. Salary Increases - Base wages (i.e. the salaries for Steps A-E) shall increase as follows at the beginning of the pay period which includes January 1st. The City shall continue to pay 9% toward the employee's portion of the PERS contribution for classifications represented by POA. I January 1,2006 10% j20% spread between Sergeants & Lieutenants) 2. January 1,20074% 3 January 1,2008 4% 4. January 1,20093% 5. January 1,2010 4% II. Merit (Step) Increases will be made according to the formula set forth in the Civil Service Rules current! y in affect. The classifications shall be subject to a five (5) step salary range. The normal hire rate shall be Step "A" provided, however, that an exceptionally well-qualified candidate may be hired beyond Step "A" within the established range based upon the recommendation of the Chief of Police and approval by the City Manager. III. Effective Dates - All other payroll and wage changes, such as regular merit increases, shall be made effective at the beginning of the regular biweekly payroll period which includes the employee's actual anniversary date of the employee's current position. IV Rate of Pay Following Promotion - When a represented employee is promoted, the new rate of pay will be the lowest step in the new salary range which will result in the employee receiving at least 5% more than the actual ~rate in the old classification. The actual rate will also include Motorcvcle. and Dog Handler pav if these differentials will be lost as a result of the promotion. It will not include Education Incentive or Bilingual Pav. ARTICLE 2.02 OVERTIME I. Subject to the provisions of Paragraphs II through IV below, when an employee is required or is ordered to' A. Work on his or her day off; or POA. MOD 7/1/05 - 6/30/10 Page 9 8-12 B. Report back to work after he or she has left the work station, he or she shall be compensated for a minimum of two hours for any time worked in accordance with the provisions of the Fair Labor Standards Act and the 7k exemption. For purpose of calculating the overtime premium, time worked shall include paid time off and eligibility for overtime shall be based on hours worked during a work period in excess of 80 hours in a work period. "Immediate" callbacks require the employee to return to the station or to proceed to a crime scene as soon as possible upon notification. "Non-immediate" callbacks require the employee to return to the station at a time certain, wherein said time is not designated as being as soon as possible. For immediate callbacks, overtime shall commence at the time of arrival at the station or at the crime scene, with an additional one-half hour added for work related activities undertaken between the time of notification and arrival. II. Holdovers Beyond Regular Shift - An employee who works beyond his or her regular scheduled shift by reason of, but not limited to, late calls, arrests, report preparation, etc. shall receive payment in accordance with SeetioR C.I.B. above. In no event will an employee be paid for less than 5 minutes. Periods of time less than 15 minutes will be disregarded and may not accumulated. III. Court Time - Employees on scheduled time off, who are subpoenaed in the line of duty or required by the Chief of Police or his or her designee to be present in criminal or juvenile court, or other judicial proceedings, shall be compensated as provided under Article 2.02, I, B above for all time actually spent and required to be in court and all actual travel time required between the court and either the Police Station or the employee's home, as the case may be. Employees shall be guaranteed a minimum of three (3) hours for each separate court appearance, including any travel time. Employees shall be reimbursed for all actual mileage the employee travels between the court and either the Police Station or the employee's home, as the case may be, at the mileage reimbursement rate as set out in Article 2.11. IV Overtime Premium Pay shall be calculated at the overtime rate required by the Fair Labor Standards Act. V A committee consisting of Police Department management and POA members shall be formed to study the use of overtime in the department and develop recommendations as to how overtime can be managed more effectively ARTICLE 2.03 COMPENSATORY TIME An employee eligible to receive overtime pursuant to this section may receive payor compensatory time off. Compensatory time shall be calculated at the rate of 1-1/2 times the extra hours worked. The use of compensatory time in-lieu-of overtime pay will be at the option of the Chief of Police and/or supervisor, based on the employee's request while recognizing the overall staffing requirements of the department. POA. MOD 7/1/05 - 6/30/1 0 Page 10 8-13 Compensatory time shall not be accrued to an employee's credit for any time in excess of eighty (80) hours. A record of compensatory time earned and utilized shall be maintained on the biweekly pay records. ARTICLE 2.04 CALLBACK PAY Whenever an employee is called back to work, after he/she has left his or her work site, and is required to return to work before the scheduled start of his or her next shift, he or she will receive a fifty ($50) differential, in addition to pay as provided under 2.02 1. B. above. ARTICLE 2.05 STANDBY PAY Standby - Employees shall receive $150 compensation for each full bi-weekly period during which they are assigned standby duties or a prorated amount if the standby period is less than two (2) weeks. Standby duty is defined as that period of time, in addition to the employee's normal work week assignment, during which the employee must remain at all times where he or she can be contacted by telephone or pager, ready for callback to perform essential service within one (I) hour of notification. Any callbacks that occur while an employee is on standby duty shall not reduce the amount of standby pay the employee would have eamed had there not been a callback. Any overtime or callback pay shall thus be in addition to the standby pay For purposes of calculating hours worked under the FLSA, the parties agree that standby time shall not be counted as hours worked. ARTICLE 2.06 OUT-OF-CLASS ASSIGNMENT 1. Swom personnel who are assigned duty as an Acting Agent, Acting Sergeant, or Acting Lieutenant in the Patrol Division for a period of at least one full regularly scheduled continuous work shift (excluding shift overlap(s)) shall receive compensation at a rate of five percent (5%) above his or her base pay. Payment will be retroactive to the time the out-of-classification assignment commenced and will continue until the out-of-classification assignment ends, provided the above full-shift minimum is met. Personnel assigned duty as an Acting Agent, Acting Sergeant or Acting Lieutenant in the Patrol Division during any shift overlap period will receive out-of-classification compensation for that overlap period provided the above full-shift minimum is met. II. Swom personnel who are assigned duty as an Acting Agent, Acting Sergeant, or Acting Lieutenant in a division other than Patrol for a period of at least one continuous week (40) consecutive hours) shall receive compensation at a rate of five percent (5%) above his or her base pay Payment will be retroactive to the time the out-of-classification assignment commenced and will continue until the out-of-classification assignment ends, provided the above full week minimum is met. POA. MOD 7/1/05 - 6/30/10 Page 11 8-14 III. The assignment of Acting Agent, Acting Sergeant, or Acting Lieutenant shall be made in writing and shall indicate the day and time the assignment begins. Out-of-classification assignment pay shall be calculated to the nearest quarter hour. ARTICLE 2.07 FIELD TRAINING OFFICEERPAY Peace Officers and Police Agents who are designated Field Iraining Officers (FIO's) for the purpose of training Peace Officers will receive $4.00 per hour additional compensation when they are actually engaged as FIO's. Police Agents shall not be considered FIOs or receive FIO compensation for time spent training other Police Agents. ARTICLE 2.08 SPECIAL ASSIGNMENT PAY I. Motorcycle Pay - Employees who are assigned to Motorcycle Duty will receive two (2) hours-affi overtime cash compensation per week. The differential pav shall compensate for general maintenance. including cleaning and washing of the motorcvcle and minor maintenance. II. Dog Handlers - Employees who are designated Dog Handlers will receive three and a half (3\1,) hours paid overtime cash compensation per week. ARTICLE 2.09 BILINGUAL PAY Ihose employees who, upon the recommendation of the Chief ofP&-liePolice and the approval of the Director of Human Resources, and who successfully complete a Bilingual Performance Examination, are regularly required to use their bilingual skills in the performance of their duties will receive $200 per month in addition to their regular pay. IE. order to eoatimle recei'/ing biliagual ]'la-y, effijlloyees HlUst successfully eefflj3lete a Bilingllal Perf-eFffianee BJ(amiaation once e"/ery three years.The City and POA agree to develop mutuallv acceptable guidelines regarding ongoing performance evaluation. ARTICLE 2.10 SHIFT DIFFERENTIALS I. Effective with the first full pay period after January 1,2002, each Officer, Agent, Sergeant, and Lieutenant regularly assigned to work the first watch (graveyard) shift shall receive $80 a pay period. (For example, a person regularly scheduled on first watch who is temporarily assigned to another watch will receive the pay, but a person who is regularly scheduled on another watch and temporarily assigned to first watch will not receive the pay) II. Effective with the first full pay period after January 1,2003, each Officer, Agent, Sergeant, and Lieutenant regularly assigned to work the third or fourth watch (swing) shift shall receive $40 a pay period. For example, a person regularly scheduled on third or fourth watch who is temporarily assigned to another watch will receive the pay, but a person who is regularly scheduled on another watch and temporarily assigned to third or fourth watch will not receive the POA. MOD 7/1/05 - 6/30/10 Page 12 8-15 pay.) III. Bff-c~ti'le with tae first full pay perieE! ',yhi~a includes Jaffilary 1,2997, eaeh Offi~er, .'\gent, Sergeant, and Lieutenant regularly assigned te work the first '.vat~h (gra?eyard) shift shall re~ei'/e an additienal $2.00 per aour. (Fer ellarliflle, a person regularly seaeduled OR first watea who is teffillorarily assigll.ea to EII10ther wat~fl ':;ill re~eive the pay but a ]lersoll. who is regularly s~aeduled ell. another wat~h and teffillorarily aasigaed to firat ',vlltElfl will aet re~eive the pay.) Effective with the first full pay period encompassing January 1.2007, each Officer. Agent. Sergeant. and Lieutenant regularly assigned to work the first watch (graveyard) shift shall receive $160 a pay period. (For example. a person regularly scheduled on first watch who is temporarilv assigned to another watch will receive the pav, but a person who is regularly scheduled on another watch and temporarily assigned to first watch will not receive the pav.) IV. Bffe~tive witll. the first full pay fJeriod '.villea iReludes JanHai')' 1,2997, eaea Offieer, .'\gellt, Sergeant, EII1d Lieutenant regularly assigned to work the third or fBarta watea (s,,ymg) saift shall reeeive an additioHtH $1.00 per flour. (For eKarliflle, a ]lerSOR regularly sell.eauled ell. third or fomta wat~a 7mB is teffiFlorarily assigned to another ',yatea will reeei'/e tll.e pal' bHt a persoll. who is regularly s~aeEiWed OR anether watea and teffillorarily assigned to taird or feurtli wat~a will aot reeei'le the fJEly.)Effective with the first full pav period encompassing January 1. 2007, each Officer, Agent. Sergeant. and Lieutenant regularlv assigned to work the third or fourth watch (swing) shift shall receive $80 a pav period. For example, a person regularly scheduled on third or fourth watch who is temporarilv assigned to another watch will receive the pav, but a person who is regularly scheduled on another watch and temporarilv assigned to third or fourth watch will not receive the pav.) ARTICLE 2.11 MILEAGE REIMBURSEMENT Employees shall be subject to the City's Mileage Reimbursement Program when required to use their personal vehicle for authorized City business. The reimbursement rate will be tied to the current maximum IRS rate. If an employee is reporting to court or to training on his or her day off he or she may be reimbursed for up to a maximum of 50 miles total round trip. Employees will not receive mileage reimbursement for staff meetings, committee meetings or any other reason to return to work except for scheduled court or training. ARTICLE 2.12 UNIFORMS POA. MOD 7/1/05 - 6/30/10 Page 13 8-16 I. ISSUE AND REPLACEMENT All regulation police uniforms and equipment (excluding shoes) will be provided at City expense. If regulation police uniforms or equipment are destroyed or damaged in the line of duty, they will be repaired or replaced as determined by the Chief of Police or his or her designee. Uniform cleaning will be the employees' responsibility When an employee terminates employment with the Police Department, he or she must return to the City all regulation police uniforms and equipment provided at City expense; provided, however, that employees hired prior to July 1,1984, may keep any equipment and uniforms they purchased before July I, 1984 II. CLEANING Employees represented by the POA shall be entitled to a uniform cleaning allowance of $~300 per year. Cleaning allowances shall be payable during the first pay period ending in December. ARTICLE 2.13 PROFESSIONAL ENRICHMENT Employees represented by POA are eligible to participate in the City's Professional Enrichment Program. The annual Professional Enrichment Fund allotment for POA employees is $51,750 Employees are eligible to receive up to $1,000 per fiscal year for professional enrichment. Funds may be used at any time during the fiscal year. Fiscal year reimbursements under the City's Professional Enrichment Program will be closed the second Thursday in June. Employees may request reimbursement for professional enrichment expenses in accordance with state and federal law Employees must receive approval from the Chief of Police and the City Manager's designee before funds may be claimed for reimbursement. Reimbursements are on a first come, first serve basis until the funds have been exhausted. PO!. and City may by mamal agreemeat Ilse lIjl to one half oftl3.ese funds for agreed lIjlon elassroem traiaing, orgaaizatiea develepmeat, or team building. ARTICLE 2.14 EDUCATIONIP.O.S.T. INCENTIVE PAY I. Employees represented by the }\.sseeiatioaPOA shall be entitled to between $200 and $400 per month if they meet the educationallP.O.S.T incentive pay requirements detailed below The amount of educational incentive pay will not be cumulative. . $200 for an Associates Degree . $300 for a Bachelors Degree or an Advanced/Supervisory POST . $350 for a Bachelors Degree and an Advanced/Supervisory POST POA. MOU 7/1/05 - 6/30/10 Page 14 8-17 . $400 for a Masters Degree or higher ARTICLE 2.15 RECRUITMENT INCENTIVE PROGRAM A POA member may receive a bonus equivalent to 10 hours of base pay when he or she refers an individual to the department and the individual completes the academy and probationary process and becomes a permanent employee. The following conditions will apply to the Recruitment Incentive Program. 1 POA members assigned to the Professional Standards Unit are ineligible to receive the bonus during their tenure in the Professional Standards Unit and fer eigflteen (18) months after their rotation ends and mav not utilize the recruitment incentive program for anv applicant contacts thev made during their tenure thereafter. pal. members assigned to the Professional StandarEls UBit are rneligiBle ta reeeiye the Banus Eluring their tenure in the Professional Standards Unit and f-or eigflteen (18) months after their rotation ends. 2. POA members assigned on a temporary basis to carrv out specialized recruiting activities. unless it can be verified that the recruitment did not occur during that activitv. are also ineligible.PO.^. memeerG will not E):ualify for the Reernitmeat Incenti';e Bonus if the eandidate referred to the department is related te the pal.\. memeer by Blaed or marriage ?,4thin the thffEl degree. 3. POA members will not qualify for the Recruitment Incentive Bonus if the candidate referred to the department is related to the POA member bv blood or marriage within the third degree. ;h4. pat. members may Rot reeei'/e more than f-our (1) ReeruitmeRt Ineeatiye Program. eonases in EUTY ealendar year. Candidates must complete the full 18- month probationary period plus anv probation extensions that mav be requested bv the department because of iniuries or absences before bonuses will be distributed. 4-05. Candidates mast eomplete the fall 18 monta probationary period plus any probation elltensions that may be reqHested by the department beeaase of mjuries or absenees before Bonuses will be distributed. Candidates must declare the name and rank of the POA member who referred them at the time of application. If the POA. MOU 7/1105 - 6/30/10 Page 15 8-18 4,candidate does not provide the referral information with his or her application the referring POA member will be ineligible to receive the bonus. 6. Candiaates mast declare the flame ana rank afthe PO,\ member who referred them at the time of ajlfllicatiofl. If the candidate aces flot pro viae the referral miJffil.atioll with his or her ajlj31icatiofl the referring PO,\ member 'Nil! be ineligible to receive tlle bOffils.There will only be one. 10-hour base pay incentive per candidate. POA members may split the 10 hours if more than one POA member is listed as the referee. POA. MOD 7/1/05 - 6/30/10 Page 16 8-19 SECTION II SUBSECTION B COMPENSATION BENEFITS ARTICLE 2.16 EMPLOYEE BENEFITS 1. Health and Dental Insurance Effective January 1, 2005 the City will provide the following benefits to each represented employee: Health Insurance Dental Insurance Annual Cost Kaiser Non-Kaiser Non-Kaiser Pre-Paid Dental PPO HMOs PPO Dental Employee City pays Employee pays City pays an City pays City pays an Only 100% of $50 per Month; Amount Equal 100% of Amount Equal Premium City Pays to the City's Premium to the Premium Balance of Share of Non- for the Pre-Paid Premium Kaiser HMO Plan, Employee Premium, Responsible for Employee Balance Responsible for Balance Employee + 1 City pays Employee pays City pays an City pays City pays an 100% of $50 per Month; Amount Equal 100% of Amount Equal Premium City Pays to the City's Premium to the Premium Balance of Share of Non- for the Pre-Paid Premium Kaiser HMO Plan, Employee Premium, Responsible for Employee Balance Responsible for Balance Employee + City pays Employee pays City pays an City pays City pays an Family 100% of $50 per Month, Amount Equal 100% of Amount Equal Premium City Pays to the City's Premium to the Premium Balance of Share of Non- for the Pre-Paid Premium Kaiser HMO Plan, Employee Premium, Responsible for Employee Balance Responsible for Balance POA. MOV 7/1/05 - 6/30/10 Page 17 8-20 Represented employees who are married to another represented employee have the option of being covered as an Employee Only or as a dependent under their spouse's Employee + One or Employee + Family coverage level. A. ENROLLMENT 1. Health - Each eligible employee will be covered under the City offered health plan of his or her choice effective from employee's date of hire in that eligible position. For employees enrolling in Kaiser, the City will pay the full cost of the premium. For employees enrolling in a non-Kaiser HMO, the City will pay the cost of the premium less $50 per month. For employees enrolled in a non-Kaiser PPO, the City will pay an amount equal to the City's share of the non-Kaiser HMO premium. Any difference between the City's share of the health premium and the full premium cost will be paid by the employee through payroll deductions. Employees who fail to submit required benefit election forms within 30 days of the date of eligibility or during open enrollment will automatically be enrolled in the Kaiser-Employee Only plan. 2. Dental - Optional Represented employees will be eligible to participate in any City sponsored group dental plan effective the first of the month following the employee's date of hire. The City will pay an amount equal to the pre-paid dental plan premium for employees who enroll in a dental plan within 30 days of their date of eligibility or during open enrollment. Any difference between the pre-paid dental plan premium and the PPO dental plan premium will be paid by the employee through payroll deductions. Employees may only change their health or dental coverage levels at open enrollment or upon a qualifying event (marriage, divorce, birth, adoption, etc.). 3. Vision - Optional 4. Represented employees will be eligible to participate in a City sponsored group vision plan. The premium for this selected plan will be paid by the employee through payroll deduction. 5. Co-Payments It is the intent of the parties that co-payments be set at levels that will provide the highest long-term cost stability to both the City and employees. 6. Employee Paid Medical and Dental Premiums Taken as Pre-Tax Payroll Deductions POA. MOU 7/1/05 - 6/30/10 Page 18 8-21 It is the intent of the parties that participating employees receive the maximum benefit allowable in accordance with IRS regulations. In those cases where the employee pays a portion of the cost, premiums will be deducted from the employee's paycheck on a pre-tax basis as allowed under Sections 125, 105, and 213 of the Internal Revenue Code. If an employee prefers to have the deductions taken on a post-tax basis, he or she must present the request for such change in writing to the Human Resources Department. If the City does not meet IRS requirements, or if IRS regulations change for any reason, this benefit may be discontinued. 7. Insurance Coverage While On Leave of Absence Without Pay Represented employees on leave without pay for any reason may continue, at their own expense, their group insurance coverage by paying the full cost of their premium plus a 2% administrative fee. This provision is subject to the Civil Service Rules regarding Leave of Absence. Upon an employee's return from leave without pay, the employee's benefits will be reinstated to the same benefit level in effect prior to the beginning of the leave without pay status. An employee who paid for the cost of his or her insurance while on leave of absence and who returns to work prior to the 15th of the month, will not be required to pay the insurance premium for that month. 8. Termination of Benefits Upon Separation of Employment An employee's coverage under the City's group medical, dental, and term life insurance plans is effective through the last day of the month in which the employee's separation is effective. The employee may continue benefit coverage beyond that date, at his or her own expense, in accordance with Federal COBRA law. The cost of COBRA coverage is the premium cost plus a 2% administrative fee. II. Flexible Spending Accounts (FSAs)-Health Care and Dependent Care Represented employees will be eligible to participate in the two Flexible Spending Account (FSA) options offered by the City. These accounts are allowed by Sections 125, 105, 129 and 213 of the Internal Revenue Code. Employees may elect to set aside a portion of their salary, on a pre-tax basis, to fund eligible health care and dependent care expenses. If the City does not meet IRS regulations, or if the IRS regulations change for any reason, this benefit may be discontinued. The maximum amounts an employee may set aside are: POA. MOU 7/1/05 - 6/30/1 0 Page 19 8-22 $2,500 for Health Care $5,000 for Dependent Care These accounts may only be established during the Benefits Open Enrollment or within 30 days of a qualifying change in family status as defmed by the IRS. Salary deductions will be taken 24 pay periods per year, bi-weekly except for those months with three pay periods, where deductions will only be taken two times. Reimbursements will be made on a schedule to be determined by the City. Requests for reimbursement must be made on forms provided by the City Any monies not used by the end of the plan year will be forfeited. Specific details of the plan are provided in the City's Summary of Benefits publication available from Human Resources. The City reserves the right to contract with a Third Party Administrator for administration of FSAs. The City will pay the start-up costs associated with third party administration. Participating employees will pay any required fees (monthly, per employee, or per transaction). ARTICLE 2.17 GROUP TERM LIFE INSURANCE The City agrees to pay the premium for $50,000 of group term life insurance for each represented employee. Represented employees may apply for themselves and their eligible dependents to purchase from $50,000 to $300,000 of supplemental group term life insurance in $10,000 increments through the City's group insurance plan with employees paying the additional cost through payroll deductions. ARTICLE 2.18 RETIREMENT The City will provide to represented members retirement benefits via contract with the California Public Employees Retirement System (CaIPERS) as set forth in the California Government Code. The City will provide the 3% at 50 Retirement Plan for Local Safety Members as provided for under the California Public Employees' Retirement System (CaIPERS). In addition to payment of the mandatory employer's contribution to represented employees' retirement benefits, the City agrees to also pay the employee's portion of the PERS contribution, which is presently fixed at 9%. The City will provide the following CalPERS contract options: A. One-Year Final Compensation B. Post-Retirement Survivor Allowance C. Credit for Unused Sick Leave D 4th Level 1959 Survivor Benefit. E. Military Service Credit as Prior Service F. Cost of Living Allowance (2%) G. Post-Retirement Survivor Allowance Continuance POA. MOD 7/1/05 - 6/30/1 0 Page 20 8-23 H. Pre-Retirement Death Benefit for Spouse 1. Retired Death Benefit $5,000 J Prior Service Credit K. Employer Paid Member Contribution ARTICLE 2.19 DEFERRED COMPENSATION POA members shall be eligible to participate in the City's approved deferred compensation plans offered by the City ARTICLE 2.20 RETmEMENTHEAL TH SAVINGS ACCOUNTS A. All employees will be allowed to participate, on a voluntary basis, in the City's Retirement Health Savings (RHS) plan. The RHS plan will provide employees the option of contributing vacation hours to pre-fund post-retirement medical costs. IRS regulations limit the uses for which RHS funds may be used after retirement. Employees are advised to carefully review the information provided by the City regarding permitted uses for RHS funds before deciding whether to participate in the plan. B. Employees will be permitted to make annual irrevocable elections to contribute up to 80 hours (in 40 hour increments) of prospective annual leave to the RHS plan, provided the employee has a combined vacation and sick leave balance of 480 hours. C. Employees will be permitted to make a one-time irrevocable election to contribute all, or any portion of, their accrued annual leave to the RHS plan upon separation or retirement from City service. D. Each part-time employee in a benefited status and paid at a biweekly rate shall be entitled to participate in the RHS plan. The number of hours that a part-time employee shall be allowed to contribute shall be in the proportion that the employee's part-time employment bears to full time employment. E. The RHS plan will be administered by a third party administrator. The City will pay the contractual start-up costs associated with third party administration of the RHS plan. Participating employees will pay participant costs. If the City does not meet IRS regulations or if the IRS regulations change for any reason, this benefit may be discontinued. F The City will continue to research permissible IRS approved funding mechanisms for the RHS plan. Any proposed changes to the RHS plan will be subject to meet and confer during the reopener period during the third year of the MOD. POA. MOV 7/1/05 - 6/30/10 Page 21 8-24 SECTION ill HOURS ARTICLE 3.01 WORK PERIOD 1. The City enacted the 7k exemption in the case ofJaw enforcement as permitted under the Fair Labor Standards Act. The work period for law enforcement employees will be 80 hours in a 14::- day cycle beginning at 00:01 on Friday and ending 14 days later. II. Any deviation from the current scheduling practice will be preceded by a meeting of a committee of the City and POA no more than 6 months and no less than 3 months before implementation of the new schedule. If a mutual agreement is not reached by the committee, the Chief of Police shall have final authority ARTICLE 3.02 FLEXIBLE WORK SCHEDULES The City shall have the right to "flex" schedules under anyone of the following conditions: 1) on an as- needed basis for emergency situations, 2) on an as-needed basis for employees working in the following special assignments: the Gang Suppression Unit, Street Team, Regional Auto Theft Task Force, FBI Task Force, Narcotics Task Force, Marine Air Group, Special Investigations Unit, Narcotics Enforcement Team, and Academy Training Officer, 3) for voluntary training assignments, 4) with the voluntary consent of the employee. Emergency situations shall be defined as natural disasters, declared civil disasters and riots within the City of Chula Vista, or when response is required under a mutual aid agreement. ARTICLE 3.03 VACATION TIME 1. Defmition - For the purposes of this section, the definitions found in the Civil Service Rules shall apply II. Vacation A. Vacation Accrual- Continuous service: Each employee paid at a biweekly rate who has had continuous full-time active service shall be entitled to an annual vacation with pay This benefit will be calculated on 26 pay periods per fiscal year. The following provisions shall apply- 1 Employees will accrue 80-hours during the first through fourth years of service (cumulative to a total leave balance of 160-hours). This benefit will be accumulated at the rate of 3 .07 working hours for each full biweekly pay period of service performed. 2. Employees will accrue and be eligible to receive 120-hours annually (cumulative to a total leave balance of 240-hours) during the fifth through ninth year of POA. MOD 7/1/05 - 6/30/10 Page 22 8-25 ARTICLE 3.04 service. The benefits will be accumulated at the rate of 4.60 working hours for each full biweekly pay period of service performed. 3 Employees will accrue and be eligible to receive l60-hours annually (cumulative to a total leave balance of320-hours) during the tenth through fourteenth years of service. This benefit will be accumulated at the rate of 6.14 working hours for each full biweekly pay period of service performed. 4 Employees will accrue and be eligible to receive 200-hours annually (cumulative to a total leave balance of 400-hours) during the fifteenth and succeeding years of service. This benefit will be accumulated at the rate of? 70 working hours for each full biweekly pay period of service performed. 5 Vacation sell back - All members of represented classifications earning three weeks or more vacation annually will have the option of selling forty (40) hours of said vacation back to the City The accumulated vacation balance will be reduced accordingly. Payment of vacation hours will be made the first payday of each month provided that the Finance Department has received ten working days advance notice of the request prior to the payday. 6. Payment Upon Separation - At the time an employee is separated from City service, whether voluntarily or involuntarily, he/she shall be granted all of the unused annual leave to which he or she is entitled based upon his or her active service in prior years, and in addition, he or she shall be granted annual leave based upon the length of his or her active service during the year in which the separation occurs and computed on the basis set forth in Section (A)(I). Payment shall be made hour for hour with any portion of an hour being considered a full hour. 7 Vacation Use - Annual leave balances shall be reduced by the actual time not worked to the nearest quarter hour. Absence may not be charged to vacation not already accumulated. SICK LEAVE A. Accumulated paid sick leave credit is to be used for the sole purpose of protecting the employee's wages in the event an absence is made necessary because of the disability, injury or illness of the employee or a serious illness or death in his or her immediate family. For purposes of this article, immediate family is defined as spouse, domestic partner, child, stepchild, parent, stepparent, sibling, parent-in-law, grandparent, or any other person living as a member of the employee's immediate household. B. Sick Leave Accrual - Computation of sick leave: sick leave with pay is cumulative at the rate of 3.69 working hours for each biweekly pay period of service, 96 hours annually, beginning at the time of full-time probationary employment. A person who has held a POA. MOD 7/1/05 - 6/30/10 Page 23 8-26 position with temporary or interim status and is appointed to a position with probationary status, without a break in service, may have such time credited to sick leave upon the recommendation of the Chief of Police and Director of Human Resources, and the approval of the City Manager. C. Maximum Sick Leave Accumulation - Unused sick leave may be accumulated in an unlimited amount. D Sick Leave Use - Sick leave balances shall be reduced by the actual time not worked to the nearest quarter hour. Absence for illness may not be charged to sick leave not already accumulated. E. Sick Leave Verification - The City may, in its discretion, require a doctor's certificate and/or a personal sworn affidavit stating that the employee is unable to perform the essential functions of their job in order to determine eligibility for sick leave. If an employee is required to furnish a doctor's certificate for absences of three days or less, the employee must have been notified of such requirement by the Chief of Police or his or her designee, with the approval of the City Manager or his or her designee, at least 24 hours before the time the employee notifies the department that he or she will be absent because of illness or disability. F Sick Leave Reimbursement 1. Employees who are unit employees on and before June 30,1979, shall be entitled to sick leave reimbursement 0(20.83% for up to 120 days (maximum 200 hours) of unused sick leave upon honorable separation. Unit employees covered by this paragraph (I) are not eligible for benefits under paragraph (2). 2. Employees who are not unit employees on June 30, 1979, and who become unit employees thereafter, shall be entitled to sick leave reimbursement as follows (to the exclusion, and in lieu of, any benefits under paragraph (I): a. Employees using thirty two hours (32) or less of sick leave during the fiscal year shall have the option of converting twenty-five percent (25%) of their remaining yearly sick leave to pay b. Pay shall be computed based on the following schedule and all computations shall be rounded to the nearest whole hour: Remaining Yearly Sick Leave Pay 96 hours 88 hours 24 hours 22 hours POA. MOU 7/1/05 - 6/30/10 Page 24 8-27 80 hours 72 hours 64 hours 56 hours or less 20 hours 18 hours 16 hours o hours c. If the pay option is selected, the paid sick leave hours shall be subtracted from the employee's accumulated yearly sick leave balance. The remaining sick leave hours shall be carried over and accumulated. (Example: Employee uses 32 hours of sick leave. He or she then elects to receive pay for 25% of remaining hours, or 16 hours. The 16 hours are subtracted from his or her remaining yearly sick leave and the other 48 hours are added to the employee's accumulated sick leave balance.) d. Payment will be made during the month of July of each year. Pay will be computed based on the employee's salary step on June 15, and will only be calculated for employees who have been on the payroll for one full year at the time calculations are made. e. Permanent employees covered by this paragraph (E)(2) who retire during the fiscal year will be compensated under this plan based on their formal retirement date. Prorated payment also will be made to an employee who terminates during the fiscal year. In the event of the death of an individual while employed by the City, 50% of the employee's unused, accumulated sick leave will be paid to the appropriate beneficiary. 3 The City is proposing a Sick Leave Abuse Policy. The parties agree to meet and confer on this item as a separate process. 4 During the term of the MOD, the parties agree to re-open the discussion of Article 3.04 Sick Leave, with the City to work with the POA regarding the use of sick leave upon approval of industrial disability retirement, with changes implemented only by mutual agreement. ARTICLE 3.05 BEREAVEMENT LEAVE When an employee with permanent status is compelled to be absent from work because of the death of an immediate family member as defmed in Article 3 04 (a), or any other person living in the same household as the employee or immediate family member of the employee's spouse; and after the employee makes a written request and receives written approval from the Chief of Police or his or her designee, the employee may be allowed to use his or her accumulated sick leave, vacation, compensatory time, or floating holiday time for up to five (5) calendar days, plus three (3) days travel POA. MOD 7/1/05 - 6/30/10 Page 25 8-28 time. ARTICLE 3.06 HOLIDAYS I. "Hard Holidays" - During the term of this MOD, the following are the recognized holidays: Independence Day Labor Day Thanksgiving Christmas New Year's Day Martin Luther King, Jr. Memorial Day July 4 First Monday in September Fourth Thursday in November December 25 January I Third Monday in January Last Monday in May II. Holiday Pay A. POA Members Who Cannot Observe a Normal Holiday Schedule I If an officer does not work a hard holiday, he or she will receive 8 hours pay 2. If an officer works a hard holiday on an 8-hour shift, he or she will receive 8 hours pay plus time and one-half for each hour worked. 3 If an officer works a hard holiday on a I a-hour shift, he or she will receive 10 hours pay plus time and one-half for each hour worked. For payment purposes, if a hard holiday falls on a Saturday or Sunday, the day of observance shall be the actual day of the holiday B. POA Members Who Can Observe a Normal Holiday Schedule and Who Work a 5/8 Shift 1. If the hard holiday falls on a scheduled work day, the officer shall be granted time-off, except as otherwise directed by the Chief of Police and/or supervisor. 2. If the hard holiday falls on a scheduled day off, the officer shall receive an extra day off. 3. If an officer works a hard holiday, he or she will receive 8 hours pay plus time and one-half for each hour worked. For payment purposes, if a hard holiday falls on a Saturday or Sunday, the day of observance shall be the day observed by general City employees. POA. MOD 711105 - 6130110 Page 26 8-29 C POA Members Who Can Observe a Normal Holiday Schedule and Who Work a 4/10 Shift 1. If the hard holiday falls on a scheduled work day, the officer shall be granted time-off except as otherwise directed by the Chief of Police and/or supervisor. Holiday time-off shall be granted for the full 10 hour shift. 2. If the hard holiday falls on a scheduled day off, the officer shall receive an extra day off, for the full 1 O-hour shift. 3. If an officer works a hard holiday, he or she will receive 10 hours pay plus time and one-half for each hour worked. For payment purposes, if a hard holiday falls on a Saturday or Sunday, the day of observance shall be the actual day of the holiday III. Floating Holidays Effective the first pay period in July of each fiscal year of this MOU, employees shall be credited with 8 hours each for: Lincoln's Birthday, Washington's Birthday, Admission Day, Columbus Day and Veterans' Day. Employees may take floating holiday time at their discretion with the approval of the Chief of Police or his or her designee. A. Floating Holiday Use - If an employee uses floating holiday time before the holiday passes and subsequently leaves City service, he or she will be charged for such time. If an employee does not use his or her floating holiday time before June 30 of a fiscal year, he or she will lose such time. The smallest unit of time chargeable to floating holiday time is one half (112) hour. ARTICLE 3.07 JURY DUTY Peaee Omeers as aefined UBder the Califemia Penal Cede are e)(elHjlt from serving en state and loeal juries. .^.fiY peaee effieer eO'lerea by this agreement '.vhe reeeives a jlll")' SUllUBOHS will retum the Rotiee with the notation iR the eKplaHatiOR bleek that the persoR is a full time peaee omeer and ~(6lHjlt from. j ary duty. For officers receiving a notice to serve on a federal jury shall be entitled to pay under the following conditions: A. They must present to their supervisor the jury summons to appear for federal jury duty at least three weeks prior to their date to report. B. If jury service and travel time from court to work is less than five (5) hours or seven (7) hours for persons on a 4/1 0 plan in a work day, the employee is expected to return to POA. MOU 7/1105 - 6/30110 Page 27 8-30 work unless a justification is provided and approved or pre-authorized leave is approved. C. Employees who are required to serve jury duty on their scheduled days off will not be compensated for this time and may keep any fees paid by the court. D If the employee is not required to report for jury duty on any particular day( s) they are then expected to be at work as per their normal schedule. E. It is the employees' responsibility to inform his or her supervisor on a daily basis if they are required to report for jury duty the following day F. Absence due to jury duty will be submitted on the City leave form. G. Employees whose workweek is other than Monday through Friday (8'00 a.m. to 5 :00 p.m.) may have their jury duty workday adjustments made by their supervisors. H. Employees who receive compensation for their jury service from the courts will return those funds to the payroll specialist unless Section D applies. ARTICLE 3.08 COURT LEAVE Court leave is paid leave granted by the City to enable an employee to fulfill his or her duty as a citizen to serve as a witness in a court action to which the employee is not a party, before a federal or superior court located within San Diego County Court leave shall be limited to: A. Required attendance before federal or superior courts located within San Diego County B. Time in attendance at court together with reasonable time between court and work if attendance is for less than a full day and the employee can reasonably be expected to return to work. C. Court leave shall not be granted when the employee is paid an expert witness fee. D The employee must submit to the City any payment received for the court appearance except travel and subsistence pay E. Court leave will only be granted to employees who are not litigants in the civil case nor related to litigants in the civil case or defendants in a criminal case. F. Employees shall provide their supervisor with a copy of the legal subpoena and provide other documentary evidence of service. POA. MOD 7/1/05 - 6/30/1 0 Page 28 8-31 ARTICLE 3.09 LEAVES OF ABSENCE MILITARY LEAVE For purpose of this MOD, the Civil Service Rules for leaves of absence and military leave are incorporated as reference as though set out in full in this article. POA. MOD 7/1/05 - 6/30110 Page 29 8-32 SECTION IV WORKING CONDITIONS ARTICLE 4.01 PROIllBITED PRACTICES I. POA pledges it shall not cause, condone or counsel its unit members or any of them to strike, fail to fully and faithfully perform duties, slow down, disrupt, impede or otherwise impair the normal functions and procedures of the City except that nothing shall be construed in this MOD to prevent the FOA or its unit members from exercising anv legal rights or remedies thev mav presentlv possess to redress a wrong. II. Should any unit employees during the term of this MOD breach the obligations of Paragraph I, the City Manager or his or her designee shall immediately notify the POA that an alleged prohibited action is in progress. III. POA shall as soon as possible, and in any event, within eight working hours disavow any strike or other alleged prohibited action, shall advise its members orally and in writing to immediately return to work and cease the prohibited activity and provide the City Manager with a copy of its written advisement or, alternatively, accept the responsibility for the strike or other prohibited activity if it fails to follow one or more of the duties set forth in this article. IV If POA disavows the prohibited activity and takes all positive actions set forth in this MOD in good faith, the City shall not hold the POA financially or otherwise responsible. The City may impose such penalties or sanctions as the City may appropriately assess against the participants. V Should the POA during the term of this MOD breach its obligations or any of them under this Article, it is agreed that the City shall pursue all legal and administrative remedies available to the City that in its discretion it may elect to pursue. VI. There shall be no lockout by the City during the term of this MOD. ARTICLE 4.02 ADVANCE NOTICE The City shall give reasonable advance written notice to the POA on any proposed change or new ordinance, resolution, departmental rule or regulation relating to matters within the scope of representation proposed to be adopted by the City or the Department. The POA shall be given the opportunity to meet and confer with City or Department representatives prior to adoption of any proposed changes. ARTICLE 4.03 DRIVING ELIGmILITY Whenever an employee drives a vehicle for City business he or she shall have a valid California drivers license. In order to ascertain the validity of the employee's license, employees must present their drivers license to their supervisor upon request. The City reserves the right to check with the Department of Motor Vehicles at any time to determine if the license is valid. If an employee's drivers license is POA. MOD 711/05 - 6/30/1 0 Page 30 8-33 revoked, suspended or otherwise made invalid, the employee must inform his or her supervisor. Failure to notify the supervisor may result in immediate disciplinary action. An employee who does not posses a valid California driver's license will be considered for a non-driving position, if one is available in the employee's classification. The non-driving assignment will continue for a maximum of six months if there is a reasonable expectation the employee will have a valid California driver's license at the expiration of that time. Extensions to the six-month limit will be considered on a case-by-case basis, however, in no case shall an employee receive more than one non-driving assignment in any three-year period. When no non-driving assignment is available, employees must request a leave of absence without pay for six months or until such time as their license is once again valid, whichever is shorter. In order to assure that non-driving assignments are provided on a fair and equitable basis, the following procedures shall be observed. A. Each department will determine whether it has any non-driving assignments that can be filled by employees who would otherwise have driving assignments. B. Non-driving assignments will be given on a first come, first served basis. For example, if two employees in a department have a non-valid driver's license and there is only one non-driving assignment, the first employee who comes forward will be given the non- driving assignment. The other employee may apply for a leave of absence as described above. ARTICLE 4.04 PHYSICAL ABILITY TESTING A. The City of Chula Vista along with the POA agrees that for the safety of the employee as well as the public, those employees who are represented by the POA should maintain a minimum level of physical fitness. The physical fitness of the employee will be assessed in two manners. The first will be a physical assessment and the second a physical agility test. B. All represented employees may be required to undergo a physical fitness assessment if the Chief of Police and/or the Human Resource Department determines an assessment is necessary to insure the employee can fully perform his or her duties. The initial assessment will generally consist of a physical conditioning assessment. C. Physical Agility Test Employees may be required to take a physical agility test, in accordance with the standards and tests established as part of the physical agility program unless they request and receive an exemption from the Chief of Police. ARTICLE 4.05 FITNESS FOR DUTY POA. MOD 7/1/05 - 6/30/10 Page 31 8-34 The parties agree that physical and mental fitness of City employees are reasonable requirements to perform the duties of the job and instill public confidence. Recognizing these important factors, the parties agree that during the term of this MOU, the City with reasonable cause, may require medical and psychological assessments of employees provided the City pays and provides time off without loss of pay for such assessments. All such assessments shall be done by appropriately qualified health care professionals. It is understood that the assessment regimen performed by said professionals shall be reasonably related to the requirements and duties of the job. Any treatment or remedial action shall be the full responsibility of the employee, except as otherwise provided by law or as may be provided through the Employee Assistance Program (EAP) for City employees. ARTICLE 4.06 SUBSTANCE ABUSE POLICY Employees represented by POA are subject to the City's Substance Abuse Policy ARTICLE 4.07 PAYROLL DEDUCTION Upon the receipt of a written request and authorization from an employee for deduction of PO A dues the City shall withhold such dues from the salary of the employee and remit the withholdings to the POA. The City shall continue to withhold such deductions unless the employee files a statement with the City withdrawing authorization for the continued withholding of the deductions. The effective date of withholding to the POA, and the effective date of discontinuance and all procedural matters shall be determined in accordance with the Rules and Regulations of the Director of Finance. ARTICLE 4.08 DIRECT DEPOSIT .^.1l representea employees will be reEtUired to proviae written alHftorization to the City's Direetor of finance to electroRieally deposit their paychecks to a fiRaneial iHstitutien of their choice. For Hew empl0yees, the eff-cetiye aate of this article 'sill be the date of hire. Fer 61ffient empleyees, the ffiafldatory direct aeposit program will be phased in S0 that employees wh0 ao not 61ffiently have aeco_ts haye suffieient time te establish ae68uats '.yith the fillafieial instituti8n of their eheiee. The fmal Elate f-er implememati0n 0fthls pr0gram will be Deeember 15,2005.Represented employees hired on or after Januarv 1. 2006 will be required to provide written authorization to the Citv's Director of Finance to electronicallv deposit their pavchecks to a financial institution oftheir choice. ARTICLE 4.09 GRIEVANCE PROCEDURE This grievance procedure shall be in effect during the full term of this MOU Section I PURPOSE. The purposes and objectives of the Grievance Procedure are to: POA. MOD 7/1/05 - 6/30/10 Page 32 8-35 Section 2. Section 3. I Resolve disputes arising from the interpretation, application or enforcement of specific terms of this MOD 2. Encourage the settlement of disagreements informally at the employee-supervisor level and provide an orderly procedure to handle grievances through the several supervisory levels where necessary 3 Resolve grievances as quickly as possible and correct, if possible, the causes of grievances thereby reducing the number of grievances and future similar disputes. DEFINITIONS. For the purpose of this grievance procedure the following definitions shall apply' I Manager: The City Manager or his or her authorized representative. 2. Day' A calendar day, excluding Saturdays, Sundays and hard holidays as described by this MOD 3 Department head or head of a department. The chief executive officer of a department. 4. Director of Human Resources: The Director of Human Resources or his or her authorized representative. 5 Employee: Any officer or regular (not temporary) employee of the City, except an elected official. 6. Employee representative: An individual who speaks on behalf of the employee. 7. Grievance: A complaint of an employee or group of employees arising out of the application or interpretation of a specific clause in this MOO. 8. Immediate supervisor: The individual who assigns, reviews, or directs the work of an employee. 9 Superior: The individual to whom an immediate supervisor reports. REVIEWABLE AND NON-REVIEWABLE GRIEVANCES. I To be reviewable under this procedure a grievance must: a. Concern matters or incidents that have occurred in alleged violation of a specific clause in this MOD; and POA. MOU 7/1/05 - 6/30/10 Page 33 8-36 b. Specify the relief sought, which relief must be within the power of the City to grant in whole or in part. 2. A grievance is not reviewable under this procedure if it is a matter which: a. Is subject to those reserved City Management Rights as stipulated under Section 4 of the Employer-Employee Relations Policy for the City of Chula Vista or under management rights as specified in this MOD b. Is reviewable under some other administrative procedure and/or rules of the Civil Service Commission such as: (1) Applications for changes in title, job classification or salary. (2) Appeals from a formal disciplinary proceeding. (3) Appeals arising out of Civil Service examinations. (4) Appeals from work performance evaluations. (5) Appeals that have a civil rights remedy or some other remedy specified by law. c. General complaints not directly related to specific clauses of this MOD. d. Would require the modification of a policy established by the City Councilor by law e. Relates to any City group insurance or retirement program. Section 4. GENERAL PROVISION OF THE GRIEVANCE PROCEDURE. 1. Grievances may be initiated only by the employee or employees concerned or by the POA on behalf of itself regarding an otherwise grievable incident. The POA cannot grieve for itself an incident already grieved by an employee or group of employees. Conversely, an employee or group of employees cannot grieve an incident already grieved by the POA. 2. Procedure for Presentation. In presenting his or her grievance, the employee shall follow the sequence and the procedure outlined in Section 5 3 Prompt Presentation. The employee shall discuss his or her grievance with his or her immediate supervisor within ten (10) working days after the act or omission of management causing the grievance, or within ten (10) working days of when the employee, with the exercise of reasonable diligence, should have discovered POA. MOU 7/1/05 - 6/30/10 Page 34 8-37 the act or omission being grieved. 4 Prescribed Form. The written grievance shall be submitted on a form prescribed by the Director of Human Resources for this purpose. 5. Statement of Grievance. The grievance shall contain a statement of: a. The specific situation, act or acts complained of as a violation of the MOD, b. The inequity or damage suffered by the employee; and c. The relief sought. 6. Employee Representative. The employee may choose someone to represent him or her at any step in the procedure. No person hearing a grievance need recognize more than one representative for any employee at anyone time, unless he or she so desires. 7 Handled During Working Hours. Whenever possible, grievances will be handled during the regularly scheduled working hours of the parties involved. 8. Extension of Time. The time limits within which action must be taken or a decision made as specified in this procedure may be extended by mutual written consent of the parties involved. A statement of the duration of such extension of time must be signed by both parties involved at the step to be extended. 9. Consolidation of Grievances. If the grievance involves a group of employees or if a number of employees file separate grievances on the same matter, the grievances shall, whenever possible, be handled as a single grievance. 10. Settlement. Any complaint shall be considered settled without prejudice at the completion of any step if all parties are satisfied or if neither party presents the matter to a higher authority within the prescribed period of time. 11. Reprisal. The grievance procedure is intended to assure a grieving employee the right to present his or her grievance without fear of disciplinary action or reprisal by his or her supervisor, superior or department head, provided he or she observes the provisions of this grievance procedure. 12. Back pay The resolution of a grievance shall not include provisions for back pay retroactive further than twenty (20) working days prior to the date the grievance is filed. However, if with the exercise of reasonable diligence the act or omission being grieved was not discovered within 10 working days of its occurrence, and the grievance is subsequently timely filed pursuant to Section IV (3), then the resolution of the grievance may include provision for back pay for a maximum POA. MOU 7/1/05 - 6/30/1 0 Page 35 8-38 period of one year from the date the grievance was filed so long as such back pay awards are compliant with the law Section 5 GRIEVANCE PROCEDURE STEPS. The following procedure shall be followed by an employee submitting a grievance pursuant to this article: Step 1 Discussion with Supervisor The employee shall discuss his or her grievance with his or her immediate supervisor informally. Within three (3) working days, .the supervisor shall give his or her decision to the employee orally Step 2 Written Grievance to Superior. If the employee and supervisor cannot reach an agreement as to a solution of the grievance or the employee has not received a decision within the three (3) working days' time limit, the employee may within seven (7) working days present his or her grievance in writing to his or her supervisor. The supervisor shall provide written comments to the grievance and present the grievance and comments to his or her superior within seven (7) working days. The superior shall hear the grievance and give his or her written decision to the employee within seven (7) working days after receiving the grievance. Step 3 Grievance to Department Head. If the employee and superior cannot reach an agreement as to a solution of the grievance or the employee has not received a written decision within the seven (7) working days' limit, the employee may within seven (7) working days present his or her written grievance and all written comments and/or decisions in writing to his or her department head. The department head shall hear the grievance and give his or her written decision to the employee within seven (7) working days after receiving the grievance. Representative at Step 4 Step 4 Grievance to Director and Manager. If the grievance is not settled at the department head level, it may be submitted by the POA Representative within twenty (20) working days to the Director of Human Resources, who shall investigate and report his or her findings and recommendations to the City Manager within ten (10) working days. The City Manager shall provide his or her answer within ten (10) additional working days. The times indicated may be extended by mutual agreement. Any Employee grievance will be filed by the POA Following the submission of the City Manager's answer, and before going to Section 6, Advisory Arbitration, matters which are unresolved shall be discussed at a meeting between the parties during which all pertinent facts and information will be reviewed in an effort to resolve the matter through conciliation. POA. MOD 711/05 - 6/30/10 Page 36 8-39 Section 6. ADVISORY ARBITRATION. Any dispute or grievance which has not been resolved by the Grievance Procedure may be submitted to advisory arbitration by the POA Representative or the City without the consent of the other party providing it is submitted within ten (10) working days, following its termination in the Grievance Procedure. The following Advisory Arbitration procedures shall be followed. 1. The requesting party will notify the other party in writing of the matter to be arbitrated and the MOD provision(s) allegedly violated. Within five (5) working days of the receipt of this notice, the parties may agree upon an arbitrator, or a panel of three arbitrators trained in conducting grievance hearings. If agreement on an arbitrator cannot be reached, the State Department of Industrial Relations shall be requested by either or both parties to provide a list of five arbitrators. Both the City and the POA shall have the right to strike two names from the list. The party requesting the arbitration shall strike the first name; the other party shall then strike one name. The process will be repeated and the remaining person shall be the arbitrator. 2. The arbitrator shall hear the case within twenty (20) working days after the arbitrator has been selected. The arbitrator shall make rules of procedure. The arbitrator shall make a written report of their fmdings to the POA and the City within fifteen (15) working days after the hearing is concluded. The decision of the arbitrator shall be advisory to the City Manager who shall render a final decision within ten (10) working days. The arbitrator shall have no authority to amend, alter or modify this MOD or its terms and shall limit recommendations solely to the interpretation and application of this MOD The above time limits of this provision may be extended by mutual agreement. 3 Each grievance or dispute will be submitted to a separately convened arbitration proceeding except when the City and the POA mutually agree to have more than one grievance or dispute submitted to the same arbitrator. 4. The City and the POA shall share the expense of arbitrators and witnesses and shall share equally any other expenses, including those of a stenographer, if required by either party If either party elects not to follow the advisory decision rendered by the arbitrator, that party shall pay the entire cost of the arbitration process, including the expense of the arbitrator, witnesses and/or stenographer. lEnd of page. Next page is signature page.] POA. MOD 7/1/05 - 6/30/10 Page 37 8-40 Negotiating Parties For the City: For the POA: D"!bR;,~&bn" City ManagerDirector of Human Resources Manny Mendoza, President Police Officer's Association Date ~~'> /c ~ , e -{~- -Vp Date Maieia RaslanJim Thomson NegotiatorInterim City Manager Richard H. Castle. Jr.. Esq, I Date Date POA. MOU 7/1/05 - 6/30/10 Page 38 8-41 Attachment A EFFECTIVE 01/01/2006 CLASSIFICATION STEP 1 STEP 2 STEP A STEP B STEP C STEP D STEP E Peace Officer $23.52 $2470 $27.87 $29.27 $30.73 $32.37 $33.89 Police Agent 30.70 35.31 42.37 32.23 37.08 44.50 33.85 38.93 46.72 35.54 40.88 49.06 37.31 42.93 51.52 Police Sergeant Police Lieutenant NOTE. Police Recruits are represented by CVEA These base hourly rates are an approximation only Final hourly rates may be different due to rounding of figures. POA. MOU 7/1/05 -6/30110 Page 39 8-42 COUNCIL AGENDA STATEMENT ITEM TITLE: ~ Item vi Meeting Date: Auaust 22. 2006 Resolution WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT WITH THE CENTRE FOR ORGANIZATION EFFECTIVENESS FOR STAFF PROFESSIONAL DEVELOPMENT CONSULTANT SERVICES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Director of HU7esources /1fZ-- City Manager ;1 (4/5ths Vote: Yes_ No-Xl SUBMITTED BY: REVIEWED BY: Staff seeks to enter into an agreement with The Centre for Organization Effectiveness for professional staff development consultant services over a two-year period. The proposed agreement with The Centre includes providing Supervisory, Management and Executive Leadership academies for the City Since the total consultant fee for all of The Centre agreements over a two-year period will exceed $50,000 each fiscal year, Council approval is required. Staff is recommending waiving the formal consultant selection process and entering into an agreement with The Centre for the specified supervisory and executive staff development consultant services. The recommendation is based on The Centre's qualifications and experience, knowledge of the City, consistency in training and their exemplary work performance on the previous Supervisor and Executive Leadership Academies. RECOMMENDATION: That Council adopts the resolution waiving the formal consultant selection process and approving an agreement with The Centre for professional staff development consultant services; and authorize the Mayor to execute said agreement. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: The proposed agreement with The Centre is for Supervisory/Management/Leadership Academies that will assist with succession planning and leadership development skills. The Centre, a regional governmental agency providing innovative management programs, training, forums and organizational development interventions based in San Diego, has been instrumental in assisting the City of Chula Vista over the years on executive leadership and management training. Staff's recommendation to waive the formal consultant selection process is based on The CENTRE's qualifications and experience, consistency with the prior academies, and their above satisfactory work performance on previous consultant assignments with the City The proposed agreement with THE CENTRE is for the following work assignments: 9-1 ~ Item I Meeting Date: August 22, 2006 Page 2 of 2 · Develop and present up to two, five-day Executive Leadership Academies each year for middle managers, senior managers, and executive managers of the City of Chula Vista to help prepare for succession planning and workforce development. Conduct up to two Supervisor Academies for first line supervisors each year. The scope of work for the Agreement (Exhibit A) includes: · Meet with key senior and executive managers to determine needs, interest, and issues; · Tailor the Executive Leadership Academy and Supervisor's Academy to the needs of the City of Chula Vista and managers; · Tailor and facilitate planning sessions between the City Manager, Assistant City Managers and the Human Resources Director or their designee; · Provide a facilitator, presenter and/or coach for each of the training modules, providing all materials. FISCAL IMPACT: Approval of this resolution will award a contract to The Centre for Organization Effectiveness for supervisory, management, and executive leadership academies for fiscal years 2007 and 2008 on an as needed basis. There is sufficient funding for a Leadership Academy and a Supervisor's Academy in the fiscal year 2007 Human Resources Department budget. The cost of each Leadership Academy is approximately $38,000 and each Supervisor's Academy is approximately $16,000.Funding for future leadership academies will come from departmental savings and/or an additional appropriation requests. Exhibits: A. Agreement between City of Chula Vista and The Centre 9-2 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT WITH THE CENTRE FOR ORGANIZATION EFFECTIVENESS FOR STAFF PROFESSIONAL DEVELOPMENT CONSULTANT SERVICES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, staff seeks to enter into a second agreement this fiscal year with The Centre for Organization Effectiveness ("The Centre") for professional staff development consultant services (Exhibit A); and WHEREAS, the proposed agreement with The Centre includes providing Management and Executive Leadership academies for the City of Chula Vista; and WHEREAS, the total consultant fee for the proposed agreement is $32,765 for the City's Executive Leadership Academy; and WHEREAS, staff recommends the waiving of the consultant selection process of Municipal Code section 2.56.11 0 in light of The Centre's qualifications and experience, the limited market for their expertise, and their satisfactory work performance on previous professional staff development consultant assignments. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofChula Vista, does hereby waive the formal consultant selection process and approve an agreement with The Centre for Organization Effectiveness for staff professional development consultant services in an amount not to exceed $32,765 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 Presented by' Approved as to form by' ~~G\,,\\~\tk\;\ Ann Moore City Attorney Marcia Raskin Director of Human Resources J:\Attomey\RESO\AGREEMENTS\waiving consultant selection. Centre for Org. Effectiveness.doc 1 9-3 THE ATTACHED AGREEJ\1ENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~<1{*, ~\l\~\(J,"'\ Ann Moore City Attorney Dated: 8/16/06 Two-Party Agreement with The Centre for Organization Effectiveness for Executive Leadership Academy 9-4 Parties and Recital Page(s) Agreement between City of Chula Vista And The Centre for Organization Effectiveness For Executive Leadership Academy This agreement ("Agreement"), dated August 18, 2006 forthe purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 .is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consl:lltant"), and is made with reference to the following facts: Recitals Whereas, the human resources of the City of Chula Vista are crucial to the overall success and future of organization; Whereas, one of the primary goals of the City is to ensure workforce and succession planning, with respect to its human resources, and to train and assist in the professional development of its staff; Whereas, participation in professional and specialized executive and supervisory level leadership academy middle, senior and executive level managers will result in the likelihood of increased effectiveness of the entire organization, Whereas, the Consultant possesses extensive training, expertise and experience in developing and conducting the type of professional and specialized executive management training sought by the City; Whereas, the City is waiving the informal consultant selection process due to the expertise of the consultant in developing staff through the supervisory and executive leadership academy addressing issues such as leadership, strategic and systemic thinking, communication, performance management, decision making and decisiveness, power and politics, risk-taking and innovation, ethics and ethical decision-making, building a high performing team, conflict management skills, and resilience and career management; and Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Page 1 9-5 Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1 Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled" Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this Agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services" Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Page 2 9-6 Consultant, in performing any Services under this Agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. F. Minimum Limits of Insurance Consultant must maintain limits no less than. 1 General Liability' (Including operations, products and completed operations, as applicable.) 2. Automobile Liability' 3. Workers' Compensation Employer's Liability' $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee 4 Professional Liability or $1,000,000.00 each occurrence Errors & Omissions Liability' $2,000,000 policy aggregate Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: 1 The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the consultant's including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the consultant's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products I Completed Operations coverage. 2. ihe consultant's General Liability insurance coverage must be primary insurance as it Page 3 9-7 pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the consultant and in no way relieves the consultant from its responsibility to provide insurance. 3. Each insurance policy required by this clause must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnity the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required poiicy providing coverage during the life of this contract. If General Liability, Pollution andlor Asbestos Pollution Liability andlor Errors & Omissions coverage are written on a claims-made form: The 'Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. 1 Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. 2. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a 'Retro Date' prior to the contract effective date, the Consultant must purchase 'extended reporting" coverage for a minimum of five (5) years after completion of contract work. A copy of the claims reporting requirements must be submitted to the City for review Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers (LESLI) with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. Subcontractors Consultants must include all sub-consultants as insureds under its policies or furnish separate certificates and endorsements for each sub-consultant. All coverage for sub- consultants are subject to all of the requirements included in these specifications. Page 4 9-8 G. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates ot Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. In orderto demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager H Security for Performance. (1) Performance Bond. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http.llwww fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. (2) Letter of Credit. In the event that ExhibitA, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Page 5 9-9 Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A. (3) Other Security In the event that Exhibit A, at Paragraph 19, indicates the need for Consultan~ to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney I. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this Agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the Agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this Agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. Page 6 9-10 All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 (C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on. Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this Agreement. 4 Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof 5 Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14 It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate") Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions oftime, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer Page 7 9-11 If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Refonm Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as detenmined by the City Attorney B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has detenmined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the tenm of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's, which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder F Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property Page 8 9-12 which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 15 Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term, of this Agreement, or for 12 months thereafter Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party, which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and Consultant's employees, subcontractors or other persons, agencies or firms for whom Consultant is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party With respect to losses arising from Consultant's professional errors or omiSSions, Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Consultant's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Consultant's obligations under this Section shall not be limited by any prior or subsequent declaration by the Consultant. Page 9 9-13 Consultant's obligations under this Section shall survive the terminationofthis Agreement. 8 Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and, specifying the effective date thereof at least five (5) days before the effective date of such termination, In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consl;Jltant's breach, g, Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City Nothing herein is intended to limit City's rights under other provisions of this agreement. 10 Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11 Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants" Page 1 0 9-14 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent, of City City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Consultant City is interested only in the results obtained and Consultant shall perform as an independent consultant with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any ofthe Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent consultant and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14 Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing arid filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as iffully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15 Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to Page 11 9-15 reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16 Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers. and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17 Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D 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 Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. Page 12 9-16 E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F Governing LawNenue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. Page 13 9-17 1218/17 '1216 13:56 THE CENTRE ~ 916194762348 NO.01S I;102 Signature Page Agreement between City of Chula Vista and The Centre for Organization Effectiveness For Management Academy and Consulting Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City of Chula Vista Attest: by: John Coggins, Purchasing Agent Susan Bigelow. City Clerk Approved as to form: Ann Moore, City Attomey Dated: The Centre for Organization Effectiveness BY~_~ Tru y J. So .0. Co-Executive Director Exhibit List to Agreement (X) Exhibit A. "';>s<> 14 9-18 Exhibit A Agreement between City of Chula Vista and The Centre for Organization Effectiveness 1 Effective Date of Agreement: August 22, 2006 2. City-Related Entity. (X) City of Chula Vista, a municipal chartered corporation of the State of California 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4 Consultant: The Centre for Organization Effectiveness 5 Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ( ) Corporation (X) California Joint Powers Authority 6 Place of Business, Telephone and Fax Number of Consultant: World Trade Center 1250 Sixth Avenue, Suite 150 San Diego, California 92101 Voice Phone (619) 685-1340 Fax Phone (619) 685-1342 Page 15 9-19 7 General Duties: 1) Develop and present a five-day Executive Leadership Academy for mid managers, senior managers, and executive managers of the City of Chula Vista to help prepare for succession planning and workforce development. 2) Develop and present a four-day Supervisor's Academy for supervisors. and managers to insure consistent policy and process implementation and insure risk avoidance in personnel actions. 8 Scope of Work and Schedule. A. Detailed Scope of Work: The Centre for Organization Effectiveness ("The Centre") shall, as an independent consultant, perform technical and temporary services as a professional expert as follows. 1) The Centre shall develop and conduct an executive leadership academy consisting of five (5) separate eight (8) hour training modules ("Executive Leadership Academy"), nqt to exceed more than five (5) weeks. 2) Prior to conducting the Executive Leadership Academy, The Centre shall meet with key senior and executive managers to help determine the needs, interests, and issues confronting the City as it prepares for the future. 3) The Centre shall specifically tailor the Executive Leadership Academy to the City of Chula Vista and its managers who undertake the Executive Leadership Academy The City Manager, Assistant City Managers and Director of Human Resources or designee has the right of final approval with respect to the topics to be covered by and the content of the Executive Leadership Academy 4) The Centre shall specifically tailor and facilitate planning sessions between the Human Resources Director or designee and Assistant City Managers. The Assistant City Manager/Director of Human Resources or designee has the right of final approval with respect to the topics to be covered by and the content of the planning sessions. Page 16 9-20 5) The Centre shall provide a facilitator, presenter and/or coach for each of the five training modules forming the Executive Leadership Academy and planning sessions and shall provide all materials, including but not limited to, assessment instruments, necessary to maximize the effectiveness of the Executive Leadership Academy 6) The Centre shall develop and conduct a four-day supervisory academy consisting of five (5) separate eight (8) hour training modules ("Supervisor's Academy"), not to exceed more than five (5) weeks. 7) Prior to conducting the Supervisor's Academy, the Centre shall meet with key senior and executive managers to help determine the needs, interests, and issues confronting the City as it prepares for the future. 8) The Centre shall specifically tailor the Supervisor's Academy to the City of Chula Vista and its managers who undertake the Supervisor's Academy The Acting City Manager, Assistant City Managers and Director of Human Resources or designee has the right of final approval with respect to the topics to be covered by ad the content of the Supervisor's Academy B. Date for Commencement of Consultant Services: (x) Same as Effective Date of Agreement ( ) Other" C Dates or Time Limits for Delivery of Deliverables: Deliverable No 1 October 18, 2006 Deliverable NO.2: November 14, 2006 o Date for completion of all Consultant services: On-QoinQ 9 Materials Required to be Supplied by City to Consultant: 1 The City shall provide a projector, laptop and computer, as needed. Page 17 9-21 2. The City shall handle the logistics for arranging a site at which to conduct the Executive Leadership Academy and the Supervisory Academy, and thereafter shalf pay for all costs incurred in connection with conducting the Executive Leadership Academy and the Supervisor's Academy, including meeting room(s), morning and afternoon refreshment breaks, and lunch. The site selected by the City will be the Chula Vista Police Department Community and Training rooms and the Nature Center Auditorium. 10 Compensation: A. () Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shalf pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below' Single Fixed Fee Amount: . payable as folfows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shalf receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the fulf retention has been held back from the compensation due for that phase. Percentage of completion of a phase shalf be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shalf designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion ofthe phase has been performed by the Consultant. The practice of making interim monthly advances shalf not convert this agreement to a time and materials basis of payment. Page 18 9-22 B. (x) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1 Executive Leadership Academy $ 32,160 Academy II $ 16,000 Academy III 2. Supervisor's Academy () 1 Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C () Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours oftime spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule hereinbelow according to the following terms and conditions. Page 19 9-23 (1) () Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for including all Materials. and other "reimbursables" ("Maximum Compensation"). (2) () Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Consultant's Employee Name Hourly Rate () Hourly rates may increase by 6% for services rendered after [month]. 2005, if delay in providing services is caused by City 11 Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required. City shall pay Consultant at the rates or amounts set forth below' (x) None, the compensation includes all costs. Cost or Rate () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ Page 20 9-24 () Delivery, not to exceed $ () Long Distance Telephone Charges, not to exceed $ () Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: City' Marcia Raskin, Department Director City of Chula Vista Human Resources Department Consultant: Trudy J Sopp, Co-Executive Director The Centre for Organization Effectiveness 13. Liquidated Damages Rate: ( ) $ per day ( ) Other' 14 Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ( X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer () Category NO.1 Investments and sources of income. () Category NO.2. Interests in real property () Category No 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. () Category NO.4 Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property () Category No 5 Investments in business entities and sources of income of the type which, within the past two years, have contracted Page 21 9-25 with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. () Category No. 6 Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No 7 Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any' 15 () Consultant is Real Estate Broker and/or Salesman 16 Permitted Subconsultants: _Keren Stashower _Mark Slater 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly (X ) Other' Upon completion of each of the Academy B Day of the Period for submission of Consultant's Billing ( ) First of the Month ( ) 15th Day of each Month ( ) End of the Month ( ) Other' C City's Account Number' See attached spreadsheet 18. Security for Performance ( ) Performance Bond, $ Page 22 9-26 ( ) Letter of Credit, $ ( ) Other Security. Type. Amount: $ (x) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that, the Retention Release Event, listed below, has occurred' (x) Retention Percentage 10% ( ) Retention Amount: $ Retention Release Event: (x) Completion of All Consultant Services ( ) Other' Page 23 9-27 CITY COUNCIL AGENDA STATEMENT ITEM NO.: MEETING DATE: )() 8/22/06 ITEM TITLE: RESOLUTION APPROPRIATING FUNDS BASED UPON UNANTICPATED REVENUES TO REIMBURSE THE POLICE DEPARTMENT FOR SPECIAL EVENT SERVICES FOR THE 7TH ANNUAL OTAY RANCH DAY ON SEPTEMBER 16, 2006 AS AGREED UPON BY THE OTAY RANCH COMPANY. SUBMITTED BY: REVIEWED BY: DIRECTOR OF COMM ICATIONS CITY MANAGER rJl 4/5THS VOTE: YES ~ NO D On August 8th, 2006, the City Council approved the Otay Ranch Company's Crequest for temporary street closure on East Palomar for the 7th Annual Otay Ranch Day from noon to 4;30 p.m. on Saturday, September 16,2006. Because there were only three Council Members present during the August 8tli, 2006 City Council meeting, the appropriation portion of Resolution 2006- 247 was removed and rescheduled for Council action to the August 22nd, 2006 City Council meeting. This resolution would appropriate funds to the FY 2007 Police Department Personnel Services budget for overtime related to Police support of the 7th Annual Otay Ranch Day festivities. RECOMMENDATION That Council adopts the resolution appropriating $1,381 to the FY 07 Police Department Personnel Services budget based upon unanticipated revenues to reimburse the Police Department for special event services for the 7th Annual Otay Ranch Day on September 16, 2006 as agreed upon by the Otay Ranch Company. BOARDS/COMMISSIONS RECOMMENDATIONS Not Applicable BACKGROUND At the August 8, 2006 City Council meeting, there were only three Council Members present, thereby precluding any action on items which appropriated funds (fund appropriations require a 4/5's vote). The appropriations portion for Council Resolution 2006-247 were removed and scheduled for Council action on August 22, 2006. 10-1 PAGE 2, ITEM NO.: MEETING DATE: /0 8/22/06 DISCUSSION During the August 8, 2006 Council Meeting, Council approved Resolution 2006-247 which was a request by the Otay Ranch Company who is sponsoring the 7th Annual Otay Ranch Day on Saturday, September 16, 2006. They requested a temporary street closure of East Palomar from Santa Rita to Santa Andrea to stage the event in the village core of Heritage Town Center. The street will be closed from noon to 4:30 p.m. The westbound lane will be used to diagonally park 50 to 60 classic cars as part of a classic car show. Monarche Drive will remain open to traffic in both directions at all times allowing residents access to all neighborhoods. The event will consist of a classic car show, 30- 40 craft booths, live entertainment, food service from a catering company and activities for children. There is anticipated to be SOO people in attendance throughout the duration of the event. The event sponsor has agreed to pay Chula Vista Peace Officers to monitor crowd control and traffic flow. The Police Department estimates that it will need two officers (on an overtime basis) for 10 hours to monitor crowd control and traffic flow. The cost to provide this service is estimated to be $1,381. This estimate is based upon full cost recovery for both of the Peace Officers. This resolution will make the appropriations to the FY 2007 Police Department Personnel Services budget for overtime expenditures. DECISION MAKER CONFLICTS Staff reviewed the property holdings of the City Council and has found no such holdings within 500' of the property that is subject of this action. FISCAL IMPACT There is no fiscal impact to the General Fund. The event sponsor will be responsible for all event costs. The Police Department estimates that the total costs to provide two Peace Officers to provide police services to be $1,381. The Police Department requests appropriating these funds to the FY 07 Police Department Personnel Services. Any services provided by the City before, during or after the event will be fully reimbursed by the sponsor. 10-2 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING FUNDS BASED UPON UNANTICIPATED REVENUES TO REIMBURSE THE POLICE DEPARTMENT FOR SPECIAL EVENT SERVICES FOR THE 7TH ANNUAL OTAY RANCH DAY ON SEPTEMBER 16, 2006 WHEREAS, the City Council of the City of Chula Vista approved the temporary closure of East Palomar from Santa Rita to San Andrea for the 7th Annual Otay Ranch Day from noon to 4.30 p.m. on September 16, 2006 as requested by the Otay Ranch Company and approved the Agreement between the City of Chula Vista and the Otay Ranch Company on August 8, 2006, and WHEREAS, the costs of any services provided by the City before, during or after Otay Ranch Day will be reimbursed by the Otay Ranch Company at full cost recovery rate; and WHEREAS, the Police Department estimates that the total cost to provide two Peace Officers to provide police services for Otay Ranch Day to be $1,381, and WHEREAS, the City's Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project qualifies for a Class 4 categorical exemp.tion pursuant to Section l5304(e) of the state CEQA Guidelines. Thus, no further environmental review is necessary NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it appropriates $1,381 to the Police Department's Personnel Services budget based on unanticipated revenues for costs associated with providing police services for the 7th Annual Otay Ranch Day Presented by Approved as to form by Liz Pursell Director of Communications L(/~ d~~ Ann Moore City Attorney J:\Attomey\ELISA\RESOS\Otay Ranch Day Reso.doc 10-3 COUNCIL AGENDA STATEMENT Item: Meeting Date. I' 8/22/06 ITEM TITLE: RESOLUTION OF THE CITY COUNCil OF THE CITY OF CHULA VISTA APPROPRIATING $27,000 AND CONTRIBUTING SAID FUNDS TO THE SAN DIEGO FIRE RESCUE FOUNDATION FOR THE PURCHASE OF AUTOMATIC EXTERNAL DEFIBRilLATORS TO BE PLACED IN CHULA VISTA SCHOOLS SUBMITTED BY' City Mana~rf Fire Chief j)~' REVIEWED BY: City Manager (4/5ths Vote: YesLNo _I The City of Chula Vista has been requested by County Board of Supervisors Greg Cox's office to contribute $27,000 to the San Diego Fire and Rescue Foundation in order to help fund the cost of Automatic External Defibrillators (AEDs). Supervisor Cox has partnered with San Diego Project Heartbeat in order to deploy AEDs to all of the schools in the South Bay school districts. The goal of San Diego Project Heartbeat is to place automatic external defibrillators AEDs throughout the County County of San Diego Supervisor Greg Cox's office is facilitating this project on behalf of South Bay residents. Supervisor Cox has requested that the City of Chula Vista share in the cost of purchasing and deploying AEDs for schools within the city RECOMMENDATION: That Council adopts the resolution amending the services and supplies budget of the Fire Department by appropriating $27,000 from the available balance of the general fund and authorizing the City of Chula Vista to contribute $27,000 to the San Diego Fire Rescue Foundation for the purchase and deployment of AEDs in City of Chula Vista schools. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: The City of Chula Vista received a request for a $27,000 contribution for the purchase and deployment of AEDs for Chula Vista schools from the Board of County Supervisors Member Greg Cox's office. Supervisor Cox requested these funds in conjunction with San Diego Project Heartbeat. San Diego Project Heartbeat is a countywide effort to make AEDs as accessible as fire extinguishers throughout the community An Automatic External Defibrillator or AED is an easy-to-use, automated device that delivers a Iife- 11-1 saving electric shock to the heart to halt rapid and chaotic heart activity, commonly known as Sudden Cardiac Arrest, and restores normal heart rhythm. AEDs are designed to be used by non-medical personnel. The goal of Project Heart Beat is to improve the survivability of sudden cardiac arrest victims in San Diego by placing defibrillators in: . City Facilities . Businesses . Tourist Attractions & Facilities . Healthcare Facilities . Education Facilities Since 2001, more than 30 lives have been saved as a result of the accessibility of AEDs that have been put into service by Project Heartbeat. The program has already received an initial funding of $100,000 from the City of San Diego to purchase and place 40 of the units in selected lifeguard towers and lifeguard vehicles, recreation centers, libraries and other facilities. The County Board of Supervisors has dedicated $250,000 for the distribution of defibrillators in County facilities. The South Bay Cities of Imperial Beach and National City have also contributed to this project. The $27,000 requested contribution amount equates to a $500 per school contribution for Chula Vista Schools in order to fund Chula Vista's portion of the AED costs. The school districts will also contribute $500 towards the cost of each AED unit. The County of San Diego through Supervisor Cox's office has committed $100,000 to fund the balance of the costs on behalf of the schools in the South Bay The AEDs will be purchased through the San Diego Fire Rescue Foundation. Supervisor's Cox's office through its partnership with San Diego Project Heartbeat will deploy the AEDs to South Bay schools. The schools were designated to receive these AEDs in order to protect the children and faculty populations that inhabit them each day In addition, schools often serve community gathering places for special events, sports activities, meetings and other neighborhood functions where AEDs may also be required in the event of a cardiac emergency FISCAL IMPACT: The fiscal impact of this proposal is a one-time $27,000 contribution that will be funded by the available balance of the General Fund. There are no continuous costs associated with this proposal. Attachment Letter from Supervisor Greg Cox 11-2 GREG COX SUPERVISOR, FIRST DISTRICT San Diego County Board of Supervisors June 21, 2006 Mr. Jim Thompson, Interim City Manager City of Chula Vista 276 Fourth Avenue Chula Vista, C:~ :1910 DearMrr~' As you may know, sudden cardiac arrest is a leading cause of death in the United States today San Diego is no different. Fortunately in 2001, San Diego Project Heartbeat began a process of deploying Automated External Defibrillators (AEDs) throughout the County As a result more than 30 lives have been saved. This project has been a tremendous success but I feel that we can and should do more. To this end, I would like to place an AED in all I 08 schools ofthe Chula Vista Elementary, South Bay Union, National, Sweetwater Union, Coronado Unified and San Ysidro school districts. In addition to the many children, teachers and staffin school during the day, these sites often serve as community gathering places for special events, sports, meetings and other neighborhood needs. An AED at a school can save the life of anyone in the community To undertake this important project I have partnered with Project Heartbeat and Cardiac Science to purchase 150 AEDs at a greatly reduced price. I have committed $100,000 toward placing an AED in every South County school and would like to partner with the cities in my district to cover the rest. I am hopeful Chula Vista will be able to contribute $500 for each school in the City of Chula Vista, a total of $27,000. Together we can work to save lives in our community. lfyou have any q~estions feel free to call me at (619) 531-5511 irst District County Administration Center. 1600 Pacific Highway, Room 335. San Diego, CA 92101 (619) 531-5511 . Fax (6i9) 235-0644 'hWW.gregcox.com EmaH: greg.cox@sdcounty.ca.gov 11-3 RESOLUTION NO. 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $27,000 AND CONTRIBUTING SAID FUNDS TO THE SAN DIEGO FIRE RESCUE FOUNDATION FOR THE PURCHASE OF AUTOMATIC EXTERNAL DEFIBRILLATORS TO BE PLACED IN CHULA VISTA SCHOOLS WHEREAS, The City of Chula Vista has received a request from the County Board of Supervisors Greg Cox's office to contribute $27,000 to the San Diego Fire and Rescue Foundation; and, WHEREAS, the funds will be used for the purchase and deployment of Automatic Electronic Defibrillators AEDs in City of Chula Vista schools; and, WHEREAS, County Board of Supervisors Greg Cox's office through its partnership with San Diego Project Heartbeat will deploy the AEDs to South Bay schools; and, WHEREAS, San Diego Project Heartbeat is a countywide effort to make AEDs as accessible as fire extinguishers throughout the community; and, WHEREAS, schools were designated to receive these AEDs in order to protect the children and faculty populations that inhabit them each day; and, WHEREAS, schools often serve community gathering places for special events, sports activities, meetings and other neighborhood functions where AEDs may also be required in the event of a cardiac emergency and would be well served by the availability of AEDs' , and, NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby appropriate $27,000 from the available balance of the General Fund to the Fire Department services and supplies budget, and authorizes the donation of said funds to the San Diego Fire Rescue Foundation for the purchase and deployment of Automatic Electronic Defibrillators to be placed in the City of Chula Vista schools. Approved as to form by. f ~:l!1Jt1~ Moore ity Attorney H:/shared/attorney/fire-Defibrillators-Greg Cox 11-4 CITY COUNCIL AGENDA STATEMENT ITEM NO.: MEETING DATE: 12 8/22/06 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AFFORDABLE HOUSING REGULATORY AGREEMENT RELATED TO R-19, OTAY RANCH VILLAGE ELEVEN BETWEEN THE CITY AND SHEA HOMES AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT SUBMITTED BY: ACTING COMMUNITY DEVELO ENT DIRECTOR REVIEWED BY: INTERIM CITY MANAGER .j ITEM TITLE: 4/5THS VOTE: YES D NO ~ BACKGROUND On February 18, 2003, the City af Chula Vista and Brookfield Shea Otay, LLC, a California Limited Liability Corporation, entered into an Affordable Housing Agreement for Otay Ranch Village Eleven. The Affordable Housing Agreement stated that pursuant to the City of Chula Vista Housing Element and the establishment of the City's "Affordable Housing Policy," the Developer is required to provide 10% of each housing development of 50 or more units to be affordable to low and moderate income households, with at least one half of those units (5% of project total units) designated for low income households. Brookfield Shea Otay, LLC ("Developer") desires to satisfy their affordable housing obligation through a for-sale project located in the R-19 neighborhood in Otay Ranch Village Eleven (Location Map provided as Attachment 1). The details of the project are contained within the Affordable Housing Regulatory Agreement ("Agreement") contemplated herein (Attachment 2). ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the proposed proiect was adequately covered in previously adopted Final Second Tier Environmental Impact Report, EIR 01-02 Thus, no further environmental review or documentation is necessary. 12-1 PAGE 2, ITEM NO.: MEETING DATE: I~ 8/22/06 RECOMMENDATION That City Council adopt the resolution approving: 1) The Affordable Housing Regulatory Agreement related to the R-19 neighborhood in Otay Ranch Village Eleven in substantially the form presented to the City Council, subject to such revisions as may be made by the City Manager or his designee subject to the review and approval of the City Attorney, and authorizing the Mayor to execute the Affordable Housing Regulatory Agreement on behalf of the City. 2) The City Manager (or designee), on behalf of the City, to make revisions to the Affordable Housing Regulatory Agreement which do not materially or substantially increase the City's obligations thereunder or materially or substantially change the uses or development permitted on the Site, to sign all documents, to make all approvals and take all actions necessary or appropriate to carry out and implement the Affordable Housing Regulatory Agreement and to administer the City's obligations, responsibilities and duties to be performed under the Affordable Housing Regulatory Agreement and related documents. Any such revisions or modifications to the Affordable Housing Regulatory Agreement are subject to the review and approval of the City Attorney. BOARDS/COMMISSIONS RECOMMENDATION Not applicable. DISCUSSION Under the City's Balanced Communities Policy of the Housing Element, the Developer has an obligation to provide 10 percent of those new residential housing units within the project as affordable to low and moderate-income families (5% low and 5% moderate) Based on a total of 2,304 residential housing units which are currently allowed to be constructed within Otay Ranch Village Eleven and credits given for larger units (3 bedrooms), the Developer has an obligation to provide 207 affordable units (92 low income and 115 moderate income). The development will include a total of 239 3- bedroom units, of which, 92 will be available as low income units and 115 as moderate income units, and 32 market rate units. 12-2 PAGE 3, ITEM NO.: I ;Z MEETING DATE: 8/22/06 Affordable Housinq Requlatorv Aqreement The attached Agreement details the accord between the City and the Developer regarding the development of the proposed affordable for-sale units and the satisfaction of the Developer's affordable housing obligation. The Agreement also details the Developer's guidelines and requirements for the development of the project and employs the Affordable For Sale Housing Policy approved by the City Council as the basis for the Agreement. The Affordable For Sale Housing Policy consists of key principles that govern all such developments, including: 1) The establishment of a Second Trust Deed ("Silent Second") that is extended to the Homebuyer in favor of the City; 2) An equity share system, that is based upon the Homebuyer's length of occupancy; 3) Maximum income; 4) Maximum sales price; 5) Underwriting criteria; and 6) Buyer selection criteria Affordable buyers must be income qualified, earning no more than 80% and 120% of the Area Median Income. The chart below shows maximum income figures for 2006. 1 2 3 4 2006 Maximum Annual Income Low Income Moderate 80% Income 120% $38,650 $54,500 $44,150 $62,300 $49,700 $70,100 $55,200 $77,900 Household Size Differences for Moderate Income Buyers Although the Affordable For Sale Housing Policy is the foundation for this Agreement, the Policy specifically addresses low income buyers. There are a few deviations from the Policy in the Agreement to address different circumstances for moderate income buyers' . 30-year deferred loan, as opposed to an Equity Share; . No "first time homebuyer" requirement; and . Maximum allowable assets increased from $25,000 to $40,000 12-3 PAGE 4, ITEM NO.: l,;;z MEETING DATE: 8/22/06 DECISION MAKER CONFLICTS Staff has reviewed the property holdings of the Agency Board Members and has found no such holdings within 500' of the property which is the subject of this action. FISCAL IMPACT Upon sale, transfer, refinance, or change in title of the affordable unit, the City will receive repayment of the silent second loan and any additional equity share. Based on the formula provided in the City's Affordable For Sale Housing Policy, the silent second loan amount is the difference between the market rate price and the affordable price, established at the time of sale by the Developer. No expenditure or allocation of City funds is required; therefore, there is no fiscal impact. AnACHMENTS 1. Location Map 2. Affordable Housing Regulatory Agreement 3. Disclosure Statement Prepared by, Amanda Mills, Housing Manager, Community Development Department J:\COMMDEVlSTAFF.REI'I2006\08-22-06\Shea\Shea Homes AffHsg Reg Agreement Staff Report MI).doc 12-4 Attachment ....l Otay Ranch Village 11 ..> CD - :&. -- --SlaOfaLI.U: 12-5 12-5 Attachment.....l City of Chula VISta Disclosure Statement Pursuant to Council Policy 101-01, prior to any action upon matters that will requirediscretionmy action by the Council, Plannihg Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City ofChula VISta election must be filed. The folloWing information must be disclosed: 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contIactor, subcontractor, mllt~ 1 supplier. ~ Sk ~ J,.I(")I.....v;. [. P 1:,50 U~ 2. If any person. identified pursuant to (1) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporationlpartnership) entity. .uiA , 3. If any person. identified pursuant to (l) above is a non-profit OIW'ni7.mon or trust, list the names of any person serving as director of the non-profit oIgll11ization or as trustee or beneficiary or trustor of the trust -'fA 4. Please identify every person, inclnding any agents, employees, consultants, or independent contractors you have assilPled to represent you before the City in this matter. .::st"^^- 'C.l \C..t"'N'""-\! \ /-!oY\.<;:..,.lrl.-r /,><^",,) A~<,cc-lrj.<..< 1-10UJo..r d "AA) A ~ toA-.e-G 5. Has any person. associated with this contract had any financial dealings with an official.. of the City of Chn1a Vista as it relates to this contract within the past 12 months. Y es_ No~ 12-6 City of Chula Vista Disclosure Statement If Yes, briefly describe the nature of the financial interest the official** may have in this contract j J;A , 6. Have you made a contnbution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? No.&: Yes _ If yes, which Council member? 7. Have you provided more than $340 (or an item of equivalent value) to an official** of the City of Chula Vista in the past twelve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No X- If Yes, which official** and what was the nature of itCIrt provided? Date: C, -z.. 'I, (j to Print or type name of Contractor/Applicant * Person is defmed as: any individual, firm, co-partnership,joint venture, association, social club, fratemal organization, cOIporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council member, Planning Cmnmissioner, Member of a board, commission, or committee of the City, employee, or staff members. 1:\Auomey\fixms~ SCafl:mcDt 3.0.03 12-7 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AFFORDABLE HOUSING REGULATORY AGREEMENT RELATED TO R-19, OTAY RANCH VILLAGE ELEVEN, BETWEEN THE CITY AND BROOKFIELD SHEA OTAY, LLC AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT WHEREAS, Brookfield Shea Otay, LLC [Shea] proposes to construct a multifamily housing project in Otay Ranch Village 11 [Project]; and WHEREAS, the City of Chula Vista and Shea executed an Affordable Housing Agreement for Otay Ranch Village Eleven, then known as Winding Walk, which was recorded February 24, 2003 as Document No. 2003-0200562 [the 2003 Agreement] for purposes of further implementing Shea's affordable housing obligation under the City's Balanced Communities Policy of the Housing Element of the General Plan; and WHEREAS, pursuant to the 2003 Agreement, of the total of 2,304 residential housing units which are currently allowed to be constructed within Otay Ranch Village Eleven and credits given for larger units (3 bedrooms), Shea has an obligation to provide 92 units affordable to low income households and 115 units affordable to moderate income households within the Project; and WHEREAS, Shea desires to satisfy this affordable housing obligation through a for-sale project, the details of which are contained within the Affordable Housing Regulatory Agreement; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the proposed project was adequately covered in previously adopted Final Second Tier Environmental Impact Report, EIR 01-02. Thus, no further environmental review or documentation is necessary NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Chula Vista that it approves the Affordable Housing Regulatory Agreement related to the R-19 neighborhood in Otay Ranch Village Eleven in substantially the form presented to the City Council, subject to such revisions as may be made by the City Manager or his designee and subject to the review and approval of the City Attorney, a copy of which shall be placed on file in the office of the City Clerk. BE IT FURTHER RESOLVED, by the City Council of the City of Chula Vista that the Mayor is authorized to execute the Affordable Housing Regulatory Agreement on behalf of the City 12-8 Resolution No. 2006- Page 2 BE IT FURTHER RESOLVED, by the City Council of the City of Chula Vista that the City Manager (or designee) is authorized, on behalf of the City, to make non-substantive revisions to the Affordable Housing Regulatory Agreement which do not materially or substantially change the obligations of the parties, to sign all documents, to make all approvals and take all actions necessary or appropriate to carry out and implement the Affordable Housing Regulatory Agreement and to administer the City's obligations, responsibilities and duties to be performed under the Affordable Housing Regulatory Agreement and related documents. Any such revisions or modifications to the Affordable Housing Regulatory Agreement are subject to the review and approval of the City Attorney Presented by Approved as to form by AnnHix Acting Community Development Director J~_OL (h Ann Moore City Attorney I~-- 2 12-9 THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPRO V AL BY THE CITY COUNCIL ~~ f< C~ Ann Moore City Attorney Dated: _8/16/06_ The Affordable Housing Agreement between The City of Chula Vista and Shea Homes for the Winding Walk Community for the Development of 207 Units of Affordable to Low to Moderate Income Buyers 12-10 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO' City of Chula Vista 276 Fourth Avenue Chula Vista CA 91910 Attn: City Clerk No fee for recording pursuant to Government Code Section 27383 (Space above for Recorder's Use) AFFORDABLE HOUSING REGULATORY AGREEMENT THIS AFFORDABLE HOUSING REGULATORY AGREEMENT (this "Agreement") is entered into as of ,2006, between the CITY OF CHULA VISTA, a municipal corporation ("City"), and BROOKFIELD SHEA OTAY LLC, a California limited liability company ("Developer") and/or its successors or assignees. 1. - Recitals 1 1 Authoritv The City is a municipal corporation, organized and existing under the laws of the State of California. City is authorized to enter into binding agreements for the purpose of protecting public health, safety, and welfare. 1.2. Developer Developer is the legal owner of the fee title to the real property which is described in the attached Exhibit "A", which is hereby incorporated herein (the "Real Property"). The Real Property will be a condominium project established pursuant to Section 1350, et seq. of the California Civil Code. The Real Property is currently unimproved. 1.3. Proiect. Developer, or a home builder entity established by Developer, proposes to construct a multifamily housing project (the "Project") with 239 row home condominiums in Olay Ranch Village II Each dwelling unit in the Project is referred to as a "Unit" in this Agreement. The Project will consist of ninety two (92) Units affordable to Low Income Buyers, one hundred fifteen (115) Units affordable to Moderate Income Buyers, with the remaining thirty two (32) Units unrestricted in any manner by this Agreement. The thirty two (32) unrestricted Units are referred to as the "Unrestricted Units" Developer shall not be bound by any of the provisions contained hereafter with respect to the Unrestricted Units. I 4 Implementation ofCitv Council Resolution 2003-492. This Agreement is intended to satisfy the requirements of City Council Resolution 2003-492 and the Affordable Housing Agreement previpusly entered into between Brookfield Shea Otay, LLC, a California limited liability company ("Master Developer") and the City and recorded February 24, 2003, as Document No. 2003-0200562, which requires that, as a condition to issuance of certain building permits to the land covered by the Otay Ranch, Village 11 Sectional Planning Area (SPA) Plan, an Affordable Housing Regulatory Agreement be entered into between the City and Developer whereby Developer agrees to provide for a specified percentage of the Units as low income housing and moderate income housing. The parties intend that this Agreement constitute the agreement referred to in City Council Resolution 2003-492 and constitute the Affordable Housing Regulatory Agreement described in this Section 1.4, and that this Agreement satisfy the remainder of Master Developer's affordable housing obligations thereunder with respect to approximately 489 acres ofland described as the "Project" in the Affordable Housing Agreement described in this Section 1.4 1 8/14/06 12-11 1.5 Imolementation of City Council Policv No. 453-02. This Agreement is also intended to implement City Council Policy No. 453-02, which became effective on December 9, 2003 ] .6. Binding On Successive Owners. Pursuant to California Government Code Section 27281.5, the parties intend that this Agreement constitute an encumbrance against the Real Property (other than the Unrestricted Units) which, during the Term of this Agreement, is binding on the owners and successive owners of the Real Property (other than the Unrestricted Units) for the benefit of the City NOW THEREFORE, THE CITY AND DEVELOPER HEREBY AGREE AS FOLLOWS: 2. - Definitions The following definitions apply for purposes of this Agreement: 2.1 "Affordable Buyer" means a Low Income Buyer as defined in Section 2.8 or Moderate Income Buyer as defined in Section 2.13. 2.2 "Affordable Unit" means a Low Income Unit or Moderate Income Unit. 2.3 "Area Median Income" means the latest median income from time to time determined by the United States Department of Housing and Urban Development (pursuant to Section 8 of the United States Housing Act of 1937) for the San Diego Standard Metropolitan Statistical Area, and as established by regulation of the State of California pursuant to Health and Safety Code Section 50093. 2.4 "Buyer-Elected Options and Upgrades" means options and upgrades included in a Unit that are not included within the plans and specifications for standard production Units and that are paid for in cash by the buyer. 2.5 "Buyer-Qualified Interest Rate" means the interest rate a buyer qualifies for and obtains under a loan, the proceeds of which are used to purchase the Affordable Unit. 2.6 "City Notice of Approval" means the letter from the City identifying the applicant as an eligible Affordable Buyer 2.7 "Low Income Affordable Sales Price" shall be determined pursuant to Section 3.3 below 2.8 "Low Income Buyers" means individuals or families with an income which does not exceed eighty percent (80 %) of the Area Median Income, as adjusted for household size; provided, however, all income from members ofthe household who are under the age of twenty -three (23) years old and are full-time students, upon submission to the City of sufficient verification thereof, shall be excluded from the calculation ofaLowIncomeBuyer's income. 2.9 "Low Income Unit" means any of the ninety two (92) Units which shall be sold by Developer to a Low Income Buyer at the Low Income Affordable Sales Price and occupied by a Low Income Buyer. 2.10 "Low Income Unit Marketing Period" means the period commencing on the first day the first Low Income Unit is marketed to Low Income Buyers in the public pursuant to all normal State of California Department of Real Estate regulations and upon approval by the City and continuing for ninety (90) days thereafter, during which period Developer shall market the three (3) bedroom Low Income Units pursuant to Section 3.4. 2 8/14/06 12-12 2.11 "Market Rate Price(s)" shall be as described in Section 3.2 below 2.12 "Maxim urn Affordable Sales Price" means either the Maximum Low Income Affordable Sales Price of a Low Income Unit as described in Section 3.3 or the Maximum Moderate Income Affordable Sales Price of a Moderate Income Unit as described in Section 3.7 2.13 "'Moderate Income Affordable Sales Price" shall be determined pursuant to Section 3.7 below 2.14 "Moderate Income Buyers" means individuals or families With an income which does not exceed one hundred twenty percent (120 %) of the Area Median Income, as adjusted for household size; provided, however, all income from members of the household who are under the age of twenty. three (23) years old and are full-time students, upon submission to the City of sufficient verification thereof, shall be excluded from the calculation of a Moderate Income Buyer's income. 2.15 "Moderate Income Unit" means any of the one hundred fifteen (115) Units which shall be sold by Developer to and occupied by a Moderate Income Buyer. 2.16 "Moderate Income Unit Marketing Period" means the period commencing on the first day the first Moderate Income Unit is marketed to Moderate Income Buyers in the public pursuant to all normal State of California Department of Real Estate regulations and upon approval by the City and continuing for ninety (90) days thereafter, during which period Developer shall market the three (3) bedroom Moderate Income Units pursuant to Section 3.8. 2.17 "Monthly Housing Cost" means the sum of monthly payments for all of the following with respect to a Low Income Unit or Moderate Income Unit: 2.17 1 Principal and interest, amortized over thirty (30) years, at the then current fixed interest rate, payable under the First Trust Deed Loan (as defined below), which is then available to acquire an Affordable Unit; 2.17.2 Any special tax district assessments, Mello-Roos special taxes, prorated monthly, which apply to the Affordable Unit; 2.17.3 The monthly homeowners association regular assessments which apply to the Affordable Unit; and 2.174 A reasonable allowance for real estate taxes and insurance not included in the above costs, prorated monthly 2.18 "Mortgage Amount" shall be as described in Sections 3.3.1, 3.3.2, 3.7.1 or 3.7.2, whichever is applicable. 2.19 "Silent Second Note" shall refer to the promissory note made by an Affordable Buyer in favor ofthe City The principal amount of a Silent Second Note for a Low Income Unit shall be equal to the difference between the Market Rate Price and the Maximum Low Income Affordable Price of a Low Income Unit. The principal amount of a Silent Second Note for a Moderate Income Unit shall be equal to the difference between the Market Rate Price and the Maximum Moderate Income Affordable Price ofa Moderate Income Unit. The form ofthe Silent Second Note shall be as set forth on Exhibit "B" attached hereto. 3 8/14/06 12-13 2.20 "Silent Second Trust Deed" shall refer to a deed of trust which secures a Silent Second Note. The form of the Silent Second Trust Deed that secures a Silent Second Note for aLow Income Unit shall be as set forth on Exhibit "C-I" attached hereto (which includes equity sharing provisions). The form of the Silent Second Trust Deed that secures a Silent Second Note for a Moderate Income Unit shall be as set forth on Exhibit "C-2" attached hereto (which includes deferred loan provisions). 2.21 "Term" shall be described in Article 4 below. 3. - Marketin!! of Affordable Units 3 1 Low Income Units: Silent Second Note Trust Deed: Eauity Sharin!!. Of the two hundred thirty nine (239) Units in the Project, Developer shall sell ninety two (92) Units only to Low Income Buyers. Developer shall restrict the initial sale of the ninety two (92) Low Income Units to Low Income Buyers. The ninety two (92) Low Income Units shall be three (3) bedroom Units. The sales price of each such Low Income Unit shall be the Market Rate Price, with the Silent Second Note being in original principal amount equal to the difference between the Market Rate Price and the Maximum Low Income Affordable Sales Price ofa Low Income Unit. The Silent Second Note shall be secured by the Silent Second Trust Deed encumbering the Low Income Unit which is sold to a Low Income Buyer. The Silent Second Trust Deed that encumbers a Low Income Unit shall be in the form attached hereto as Exhibit "C-I" and include the equity sharing provisions set forth in paragraph 15 of the Silent Second Trust Deed attached hereto as Exhibit "C- t" The Silent Second Trust Deed shall be subordinate in priority to the institutional trust deed loan ("First Trust Deed Loan") which the Low Income Buyer obtains to purchase the property Repayment of the Silent Second Note shall become due and payable upon the expiration of the 3D-year term or upon the resale of the Low [ncome Unit to a person who is not qualified as a Low Income Buyer at a Low Income Affordable Price. Repayment shall not be required if the resale is to a qualified Low Income Buyer who purchases at aLow Income Affordable Price (as determined by the City) and who expressly assumes the Silent Second Note and trust deed. 3.2. Market Rate Price. The Market Rate Prices for the Affordable Units shall initially be the amounts set forth in the attached Schedule "I" Pursuant to the procedures set forth in this Section 3.2 and subject to the City's prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed, the Market Rate Prices for the Affordable Units in an upcoming phase may be revised at any time prior to the release of such phase. No less than ten (I 0) business days prior to the scheduled release date of a phase, Developer shall submit to the City Developers proposed revisions, if any, to the Market Rate Prices for the Affordable Units in such phase. Within five (5) business days after such submission, the City shall approve or disapprove such proposed revisions. Ifthe City disapproves proposed revisions, it shall state the grounds for such disapproval in writing. If the City disapproves and objects to Developer's proposed revisions within such five (5)-day period, Developer may re-submit further revisions to the Market Rate Prices to address the City's grounds for objection, and the City shall thereafter have five (5) business days to approve or disapprove Developer's proposed revisions. If, however, the City fails to approve or disapprove Developer's proposed revisions within the initial five (5)-business day period (or the subsequent five (5)-business day period in case ofre-submission), Developers proposed revisions shall be deemed approved. 3.3. Calculation of Maximum Low Income Affordable Sales Price. The Maximum Low Income Affordable Sales Price of a Low Income Unit shall be the sum of the Mortgage Amount plus an assumed down payment amount of3% of the Low Income Affordable Sales Price. The actual down payment shall not be less than 3% of the Affordable Sales Price of a Low Income Unit and should the down payment amount exceed 3% of the Affordable Sales Price of a Low Income Unit the actual First Trust Deed amount (but not the actual Mortgage Amount for determining the Maximum Low Income Affordable Sales Price) shall decrease by the amount the actual down payment exceeds 3% of the Affordable Sales Price ofa Low Income Unit. 4 8/14/06 12-14 3.3 I The Mortgage Amount - FHA Insured Loans. For FHA insured loans, the Mortgage Amount for Low Income Buyers shall be a First Trust Deed Loan in that original principal amount which requires equal monthly payments, amortized over thirty (30) years at the Buyer-Qualified Interest Rate, which when added to the other Monthly Housing Costs results in Monthly Housing Costs that equal 28.8% (that is 36% times 80%) of the Area Median Income, as adjusted for household size appropriate to the Low Income Unit as specified in Section 3.10 below The Buyer-Qualified Interest Rate must remain fixed for at least the first five (5) years of the term of the FHA insured loan. 3.3.2. The Mortgage Amount - Conventional Loans. For conventional loans, the Mortgage Amount for Low Income Buyers shall be a F'irst Trust Deed Loan in that original principal amount which requires equal monthly payments, amortized over thirty (30) years at the Buyer-Qualified Interest Rate, which when added to the other Monthly Housing Costs results in Monthly Housing Costs that equal 32% (that is 40% times 80%) of the Area Median Income, as adjusted for household size appropriate to the Low Income Unit as specified in Section 3.10 below The Buyer-Qualified Interest Rate must remain fixed for at least the first five (5) years of the term of the conventional loan. 3 4 Marketing of} Bedroom Low Income Units. During the Low Income Unit Marketing Period, each three (3) bedroom Low Income Unit shall be marketed by Developer oniy to persons who qualify as Low Income Buyers with households of three (3) persons or more. 3.5 After the Low Income Unit Marketing Period. After the Low Income Unit Marketing Period, Developer may market any remaining Low Income Units which are affordable to Low Income Buyers with any household size. Developer shall deliver to the City written notice of the first day and the last day of the Low Income Unit Marketing Period. The termination of the Low Income Unit Marketing Period will be evidenced by written notice to Developer from the City 3.6. Moderate Income Units: Silent Second Note ad Trust Deed: Deferred Loan. Developer shall sell one hundred fifteen (lIS) of the Units to Moderate Income Buyers. The one hundred fifteen (lIS) Moderate Income Units shall be comprised of three (3) bedroom Units. Developer shall restrict the initial sale of one hundred fifteen (I 15) Moderate Income Units to Moderate Income Buyers. The sales price of each such Moderate Income Unit shall be the Market Rate Price, with the Silent Second Note being in original principal amount equal to the difference between the Market Rate Price and the Moderate Income Affordable Price ofa Moderate Income Unit. The Silent Second Note shall be secured by the Silent Second Trust Deed encumbering the Moderate Income Unit which is sold to a Moderate Income Buyer. The Silent Second Trust Deed that encumbers a Moderate Income Unit shall be in the form attached hereto as Exhibit "C-2" and shall not include equity sharing provisions set forth in paragraph IS of Exhibit "C-l" The Silent Second Trust Deed shall be a 30-year deferred loan subordinate in priority to the institutional trust deed loan (nFirst Trust Deed Loan") which the Moderate Income Buyer obtains to purchase the property Repayment of the Silent Second Note shall become due and payable upon the expiration of the 30-yearterm or upon the resale of the Moderate Income Unit to a person who is not qualified as a Moderate Income Buyer at a Moderate Income Affordable Price. Repayment shall not be required ifthe resale;s to a qualified Moderate Income Buyer who purchases at a Moderate Income Affordable Price (as determined by the City) and who expressly assumes the Silent Second Note and trust deed. 3 7 Calculation of Maxi mum Moderate Income Affordable Sales Price. The Maximum Moderate Income Affordable Sales Price of a Moderate Income Unit shall be the sum of the Mortgage Amount plus an assumed down payment amount of3% of the Moderate Income Affordable Sales Price. The actual down payment shall not be less than 3% of the Affordable Sales Price ofa Moderate Income Unit and should the down payment amount exceed 3% of the Affordable Sales Price ofa Low Income Unit the actual First Trust Deed amount (but not the actual Mortgage Amount for determining the Maximum Moderate Income Affordable Sales Price) shall decrease by the amount the actual down payment exceeds 3% ofthe Affordable Sales Price of a Moderate Income Unit. 5 8/14/06 12-15 3.7.1 The Maximum Mortgage Amount - FHA Insured Loans. For FHA insured loans, the maximum Mortgage Amount shall be an amount which when added to the other Monthly Housing Costs does not exceed 43.2% (that is 36% times 120%) of the Area Median Income, as adjusted for household size appropriate to the Moderate Income Unit as specified in Section 3.10 below The Buyer-Qualified Interest Rate must remain fixed for at least the first five (5) years of the term of the FHA insured loan. 3 7.2. The Maximum Mortgage Amount- Conventional Loans. For conventional loans, the maximum Mortgage Amount shall be an amount which when added to the other Monthly Housing Costs does not exceed 48% (that is 40% times 120%) of the Area Median Income, as adjusted for household size appropriate to the Moderate Income Unit as specified in Section 3.10 below The Buyer-Qualified Interest Rate must remain fixed for at least the first five (5) years of the term of the conventional loan. 3.8. Marketing of 3 Bedroom Moderate Income Units. During the Moderate Income Unit Marketing Period, each three (3) bedroom Moderate Income Unit shall be marketed by Developer only to persons who qualify as Moderate Income Buyers with households of three (3) persons or more. 3.9 After the Moderate Income Unit Marketing Period. After the Moderate Income Unit Marketing Period, Developer may market any remaining Moderate Income Units which are affordable to Moderate Income Buyers with any household size. Developer shall deliver to the City written notice of the first day and the last day of the Moderate Income Unit Marketing Period. The termination of the Moderate Income Unit Marketing Period will be evidenced by written notice to Developer from the City 3 10. Unit Sizes and Appropriate Household Sizes. The following are the household sizes appropriate to an Affordable Unit, for calculation of Mortgage Amount based upon 1.5 persons per bedroom and consistent with the City ofChula Vista Policy for the Development of Affordable For Sale Housing for First-Time Affordable Income Buyers: Unit Size Household Size Three (3) Bedroom Four and a half Persons Calculation of the Low Income Affordable Sales Price and Moderate Income Affordable Sales Price shall be based upon the assumed household size specified for the Affordable Unit size as set forth in the foregoing table notwithstanding the actual size of the household that purchases the Affordable Unit. 3 II Proof ofOualification. Developer will obtain from each person(s) to whom Developer sells an Affordable Unit a "Supplemental Buyer Application" (the "Application") in the form of Exhibit "D" attached hereto (or such other form as the City may from time to time adopt and of which the City will notify Developer in writing). Developer or an institutional lender designated by Developer shall use commercially reasonable efforts to verify the Application and supporting documents in determining the eligibility of such person(s) to buy such Affordable Unit. Developer will retain the Application and supporting documents for a period of at least seven (7) years after the buyer thereof closes escrow for the purchase of the Affordable Unit. 3.12. Records. Audits. Developer will submit to the City copies of all Applications, availabie settlement or closing statements with respect to each Affordable Unit that has closed escrow, and documents submitted containing information with respect to each Affordable Unit including (i) the monthly amortized Mortgage Amount, (ii) the number of occupants for which the Affordable Unit is sold, (ili) the income of such occupant(s), (iv) the Market Rate Price of the Affordable Unit and (v) the Low Income Affordable Sales Price of the Low Income Unit or the Moderate Income Affordable Sales Price of the Moderate Income Unit, whichever is applicable. Such submission shall be in the form of Exhibit "D" attached hereto (or such other form as the City may from time to time adopt and of which the City notifies Developer in writing). If the City 6 8/14/06 12-16 reasonably believes that violations of the sales price, occupancy and/or income requirements of this Agreement have occurred, and that an audit is necessary to verify submitted Applications and documentation, it will so notify Developer in writing thereof. Within ten (10) days after delivery of said notice, Developer will deliver to the City the names of three certified public accountants doing business in the metropolitan San Diego area. The City will promptly deliver to Developer the former's approval of one or more of said names. The audit will be completed by an approved certified public accountant, at Developer's cost, within 60 days after the delivery to Developer of the City's said approval. The certified public accountant will promptly deliver a copy of the written audit to the City Developer shall regularly evaluate its compliance with the sales price, occupancy and income requirements of this Agreement and exercise good faith efforts to avoid any violations thereof. 3 13. City Approval of Marketine Plan; Selection of Affordable Buvers. The following requirements shall apply with respect to Developer's marketing of the Affordable Units 3.13.1 Marketine Plan. Developer shall prepare a marketing plan in compliance with Federal and State Fair Housing Laws, and the City shall review the same for compliance with City laws, policies and other requirements. Such marketing plan shall include a plan for publicizing the availability of the Affordable Units within the City, such as notices in any City sponsored newsletter, newspaper advertising in local newspapers and notices in City offices. The marketing plan shall require Developer to obtain from the City the names oflow/moderate income households who have been displaced by the City Redevelopment Agency redevelopment projects, and to notify persons on such list ofthe availability of Affordable Units in the Project prior to undertaking other forms of marketing. The marketing plan shall provide that the persons on such list of displaced persons be given not fewer than fifteen (15) days after receipt of such notice to respond by completing application forms for purchase of Affordable Units, as applicable. 3 13.2. Income Requirements. All Affordable Buyers shall meet the income requirements set forth in this Agreement. Selection of Affordable Buyers shall be made based upon the Buyer Selection Criteria as established by the City's Policy for the Development of Affordable For Sale Housing for First- Time Affordable Buyers (Council Policy 453-02) within the following levels of priority A point system has been established so that applicants with a higher number of points will receive preference for Affordable Units. 5 points Households which are displaced from their primary residence as a result of any of the following: (i) expiration of affordable housing covenants applicable to such residence; (ii) an action of the City or the City Redevelopment Agency; (iii) closure ofamobile home or trailer park community in which the household's residence was located; or (iv) a condominium conversion involving the household's residence. One member in the household must have resided in such housing as the primary place ofresidence for at least one year prior to such action or event. 3 points Households with at least one member who has worked within the City, as that person's principal place of full-time employment, for at least one year prior to the date of application for such housing. 3 ooints Households currently residing within the boundaries of the City ofChula Vista, at the time of application. 2 ooints Households with at least one member who is a Public Safety employee (fire and police) or Credentialed Teacher. The individual must be working in such position as his/her full-time profession at the time of application. I point All other applicants who do not meet any of the above criteria. 7 8/14/06 12-17 I n the situation where there are applicants with an equal nwnber of points but not enough Affordable Units are available, a lottery will be held at a place and time to be announced by the City and Developer. Ifthere are not more eligible applicants than units upon release, the points system will not be required. 3 14 City's Evaluation ofOualification of Affordable Buvers: Authority of City To Receive Loan Aoolications. Developer shall reasonably assist the City in obtaining from each Affordable Buyer (or prospective Affordable Buyer) a form signed by the Affordable Buyer authorizing the release to the City of the prospective buyer's 1003 (Mortgage Loan Application), Good Faith Estimate and Underwriting Transmittal Summary (1008) or similar form from the applicable lender. Developer shall request that each such lender forward to the City the loan documentation for any loan to an Affordable Buyer. The City will evaluate these forms and communicate its evaluation to Developer. After the City's review and verification that a prospective buyer is qualified as an Affordable Buyer, the City will send a City Notice of Approval to the lender and Developer confirming the prospective buyer's eligibility 3 15 Oualification Criteria. The City will utilize the following criteria in evaluating an application by an Affordable Buyer (or prospective Affordable Buyer): 3.15.1. Neither the Low Income Buyer nor such Low Income Buyer's spouse has owned a home during the three (3) - year period immediately preceding the purchase of the Affordable Unit. 3.15.2. An Affordable Buyer's down payment must not be less than three percent (3%) of the Affordable Sales Price. 3 15.3 The Affordable Buyer's liquid assets after down payment, Affordable Buyer's closing costs and Affordable Buyer's cash payments for Buyer-Elected Options and Upgrades must not exceed $25,000.00 for Low Income Buyers and $40,000 for Moderate Income Buyers. 3 15.4 Non-occupant co-borrowers are not allowed. 3.15.5 The maximum Monthly Housing Costs must not exceed 36% of monthly income for FHA insured loans and 40% of monthly income for all other loans 3.15.6. The maximum debt-to-income ratios must not exceed 41 % for FHA insured loans and 45% for all other loans 3.15.7 No refinancing for cash-out or debt consolidation purposes will be allowed (but rate and term refinancing is permitted). 3.16. Aoolication OfOualification Criteria. The Housing Manager of the City's Community Development Department may allow one or more underwriting criteria set forth in Section 3.1 to not apply to a a particular sale ofan Affordable Unit after the date at least 50% of the type of Affordable Unit (46 of the 92 Low Income Units or 58 of the 115 Moderate Income Units, as applicable) have already been sold and if for a period of 120 days Developer has not been able to sell the Affordable Unit to an Affordable Buyer who could meet all of the qualification criteria set forth in Section 3.15. 3 17 Information Packet. Developer shall provide an informational packet to each Affordable Buyer, summarizing the requirements of the City's affordable for sale housing for an Affordable Buyers program provided for in this Agreement. The City shall, at Developer's request, reasonably assist Developer with the preparation or review of the informational packet. 3 18 Insurance. The City shall have the right to require the following of a each Affordable Buyer: Within ten (10) days after an Affordable Buyer's acquisition of a Affordable Unit, such Affordable Buyer 8 8/14/06 12-18 shall furnish to the City duplicate originals or appropriate certificates of insurance coverage evidencing that such Affordable Buyer has obtained, or cause to be obtained, the insurance coverage with respect to the Affordable Unit that is required under the terms and conditions of the Silent Second Trust Deed. 4. - Term 4.1 Term of Agreement. The agreement shall commence on the date of this Agreement. The Term ends after all obligations under this agreement have been met and verified by the City. Upon verification from the City that all obligations have been satisfied, the City shall record a termination of this Agreement in the Office of the County Recorder of San Diego County, California. 4.2. Unrestricted Units. The thirty-two (32) Unrestricted Units are those Units that, pursuant to this Agreement, are not encumbered by a Silent Second Trust Deed when they close escrow to a Purchaser. 4.3 Conveyance of Restricted Units. No Owner of an Affordable Unit shall convey the Affordable Unit, by reason of sale or otherwise, unless and until the owner gives the City at least thirty (30) days prior written notice of such conveyance. The City shall have the right to require payment of the Silent Second Note in full upon any such owner unless (i) the intended purchaser, during those thirty (30) days provides to the City such information as the City may require to allow it to verify that the purchaser meets all applicable criteria of a qualified Affordable Buyer of the Affordable Unit and (Ii) the purchaser assumes all obligations under the Silent Second Note and Silent Second Trust Deed by executing and acknowledging an assumption agreement in the form required by the City 5. - Subordination Upon request, the City shall subordinate this Agreement to any first deed of trust which Developer obtains for construction of the Project and the First Trust Deed Loans obtained by buyers to purchase their Affordable Units. However, any subordination agreement entered into by the City shall contain written commitments which the City finds are reasonably designed to protect the City's interests in the event of default, such as any of the following: (a) a right of the City to cure a default on the loan prior to foreclosure, (b) a right of the City to negotiate with the lender after notice of default from the lender and prior to foreclosure, (c) an agreement that if prior to foreclosure of the loan, the City takes title to the property and cures the default on the loan, the lender will not exercise any right it may have to accelerate the loan by reason of the transfer oftitle to the City, and (d) a right ofthe City to acquire through foreclosure under the Silent Second Trust Deed the Affordable Unit from the buyer at any time after a material default on the loan. 6. - Additional Provisions Re~ardin~ The Real Prooertv 6.1 Condition of the Real Prooertv The following provisions shall apply until the last Affordable Unit is sold, which is the term ofthis agreement. 6.1.1 Developer shall prevent the release, by Developer or its contractors, into the environment of any Hazardous Materials which may be located in, on or under the Real Property Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials. 6.1.2. . Developer shall indemnify, defend and hold the City, its elected officials, officers, agents, employees, representatives, and successors harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon Developer's or its 9 8/14/06 12-19 contractor's (i) release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Real Property, no matter when such claim, action, suit or proceeding is first asserted or begun and no matter how the Hazardous Materials came to be released, used, generated, discharged, stored or disposed of on, under, in or about, to or from the Real Property, or by whom or how they are discovered, or (ii) violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit,judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Real Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel indemnity after closing, cost or expense arising from or out of any claim, action, suitor proceeding, including injunctive, mandamus, equity or action at law, for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment. This indemnity shall survive the Term or earlier termination of this Agreement. 6.1.3. For purposes of this Agreement, "Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any local governmental authority, San Diego County, the State of California, regional governmental authority, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115,25117 or 25122.7, or listed pursuant to Section 25130 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a IIhazardous material,1I lIhazardous substance, II or "hazardous waste II under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article II of Title 22 of the California Code of Regulations, Division 4, Chapter 20, (x) designated as "hazardous substances" pursuantto Section 311 of the Clean Water Act (33 V.S.C. Section 1317), (xi) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 V.S.C. Section 6901, ef seq. (42 U.S.C. Section 6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, ef seq. 6.1 4 For purposes of this Agreement, "Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the County of San Diego, the City, or any other political subdivision in which the Real Property is located, and of any other political subdivision or instrumentality exercising jurisdiction over the City, Developer or the Real Property 6.1.5. Taxes. Assessments. Encumbrances. and Liens. Developer shall pay prior to delinquency all real estate taxes and assessments properly assessed and levied on portions of the Real Property which are owned by Developer. Nothing in this Agreement shall be deemed to prohibit Developer from contesting the validity or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available to Developer in respect thereto. 6.2. Hold Harmless. Developer agrees to indemnify, protect, defend and hold harmless the City, its elected officials, officers, agents, employees, representatives and successors, from and against any and all claims, damages, actions, costs, demands, expenses or liability, including without limitation, reasonable attorneys' fees and court costs, which may arise from the direct or indirect actions or inactions of Developer or 10 8/14/06 12-20 those of its contractors, subcontractors, agents, employees or other persons acting on Developers' behalf which relate to Developer's construction and marketing activities of the Real Property or Project. This hold harmless agreement applies, without limitation, to all damages and claims for damages suffered or alleged to have been suffered by reasons of the operations referred to in this Section 6.2, regardless of whether or not the City prepared, supplied or approved plans or specifications, or both, for the Real Property or Project. Notwithstanding anything to the contrary contained herein, this indemnity shall not apply to any claims, damages, actions, costs, demands, expenses or liability which arises out of either' (a) the exclusive marketing requirements contained in Section 3.13.1, or (b) the use of the point system contained in Section 3.13.2. This indemnity by Developer, and all other indemnities set forth herein shall survive any foreclosure of the Real Property by the City pursuant to the terms of the Silent Second Trust Deed and the Term or earlier termination of this Agreement. 6.3 Obligation to Refrain from Discrimination. There shall be no discrimination against, or segregation of, any persons, or group of persons, on account afraee, color, creed, religion, sex, marital status, ancestry, or national origin in the enjoyment ofthe Real Property Developer shall further comply with all the requirements ofthe Americans with Disabilities Act and the Americans with Disabilities Act Accessibility Guideiines (collectively, "ADA"). 6.4 Form of Nondiscrimination and Nonsegregation Clauses. Developer shall refrain from restricting the sale ofany portion of the Real Property, or contracts relating to the Real Property, on the basis ofrace, color, creed, religion, sex, marital status, ancestry, or national origin of any person and shall comply with all the requirements for the ADA. All such deeds, leases or contracts, shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 6.4 I In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any persons claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed and further covenants that all such individuals and entities shall comply with all requirements of the Americans with Disabilities Act of1990, as the same may be amended from time to time (42 V.S.C. Section 12101, et .eg.), and the Americans with Disabilities Accessibility Guidelines. The foregoing covenants shall run with the land." 6.4.2. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: 'That there shall be no discrimination against or segregation of any person or group of persons on account efrace, color, creed, religion, sex, marital status, ancestry, or national origin in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sub lessees, subtenants, or vendees in the land herein lease and the lease shall be carried out in compliance with all requirements of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42 V.S.C. Section 12101, et .eg.), and the Americans with Disabilities Accessibility Guidelines.''' 6.4.3 In contracts: "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, ancestry, or national origin in the sale, lease, transfer, use, occupancy, tenure, or enjoyment ofland, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination 11 8/14/06 12-21 or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees ofland and all such activities shall be conducted in compliance with all the requirements of the Americans with Disabilities Act of 1990, as the same may be amended from time to time (42 U.S.C. Section 12101, et seq), and the Americans with Disabilities Accessibility Guidelines." 7. - Escrow Documentation The City shall provide Developer with any revision it reasonably deems appropriate to the form Silent Second Note or the Silent Second Trust Deed for the use in escrow for the sale of each Affordable Unit. The Silent Second Trust Deed shall be recorded with the County Recorder of San Diego County at close of escrow for the sale by Developer of each Affordable Unit, and each Silent Second Trust Deed shall legally describe the particular Affordable Unit it covers, using the same legal description as is used in Developer's deed to its buyer. Each Silent Second Trust Deed shall be consistent with and implement the terms of this Agreement. 8. - Breach 8.1 Breach bv City If the City breaches any of its covenants contained in this Agreement, Developer will have available to it all legal and equitable remedies afforded by the laws of the State of California. 8.2. Breach bv Developer of Sale Price Limit ReQuirements. If, with respect to any Affordable Unit, Developer breaches this Agreement by charging higher sales prices than that herein permitted, Developer will, immediately upon the City's demand, (i) reduce the sales price to that permitted herein and (iI) refund to any buyers who theretofore paid such higher sales price the amount of the excess, together with interest hereon at the rate often percent (10%) per annum or the maximum legal rate, whichever is less, computed from the date(s) of payment of the excess by said buyers to the date of said refund. The provisions of this Section 8.2 constitute a third-party beneficiary contract in favor of such buyers. Further, the City is hereby granted the power (but not the duty) to act as attorney-in-fact of such buyers in enforcing this Section 8.2. '8.3. Breach bv Developer of Sales ReQuirements. If, with respect to any Affordable Unit, Developer breaches this Agreement by selling to buyers who are not qualified by the City pursuant to Section 3.14, Developer will, immediately upon the City's written demand, and at Developer's sole cost, use its reasonable best and lawful efforts to terminate such sale or otherwise substitute an Umestricted Unit in such sale. 8.4. Breach bv Developer of Other ReQuirements. If Developer breaches any of its covenants contained in this Agreement, the City shall have available to it all legal and equitable remedies afforded by the laws of the State of California. 8.5. Remedies Not Exclusive. The remedies set forth in this Article 8 are not exclusive, but are in addition to all legal or equitable remedies otherwise available to the City and Developer. 9. - Conflicts of Law 9 I Conflict of City and State or Federal Laws. In the event that state or federal laws or regulations enacted after this Agreement has been entered into prevent or preclude compliance with one or more provisions of this Agreement, the parties will: 9 1 1. Notice and Copies: Provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy and statement of conflict with the provisions of this Agreement. 12 8/14/06 12-22 9 1.2. Modification Conferences: The parties will, within 30 days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. 9.2. City Council Hearinlls. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this Agreement, the matter will be scheduled for consideration by the governing board of the City Council. The City Council, at such meeting, will determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation. Developer, at the meeting, will have the right to offer oral and written testimony Any modification or suspension will be taken by the affirmative vote of not less than a majority of the authorized voting members of the governing board of the City Council. 9.3 Cooperation in Securinll Permits. The City shall cooperate with Developer in the securing of any permits which may be required as a result of such modifications or suspensions. 10.. General Provisions 10 I Severability. The parties hereto agree that the provisions are severable. If any provision of this Agreement is held invalid, the remainder of this Agreement will be effective and will remain in full force and effect unless amended or modified by mutual written consent of the parties. 10.2. Entire Allreement. Waivers and Amendments. 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. Neither this Agreement nor any provision hereof may be amended, modified, waived, cancelled or discharged except by an instrument in writing executed by the both parties. 10.3. Caoacities of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. 10.4 Governinll LawNenue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the Federal or State courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. lO.5 Assillnment. Subject to the City's prior review and approval, which review and approval shall not be unreasonably withheld, delayed or conditioned, the rights and obligations of Developer under this Agreement may be transferred or assigned and Developer may be released from such obligations upon such transfer or assignment, provided such transfer or assignment is made as a part of the conveyance ofthe fee of all or a portion of the Real Property. Any such transfer or assignment will be subject to the provisions ofthis Agreement. During the term of this Agreement, any such assignee or transferee will observe and perform all of the duties and obligations of Developer contained in this Agreement as such duties and obligations pertain to the portion of the Real Property so conveyed. 10.6. Enforcement. Unless amended or cancelled as provided in Section 10.2, this Agreement is enforceable by any party to it despite a change in the applicable general or specific plans, zoning, subdivision or building regulations adopted by the City which alter or amend the rules, regulations or policies governing permitted uses of the land, density and design. 13 8/14/06 12-23 10.7. Bindine Effect of Aereement. The burdens of this Agreement bind and the benefits ofthis Agreement inure to the parties' successors or assignees in interest. 10.8. Notices. All notices, demands or requests provided for or permitted to be given pursuantto this Agreement must be in writing. All notices, demands or requests to be sent to any party shall be deemed to have been properly given or served if (i) personally served, (Ii) deposited in the United States mall, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties and places of business addresses identified herein for each of the designated parties. Qt;,. City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attn: Director, Community Development Department With a coo v to: City ofChula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Attorney DeveloDer' Shea Homes 9990 Mesa Rim Road San Diego, CA 92121 Attn: Jim Kilgore With a CODY to: Brookfield Shea Otay LLC 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Attention: Ron Grunow With another CODY to: Hecht, Solberg, Robinson, Goldberg & Bagley 600 West Broadway, Suite 800 San Diego, CA 92101 Attn: John Hecht E-mail.jhecht@hsrgb.com A party may change its address by giving notice in writing to the other party. Thereafter, notices, demands and requests shall be addressed and transmitted to the new address. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the day and year first written above. "CITY". CITY OF CHULA VISTA, a municipal corporation of the State of California By' Stephen C. Padilla, Mayor ATTEST 14 8/14/06 12-24 Susan Bigelow, City Clerk APPROVED AS TO FORM, Ann Moore, City Attorney "DEVELOPER'" BROOKFIELD SHEA OT A Y LLC, a California limited liability company iability company, a Member By Name:~........ DW v1~ 'R--r~:I.J' <("./S. " B, < ~-J!::t Name:.", lJ~ '7kt'd Its: I/fc,< At-~. Its: Date: Date: g ../t).(jp By: Shea Otay II, LLC, a California limited liability company, a Member By Shea Homes Limited Partnership, a California limited partnership, its sole M mber Date: ~ -, By' '4 N am :.4 ....,c",.......". c<Z-- L.. Its Authorized Agent Pc.-, s; ,., 1-t:&/t- Date: o I!> . I.. "'E>. 15 8114/06 12-25 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California }ss. County of San Diego On August 15, 2006, before me, Nicole Sutherland, Notary Public, personally appeared Ronald D Grunow and E. Dale Gleed, J~- - - - - - - - - NICOl.E SUTHERlAND ~ Q Commls.llon # 1565413 F !. Notary PublIc - COllfomia ~ j San Diego County f My Comm. Expirea Feb 27,2009 - - - - - - - - - - - ~ personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their sig natures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. lu lffi.L ~\A-t ~ \~ Place Notary Seal Above Signature of Notary Public 12-26 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT ~~~~~~~~~~~~~~~~~~~~~ State of California County of <~n D\es ('; On f1uCrS+ \5 2DC:J.&>, Date I personally appeared ( } ss. before me, yo; h ( , n Name and TItle of Officer (e.g., "Jane Doe, Neta G..n-1 -A it''XLLVi (\e r ~ntSlgner(s) I. :pubI1c:... hn€..(--- )WYI 1I1jo(r- I ~erSOnallY known to me - - - - - - - - - - - - ~ SARAH J. BeCKMAN ~~' Commission # 1591862 ~ i .... Notary PubliC . Collfomia ~ . Son Diego County l t _ ~~ _ ~:o~m~Ex~~~1:.2~ o proved to me on the basis of satisfactory evidence to be the persor@ whose name@)S@ubscribed to the wi . instrument and acknowledged to me that he/sh they execu~ the same in his/he their authoriz capaci~, and that by hislhe their signature<@on the instrument the persorj@, or the entity upon behaif of which the perso~ acted, executed the instrument. Place Notary Seal Above '" -p-...J OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: o Individual o Corporate Officer - Title(s): o Partner - 0 limited 0 Generai o Attorney in Fact o Trustee o Guardian or Conservator o Other' Top of thumb here Signer's Name: o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or Conservator o Other' RIGHT THUMBPRINT OF SIGNER RIGHT THUMBPRINT OF SIGNER TOp of thumb here Signer Is Representing: Signer Is Representing: ,::g; g:~~~~~ ~~~~~ _'-:z.v=~==,~=V'>I!O"""",,,,,,,~y~.=~:.c. """""""....~ C 2004 National Notary Association. 9350 De Sota Ave.. P.O. Box 2402' Chatsworth, CA 91313~2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827 12-27 EXHIBIT A LEGAL PROPERTY DESCRIPTION All that certain real property situated in the City ofChula Vista, County of San Diego, State of California, described as follows: Lots I of CHULA VISTA TRACT NO. 01.11 OTAY RANCH VILLAGE 11 NEIGHBORHOODS MU.} AND R.19, in the City ofChula Vista, County of San Diego State of California, according to Map thereof No. , filed with the County Recorder of San Diego County EXIDBIT A 8/14/2006 12-28 EXHIBIT B-1 LOW INCOME FORM OF SILENT SECOND NOTE EXHIBIT B-1 8/14/2006 /2 -2-Cj NOTICE: THIS NOTE MAY REQUIRE PAYMENT OF PRINCIPAL, INTEREST AND EQUITY SUMS UPON THE SALE OR TRANSFER OF THE PROPERTY OR UPON A PREPAYMENT FURTHER, THIS NOTE IS A SHARED APPRECIATION NOTE AS DEFINED IN SECTION 1917, ET SEQ. OF THE CALIFORNIA CIVIL CODE. PROMISSORY NOTE SECURED BY DEED OF TRUST $ Amount Date [Property Address] Borrower's Promise to Pay. For value received, the undersigned, ("Borrower"), promises to pay to the City of Chula Vista ("City"). or order, the sum of DOLLARS ($ ) with interest accruing thereon as hereinafter provided, and payable as set forth below It is understood that the City may transfer this Note, The City or anyone who takes this Note by transfer and who is entitled to receive payments under this Note will be called the "Note Holder" 2. No Interest. This Note will bear no interest unless Borrower defaults under the terms of this Note or the Deed of Trust securing it. In the event of default, interest from the Date of this Note shall be calculated at: a) The rate equal to the interest rate of the senior trust deed or, in the event of no senior trust deed, b) The prevailing rate of the Prime Rate as published in the Wall Street Journal, on the date of default. 3 Payments and Term. The sums evidenced by this Note, including all principal, interest lif any) and the share of the Equity due and payable to the Note Holder shall become due and payable at such time as Borrower sells, rents, refinances, transfers or changes the title to the property (the "Property") which is encumbered by the second deed of trust ("Deed of Trust") which secures this Note. "Equity" and the portion payable to the Note Holder are defined and described in the Deed of Trust. As described in the Deed of Trust, the sale, rental, refinance, conveyance, transfer or change in title of the Property prior to the thirtieth (3D") anniversary date of the Deed of Trust will result in the Note Holder's share of the Equity to be payable to the Note Holder Principal shall also become due and payable upon the thirtieth (3D") anniversary date of the Deed of Trust. No delay or omission on the part of the City shall operate as a waiver of such right of repayment or of any other right of this Note. The principal amount of this Note, together with interest lif any) accruing thereon from the date hereof as set forth in Section 3 and the Equity, shall be due and payable on or before the date provided by the City in the Notice of Acceleration, which shall not be less than ninety (90) days, if all or any part of the Property or any interest in it is sold, rented, refinanced, conveyed, or transferred or if a beneficial interest in Borrower is sold, rented, refinanced, conveyed, EXHIBIT B-1 8/14/2006 12-30 or transferred (each of which is called a "Transfer") without the prior written consent of the City The City shall not exercise this right of acceleration if prohibited by federal law or if the Note Holder has executed a separate written waiver of its right to do so. The following shall not constitute a Transfer: (.) A transfer of the Property from a deceased Borrower to the surviving spouse of Borrower if the surviving spouse is also named as a Borrower; (b) A transfer of the Property by Borrower to his/her spouse pursuant to which the spouse becomes a co-owner of the Property; (c) A transfer of the Property resuiting from a decree of dissolution of the marriage or legal separation or from a property settiement agreement incidental to such a decree which requires Borrower to continue to make payments on the Note and by which a spouse who is already a Borrower becomes the sole owner of the Property; (d) A transfer of the Property by Borrower to an inter-vivos trust in which Borrower is the sole beneficiary and which is done for estate planning purposes oniy and does not result in any change in possession of the Property; (e) A refinancing to which the beneficiary under the Deed of Trust is obligated to subordinate the Deed of Trust. (f) A refinancing which does not result in cash excess paid to Borrower or which is used for debt consolidation, equity line of credit or similar purposes. (g) A conveyance by sale or otherwise, to a party which the Housing Manager of the Community Development Department of the City of Chula Vista determines meets all the requirements to be deemed a "Low Income Buyer" as defined in the" Affordable Housing Regulatory Agreement" filed for record with the County recorder of the San Diego County on , 2006 as Document No. 2006- _ and which the Housing Manager determines meets all the requirements set forth in Section 4.3 of that Affordable Housing Regulatory Agreement. All payments made under this Note shall be paid in lawful money of the United States to the City of Chula Vista at 276 Fourth Avenue, Chula Vista, CA 91910, Attention: Community Development Department, Housing Division. 4 Prepayment. Borrower has the right to prepay the principal without incurring any penalty, apart from any interest that may be due under default provisions above. In the event that Borrower chooses to prepay the Note, Borrower must notify Note Holder in writing. Upon any such prepayment, the City's share of the Equity shall become immediately due and payable to the Note Holder 5 No Interest If No Default; No Equity Sharing If After 30 Years If No Default. Provided that Borrower is not in default under the terms of this Note or Loan Documents, no interest shall accrue under the Note. The City shall not share any Equity unless the principal balance of this Note becomes accelerated prior to expiration of the THIRTIETH (30"') year after the date of the execution of the Note. Nothing contained in this Section 5 shall be construed as a promise by the City to EXIDBIT B-1 8/1412006 1 2-31 forgive or relinquish the right to seek repayment of the principal of this Note. 6 Default Under Deed of Trust. Notwithstanding any other provisions of the Note, if default occurs in any of the covenants or agreements contained in the Deed of Trust securing this Note, this Note, including all unpaid principal, interest and Equity sharing, shall immediately become due and payable in full at the option of the City In the event the City exercises such option, the amounts due and payable shall be the principal balance remaining on the Note and other amounts owing, together with accrued but unpaid interest as described above. 7 Attorneys' Fees. Should suit be commenced to collect on this Note, or any portion thereof, such sum as the court may deem reasonable shall be added hereto as attorneys' fees. 8 Time. Time is of the essence herein. g Amendments. This Note may not be modified or amended except by an instrument in writing expressing such intention and signed by an authorized representative of the City and Borrower 10 Severability If any term or provision hereof is illegal or invaltd for any reason whatsoever, such illegality or invalidity shall not affect the validity and binding effect of the remainder of this Note upon the parties. 11 Borrower's Waivers. Borrower waives any rights to require the City to perform certain acts. Those acts are: (a) To demand payment of amounts due (known as "presentment") (b) To give notice that amounts due have not been paid (known as "notice of dishonor") (c) To obtain an officiai certification of non-payment (known as "protest") 12. Giving of Notices. Any notice that must be given to Borrower under this Note will be given by delivering it or by mailing it first class mail or by certified mail, return receipt requested, addressed to Borrower at the address set forth above. A notice that must be given to the City under this Note will be given by mailing it certified mail, return receipt request, to the City at the address stated in Section 3 above. Any party may change its address by a notice given to the other party in the manner set forth in this Section. 13. Joint and Several Responsibility If more than one person executes this Note, each is fully and personally obligated to pay the full amount owed and to keep all promises in this Note. EXHIBIT B-1 8/14/2006 12-32 NOTICE TO BORROWER Do not sign this Note if it contains blank spaces. All spaces should be completed before you sign. Date: Borrower Borrower EXHIBIT B-1 8/1412006 12-33 EXIDBIT B-2 MODERATE INCOME FORM OF SILENT SECOND NOTE EXHIBIT B-2 8/14/2006 12-34 NOTICE: THIS NOTE MAY REQUIRE PAYMENT OF PRINCIPAL AND INTEREST SUMS UPON THE SALE OR TRANSFER OF THE PROPERTY OR UPON A PREPAYMENT FURTHER, THIS NOTE IS A SHARED APPRECIATION NOTE AS DEFINED IN SECTION 1917, ET SEa. OF THE CALIFORNIA CIVIL CODE. PROMISSORY NOTE SECURED BY DEED OF TRUST $ Amount Date [Property Address] Borrower's Promise to Pay For value received, the undersigned, ("Sorrower"), promises to pay to the City of Chula Vista ("City"), or order, the sum of DOLLARS ($ ) with interest accruing thereon as hereinafter provided, and payable as set forth below It is understood that the City may transfer this Note. The City or anyone who takes this Note by transfer and who is entitled to receive payments under this Note will be called the "Note Holder" 2. No Interest. This Note will bear no interest unless Sorrower defaults under the terms of this Note or the Deed of Trust securing it. In the event of default, interest from the Date of this Note shall be calculated at: c) The rate equal to the interest rate of the senior trust deed or, in the event of no senior trust deed, d) The prevailing rate .of the Prime Rate as published in the Wall Street Journal, on the date of default. 3 Payments and Term. The sums evidenced by this Note, including all principal and interest lif any) shall become due and payable at such time as Borrower sells, rents, refinances, transfers or changes the title to the property Ithe "Property") which is encumbered by the second deed of trust ("Deed of Trust") which secures this Note. As described in the Deed of Trust, the sale, rental, refinance, conveyance, transfer or change in title of the Property prior to the thirtieth 130'") anniversary date of the Deed of Trust will result in the principal becoming due and payable. Principal shall also become due and payable upon the thirtieth (30'") anniversary date of the Deed of Trust. No delay or omission on the part of the City shall operate as a waiver of such right of repayment or of any other right of this Note. The principal amount of this Note, together with interest lif any) accruing thereon frorn the date hereof as set forth in Section 3, shall be due and payable on or before the date provided by the City in the Notice of Acceleration, which shall not be less than ninety {901 days, if ali or any part of the Property or any interest in it is sold, rented, refinanced, conveyed, or transferred or if a beneficial interest in Borrower is sold, rented, refinanced, conveyed, or transferred (each of which is called a "Transfer") without the prior written consent of the City The City shall not exercise this right of acceleration if prohibited by federal law or if the EXHIBIT B-2 8/14n006 12-35 Note Holder has executed a separate written waiver of its right to do so. The following shall not constitute a Transfer: la) A transfer of the Property from a deceased Borrower to the surviving spouse of Borrower if the surviving spouse is also named as a Borrower; Ib) A transfer of the Property by Borrower to his/her spouse pursuant to which the spouse becomes a co-owner of the Property; (c) A transfer of the Property resulting from a decree of dissolution of the marriage or legal separation or from a property settlement agreement incidental to such a decree which requires Borrower to continue to make payments on the Note and by which a spouse who is already a Borrower becomes the sole owner of the Property; Id) A transfer of the Property by Borrower to an inter-vivos trust in which Borrower is the sole beneficiary and which is done for estate planning purposes only and does not result in any change in possession of the Property; (e) A refinancing to which the beneficiary under the Deed of Trust is obligated to subordinate the Deed of Trust. If) A refinancing which does not result in cash excess paid to Borrower or which is used for debt consolidation, equity line of credit or similar purposes. (g) A conveyance by sale or otherwise, to a party which the Housing Manager of the Community Deve[opment Department of the City of Chula Vista determines meets a[1 the requirements to be deemed a "Moderate Income Buyer" as defined in the "Affordable Housing Regu[atory Agreement" fiied for record with the County recorder of the San Diego County on , 2006 as Document No 2006,_ All payments made under this Note sha[1 be paid in lawful money of the United States to the City of Chura Vista at 276 Fourth Avenue, Chuia Vista, CA 91910, Attention: Community Development Department, Housing Division. 4 Prepayment. Borrower has the right to prepay the principal without incurring any penalty, apart from any interest that may be due under default provisions above. In the event that Borrower chooses to prepay the Note, Borrower must notify Note Holder in writing. 5 No Interest If No Default. Provided that Borrower is not in default under the terms of this Note or Loan Documents, no interest shall accrue under the Note. Nothing contained in this Section 5 shall be construed as a promise by the City to forgive or relinquish the right to seek repayment of the principal of this Note. 6. Default Under Deed of Trust. Notwithstanding any other provisions of the Note, if default occurs in any of the covenants or agreements contained in the Deed of Trust securing this Note, this Note, including all unpaid principal and interest, shall immediately become due and payable in full at the option of the City In the event the City exercises such option, the amounts due and EXHIBIT B-2 8/14/2006 12-36 payable shall be the principal balance remaining on the Note and other amounts owing, together with accrued but unpaid interest as described above. 7 Attorneys' Fees. Should suit be commenced to collect on this Note, or any portion thereof, such sum as the court may deem reasonable shall be added hereto as attorneys' fees. 8. Time. Time is of the essence herein. 9 Amendments. This Note may not be modified or amended except by an instrument in writing expressing such intention and signed by an authorized representative of the City and Borrower 10 Severability If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity and binding effect of the remainder of this Note upon the parties. 11 Borrower's Waivers. Borrower- waives any rights to require the City to perform certain acts. Those acts are: (d) To demand payment of amounts due (known as "presentment") (e) To give notice that amounts due have not been paid (known as "notice of dishonor"). (f) To obtain an official certification of non-payment (known as 'protest") 12. Giving of Notices. Any notice that must be given to Borrower under this Note will be given by delivering it or by mailing it first class mail or by certified mail, return receipt requested, addressed to Borrower at the address set forth above. A notice that must be given to the City under this Note will be given by mailing it certified mail, return receipt request, to the City at the address stated in Section 3 above. Any party may change its address by a notice given to the other party in the manner set forth in this Section. 13 Joint and Several Responsibility If more than one person executes this Note, each is fully and personally obligated to pay the full amount owed and to keep all promises in this Note. EXHIBIT B-2 8/14/2006 12-37 NOTICE TO BORROWER Do not sign this Note if it contains blank spaces. All spaces should be completed before you sign. Date: Borrower Borrower EXHIBIT B-2 8/14/2006 12-38 EXHIBIT C-I LOW INCOME FORM OF SILENT SECOND TRUST DEED EXHIBIT C-I 8/14/2006 065550-0009 251465.3 doc 12-39 WHEN RECORDED PLEASE MAil TO' City of Chula Vista Community Development Department Housing Division 276 Fourth Avenue Chula Vista, CA 91910 THIS SPACE FOR RECORDER'S USE ONLY NOTICE: THIS DEED OF TRUST SECURES A SHARED APPRECIATION lOAN WITHIN THE MEANING OF CIVil CODE SECTION 1917, ET SEQ. DEED OF TRUST (SHARED APPRECIATION) THIS DEED OF TRUST, is made this day of ,200-, among the Trustor(s), , (herein "Borrower"), and the City of Chula Vista (herein "Beneficiary") a public body, corporate and politic, whose address is 276 Fourth Avenue, Chula Vista, CA 91910. This Deed of Trust is second and subsequent in lien to a First Deed of Trust recording concurrently herewith in favor of the first lien holder, , a in the amount of Trust Deed"); and "/100 Dollars (herein "First BORROWER, in consideration of the indebtedness herein recited and the trust herein created, irrevocably grants and conveys to First American Title (herein "Trustee"), in trust, with power of sale, the following described property located in the City of Chula Vista, County of San Diego, State of California [which has the address of (herein "Property Address")]: SEE EXHIBIT "A" ATIACHED HERETQFOR lEGAL DESCRIPTION TOGETH ER with all the improvements now and hereafter erected on the Property, and all easements, rights, appurtenances and rents (subject however to the rights and authorities given herein to Beneficiary to collect and apply such rents), all of which shall be deemed to be and remain part of the property covered by this Deed of Trust; and all of the foregoing, together with said property (or the leasehold estate if this Deed of Trust is on a leasehold) are hereinafter referred to as the "Property", TO SECURE to Beneficiary the repayment of the indebtedness evidenced by Borrower's promissory note, dated ,200 and extensions and renewals thereof (herein "Note"), in the principal sum of - and 00/10 Dollars ($ ), with EXHIBIT C-1 8/14/2006 12-40 default interest thereon, if any, and the Equity portion payable to Beneficiary as provided hereinafter, if not sooner paid, which shall become immediately due and payable if all or any part of the Property or any interest in it is sold, rented, refinanced, conveyed or transferred (or if a beneficial interest in Borrower is sold, rented, refinanced, conveyed or transferred and Borrower is not a natural person), (each of which is called a "Transfer') without the prior written consent of Beneficiary; the payment of all other sums, with default interest thereon, if any, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Borrower herein contained. Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Property, and that Borrower's subject property is unencumbered except for encumbrances of record. Borrower covenants that Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to encumbrances of record. UNIFORM COVENANTS Borrower and Beneficiary covenant and agree as follows: 1 Payment of Principal and Default Interest. Borrower shall promptly pay when due the principal Indebtedness and accrued default interest, if any, evidenced by the Note and the portion of the Equity payable by Borrower as provided in Paragraph 13 of this Deed of Trust. If payment of the indebtedness is required due to a sale of the Property where the purchase price is equal to or less than the acquisition cost of the Property, assuming an open and competitive sale, then repayment shall be made in the following order and amount: (a) Outstanding principal and interest balance of the primary lender's loan; (b) Borrower's initial down-payment investment and normal cost of sale; (c) The principal amount of Beneficiary's loan; (d) Amount of equity share due to Beneficiary; and (e) Remainder to Borrower Borrower has the right to prepay the principal secured by this Deed of Trust without incurring any penalty, apart from any interest that may be due under default provisions contained in the Note. In the event that Borrower chooses to prepay the Note, Borrower must notify Beneficiary in writing. Upon any such prepayment, Beneficiary's share of the Equity shall become immediately due and payable to the Beneficiary 2. Funds for Taxes. To protect the security of this Deed of Trust, Borrower agrees to pay, at least ten (10) days before delinquency, all taxes and assessments affecting said property; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; and all costs, fees and expenses of this Deed of Trust. EXHIBIT C-l 8/14/2006 12-41 Should Borrower fail to make any payment or to do any act as herein provided, then Beneficiary, without obligation to do so and without notice to or demand upon Borrower and without releasing Borrower from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his/her reasonable fees. 3 Application of Payments. Unless applicable law provides otherwise, all payments received by Beneficiary under section 1 and 2 shall be applied; first, to any prepayment charges due under the Note; second, to amounts payable under section 2, third, to accrued default interest, if any, due; fourth, to principal due; and last, to any late charges due under the Note. 4 Prior MortRaRes and Deeds of Trust; CharRes; liens. Borrower shall perform all of Borrower's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed oITrust, including Borrower's covenants to make payments when due. Borrower shall payor cause to be paid all taxes, assessments and other charges, fines and impositions attributable to the Property which may attain a priority over this Deed of Trust, and leasehold payments or ground rents, if any 5 Preservation and Maintenance of Property, Condominium, Cooperatives, Planned Unit Developments. Borrower will keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall maintain property including the principle house, garage, and out buildings as well as lawn maintenance, and shall comply with the provisions of any lease if this Deed of Trust is on a leasehold. If this Deed of Trust is on a unit in a condominium or a pianned unit development (herein "PUD"), Borrower shall perform all of Borrower's obligations under the declaration or covenants, conditions and restrictions, creating or governing the condominium, PUD, the by-laws and regulations of the condominium or PUD, and constituent documents. 6 Protection of Beneficiary Security. If Borrower fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which materially affects Beneficiary's interest in the Property, then Beneficiary, at Beneficiary's option, upon notice to Borrower, may make such appearances, disburse such sums including reasonable attorneys' fees, and take such action as is necessary to protect Beneficiary's interest. If Beneficiary required mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower shall pay the premiums required to maintain such insurance in effect until such time as the requirement for such insurance terminates in accordance with Borrower's and Beneficiary's written agreement or applicable law Any amounts disbursed by Beneficiary pursuant to this Paragraph, with interest thereon, at EXHIBIT C-l 8/14/2006 12-42 the original Note rate, will become additional indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and Beneficiary agree to other terms of payment, such amounts will be payable upon notice from Beneficiary to Borrower requesting payment thereof. Nothing contained in this Paragraph will require Beneficiary to incur any expense or take any action hereunder. 7 Inspection. Beneficiary may make or cause to be made reasonable entries upon and inspections of the Property, provided that Beneficiary will give Borrower notice prior to any such inspection specifying reasonable cause therefore related to Beneficiary's interest in the Property 8. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Beneficiary subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed of Trust. 9 Borrower Not Released; Forbearance by Beneficiary Not a Waiver. Extension of the time for payment or modification of payment of the sums secured by this Deed of Trust granted by Beneficiary to any successor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower and Borrower's successors in interest. Beneficiary shall not be required to commence proceedings against such successor or to extend time for payment or otherwise modify payment of the sums secured by this Deed oITrust by reason of any demand made by the original Borrower and Borrower's successors in interest. Any forbearance by Beneficiary in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy 10. manner, any notice to Borrower provided for in this Deed of Trust shall be given by delivering it or by mailing such notice by certified mail, addressed to Borrower at the Property address or such other address as Borrower may designate by notice to Beneficiary as provided herein, and Notice. Except for any notice required under applicable law to be given in another (a) Any notice to Beneficiary will be given by certified mail, return receipt requested, to Beneficiary address slated herein or to such other address as Beneficiary may designate by notice to Borrower as provided herein. (b) Any Notice provided for in this Deed of Trust shall be deemed to have been given to Borrower or Beneficiary when given in the manner designated herein. 11 Governinlllaw, Severability. The state and local laws applicable to this Deed of Trust shall be the laws of the jurisdiction in which the Property is located. The foregoing sentence shall not limit the applicability of Federal law to this Deed of Trust. In the event that any provision or clause of this Deed of Trust or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Deed of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of this Deed of Trust and the Note are declared to be severable. As used herein, "costs", "expenses" and "attorneys' fees" include all sums to the extent not prohibited by applicable law or limited herein. EXHIBIT C-1 8/14/2006 12-43 12. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and this Deed of Trust at the time of execution or after recordation hereof. 13 Transfer of the Property or a Beneficial Interest in Borrower. In the event of a Transfer or the prepayment of the entire Note balance, the "Equity", as hereafter defined, in the Property shall be shared between Borrower and Beneficiary on the following basis: Occuoancv Period (vears) Beneficiarv Eauitv Share Borrower Eauitv Share Before 1 100% 0% 1-5 70% 30% 6-10 60% 40% 11-15 50% 50% 16-20 40% 60% 21-25 25% 75% 26-30 10% 90% After 30 0% 100% If, for example, the Property is sold in the first year through the fifth year of the term of the Note secured by this Deed of Trust, Borrower shall receive thirty percent (30%) of the Equity in the Property and Beneficiary shall receive seventy percent (70%) of the Equity "Equity" is defined as the dollar amount that constitutes the difference between the sales price of the Property and the sum of the following amounts: (a) The principal on the First Note and the First Trust Deed, along with any interest and fees due thereof; and (b) The principal on the Note secured by this Deed of Trust to the City of Chula Vista, along with any fees due thereof; and (c) All costs of sale, including costs of brokers' commissions, escrow fees, title costs and fees, recording costs, etc., and (d) Current year taxes, including all real estate taxes prorated to the date of sale; and (e) The down payment paid by Borrower when he/she/they purchased the Property, not including the loan from Beneficiary to Borrower; and (0 The costs of any improvements to the Property, provided such improvements were approved by the City of Chula Vista prior to construction and provided that such improvements have been documented to the satisfaction of Beneficiary; and (g) The costs of any Borrower-elected options and upgrades included in the Property that are not included in the plans and specifications of standard production units for which Borrower paid cash at the time Borrower purchased the Property EXHIBIT C-t 8/14/2006 12-44 The amount of Borrower's share in the Equity of the Property shall increase by the percentages set forth in the table above, measured on the anniversary date of this Deed ofTrust. Correspondingly, Beneficiary's share in the equity of the Property shall decrease by the percentages set forth in the table above. For the sake of example, if the Property is sold more than five (5) but less than six (6) years after the date of th is Deed ofTrust, Beneficiary would have a seventy percent (70%) share in the equity and Borrower would have a thirty percent (30%) share in the Equity of the Property [n the event of a Transfer, the entire unpaid principal of the Note together with accrued default interest thereon, if any, shall become immediately due and payable. The Equity payable to Beneficiary is in addition to such unpaid principal and interest. In the event that no Equity exists at the time of transfer or sale, full amount of the principal of the Note secured hereby shall be required to be repaid to Beneficiary (item 13b above) will still be due and payable. In the event that a negative Equity situation exists, arid the fu[1 amount of the principal of the Note secured hereby shall be required to be repaid to Beneficiary. The following shall not constitute a Transfer: (a) A transfer of the Property from a deceased Borrower to the surviving spouse of Borrower if the surviving spouse is also named as a Borrower; (b) A transfer of the Property by Borrower to hislher spouse pursuant to which the spouse becomes a co-owner of the Property; (c) A transfer of the Property resulting from a decree of dissolution of the marriage or [egal separation or from a property settlement agreement incidental to such a decree which requires Borrower to continue to make payments on the Note and by which a spouse who is already a Borrower becomes the sole owner of the Property; (d) A transfer of the Property by Borrower to an inter-vivos trust in which Borrower is the sole beneficiary and which is done for estate planning purposes only and does not result in any change in possession of the Property; (e) A refinancing to which Beneficiary under this Deed of Trust is obligated to subordinate this Deed of Trust; and (f) A refinancing which does not result in cash excess paid to Borrower or which is used for debt consolidation, equity line of credit or similar purposes. (g) A conveyance by sale or otherwise, to a party which the Housing Manager of the Community Development Department of the City of Chula Vista determines meets all the requirements to be deemed a "Low Income Buyer" as defined in the" Affordab[e Housing Regu[atory Agreement" filed for record with the County recorder of the San Diego County on , 2006 as Document No. 2006-_ and which the Housing Manager determines meets ali the requirements set forth in Section 4.3 of that Affordable Housing Regulatory Agreement. EXlDBIT C-I 8/14/2006 12-45 Provided that Borrower is not in default under the terms of the Note or this Deed of Trust , no interest shall accrue under the Note. Beneficiary shall not share any Equity unless the principal balance of the Note is prepaid or becomes accelerated prior to the thirtieth (30th) year after the date of the execution of the Note, as provided in Section 5 of the Note. Nothing contained in this Paragraph or Section 5 of the Note shall be construed as a promise by Beneficiary to forgive or relinquish the right to seek repayment of the principal of the Note. NON-UNIFORM COVENANTS Borrower and Beneficiary further covenant and agree as follows: 14 Acceleration, Remedies. Upon Borrower's breach of any covenant or agreement of Borrower in this Deed of Trust; including the covenants to pay when due any sums secured by this Deed of Trust, Beneficiary, prior to acceleration, shall give notice to Borrower as provided in Paragraph 10 hereof specifying: (a) The breach; (b) The action required to cure such breach; (c) A date, not less than 10 days from the date the notice is mailed to Borrower, by wh ich such breach must be cured; and (d) That failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Property The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Borrower to acceleration of sale. If the breach is not cured on or before the date specified in the notice, Beneficiary, at Beneficiary's option, may declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by applicable law Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Paragraph, including, but not limited to, reasonable attorneys' fees. If Beneficiary invokes power of sale, Beneficiary shall execute or cause Trustee to execute a written notice of the occurrence of an event of default and of Beneficiary's election to cause the Property to be sold and shall cause such notice to be recorded in each county in which the Property or some part thereof is located. Beneficiary or Trustee shall mail copies of such notice in the manner prescribed by applicable law Trustee shall give public notice of sale to the persons and in the manner prescribed by applicable law After the lapse of such time as may be required by applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as Trustee may determine. Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously scheduled sale. Beneficiary or Beneficiary's designee may purchase the Property at any sale. EXHIBIT C-l 8/14/2006 12-46 Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the sale in the following order' (a) To all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorneys' fees and costs of title evidence; (b) To all sums secured by this Deed of Trust; and thereto. (c) The excess, if any, to the person or persons legally entitled 15 Borrower's Right to Reinstate. Not withstanding Beneficiary's acceleration of the sums secured by this Deed of Trus.! due to Borrower's breach, Borrower shall have the right to have any proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Borrower pays Beneficiary all sums, which would be then due under this Deed of Trust, and the Note, had no acceleration occurred; (b) Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) Borrower pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Borrower contained in this Deed of Trust, and in enforcing Beneficiary's and Trustee's rights as provided in Paragraph 15 hereof, including, but not limited to, reasonable attorneys' fees; and (d) Borrower takes such action as Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary's interest in the Property and Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. 16. Reconveyance. Upon payment of all sums secured by this Deed of Trust, Beneficiary shall request Trustee to reconvey the Property and will surrender this Deed of Trust and all Notes evidencing indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the Property without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any 17 Substitute Trustee. Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Beneficiary and recorded in the office EXHIBIT C-! 8/14/2006 12-47 of the Recorder of the county where the Property is located. The instrument shall contain the name of the original Lender, Trustee and Borrower, the book and page where this Instrument is recorded and the name and address of the successor trustee. The successor trustee shall, without conveyance of the Property, succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution. 1 B. Request for Notices. Borrower requests that copies of the Notice of Default and Notice of Sale be sent to Borrower's address, which is the Property Address. Beneficiary requests that copies of notices of foreclosure from the holder of any lien which has priority over this Deed of Trust be sent to Beneficiary's address, as set forth on Page One of this Deed of Trust as provided by Section 2924b of the Civil Code of California. 19 Fee for Requested Statements. Beneficiary may charge a fee not to exceed Fifty Dollars ($50.00) for furnishing the statement of obligation as provided in Section 2943 of the Civil Code of California. 20 Deed of Trust Rider. The Deed of Trust Rider (if any) executed by Borrower is attached and made part of this Deed oITrus!. 21 Warranties of Borrower. Borrower warrants to Beneficiary that Borrower is qualified to purchase the Property pursuant to the criteria set forth in City Council Policy No. 435-02 (Development of Affordable for Sale Housing for Low-Income Buyers), which became effective on December 9, 2003 22. Subordination To First Deed of Trust. Beneficiary and Borrower acknowledge and agree that this Deed of Trust is subject to and will subordinate in all respects to the liens, terms, covenants and conditions of the First Trust Deed recorded prior to this Deed of Trust, which secures the institutional loan as evidenced by a promissory note (herein "First Note"), the proceeds of which were used by Borrower to purchase the Property and to all advances heretofore made or which may hereafter be made pursuant to the First Trust Deed including all sums advanced for the purpose of. (a) Protecting or further securing the lien of the First Trust Deed, curing defaults by Borrower under the First Trust Deed or for any other purpose expressly permitted by the First Trust Deed, and (b) Constructing, renovating, repairing, furnishing, fixturing or equipping the Property The terms and provisions of the First Trust Deed are paramount and controlling, and they supersede any other terms and provisions hereof in conflict therewith. In the event of a foreclosure of deed in lieu of foreclosure of the First Trust Deed, any provisions herein or any provision in any other collateral agreement restricting the use of the Property to low or moderate income households or otherwise restricting Borrower's ability to sell the Property shall have no further force or effect on subsequent owners or purchasers of the Property Any person, including his/her successors or assigns (other than Borrower or a related entity of Borrow<;!r), receiving title to the Property through a foreclosure or deed in lieu of foreclosure of the First Trust Deed shall receive EXHIBIT C-I 8/14/2006 12-48 title to the property free and clear from such restrictions. Further, if the First Trust Deed Beneficiary acquires title to the Property pursuant to a deed in lieu of foreclosure, the lien of this Deed of Trust shall automatically terminate upon the First Trust Deed Beneficiary's acquisition of title, provided that: (a) Beneficiary has been given written notice of a default under the First Trust Deed,and (b) Beneficiary shall not have cured the default under the First Trust Deed, or diligently pursued curing the default as determined by the First Trust Deed holder, within the 60-day period provided in such notice sent to Beneficiary Beneficiary and Borrower further acknowledge and agree that this Deed of Trust will only subordinate for a rate and term refinance of the First Trust Deed at the discretion of Beneficiary and shall not be subject to subordination for a cash out refinance, equity line of credit or any other such form of refinance as deemed inappropriate by Beneficiary 23 Subordination To Refinancin!l First Trust Deed. Beneficiary agrees to subordinate this Deed of Trust to a new first deed of trust, the proceeds of which are to refinance the First Trust Deed loan, provided that the new loan is not in an amount in excess of the then existing First Trust Deed loan plus costs of the refinancing; that is a refinancing which does not result in cash excess or which is used for debt consolidation, equity line of credit or similar purposes. The new loan to be subordinated to must be at a fixed interest rate and fully amortized over a term of not less than th irty (30) years. 24 Funds for Taxes and Insurance. Beneficiary will waive collection of impounds for taxes and assessments (including condominium, PUD and planned residential development assessments, if any). Borrower will make all payments for impounds to the First Trust Deed holder 25 Riders to this Deed of Trust. If one or more riders are executed by Borrower and recorded together with this Deed of Trust, the covenants and agreements of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Deed of Trust as if the rider(s) were a part of this Deed ofTrust. [Check applicable box(es)J o Transfer Rider 01-4 Family Rider o Other(s) [specify]: o Condominium Rider o PU D Rider BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Deed of Trust and in any rider(s) executed by Borrower and recorded with it. EXHIBIT C-l 8/1412006 12-49 ACKNOWLEDGMENT State of California County of San Diego On before me, , Notary, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature: EXHIBIT C-l 8/14/2006 12-50 DO NOT RECORD THIS PAGE REQUEST FOR RECONVEYANCE TO TRUSTEE: Th~ undersigned is the holder of the note or notes secured by this Deed of Trust. Said note or notes, together with all other indebtedness secured by this Deed of Trust, have been paid in full. You are hereby directed to cancel said note or notes and this Deed of Trust, which are delivered hereby, and to reconvey, without warranty, all the estate now held by you under this Deed of Trust to the person or persons legally entitled thereto. Dated: DO NOT lOSE OR DESTROY THIS DEED OF TRUST OR THE NOTE WHICH IT SECURES. BOTH MUST BE DELIVERED TO THE TRUSTEE FOR CANCEllATION BEFORE RECONVEYANCE Will BE MADE. EXHIBIT C.l 8/14/2006 1 2-51 EXHIBIT C-I 8/14/2006 12-52 EXHIBIT "A" LEGAL DESCRIPTION A CONDOMINIUM COMPRISED OF: CONDOMINIUM RIDER THIS CONDOMINIUM RIDER is made this _ day of ,200_, and is incorporated into and shail be deemed to amend and supplement the Deed of Trust (Shared Appreciation) ("Deed of Trust") and the Promissory Note ("Note") of the same date herewith given by the undersigned ("Borrower') to secure Borrower's performance under the Note in favor of the City of Chula Vista, a municipal corporation ('City') and covering that certain real property described in the Deed of Trust ("Property") and located at: (Property Address) The Property includes a unit in, together with an undivided interest in the common elements of, a condominium project known as: THE LANDING ("Condominium Project"). if the owners association or other entity which acts for the Condominium Project ("Owners Association") holds title to property for the benefit or use of its members or shareholders, the Property also includes Borrower's interest in the Owners Association and the uses, proceeds and benefits of Borrower's interest therein. CONDOMINIUM COVENANTS In addition to the covenants and agreements made in the Deed of Trust, Borrower and City further covenant and agree as follows: Condominium Obligations. Borrower shall perform all of Borrower's obligations under the Condominium's Constituent Documents. The "Constituent Documents" are the (I) declaration of covenants, conditions and restrictions; (Ii) articles of incorporation, trust instrument or any equivalent document which creates the Owners Association; and (iii) any by-laws or other rules or regulations of the Owners Association. Borrower shall promptly pay, when due, all dues and assessments imposed pursuant to the Constituent Documents. 2. Property Insurance. So long as the Owners Association maintains, with a generally accepted insurance carrier, a "master' or "blanket" policy insuring the Property which is satisfactory to City and which provides insurance coverage in the amounts (including deductibie levels) for the periods, and against loss by fire, hazards included within the term "extended coverage: and any EXHIBIT C-t 8/14/2006 12-53 other hazards, including but not limited to, earthquakes and floods, for which City requires insurance, then: (i) City waives the provision for the periodic payment to City of the yearly premium installments for property insurance on the Property; and (ii) Borrower's obligation under Paragraph S of the Deed of Trust to maintain property insurance coverage on the Property is deemed satisfied to the extent that the required coverage is provided by the Owners Association policy. (a) What City requires as a condition of this waiver can change during the term of the loan. (b) Borrower shall give City prompt notice of any lapse in required property insurance coverage provided by the master or blanket policy (c) In the event of a distribution of property insurance proceeds in lieu of restoration or repair following a loss to the Property, or to common areas and facilities of the planned unit development ("PU D"), any proceeds payable to Borrower are hereby assigned and shall be paid to City City shall apply the proceeds to the sums secured by the Deed of Trust, whether or not then due, with the excess, if any, paid to Borrower 3 Public liability Insurance. Borrower shall take such actions as may be reasonable to insure that the Owners Association maintains a public liability insurance policy acceptable in form, amount, and extent of coverage to City. 4 Condemnation. The proceeds of any award or claim for damages, direct or consequential, payable to Borrower in connection with any condemnation or other taking of all or any part of the Property or the common areas and facilities of the PUD, orfor any conveyance in lieu of condemnation, are hereby assigned and shall be paid to City Such proceeds shall be applied by City to the sums secured by the Deed ofTrust as provided in Paragraph 8 of the Deed of Trust. S City's Prior Consent. Borrower shall not, except after notice to City and with City's prior written consent, either partition or subdivide the Property or consent to: (i) the abandonment or termination of the PUD, except for abandonment or termination required by law in the case of substantial destruction by fire or other casualty or in the case of a taking by condemnation or eminent domain; (ii) any amendment to any provision of the "Constituent Documents" if the provision is for the express benefit of City; (iii) termination of professional management and assumption of self-management of the Owners Association; or (iv) any action which would have the effect of rendering the public liability insurance coverage maintained by the Owners Association unacceptable to City 6. Remedies. If Borrower does not pay PUD dues and assessments when due, then City may pay them. Any amounts disbursed by City under this Paragraph 6 shall become additional debt of Borrower secured by the Deed of Trust. Unless Borrower and City agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note default rate EXHIBIT C-l 8/14/2006 12-54 and shall be payable, with such accrued interest, upon notice from City to Borrower requesting payment. BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained in this Condominium Rider. Date: Date: EXmBIT C-l 8/14/2006 12-55 EXHIBIT C-2 MODERATE INCOME FORM OF SILENT SECOND TRUST DEED EXffiBIT C-2 8/14/2006 12-56 WHEN RECORDED PLEASE MAIL TO: City of Chula Vista Community Development Department Housing Division 276 Fourth Avenue Chula Vista, CA 91910 THIS SPACE FOR RECORDER'S USE ONLY NOTICE: THIS DEED OF TRUST SECURES A DEFERRED LOAN WITHIN THE MEANING OF CIVIL CODE SECTION 1917, ET SEQ. DEED OF TRUST (SHARED APPRECIATION) THIS DEED OF TRUST, is made this day of ,200_, among the Trustor(s), , (herein "Borrower"), and the City of Chula Vista (herein "Beneficiary") a public body, corporate and politic, whose address is 276 Fourth Avenue, Chula Vista, CA 91910. This Deed of Trust is second and subsequent in lien to a First Deed of Trust recording concurrently herewith in favor of the first lien holder, , a and 00/'00 Dollars (herein "First in the amount of Trust Deed"); BORROWER, in consideration of the indebtedness herein recited and the trust herein created, irrevocably grants and conveys to First American Title (herein "Trustee"), in trust, with power of sale, the following described property located in the City of Chula Vista, County of San Diego, State of California [which has the address of (herein "Property Address")]: SEE EXHIBIT "A" ATTACHED HERETO FOR LEGAL DESCRIPTION TOGETHER with all the improvements now and hereafter erected on the Property, and all easements, rights, appurtenances and rents (subject however to the rights and authorities given herein to Beneficiary to collect and apply such rents), all of which shall be deemed to be and remain part of the property covered by this Deed of Trust; and all of the foregoing, together with said property (or the leasehold estate if this Deed of Trust is on a leasehold) are hereinafter referred to as the II Propertyl1; TO SECU RE to Beneficiary the repayment of the indebtedness evidenced by Borrower's promissory note, dated ,200 and extensions and renewals thereof (herein "Note"), in the principal sum of - and 00;'0 Dollars ($ ), with EXHlllIT C-2 8/14/2006 1 2-57 default interest thereon, if any, shall become immediately due and payable if all or any part of the Property or any interest in it is sold, rented, refinanced, conveyed or transferred (or if a beneficial interest in Borrower is sold, rented, refinanced, conveyed or transferred and Borrower is not a natural person), (each of which is called a "Transfern) without the prior written consent of Beneficiary; the payment of all other sums, with default interest thereon, if any, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Borrower herein contained. Borrower covenants that Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Property, and that Borrower's subject property is unencumbered except for encumbrances of record. Borrower covenants that Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to encumbrances of record. UNIFORM COVENANTS Borrower and Beneficiary covenant and agree as follows: 1 Payment of Principal and Default Interest. Borrower shall promptly pay when due the principal indebtedness and accrued default interest, if any, evidenced by the Note and secured by th is Deed oITrust. If payment of the indebtedness is required due to a sale of the Property where the purchase price is equal to or less than the acquisition cost of the Property, assuming an open and competitive sale, then repayment shall be made in the following order and amount: (a) Outstanding principal and interest balance of the primary lender's loan; (b) Borrower's initial down-payment investment and normal cost of sale; (c) The principal amount of Beneficiary's loan; and (d) Remainder to Borrower Borrower has the right to prepay the principal secured by this Deed of Trust without incurring any penalty, apart from any interest that may be due under default provisions contained in the Note. In the event that Borrower chooses to prepay the Note, Borrower must notify Beneficiary in writing. 2. Funds for Taxes. To protect the security of this Deed of Trust, Borrower agrees to pay, at least ten (10) days before delinquency, all taxes and assessments affecting said property; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; and all costs, fees and expenses of this Deed of Trust. Should Borrower fail to make any payment or to do any act as herein provided, then Beneficiary, without obligation to do so and without notice to or demand upon Borrower and without releasing Borrower from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, EXHIBIT C-2 8/14/2006 12-58 Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his/her reasonable fees. 3 Application of Payments. Unless applicable law provides otherwise, all payments received by Beneficiary under section 1 and 2 shall be applied; first, to any prepayment charges due under the Note; second, to amounts payable under section 2; third, to accrued default interest, if any, due; fourth, to principal due; and last, to any late charges due under the Note. 4 Prior Mortgages and Deeds of Trust; Charges; Liens. Borrower shall perform all of Borrower's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed oITrust, including Borrower's covenants to make payments when due. Borrower shall payor cause to be paid all taxes, assessments and other charges, fines and impositions attributable to the Property which may attain a priority over this Deed of Trust, and leasehold payments or ground rents, if any 5 Preservation and Maintenance of Property, Condominium, Cooperatives, Planned Unit Developments. Borrower will keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall maintain property including the principle house, garage, and out buildings as well as lawn maintenance, and shall comply with the provisions of any lease if this Deed of Trust is on a leasehold. If this Deed of Trust is on a unit in a condominium or a planned unit development (herein "PU D"), Borrower shall perform all of Borrower's obligations under the declaration or covenants, conditions and restrictions, creating or governing the condominium, PU D, the by-laws and regulations of the condominium or PUD, and constituent documents. 6. Protection of Beneficiary Security. If Borrower fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which materially affects Beneficiary's interest in the Property, then Beneficiary, at Beneficiary's option, upon notice to Borrower, may make such appearances, disburse such sums including reasonable attorneys' fees, and take such action as is necessary to protect Beneficiary's interest. If Beneficiary required mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower shall pay the premiums required to maintain such insurance in effect until such time as the requirement for such insurance terminates in accordance with Borrower's and Beneficiary's written agreement or applicable law Any amounts disbursed by Beneficiary pursuant to this Paragraph, with interest thereon, at the original Note rate, will become additional indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and Beneficiary agree to other terms of payment, such amounts will be payable upon notice from Beneficiary to Borrower requesting payment thereof Nothing contained in this Paragraph will require Beneficiary to incur any expense or take any action hereunder EXHIBIT C-2 8/14/2006 12-59 7 Inspection. Beneficiary may make or cause to be made reasonable entries upon and inspections of the Property, provided that Beneficiary will give Borrower notice prior to any such inspection specifying reasonable cause therefore related to Beneficiary's interest in the Property 8. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Beneficiary subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed of Trust. 9 Borrower Not Released; Forbearance by Beneficiary Not a Waiver. Extension of the time for payment or modification of payment of the sums secured by this Deed of Trust granted by Beneficiary to any successor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower and Borrower's successors in interest. Beneficiary shall not be required to commence proceedings against such successor or to extend time for payment or otherwise modify payment of the sums secured by this Deed of Trust by reason of any demand made by the original Borrower and Borrower's successors in interest. Any forbearance by Beneficiary in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. 10. Notice. Except for any notice required under applicable law to be given in another manner, any notice to Borrower provided for in this Deed of Trust shall be given by delivering it or by mailing such notice by certified mail, addressed to Borrower at the Property address or such other address as Borrower may designate by notice to Beneficiary as provided herein, and (a) Any notice to Beneficiary wi II be given by certified mai I, return receipt requested, to Beneficiary address stated herein or to such other address as Beneficiary may designate by notice to Borrower as provided herein. (b) Any Notice provided for in this Deed of Trust shall be deemed to have been given to Borrower or Beneficiary when given in the manner designated herein. 11 Governing law, Severability. The state and local laws applicable to this Deed of Trust shall be the laws of the jurisdiction in which the Property is located. The foregoing sentence shall not limit the applicability of Federal law to this Deed oITrust. In the event that any provision or clause of this Deed of Trust or the Note conflicts with applicable law, such conflict shall not affect other provisions of th is Deed of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of this Deed of Trust and the Note are declared to be severable. As used herein, "costs", "expenses" and "attorneys' fees" include all sums to the extent not prohibited by applicable law or limited herein. 12. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and this Deed of Trust at the time of execution or after recordation hereof. 13 Transfer of the Property or a Beneficial Interest in Borrower. In the event of a Transfer, EXHmIT C-2 8/14/2006 12-60 the entireunpaid principal of the Note together with accrued default interest thereon, if any, shall become immediately due and payable. The following shall not constitute a Transfer' (a) A transfer of the Property from a deceased Borrower to the surviving spouse of Borrower if the surviving spouse is also named as a Borrower; (b) A transfer of the Property by Borrower to his/her spouse pursuant to which the spouse becomes a co-owner of the Property; (c) A transfer of the Property resulting from a decree of dissolution of the marriage or legal separation or from a property settlement agreement incidental to such a decree which requires Borrower to continue to make payments on the Note and by which a spouse who is already a Borrower becomes the sole owner of the Property; (d) A transfer olthe Property by Borrower to an inter-vivos trust in which Borrower is the sole beneficiary and which is done for estate planning purposes only and does not result in any change in possession of the Property; (e) A refinancing to which Beneficiary under this Deed of Trust is obligated to subordinate this Deed of Trust; and (I) A refinancing which does not result in cash excess paid to Borrower or which is used for debt consolidation, equity line of credit or similar purposes. (g) A conveyance by sale or otherwise, to a party which the Housing Manager of the Community Development Department of the City of Chula Vista determines meets all the requirements to be deemed a "Moderate Income Buyer" as defined in the "Affordable Housing Regulatory Agreement" filed for record with the County recorder of the San Diego County on ,2006 as Document No. 2006- .and which the Housing Manager determines meets all the requirements set forth in Section 4.3 of that Affordable Housing Regulatory Agreement.. Provided that Borrower is not in default under the terms of the Note or this Deed of Trust, no interest shall accrue under the Note. Nothing contained in this Paragraph or Section 5 of the Note shall be construed as a promise by Beneficiary to forgive or relinquish the right to seek repayment of the principal of the Note. NON-UNIFORM COVENANTS Borrower and Beneficiary further covenant and agree as follows: 14 Acceleration, Remedies. Upon Borrower's breach of any covenant or agreement of Borrower in this Deed of Trust, including the covenants to pay when due any sums secured by this EXHIBIT C-2 8/14/2006 1 2-61 Deed of Trust, Beneficiary, prior to acceleration, shall give notice to Borrower as provided in Paragraph 10 hereof specifying: (a) The breach; (b) The action required to cure such breach; (c) A date, not less than 10 days from the date the notice is mailed to Borrower, by which such breach must be cured; and (d) That failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Property The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Borrower to acceleration of sale. If the breach is not cured on or before the date specified in the notice, Beneficiary, at Beneficiary's option, may declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by applicable law Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Paragraph, including, but not limited to, reasonable attorneys' fees. If Beneficiary invokes power of sale, Beneficiary shall execute or cause Trustee to execute a written notice of the occurrence of an event of default and of Beneficiary's election to cause the Property to be sold and shall cause such notice to be recorded in each county in which the Property or some part thereof is located. Beneficiary or Trustee shall mail copies of such notice in the manner prescribed by applicable law Trustee shall give public notice of sale to the persons and in the manner prescribed by applicable law After the lapse of such time as may be required by applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as Trustee may determine. Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously scheduled sale. Beneficiary or Beneficiary's designee may purchase the Property at any sale. Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the sale in the following order: (a) To all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorneys' fees and costs of title evidence; (b) To all sums secured by this Deed of Trust; and (c) The excess, if any, to the person or persons legally entitled thereto. 15 Borrower's Ri!lht to Reinstate. Not withstanding Beneficiary's acceleration of the sums EXHIBIT C-2 8/14/2006 12-62 secured by this Deed of Trust due to Borrower's breach, Borrower shall have the right to have any proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Borrower pays Beneficiary all sums, which would be then due under this Deed of Trust, and the Note, had no acceleration occurred; (b) Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) Borrower pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Borrower contained in this Deed of Trust, and in enforcing Beneficiary's and Trustee's rights as provided in Paragraph 14 hereof, including, but not limited to, reasonable attorneys' fees; and (d) Borrower takes such action as Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary's interest in the Property and Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. 16. Reconveyance. Upon payment of all sums secured by this Deed of Trust, Beneficiary shall request Trustee to reconvey the Property and will surrender this Deed of Trust and all Notes evidencing indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the Property without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any 17 Substitute Trustee. Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Beneficiary and recorded in the office of the Recorder of the county where the Property is located. The instrument shall contain the name of the original Lender, Trustee and Borrower, the book and page where this Instrument is recorded and the name and address of the successor trustee. The successor trustee shall, without conveyance of the Property, succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution. 18. Request for Notices. Borrower requests that copies of the Notice of Default and Notice of Sale be sent to Borrower's address, which is the Property Address. Beneficiary requests that copies of notices of foreclosure from the holder of any lien which has priority over this Deed of Trust be sent to Beneficiary's address, as set forth on Page One of this Deed of Trust as provided by Section 2924b of the Civil Code of California. 19 Fee for Requested Statements. Beneficiary may charge a fee not to exceed Fifty Dollars EXHmIT C-2 8/14/2006 12-63 ($50.00) for furnishing the statement of obligation as provided in Section 2943 of the Civil Code of California. 20. Deed of Trust Rider. The Deed of Trust Rider (if any) executed by Borrower is attached and made part of this Deed ofTrust. 21 Warranties of Borrower. Borrower warrants to Beneficiary that Borrower is qualified to purchase the Property as a "Moderate Income Buyer" as defined in that certain agreement entitled "Affordable Housing Regulatory Agreement" that encumbers the Propenty and was filed with the County Recorder of San Diego. 22. Subordination To First Deed of Trust. Beneficiary and Borrower acknowledge and agree that this Deed of Trust is subject to and will subordinate in all respects to the liens, terms, covenants and conditions of the First Trust Deed recorded prior to this Deed ofTrust, which secures the institutional loan as evidenced by a promissory note (herein "First Note"), the proceeds of which were used by Borrower to purchase the Propenty and to all advances heretofore made or which may hereafter be made pursuant to the First Trust Deed including all sums advanced for the purpose of: (a) Protecting or further securing the lien of the First Trust Deed, curing defaults by Borrower under the First Trust Deed or for any other purpose expressly permitted by the First Trust Deed, and (b) Constructing, renovating, repairing, furnishing, fixturing or equipping the Pro perty The terms and provisions of the First Trust Deed are paramount and controlling, and they supersede any other terms and provisions hereof in conflict therewith. In the event of a foreclosure of deed in lieu of foreclosure of the First Trust Deed, any provisions herein or any provision in any other collateral agreement restricting the use of the Propenty to low or moderate income households or otherwise restricting Borrower's ability to sell the Prop-enty shall have no further force or effect on subsequent owners or purchasers of the Property Any person, including hislher successors or assigns (other than Borrower or a related entity of Borrower), receiving title to the Property through a foreclosure or deed in lieu of foreclosure of the First Trust Deed shall receive title to the property free and clear from such restrictions. Further, if the First Trust Deed Beneficiary acquires title to the Property pursuant to a deed in lieu of foreclosure, the lien of this Deed of Trust shall automatically terminate upon the First Trust Deed Beneficiary's acquisition of title, provided that: (a) Beneficiary has been given written notice of a default under the First Trust Deed, and (b) Beneficiary shall not have cured the default under the First Trust Deed, or diligently pursued curing the default as determined by the First Trust Deed holder, within the 60-day period provided in such notice sent to Beneficiary EXHIBIT C-2 8/14/2006 12-64 Beneficiary and Borrower further acknowledge and agree that this Deed of Trust will only subordinate for a rate and term refinance of the First Trust Deed at the discretion of Beneficiary and shall not be subject to subordination for a cash out refinance, equity line of credit or any other such form of refinance as deemed inappropriate by Beneficiary 23 Subordination To Refinancin!! First Trust Deed. Beneficiary agrees to subordinate this Deed ofTrust to a new first deed of trust, the proceeds of which are to refinance the First Trust Deed loan, provided that the new loan is not in an amount in excess of the then existing First Trust Deed loan plus costs of the refinancing; that is a refinancing which does not result in cash excess or which is used for debt consolidation, equity line of credit or similar purposes. The new loan to be subordinated to must be at a fixed interest rate and fully amortized over a term of not less than thirty (30) years. 24 Funds for Taxes and Insurance. Beneficiary will waive collection of impounds for taxes and assessments (including condominium, PUD and planned residential development assessments, if any). Borrower will make all payments for impounds to the First Trust Deed holder 25 Riders to this Deed of Trust. If one or more riders are executed by Borrower and recorded together with this Deed of Trust, the covenants and agreements of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Deed of Trust as if the rider(s) were a part of this Deed of Trust. [Check applicable box(es)] o Transfer Rider 01-4 Family Rider o Other(s) [specify]: o Condominium Rider o PUD Rider BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Deed of Trust and in any rider(s) executed by Borrower and recorded with it. EXHIBIT C-2 8/14/2006 12-65 ACKNOWLEDGMENT State of California County of San Diego On before me, , Notary, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature: EXHIBIT C-2 8/14/2006 12-66 DO NOT RECORD THIS PAGE REQUEST FOR RECONVEYANCE TO TRUSTEE: The undersigned is the holder of the note or notes secured by this Deed of Trust. Said note or notes, together with all other indebtedness secured by this Deed of Trust, have been paid in full. You are hereby directed to cancel said note or notes and this Deed of Trust, which are delivered hereby, and to reconvey, without warranty, all the estate now held by you under this Deed of Trust to the person or persons legally entitled thereto. Dated: DO NOT LOSE OR DESTROY THIS DEED OF TRUST OR THE NOTE WHICH IT SECURES. BOTH MUST BE DELIVERED TO THE TRUSTEE FOR CANCELLATION BEFORE RECONVEYANCE WILL BE MADE. EXIDBIT C-2 8/14/2006 12-67 EXHIBIT C-2 8/14/2006 12-68 EXHIBIT "A" LEGAL DESCRIPTION A CONDOMINIUM COMPRISED OF: CONDOMINIUM RIDER THIS CONDOMINIUM RIDER is made this _ day of ,200-, and is incorporated into and shall be deemed to amend and supplement the Deed of Trust (Shared Appreciation) ("Deed of Trust") and the Promissory Note ("Note") of the same date herewith given by the undersigned ("Borrower") to secure Borrower's performance under the Note in favor of the City of Chula Vista, a municipal corporation ("City") and covering that certain real property described in the Deed of Trust ("Property") and located at: (Property Address) The Property includes a unit in, together with an undivided interest in the common elements of, a condominium project known as: THE LANDING ("Condominium Project"). If the owners association or other entity which acts for the Condominium Project ("Owners Association") holds title to property for the benefit or use of its members or shareholders, the Property also includes Borrower's interest in the Owners Association and the uses, proceeds and benefits of Borrower's interest therein. CONDOMINIUM COVENANTS In addition to the covenants and agreements made in the Deed of Trust, Borrower and City further covenant and agree as follows: 7 Condominium Obli!';ations. Borrower shall perform all of Borrower's obligations under the Condominium's Constituent Documents. The "Constituent Documents" are the (i) declaration of covenants, conditions and restrictions; (ii) articles of incorporation, trust instrument or any equivalent document which creates the Owners Association; and (iii) any by-laws or other rules or regulations of the Owners Association. Borrower shall promptly pay, when due, all dues and assessments imposed pursuant to the Constituent Documents. 8. Property Insurance. So long as the Owners Association maintains, with a generally accepted insurance carrier, a "master' or "blanket" policy insuring the Property which is satisfactory to City and which provides insurance coverage in the amounts (including deductible levels) for the periods, and against loss by fire, hazards included within the term "extended coverage," and any EXHIBIT C-2 8/14/2006 12-69 other hazards, including but not limited to, earthquakes and floods, for which City requires insurance, then: (i) City waives the provision for the periodic payment to City of the yearly premium installments for property insurance on the Property; and (ii) Borrower's obligation under Paragraph S of the Deed of Trust to maintain property insurance coverage on the Property is deemed satisfied to the extent that the required coverage is provided by the Owners Association policy (a) What City requires as a condition of this waiver can change during the term of the loan. (b) Borrower shall give City prompt notice of any lapse in required property insurance coverage provided by the master or blanket policy (c) In the event of a distribution of property insurance proceeds in lieu of restoration or repair following a loss to the Property, or to common areas and facilities of the planned unit development ("PUD"), any proceeds payable to Borrower are hereby assigned and shall be paid to City City shall apply the proceeds to the sums secured by the Deed ofTrust, whether or not then due, with the excess, if any, paid to Borrower 9 Public liability Insurance. Borrower shall take such actions as may be reasonable to insure that the Owners Association maintains a public liability insurance policy acceptable in form, amount, and extent of coverage to City. 10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, payable to Borrower in connection with any condemnation or othertaking of all or any part of the Property orthe common areas and facilities of the PUD, or for any conveyance in lieu of condemnation, are hereby assigned and shall be paid to City Such proceeds shall be applied by City to the sums secured by the Deed ofTrust as provided in Paragraph 9 of the Deed ofTrust. 11 City's Prior Consent. Borrower shall not, except after notice to City and with City's prior written consent, either partition or subdivide the Property or consent to: (i) the abandonment or termination of the PU D, except for abandonment or termination required by law in the case of substantial destruction by fire or other casualty or in the case of a taking by condemnation or eminent domain; (ii) any amendment to any provision of the "Constituent Documents" if the provision is for the express benefit of City; (iii) termination of professional management and assumption of self-management of the Owners Association; or (iv) any action which would have the effect of rendering the public liability insurance coverage maintained by the Owners Association unacceptable to City 12. Remedies. If Borrower does not pay PUD dues and assessments when due, then City may pay them. Any amounts disbursed by City under this Paragraph 6 shall become additional debt of Borrower secured by the Deed of Trust. Unless Borrower and City agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note default rate EXHffiIT C-2 8/14/2006 12-70 and shall be payable, with such accrued interest, upon notice from City to Borrower requesting payment. BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained in this Condominium Rider. Date: Date: EXHIBIT C-2 8/14/2006 12-71 EXHIBIT D FORM OF SUPPLEMENTAL BUYER APPLICATION EXHIBIT D 12-72 8/14/2006 Dear Applicant: Thank you for your interest in the The Landing project. The successful completion of the application process may result in your being qualified for an Affordable Housing Unit. Therefore, it is very important that you take the time to read and understand the Program Requirements and that you complete the Application and attach all required documentation. The Landing at Windingwalk The Landing offers row homes from approximately sq. ft. Each unit has a , 3 bedrooms, and baths. Community amenities include The Landing will include _ Affordable Units. 3 bedrooms bath ( sq ft) The Affordable Housing Units will be sold at the market rate price, but the City will provide a silent second loan for the difference between the market rate price and the Affordable Housing Unit Price as determined by your household income. APPLICATIONS WILL BE ACCEPTED UNTIL NO LATE OR INCOMPLETE APPLICATIONS WILL BE CONSIDERED. EACH APPLICATION MUST BE MAILED TO THE ADDRESS CONTAINED HEREIN. AFFORDABLE HOUSING UNITS The City of Chula Vista has established an Affordable For Sale Housing Policy that governs all affordable for sale housing units constructed within the City. In order to qualify to purchase an Affordable Housing Unit, applicants must meet ALL of the requirements outlined within this document. Please do NOT submit an application if you do not meet ALL of the requirements. Income restrictions apply Please refer to the chart below for the MAXIMUM gross income based upon household size, which is defined as the total number of people residing within the household. Gross income is the total amount of income earned by all persons, over the age of 18, within the household before all standard withdrawals (including federal tax, state tax, social security, etc.) EXHIBIT D 8/14/2006 12-73 Household Size 1 2 3 4 5 6 7 Maximum Gross Income (low $38,650 $44,150 $49,700 $55,200 $59,600 $64,050 $68,450 Income) Maximum Gross Income $54,500 $62,300 $70,100 $77,900 $84,100 $90,350 $96,550 (Moderate Income) AFFORDABLE HOUSING PROGRAM REQUIREMENTS · Low Income Buyers must be a First time Homebuyer, which is defined as a person who has not had an ownership interest in their primary residence within the last three years. . Have an annual gross income that does not exceed the program limits as described earlier. . Have sufficient funds available to contribute the required downpayment of three percent (3 %) of the Affordable Purchase Price plus closing costs. · Maximum liquid assets after down payment and closing cost contribution must not exceed $25,000 for Low Income Buyers and $40,000 for Moderate Income Buyers. . Property must be owner-occupied for the duration of ownership. Buyers may not rent or lease out the property . Must be able to qualify for the loan with the incomes of only the members who will occupy the Affordable Unit. Non-occupant co-borrowers are NOT allowed. · Be a citizen or other national of the United States or a qualified alien as defined by the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) . Low Income Buyers must attend a qualified "Home Training Program" or "First Time Home Buyer Program" and provide evidence to the City and to the lender of their attendance . Meet credit, income and loan requirements of the lender and the mortgage insurer. . Be pre-qualified by in order to purchase an Affordable Unit. Be advised that you may obtain a mortgage from any lender, but due to the EXHIBIT D 8/14/2006 12-74 extensive requirements for this Affordable Housing Development many lenders may have difficulty qualifying you. BUYER SELECTION CRITERIA The Developer will use the following criteria in order to determine priority for purchase of an Affordable Unit. A point system has been established so that applicants with a higher number of points will receive preference for units. 5 points 3 points 3 points 2 points 1 point Households which are displaced from their primary residence as a result of any of the following: (i) expiration of affordable housing covenants applicable to such residence; (ii) an action of the City or the City Redevelopment Agency; (iii) closure of a mobile home or trailer park community in which the household's residence was located; or (iv) a condominium conversion involving the household's residence. One member in the household must have resided in such housing as the primary place of residence for at least one year prior to such action or event. Households with at least one member who has worked within the City, as that person's principal place of full-time employment, for at least one year prior to the date of application for such housing. Households currently residing within the boundaries of the City of Chula Vista, at the time of application. Households with at least one member who is a Public Safety employee (fire and police) or Credentialed Teacher The individual must be working in such position as his/her full-time profession at the time of application. All other applicants who do not meet any of the above criteria. In the situation where there are applicants with an equal number of points but not enough units available, a lottery will be held at a place and time to be announced by the City and the home builder. In addition to the established point system, consideration for units will be given to larger families based upon the number of bedrooms per unit. Please be advised that you will be required to verify each household member that you indicate will occupy the unit. EXHIBIT D 8/1412006 12-75 LOW INCOME AFFORDABLE HOUSING RESTRICTIONS The purpose of this program is to provide affordable homeownership opportunities for low-income households and to ensure that upon sale of the "affordable" unit the City of Chula Vista receives adequate funds to continue to promote affordable homeownership programs throughout the City. Therefore, if you purchase an Affordable Unit a Second Trust Deed restriction will be placed on the property. When you sell the Affordable Unit you will have to repay the amount of the Second Trust Deed plus a portion of the equity with the City of Chula Vista based upon the length of time that you have occupied the Affordable Unit. The longer you live in the Affordable Unit the less equity you have to share with the City. Regardless of when you sell the Affordable Unit you are ALWAYS responsible for repayment of the Second Trust Deed amount. Please refer to the chart below for equity share information. Occupancy Period (years) Beneficiary Equity Share Borrower Equity Share Before 1 100% 0% 1-5 70% 30% 6-10 60% 40% 11-15 50% 50% 16-20 40% 60% 21-25 25% 75% 26-30 10% 90% After 30 0% 100% EXAMPLE Assuming that a family of three purchases a two-bedroom unit for the market rate value of $250,000. The household would qualify for the maximum allowable purchase price of $170,421 (Table 2) and the Developer/Builder would provide a Silent Second loan in favor of the City for the difference between the market rate price and the maximum allowable purchase price equaling $79,579 (Table 3). Five years later, assuming a sales price of $350,000, the Homeowner decides to sell the property. The Homeowner would receive their initial downpayment amount of $5,112 plus $28,000 (8% of the sales price) as reimbursement for the costs associated with the sale of the property plus their equity share amount of $26,193, which is 30% of the remaining equity. The Homeowner would make full payment to the City on the principal of the Silent Second loan ($79,579) PLUS 70% of the remaining equity based upon the length of occupancy (Table 4). Therefore, the total EXHIBIT D 8/1412006 12-76 amount repaid to the City upon resale would be $140,695. EXAMPLE TABLE Current Sales Price (5 years Later) $ 1st Loan S 2nd Loan S Borrower's Investment (Initial DP= 3% ofSI70,421+CoslS of Sale 8% of sales price) S Equity $ Times Equity Share Percentage Equity Share (City) $ epaymen 0 n oan qUl are $ TOT AL EQU ITY TO HOMEOWNER (Borrower's lnitiallnvestment + Equity Share) $ MORTGAGE LENDER REQUIREMENTS . Buyers must have good credit history and good credit scores. 350,000 ( 150,000) (79,579) (33,112) 87,309 70.0% 61,116.30 140,695 59,305 . Buyers must have good job history and steady income. . Buyers must have enough stable and documented income for the proposed housing payment in addition to any current monthly debt. APPLICATION REVIEW PROCESS . Applicants will be contacted by the home builder sales staff via U.S mail acknowledging receipt of complete application and supporting documentation. the home builder and the City will review all applications to determine eligibility . Eligible applications will be forwarded to to be reviewed for eligibility. Please be advised that your financial information will be reviewed for two different purposes: . To determine that your household annual income does NOT exceed the maximum allowed by the City of Chula Vista for the Affordable Housing Purchase. ALL income will be considered for all persons living in the home who are 18 years or older, even if the income is not taxable income. . To determine if your income, employment history and credit rating are sufficient to qualify for a mortgage. Only the income for those adults who will occupy the home and be the recipients of the mortgage loan is used in determining qualification for a mortgage. EXHIBIT D 12-77 8/14/2006 Before you submit your complete application and supporting documentation please ask yourself the following questions. Do you: . Meet ALL the program requirements? · Have a good credit rating? . Have stable job time and income? · Have funds for the 3% down payment and closing costs? If you have answered yes to ALL the above questions..... .. Fill out the attached application and submit it plus ALL required documentation and MAIL to: ATTN: The Landing Development EXHIBIT D 8/1 4/2006 12-78 THE LANDING AFFORDABLE HOUSING UNIT APPLICATION (1) APPLICANT #1 Name Social Security Number Age Address City State Zip Code Employer Name and Address Position/Title Home Phone Work Phone (1 a) Marital Status Gender First-time Buyer Single Divorced Married Male Female Yes No 21 APPLICANT #2 Name Social Security Number Age Address City State Zip Code Employer Name and Address Position/Title Home Phone Work Phone (2a) Marital Status Gender First-time Buyer Single Divorced Married Male Female Yes No EXHIBIT D 8/] 4/2006 12-79 HOUSEHOLD INFORMATION: List ALL household members (Including Applicant(s)) that will reside in the Affordable Housing Unit Total # of persons in Household Total yearly Household Income $ - Name Age M/F Relationship to Applicant - Name Age M/F Relationship to Applicant - Name Age M/F Relationship to Applicant - Name Age M/F Relationship to Applicant - Name Age M/F Relationship to Applicant - Name Age M/F Relationship to Applicant BUYER SELECTION CRITERIA INFORMATION: If you respond YES to any of the questions below, you MUST provide written evidence with your application or you may not receive all eligible points. 1 ) Do/Did you have to leave your most recent PRIMARY residence due to either: 1) the expiration of affordable housing covenants, 2) an action of the City of Chula Vista or its Redevelopment Agency; 3) closure of the mobilehome park that you reside in; or 4) the conversion from rental condominiums to for-sale condominiums. Please note that in order for you to be eligible under this category at least one member of your household must have resided in the unit for at least one year In addition, the displacement must have occurred within the last year or is scheduled to occur within one year You must submit evidence of your displacement in order to be awarded points in this category. 0 Yes 0 No 2) Do you have one member of your household whose principal place of full-time employment is located within the City of Chula Vista? 0 Ves 0 No 3) Do you have any member of your household who is a full-time Public Safety employee (fireman/woman or policeman/woman) or full-time CREDENTIALED teacher? Vou must submit evidence of your employment position. EXHIBIT D 8/1412006 12-80 o Yes o No EXHIBIT D 8/14/2006 12-81 AFFORDABLE HOUSING UNIT CHECKLIST This checklist contains a list of documents that you are REQUIRED to submit, along with the completed Application as part of the application review process. Please review the list carefully and include COPIES of all documents that you are submitting. If there are any documents listed that you do not believe you are required to submit please indicate N/A and state the reason why the information is not attached. You must attach this signed checklist as part of your application packet. APPLICATIONS THAT ARE MISSING DOCUMENTATION WILL NOT BE CONSIDERED. a Six months of most current and consecutive bank/investment/retirement statements for ALL accounts (all pages) a Most recent paycheck stubs covering a 30-day period for each borrower a Most recent three (3) years W-2s and/or 1 099s for each borrower a Most recent three (3) years Federal Tax Returns for each borrower (all schedules) a Complete divorce decree(s) with all attachments, if applicable a Complete bankruptcy papers with all schedules and discharge papers for bankruptcies within the last 7 years, if applicable a Name and phone number of Real Estate Agent, if applicable a Copy of Green Card, front and back, if applicable or other appropriate proof of legal U.S residency If you are self-employed, also provide the following: o Most recent two (2) years tax returns and copies of 1040s, W-2s, 1099s and/or K-1 s for each borrower a Limited or General Partnership returns (if ownership interest is 25% or greater)- copies of form 1065 a Sub Chapter S Corporation returns (if ownership interest is 25 % or greater)- copies of form 11 20 S a U.S. Corporation returns (if ownership interest is 25% or greater)- copies of form 11 20 a YTD Profit and Loss Statement (in some cases this may need to be audited) EXHIBIT D 8/14/2006 12-82 AFFORDABLE HOUSING UNIT AFFIDAVIT By signing below each applicant makes the foil owing certifications: I, the undersigned, as part of my application for an Affordable Housing Unit within the The Landing development (the "Program"), and in connection with a purchase of a multi-family condominium (the "Residence") and an application for a mortgage loan (the "Mortgage Loan") from a lender (the "Lender") of my choosing, do hereby state that I have carefuily reviewed this document. I understand and agree with the answers on Pages One and Two, and do furthermore certify the foilowing: 1. That those people who I expect to share occupancy of the Residence with me are listed on Page One of the Application. 2. That my spouse, whether on title or not, is an Applicant for the Program and must sign this Application. 3 That I am a first-time homebuyer, who has not had an ownership interest in a principal residence within the three years immediately preceding the date of this application, and I do not and wiil not have an ownership interest in a principal residence prior to the date of loan closing. (A principal residence includes a single-family residence, a condominium, share in a housing cooperative, any manufactured home or mobilehome, or occupancy in a multifamily residence owned by me. An ownership interest means ownership by any means, whether outright or partial, including property subject to mortgage or other security interest; it also includes a fee simple ownership interest, a joint ownership interest by joint tenancy in common, or tenancy by the entirety or a life estate interest.) 4. That I will submit true and complete copies of ail requested documentation. 5 That the Residence will be occupied and used as my principal place of residence within 30 days of the date of Mortgage Loan closing. 6 That the Residence wiil not be used as an investment property, vacation home or recreation home 7. That I wiil notify the Program in writing if the Residence ceases to be my principal residence. 8 That the Mortgage Loan is a first mortgage, not a replacement mortgage. 9 That my income does not exceed the program income limits 10 That no person related to me has, or is expected to have, an interest as a creditor in the Mortgage Loan being acquired for the Residence 11 That the City Loan is issued on my behalf and may not be transferred. 12 That I may seek financing from any Lender of my choosing, and that I am in no way prohibited from seeking financing from any potential Lender, so long as the Lender executes and complies with the terms of the Program Guidelines. EXHIBIT D 8/14/2006 12-83 AFFORDABLE HOUSING UNIT CERTIFICATION I acknowledge and understand that this Affidavit, as completed above, will be relied on for determining my eligibility for An Affordable Housing Unit. I acknowledge that a material misstatement negligently made by me in this Affidavit or in any other connection with my Application for an Affordable Housing Unit will constitute a violation punishable by a fine and possible criminal penalties imposed by law, and will result in the cancellation or revocation of the Loan. I acknowledge that any false statement or misrepresentation or the fraudulent use of any instrument, facility, article, or other valuable thing or service pursuant to my participation in the Program is punishable by fine. BUYER DATE BUYER DATE BUYER DATE BUYER DATE EXHIBIT D 8/14/2006 12-84 SCHEDULE 1 LIST OF MARKET RATE PRICES TO BE INSERTEDAT A LATER DATE EXHIBIT D 8/14/2006 12-85 COUNCIL AGENDA STATEMENT Item 13 Meeting Date 8/22/06 ITEM TITLE: Resolution Approving the Final Map and Associated Agreements of Chula Vista Tract No. 01-11, OtayRanch Village 11, Neighborhoods MU-I and R-19, acknowledging the irrevocable offer of dedication offee interest granted on said map and accepting on behalf of the City of Chula Vista the various public easements as granted on said map. Resolution Approving an Encroachment Agreement PE-702 for various locations within Chula Vista Tract No. 01-11, OtayRanch Village II, Neighborhoods MU-I and R-19 SUBMITTED BY: Acting Director ofEngi7n~ Interim City Manager J I (4/5ths Vote: Yes_NoX) REVIEWED BY: Tonight, City Council will consider the approval of both a Final Map and an Encroachment Permit for Neighborhoods MU-I and R-19, a subdivision ofOtay Ranch Village II Neighborhoods MU-I and R -19 consist of residential condominiums, mixed-use condominiums and commercial acres on three lots with three open space lots (Lots A, B & C) along Eastlake Parkway Council will also be considering an Affordable Housing Agreement for R-19 tonight. The Affordable Housing Agreement should be approved prior to this Map, therefore if the Affordable Housing item is pulled from the Consent Calendar this item should be pulled as well. RECOMMENDATION: That Council adopts the Resolutions: I Approving the Final Map and other associated agreements. 2. Approving the Encroachment Agreement, PE-702, for Neighborhoods MU-I and R -19, of Otay Ranch, Village 11 BOARD/COMMISSIONS RECOMMENDATIONS: Not applicable. DISCUSSION: Otay Ranch Village II, with the marketing name of "Winding walk," is generally located south of Olympic Parkway, east of East lake Parkway and north of Hunte Parkway (see Attachment I). The tentative map (Chula Vista Tract No. 01-11) was approved on October 23, 2001 by Resolution 2001- 364 The Final Map for Neighborhood MU-I and R -19 (see Attachment 2) and the associated agreements (see Exhibits 1-3) are now before Council for consideration and approval. 13-1 Page 2, Item 1.0 Meeting Date 8/22/06 Approval of the final map also constitutes acceptance of various public easements within the subdivision including easements for the installation and maintenance of perimeter walls, landscape buffers and sidewalk. The Final Map The Final Map subdivides one parcel into three lots for Commercial and Residential uses, and three open space lots (Attachment 2). Lot 1 consists of239 residential condominium units, Lot 2 consists 43 residential condominiums and 39 commercial condominiums and Lot 3 is aDine-acre commercial lot. The Project's Homeowners' Association (HOA) will maintain all private improvements including the streets and storm drains with the exception of the 8" sewer mains within Lots 1 and 2 of said subdivision. Commercial Lot All facilities and infrastructure within the nine-acre commercial lot will be maintained by the Business Association formed by all the business owners. Open Space Lots CFD-09M will maintain the three open space lots, lots "A", "B" and "c" which front Eastlake Parkway Subdivision and Supplemental Subdivision Improvement Agreements (SlA) & (SSlA) The SIA and SSIA for the Final Map outline the developer's requirements to construct the internal subdivision improvements, including public sewer, and subdivision survey monumentation and to comply with the development conditions for the project. The developer has complied with the Municipal Code as it relates to bonding subdivision improvements and survey monumentation. Town Square Park The original Tentative Map Conditions (No. 124) called for the one-acre Town Square Park to be constructed prior to issuance of the 300th building permit within Phase Two of the Village 11 Project. Due to a redesign of the Town Square / Community Purpose Facility site, the SSlA for the final map revises this condition to require the developer to post a bond for the completion of the Town Square and to complete the site by December 2006, or to the satisfaction ofthe Director of Planning and Building and the Director of General Services. A bond in the amount of$416,000 has been posted. Once the site plan has been finalized the developer will bring an amended Tentative Map and SPA plan before Council for their approval. Encroachment Agreement The Encroachment Agreement, PE-702, will allow the developer of the project to place permanent concrete surface improvements over the City's Sewer Easement and to connect a private storm drain to the public facility within the public right-of-way The HOA will assume responsibility for the repair and maintenance of these improvements. Parks All required PAD fees have been collected for this Final Map (J:\Engineer\AGENDA\CAS2006\08_22-06\MU_l & R-19 Agenda Statement.doc) (08/15/2006; 6:21 PM) 13-2 Page 3, Item /::;; Meeting Date 8/22/06 DECISION MAKER CONFLICTS: Staff has reviewed the property holdings of the City Council and has found no such holdings within 500' of the property that is the subject of this action. FISCAL IMP ACT: None to the General Fund. All staff costs associated with processing of the improvement plans, final maps and associated agreements will be reimbursed from the developer's deposits. Attachments: 1. Plat for Otay Ranch Village II, 2. Plat for Otay Ranch Village II, Neighborhoods MU-I and R-19 3 Developer's Disclosure Statement Exhibits: Subdivision Improvement Agreement Supplemental Subdivision Improvement Agreement Encroachment Agreement (J:\Engineer\AGENDA\CAS2006\08-22-06\MU~1 & R~19 Agenda Statement.doc) (08/1512006; 6,21 PM) 13-3 :1. ') J ATTACHMENT i R-B I I I f !. .. CD HOT 10 SCALI! Brookfield Shea Otay, LLC '~.:. , 13-4 CHULA VISTA TRACT NO. 01-11 OTAY RANCH VILLAGE 11 NEIGHBORHOODS MU -1 AND R-1 9 Q. BlltCll ltO~ ~~~ ~\)"\~~~~ H. ~ 'b~~ -<<:sA . HUNSAKER ~!'~~?~~TR' 400 600 I PLANNING 10179!Umekem Street ENQt.EERING San Dego. Ca 92121 SUJr.VEYlNG PHC8SB)SSHSOO. FX(8S8)sS&.1414 : 0669 dtM. COUNCil EXHI rT.d. 13-5 ATTACHMENT 3 City of Chula Vista Disclosure Statement Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City ofChula Vista election must be filed. The following information must be disclosed: List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. 'S' I' _ 0,9--=--. c,-;0iol.J!.-S [ p bSo /I1:. 2. If any person' identified pursuant to (1) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporation/partnership) entity ~/A 3 Ifanyperson' identified pursuant to (1) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. ./)/A / 4 Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. 3l JlA. \::., \ QC"'N--R. \ t/U,^-'S,,-1Q...-r <'1>.Aff") As" c(. IC.J<..( fJ, 0(}.Jo..v-.) n.,d ASSa"- ,J.e.~ 5 Has any person' associated with this contract had any financial dealings with an official" of the City of Chula Vista as it relates to this contract within the past 12 months. Yes_ No~ 13-6 City of Chula Vista Disclosure Statement If Yes, briefly describe tbe nature oftbe financial interest tbe official" may have in tbis contract. j !IA 6. Have you made a contribution of more tban $250 witbin tbe past twelve (12) montbs to a current member oftbe Chula Vista City Council? No'::;' Yes _ If yes, which Council member? 7 Have you provided more tban $340 (or an item of equivalent value) to an official" of tbe City of Chula Vista in tbe past twelve (12) montbs? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No X- If Yes, which official" and what was the nature of item provided? Date: C . cl,O k, ~\~ {Signaltfe o{ Con,tractm-fA.pplicant '~ '.J Print or type name of Contractor/Applicant , Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any otber county, city, municipality, district, or otber political subdivision, -or any otber group or combination acting as a unit. " Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. l\Attomeylfonns\disclosure statement 3..(j-03 13-7 RESOLUTION NO 2006- - RESOLUTION APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO 01-11, OTAY RANCH VILLAGE 11, NEIGHBORHOODS MU-1 AND R-19; ACKNOWLEDGING THE IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST GRANTED ON SAID MAP; AND ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE VARIOUS PUBLIC EASEMENTS AS GRANTED ON SAID MAP WHEREAS, Shea Homes L.P ("the developer") has submitted a final map for Otay Ranch Village 11, Neighborhoods MU-1 and R-19; and WHEREAS, the developer has executed a Subdivision Improvement Agreement to install public facilities (Sewer) associated with the project; and WHEREAS, the developer has executed a Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of City Council Resolution No. 2001-364, and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract 01-11, Otay Ranch Village 11 Neighborhoods MU-I and R-19 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. The map is more particularly described as follows: Being A Subdivision of Parcel "A" of that certain Certificate Of Compliance recorded April 28, 2006 as Document No. 2006-0300433, Being a Lot Consolidation of Lot 9 ofChula Vista Tract No. 01-11 Otay Ranch Village II "A" Map No.2, according to map thereof No. 14780, filed in the office of the County Recorder on April 30, 2004 and Lot 10 ofChula Vista Tract No. 01-11 Otay Ranch Village II "A" Map No.3, According To Map Thereof No. 15233, filed in the office of the County Recorder on December 28,2005, in the City ofChula Vista, County of San Diego, State of California. Area: 25.222 Acres Numbered Lots: 3 Open Space Lots: 3 BE IT FURTHER RESOLVED that the City Council hereby acknowledges and rejects on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest in Lots "A", "B" & "c" for open space and other public purposes all as shown on Otay Ranch Village II Neighborhoods MU-I and R-19 within said subdivision. No. of Lots: 6 Lettered Lots: 3 BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon the map the action of the City Council, that the Council has approved said subdivision map, and that the Irrevocable Offer of Dedication of Fee Interest of Lots "A", "B" & "c" for open space and other public purposes is acknowledged on behalf of the City of Chula Vista. BE IT FURTHER RESOLVED that the certain Subdivision Improvement Agreement and Supplemental Subdivision Improvement Agreement for the project, copies of which are on file in the office of the City Clerk, are hereby approved. 13-8 Resolution Page 2 BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreements for and on behalf of the City of Chula Vista Presented by Approved as to form by Matt Little Acting City Engineer \ J::fN~(.,-<- L 1/iiii1 oor 1Qty ttorney (H:\ENGINEERIRESOSlResos2006\08-22-06IReso MU-l & R-19 Map.doc) 13-9 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Moore City Attorney Dated: 8/16/06 SIA with Brookfield Shea Otay, LLC on Otay Ranch Village 11, Neighborhood MU-1 and R-19 (CVT 01-11) 13-10 Recording Requested by- CITY CLERK When Recorded, Mail to CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency ofless than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this'" day of ~-rr-, 2006, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and BROOKFIELD SHEA OTA Y LLC, a California Limited Liability Company, referred to herein as "Subdivider", "Developer" or "Owner", with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS. WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTA Y RANCH VILLAGE 11, NEIGHBORHOOD MD-I and R-19 (CVT 01-11) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the improvements and/or land development work required in said subdivision within a definite period oftime prescribed by said Council, and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the improvement work required by City in -1- 13-11 connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No 2001-364, approved on the 23rd day of October, 2001 and revised on May 27, 2003 by Resolution 2003-231 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said improvement work have been prepared and submitted to the City Engineer as identified under permit number B06-0ll0 & R-6301 NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS 1 Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3 It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4 It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said improvements or the portion thereof serving said building or Structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. -2- 13-12 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWO HUNDRED AND THIRTY EIGHT THOUSAND DOLLARS AND 00 CENTS ($238,000.00) which security shall guarantee the faithful performance of this contract by Subdivider as shown in Exhibit" A" and which security is attached hereto, and made a part hereof. 7 Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE HUNDRED AND NINETEEN THOUSAND DOLLARS AND 00 CENTS ($119,000.00) to secure the payment of material and labor in connection with the installation of said public improvements, as shown in Exhibit "A", and which security is attached hereto, and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIFTEEN THOUSAND DOLLARS AND NO CENTS ($15,00000) to secure the installation of monuments, as shown in Exhibit "A" and which security is attached hereto, and made a part hereof. 9 It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security 10 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 any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista -3- 13-13 Municipal Code. 11 It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13 It is understood and agreed 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 Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider 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 Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to 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 the construction of said subdivision and the improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or tal<ing, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14 Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of -4- 13-14 California. 15 Assignability Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in hislher sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in hislher sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] -5- 13-15 [PAGE ONE OF TWO SIGNATURE PAGES TO THE SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD R-19 AND MU-1, CHULA VISTA TRACT NO. 01-11] IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Stephen C Padilla Mayor of the City of Chula Vista ATTEST City Clerk Approved as to form by ~, j, .. -6- (C:\Documents and SettingsVimKILocal SettingslTempor"1 3'W,'SFiles\OLK6BB\SIA MU-] R-19 Final.doc) [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] [PAGE TWO OF TWO SIGNATURE PAGES TO THE SUBDMSION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD MD-l AND R-19, CHULA VISTA TRACT NO. 01-11] DEVELOPERS/OWNERS: DEVELOPERS/OWNERS: BROOKFIELD SHEA OTA Y, LLC, a California Limited Liability Company By- Brookfield Otay LLC, a Delaware Limited Liabi' Company, Member By' By' ~ 4{ b"J #1 NamecQ,,<.// ~~::)(..J Name: .G. M/~ )/~dt i&:'P'("1. 11~ S'oI:t.r By' Shea Otay Village 11 LLC, a California Limited Liability Company, member ::~d P...,,,hip, :~fOmi' Lmu"" P ~,hip, i" Sol, M=b~ Name' ~~~ Name: (on .:p;NI&-I-4- (Attach Notary Acknowledgment and Company Signature Authority) -7- 13-17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California }ss. County of San Diego On August 7, 2006 , before me, Michele A. Kittinger, Notary Public, personally appeared E. Dale Gleed and Ronald D Grunow, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. ~@ MICHELE A. KITTINGER ~ ] . -" Comml"lon {# 14J8009 ~ ~ . -~ Notary PUblic ~ Calffocnla i j ." Son Diego County f t My Comm. expire. Oat 4, 2007' Place Notary Seal Above , vrY)r At1 ~ /l4::f(/U.... /' - Signature of Notary Public 0 13-18 - - ~---~ CALIFORNIA ALl.PURPOSE ACKNOWLEDGMENT ~~W~~~~~~~~~~~~~.?hPh6^'~~""'-"'~~~~~~~~ State of California } 55. County of ,C::::n Y'> 1:) I 1" G n On AI ilji ,,1- l.j 2coGo, (J Date f personally appeared 1m ~ ;:>\-lbll c... before me, Name(s) of Signelis) ~OnallY known to me ----------------~ SAAAH J. BECKMAN J., CommlsSJon# 1591862 ;; i .. Notary Public . CcUlcmla ~ J' Sen DIegO CO<.T1ty l _ _ _ ~:o:'m.:~:J~l:.~ o proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above I ./ OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer - Titie(s): D Partner - D Limited D General o Attorney in Fact D Trustee D Guardian or Conservator D Other' Top af thumb here Signer's Name: D Individual D Corporate Officer - Title(s): D Partner - D Limited D General D Attorney in Fact D Trustee o Guardian or Conservator D Other' RIGHT THUMBPRINT OF SIGNER' RIGHT THUMBPBINT OF SIGNER Top of thumb here Signer Is Representing: Signer Is Representing: @ii;.~~~~~~~~~~~~~"".~.' 4=.,,=V'=-=-.....~~'':!i1<,),;~~ C 2004 National Notary Association. 9350 De Sote Ave., P.O. Box 2402 . Chatswcrth, CA 91313-2402 Item No. 5907 Reorder. Call Toll-Free 1-800-876-6827 13-19 EXHIBIT "A" LIST OF SECURITIES CV WO No. Description Bond $ Bonding Company Bond (Drawin2 #) Name number $238,000 1 06004 Site Improvements (Sewer) Faithful Performance Arch Insurance SU5020571 $119,000 Company Material & Labor 2 Per Map Monumentation $15,000 Arch Insurance SU5020877 Company " ~ 4 -8- (C:\Documents and SettingsVimKILocal SettingslTemporarJj Jg~'2'ttilesIOLK6BBISIA MU.] R-19 Final.doc) CERTIFICATE OF CORPORATE SECRETARY OF J. F. SHEA CONSTRUCTION MANAGEMENT, INC. RESOLUTION OF SHEA HOMES LIMITED PARTNERSHIP EFFECTIVE APRIL 1, 2005 I, Max S. Johnson, do hereby certify that I am tile duly elected and acting Secretary of J. F Shea Construction Managemen~ Inc., a California corporation (the "Corporation"), who is the sole General Partner of JFS Management, L.P., a Delaware limited partnership, who is the sole General Partner of J.F Shea, L.P., a Delaware limited partnership, who is the sole General Partner of Shea Homes Limited Partnership, a California limited partnership (the "Limited Partnership"), and that the following resolutions have been duly adopted by the Soard of Directors of the Corporation pursuant to the by-laws of the Corporation and are In full force and effect: RESOLVED, that the following named individuals are hereby elected to the offices appearing after their respective names, and will serve for the remainder of the year or until their successors are eiected and qualified; RESOLVED, that anyone of the follOWing named officers of this Corporation: John F Shea, Chairman of the Soard; Peter O. Shea, Jr., President; Edmund H. Shea, Jr., Executive Vice President; Peter O. Shea, Executive Vice President; and John C. Morrissey, Executive Vice President; or any other person or person designated in writing by anyone of these officers, or any two of the individuals named below; are authorized and empowered for and on behalf of this Corporation, on its own behalf, or as the agent of Shea Homes Limited Partnership, a Caiifomia limited partnership ("SHLP"), or acting of its own capacity as the sole General Partner of JFS Managemen~ L.P., a Delaware limited partnership ("JFS Management"), who is the sole General Partner of J.F Shea, L,P., a Delaware limited partnership ("JF Shea LP"), who is the sole General Partner of Shea Homes Limited Partnership, a California limited partnership ("SHLP"), to execute any bids, contracts, bid bonds, deeds, maps, plats or any other agreements or documents necessary for the performance of such contracts, agreements and/or documents, to execute any documents required to borrow funds from any lender to be secured by real or personal property owned by this Corporation, to execute agreements to punchase, escrow instructions, and any related documents in connection with the sale and conveyance of real property developed and sold by this Corporation on its own behaif, or as the agent of SHLP, or acting of its own capacity as the sole Generai Partner of JFS Management, who is the sole General Partner of J.F Shea LP, who is the sole Generai Partner of SHLP, or any other real property owned by this Corpora~on, and to execute notes, deeds, maps, performance and payment bonds, deeds of trust, mortgages, guarantees, receipts, and all other documents necessary and convenient to carry out the business opera~ons of the Corporation on its own behalf, or as the agent of SHLP, or acting of its own capacity as the sole General Partner of JFS Management, who is the sole General Partner of J.F Shea LP, who is the sole General Partner of SHLP; John F Shea, Chairman of the Board Peter O. Shea, Jr., President and Chief Executive Officer John C. Morrlssey, Executive Vice President Edmund H. Shea, Jr., Executive Vice President Peter O. Shea, Executive Vice President Sruce J. Varker, Executive Vice President Richard C. Andreen. Vice President Charles H. Atherton, Vice President 1 WClJ0166237.1 13-21 Paul L.L. Barnes, Vice President W Wifliam Gaboury, Vice President Robart B. Gordon, Vice President Max B. Johnson, Secretary E. (Ed) J. Kernaghan, Vice President Ronald L. Lakey, Vice President Chester T Latcham, Vice President Layne C. Marceau, Vice President Edward W Marcus, Vice President James M. Marquardt, Vice President David B. Miller, Vice President Paul Mosley, Vice President Ray Mullen, Vice President Dennis Poulton, Vice President Buddy Satterlield, Vice President Peter S. Seley, Vice President R (Bert) F Selva, Vice President Les Thomas, Vice President Joel VanRyckeghen, Vice President Richard R. Wojcik, Vice President Robert J. Yoder, Vice President Robert R. O'dell, Vice President & Treasurer James G. Shontere, Vice President Scott Adams, Assistant Secretary Joanne Anderson, Assistant Secretary Susan Andrade, Assistant Secretary Joseph C. Anfuso, Assistant Secretary Alex Baird, Assistant Secretary Sharon K. Baker, Assistant Secretary Juan Bernardino, Assistant Secretary Bryan Binney, Assistant Secretary Emest J. Boitano, Assistant Secretary John P Boland, Assistant Secretary Duane Bradley, Assistant Secretary Michael Brekke, Assistant Secretary Robert M. Burke, Assistant Secretary Jack S. Carrier, Assistant Secretary Bill Christian, Assistant Secretary Michael Ciaun, Assistant Secretary Robert V Claflin, Assistant Secretary R. (Russell) Clark, Assistant Secretary Carol Cure, Assistant Secretary Scott Custer, Assistant Secretary John C. Danvers, Assistant Secretary JeFfry M. David, Assistant Secretary Ron Denney, Assistant Secretary Perry Devlin. Assistant Secretary Burt Dezendorf, Assistant Secretary Jeffrey H. Donelson, Assistant Secretary Carrie Jean Dunnam, Assistant Secretary Jason L. Enos, Assistant Secretary Yvonne Espinoza, Assistant Secretary Jeff Fenton, AssIstant Secretary Joseph M. Flanagan, Assistant Secretary Tod Fontana, Assistant Secretary Michael L. Fraley, Jr., Assistant Secretary WC/30166237.1 2 13-22 Scott Gale, Assistant Secretary Thom Gambie, Assistant Secretary David Garcia, Assistant Secretary Jessica Garcia. Assistant Secretary Donald J. Gause, Assistant Secretary W Stephen Gilmore. Assistant Secretary Keliy Given, Assistant Secretary Jack Godard. Assistant Secretary Lyndon Graham, Assistant Secretary Jeff Gunderson, Assistant Secretary J. Terence Hanna, Assistant Secretary Cariy Harlacher, Assistant Secretary Leilani Haugen, Assistant Secretary Alexander Hawxhurst, Assistant Secretary Joseph Hayes, Assistant Secretary Matthew J. Henry, Assistant Secretary Laura Herse, Assistant Secretary Steven Hextell, Assistant Secretary Jeff Hinkle, Assistant Secretary Donald A. Hofer, Assistant Secretary Steve Howry, Assistant Secretary Catherlne M. Huff, Assistant Secretary Norm Hutchins, Assistant Secretary William A. Inglis, Assistant Secretary Kathryn Jones, Assistant Secretary Lorl Jones, Assistant Secretary Cliff C. Kao, Assistant Secretary Jeffrey F. Kappes, Assistant Secretary Virginia Karras, Assistant Secretary Barbara Kelley. Assistant Secretary T (Terri) G. Kershisnik, Assistant Secretary Jim Kilgore, Assistant Secretary John Kilrow. Assistant Secretary Alison B. Knon, Assistant Secretary Alex Krell, Assistant Secretary Joon Kwon, Assistant Secretary Colleen Lakshin. Assistant Secretary Christina LaRocca. Assistant Secretary Kathy Leary, Assistant Secretary Linda Lockman, Assistant Secretary Harold Looney, Jr" Assistant Secretary Andrew John MacDonald, Assistant Secretary Marcela Malek, Assistant Secretary DiAnne Mangis. Assistant Secretary Joyce Manigold, Assistant Secretary Marion P Marcum, Assistant Secretary Michael McCann, Assistant Secretary Oren Jon McCaus~and, Assistant Secretary Michael McCormack, Assistant Secretary Sean McDonald, Assistant Secretary Jenifer McLaughlin, Assistant Secretary Jeffrey Mcqueen, Assistant Secretary Ron Metzler, Assistant Secretary Karen Mikuls, Assistant Secretary William L Morris, Jr., Assistant Secretary Steve Mulhern, Assistant Secretary 3 WCI30156231.1 13-23 Andrea Mullens, Assistant Secretary Don Murphy, Assistant Secretary Yasmine Naffa, Assistant Secretary Kevin Neill, Assistant Secretary Gilbert L. Neilson, Assistant Secretary Christopher Nevins, Assistant Secretary Mike O'Me!veny, Assistant Secretary Richard J. Obemesser, Assistant Secretary Michael D Odette, Assistant Secretary Brad Olsen, Assistant Secretary David Olson, Assistant Secretary Steve Ormiston, Assistant Secretary John C. Owen, Assistant Secretary Lee Pacheco, Assistant Secretary Jeffrey K. Palmer, Assistant Secretary David Perreauit, Assistant Secretary Kevin Peters, Assistant Secretary Ken Peterson, Assistant Secretary Robert Pigg, Assistant Secretary William J. Piselsky, Assistant Secretary Alexander L. Plishner, Assistant Secretary Greg Ponce, Assistant Secretary Craig Powell, Assistant Secretary Steve Ray, Assistant Secretary Alan Ridd, Assistant Secretary Timothy Roberts, Assistant Secretary Darlene Robinson, Assistant Secretary Gonzalo Rodriguez, Assistant Secretary Suzette Rodriquez, Assistant Secretary Cynthia Roush, Assistant Secretary Kris Russell, Assistant Secretary Katherine E. Ruth, Assistant Secretary Carol A. Ryan, Assistant Secretary Jeff Salai, Assistant Secretary Timothy H. Salai, Assistant Secretary Douglas Sauder, Assistant Secretary Wm. S. Seemann, Assistant Secretary Ping Shaw, Assistant Secretary Edmund H. Shea, III, Assistant Secretary James W Shea, Assistant Secretary John F Shea, Jr., Assistant Secretary Teri Shusterman, Assistant Secretary George Smith, Assistant Secretary Eric Snider, Assistant Secretary Stephen Stambaugh, Assistant Secretary Roger Standley, Assistant Secretary Bjorn Stehr, Assistant Secretary L. (Lori) Symans, Assistant Secretary Richard Thompson, Assistant Secretary Della Thurston, Assistant Secretary Stephen Tindle, Assistant Secretary Alan F Toffoli, Assistant Secretary Michael J. Tracy, Assistant Secretary Ruth Truman, Assistant Secretary Ron Turner, Assistant Secretary John Vander Velde, Assistant Secretary WQ'30166237. { 4 13-24 Martin Vliegenthart, Assistant Secretary Laura W Vuolo, Assistant Secretary Robert Wainwrigh~ Assistant Secretary Lily A. Wallace, Assistant Secretary Susan Waterman. Assistant Secretary Matthew S. Watson, Assistant Secretary Sharon Wible, Assistant Secretary Dennis H. Williams. Assistant Secretary Robert W Williams, Assistant Secretary Jeffrey D. Willis, Assistant Secretary Gregg Yensan, Assistant Secretary IN WITNESS WHEREOF, I have hereunto set my hand effective the 1" day of April, 2005 ~~ Max B. Jolll'!!f6n, Secretary 5 WOJOI66237.1 13-25 TIIE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL oore City Attorney Dated: 8/16/06 SSIA with Brookfield Shea Otay, LLC on Otay Ranch Village 11, Neighborhood MU-l B Map and R-19 (CVT 01-11) 13-26 SSIA R-19/MU-I 08/14/2006 + RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 Above Space for Recorder's Use OR-630F SUPPLENlENTAL SUBDIVISION IMPROVENlENT AGREENlENT FOR OTA Y RANCH VILLAGE ELEVEN, CHULA VISTA TRACT NO 01-11 R-19/MU-1 - B MAP (Conditions 1-5,8,11-17,27,35-37,45,48-51,56,60,69,76,78, 89, 91-94, 96,109,114,116, 118,121-122,124,137,139,144-151,158,172-177, 179-181, 183-184, 189-190, 193-200,202- 203 of Resolution 2001-364) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of ,2006, by and between THE CITY OF CHULA VISTA, California ("City") and the signatories to this Agreement, BROOKFIELD SHEA OTA Y LLC, a California Limited Liability Company ("Developer" or "Owner"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Fxhihit "A" attached hereto and incorporated herein by this reference ("Property"). The Property is Phase III of approved Tentative Subdivision Map Chula Vista Tract 01-11 Otay Ranch Village Eleven, commonly known as Windingwalk. For purposes of this Agreement the term "Project" shall also mean "Property". B. "Owner" or "Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assigns of any property within the boundaries of the Property C. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 01-11 ("Tentative Subdivision Map" or "Tentative Map") for the subdivision of the Property D. The City has adopted Resolution No. 2001-364 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain Conditions of Approval ("Conditions") as more particularly described in the Resolution. 13.-27 SSIA R.191MU.l o 8/l 4/2 006 E. Developer has requested the approval of a Final "B" Map for the Project ("Final Map"). Certain Conditions of the Tentative Subdivision Map require Developer to enter into an agreement with the City prior to approval of the Final Map for the Project. F City is willing, on the premise, security, terms and conditions herein contained to approve the Final Map for which Developer has applied and Developer has agreed to the terms and conditions set forth herein. G. All the terms of the Supplemental Subdivision Improvement Agreement for Otay Ranch Village II, "A" Map No. Ladopted by Resolution 2003-075, the Supplemental Subdivision Improvement Agreement for Otay Ranch Village Eleven "A" Map No.2, approved by Resolution 2004.107, and the Supplemental Subdivision Improvement Agreement for Otay Ranch Village Eleven "A" Map No.3, approved by Resolution 2005401 remain in full force and effect. H. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated. a. "Complete Construction" shall mean that the construction of the improvements have been completed and have been inspected and accepted by the City b. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. c. "SPA Plan" means the Otay Ranch Village Eleven Sectional Planning Area Plan as adopted by the City Council on October 17, 2001 pursuant to Resolution No. 2001. 363 d. "PFFP" means the Otay Ranch Village Eleven Public Facilities Financing Plan adopted by Resolution No. 2001-363, and as may be further amended from time to time. e. "FSElR 01-02" means Final Subsequent Environmental Impact Report and its attendant Addendum for the Otay Ranch General Development Plan AmendmentsNillage Eleven Sectional Area Plan and Conceptual Tentative Map. f. "Improvements " means all the onsite and off site improvements required to serve the lots created by the Final Map, in accordance with improvement plans to be approved by the City Said improvements shall include, but not limited to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer, reclaimed and potable water utilities, drainage facilities, street lights, signage, landscaping, irrigation, fencing and fire hydrants. 19-28 SSIA R-[9/MU-[ 08/14/2006 NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding 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 Property as described on Fxninit "A" until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property 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. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opihion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: Hl-29 SSLA R-19/MU-l 08/1412006 i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association, iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 2. Condition No.l- (Agreement to all terms, covenants and conditions). In satisfaction of Condition No. 1 of the Resolution, Developer agrees to all of the terms, covenants and conditions contained herein; Developer further agrees that said terms, covenants and conditions shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property 3. Condition No.2 - (Requirements and guidelines). In satisfaction of Condition No.2 of the Resolution, Developer agrees to comply with all requirements and guidelines of the City of Chula Vista General Plan; the City's Growth Management Ordinance; Chula Vista Landscape Manual, Chula Design Plan; Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase I and Phase 2; Ranch Wide Affordable Housing Plan; Otay Ranch Overall Design Plan; FSElR # 01-02, Otay Ranch Village Eleven Sectional Planning Area (SPA) Plan and supporting documents including: Village Eleven Public Facilities Finance Plan; Village Eleven Parks, Recreation, Open Space and Trails Plan; Village Eleven SPA Affordable Housing Plan and the Non-Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 4. Condition No.3 - (City's Right to Revoke or Modify Approvals). In satisfaction of Condition No.3 of the Resolution, if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of U-30 SSIA R-19/MU-l 08/14/2006 the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City 5. Condition No.4 - (Hold City Harmless). In satisfaction of Condition No.4 of the Resolution, Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report and subsequent environmental review for the Project and any or all entitlements and approvals issued by the City in connection with the Project. 6. Condition No.5 - (Comply with SPA Conditions). In satisfaction of Condition No 5 of the Resolution, the Developer agrees to comply with all applicable Village Eleven SPA conditions of approval, (pCM 99-15) as may be amended from time to time. Developer further agrees as follows: a. To implement the final Otay Ranch Village Eleven Air Quality Improvement Plan (AQIP) approved measures and include the measures as part of the Proj ect. The Developer further i. Agrees to comply and remain in compliance with the AQIP; ii. Waives any claim that adoption of the fmal AQIP constitutes an improper subsequent imposition of the condition, iii. Acknowledges that the City Council may, from time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available; and iv Agrees prior to or concurrent with each Final Map for the Project to modify the AQIP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply, as applicable, to development within all future final map areas, but shall not be retroactive to those areas which receive final map approval prior to effect of the subject new measures. b To implement the fmal Otay Ranch Village Eleven Water Conservation Plan (WCP) approved measures and include the measures as part of the Project. The Developer further 1. Agrees to comply and remain in compliance with the WCP; ii. Waives any claim that the adoption of a fmal WCP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify water conservation measures related to new development as various technologies and/or programs change or become available; and iv Agrees prior to or concurrent with each final map for the Project to modify the WCP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply to development within all future final map areas, but shall not be retroactive to those areas which received final map approval prior to effect of the subject measures. 13-31 SSIA R-19/MU-1 08/14/2006 7. Condition No. 8 - (Agreements). In satisfaction of Condition No. 8 of the Resolution, the Developer agrees to the terms, conditions and time limits associated with this tentative map which shall be consistent with the Land Offer Agreement approved by Resolution No. 2000-116 by the City Council on April 11, 2000 ("Land Offer Agreement") and as amended on August 7, 2001 The Developer and City of Chula Vista hereby agree to comply with the provisions of the Land Offer Agreement and all Amendments thereto, and to remain in compliance with the entire Land Offer Agreement and Amendments for the life of the Agreement. Prior to the first Final Map for the Project, Applicant shall convey all land in a manner consistent with and in accordance with the Land Offer Agreement. 8. Condition No. 11 - (Conveyance Agreement). In satisfaction of Condition No. 11 of the Resolution, Developer hereby agrees to comply with the terms of the Conveyance Agreement, as may be amended from time to time, adopted by Resolution No. 18416 by the City Council on October 22, 1996 ("Conveyance Agreement"). 9. Condition No. 12 - (Olympic Parkway Agreement). In satisfaction of Condition No. 12 of the Resolution, Developer hereby agrees that if any of these conditions conflict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Olympic Parkway Financing and Construction Agreement shall control. 10. Condition No. 13 - (Environmental). In satisfaction of Condition No. 13 of the Resolution, Developer hereby agrees, to implement, to the satisfaction of the Director of Planning and Building, all environmental impact mitigation measures identified in Final EIR 01- 02 (SCH#200 1 031120), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 01-02) for this Project. 11. Condition No. 14 - (Other Agencies). In satisfaction of Condition No 14 of the Resolution, Developer hereby agrees to comply with all applicable requirements of the California Department ofFish and Game, the California State Water Resources Quality Control Board, the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers. Prior to any activity that may potentially impact biological resources, such as clearing and grubbing, the Developer agrees to comply with all applicable requirements prescribed in the Otay Ranch GDP/Village Eleven Environmental Impact Report EIR 01-02 (SCH#2001031120), and Mitigation Monitoring and Reporting Program. 12. Condition No. 15 - (U.S. Fish and Wildlife/Fish and Game). In satisfaction of Condition No. 15 of the Resolution, Developer hereby agrees, to comply with the Project's take permit/authorization from the U.S. Fish and Wildlife Service and California Department ofFish and Game, and comply with the City of Chula Vista Multiple Species Conservation Program (MSCP) Subarea Plan. 13. Condition No. 16 - (RMP). In satisfaction of Condition No. 16 of the Resolution, Developer hereby agrees that prior to the approval of each Final "B" Map Developer shall comply with all requirements and policies of the Otay Ranch Resource Management Plan (RMP) as approved by City Council on October 28, 1993, and Otay Ranch, Phase 2 Resource 111-32 SSIA R-19iMU-l 08/14/2006 Management Plan (RMP2) as approved by City Council on June 4, 1996, and as may be amended from time to time by the City. 14. Condition No. 17 - (preserve Conveyance Schedule). In satisfaction of Condition No. 17 of the Resolution, Developer hereby agrees to comply with the requirements and policies of the Otay Ranch Resource Management Plan "Preserve Conveyance Schedule" as approved by City Council on June 4, 1996, as may be amended from time to time. 15. Condition No. 27 - (Multi-Family). In satisfaction of Condition No. 27 of the Resolution, Developer agrees that the subsequent development of a multi-family lot which does not require the filing of a Final "B" Map shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the tentative map, as determined by the City Engineer 16. Conditions No. 35 - (pFFP). In satisfaction of Condition No. 35 of the Resolution, Developer agrees to install public facilities in accordance with the Otay Ranch Village Eleven SPA, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. Developer acknowledge that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence, schedule, alignment and design of improvement construction should conditions change to warrant such a revision. 17. Conditions No. 36 - (Public Improvements). In satisfaction of Condition No. 36 of the Resolution, Developer agrees to dedicate for public use all the public streets shown on the tentative map within the subdivision boundary Developer has provided security satisfactory, as shown in Exhibit B, to the City Engineer and City Attorney and agrees to construct all street improvements as required by the PFFP Developer further agrees to secure and construct the Traffic Signal at the MU-I entrance on Eastlake Parkway as shown in Exhibit "B". 18. Condition No. 37 - (protective Fencing). In satisfaction of Condition No. 40 of the Resolution, Developer agrees to construct a protective fencing system around all proposed permanent detention basins, and the inlets and outlets of storm drain structures, as and when directed by the City Engineer. The fmal fencing design and types of construction materials shall be subject to approval of the City Engineer. 19. Condition No. 45 - (PFDIF). In satisfaction of Condition No. 45 of the Resolution, Developer agrees to participate in the funding of revisions of the Public Facilities Development Impact Fee (PFDlF) Program, which shall be prepared by the City, as directed and requested by the City Manager or his designee and subject to the approval of the City Council and Developer will receive appropriate credit for such participation. 20. Condition No. 48 - (Fire). In partial satisfaction of Condition No. 48 of the Resolution, Developer agrees to comply with the Fire Department's codes and policies for Fire Prevention, as may be amended from time to time. Developer further agrees that prior to the issuance of any building permit(s) for the Project, or prior to delivery of combustible materials on 13'-33 SSlA R-19/MU-l 08/1412006 any construction site on the Proj ect, whichever comes first, to provide, to the satisfaction of the Fire Marshal, the following items: a. Water supply consisting offue hydrants as approved and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. Any temporary water supply source is subject to prior approval by the Fire Marshal, and b. Emergency vehicle access consisting of a minimum fust layer of hard asphalt surface or concrete surface, with a minimum standard width of20 feet; and c. Street signs installed to the satisfaction of the Director of Public Works. Temporary street signs shall be subject to the approval of the Director of Public Works and Fire Marshall. Locations and identification of temporary street signs shall be subject to review and approval by the Director of Public Works and Fire Marshall. 21. Condition No. 49 - (Construction Timing). In satisfaction of Condition No. 49 of the Resolution, Developer agrees to obtain the approval of the City's Fire Marshal for the timing of construction of all internal streets in the Project. 22. Condition No. 50 - (Fire Hydrants). In satisfaction of Condition No. 50 of the Resolution, Developer agrees that in addition to those fire hydrants depicted on the tentative map, the Developer shall install additional fire hydrants upon request and to the satisfaction of the Fire Marshall. 23. Condition No. 51 - (Turnaround). In satisfaction of Condition No. 51 of the Resolution, Developer agrees to construct a temporary turnaround or street improvements, upon the request of and as determined necessary by the City Engineer and Fire Marshal, at the end of temporarily stubbed streets greater than 150 ft. in length (as measured from the nearest street centerline intersection). 24. Condition Nos. 56b and 179 - (No Protest BRT/LRT Assessment Formation). In partial satisfaction of Condition Nos. 56 and 179 of the Resolution, Developer agrees to not protest the formation of any future regional benefit assessment district to fmance the MTDB San Diego Trolley BRT or LRT System. 25. Condition No. 60 - (Private water in public street). In satisfaction of Condition No. 60 of the Resolution, Developer agrees to not install privately owned water, reclaimed water, or other utilities crossing any public street. Developer further acknowledges and agrees that the installation of sleeves for future construction of privately owned facilities may be allowed subject to the review and approval of the City Engineer if the following is accomplished. a. The Developer enters into an agreement with the City where the Developer agrees to the following: i. Apply for an encroachment permit for installation of the private facilities within the public right-of-way; and, ii. Maintain membership in an advance notice such as the USA Dig Alert Service; and, iii. Mark out any private facilities owned by the Developer whenever work 13-34 SSlA R-19/MU-I 08/14/2006 is performed in the area, and, iv The terms of this agreement shall be binding upon the successors and assigns of the Developer. b. Shutoff devices as determined by the City Engineer are provided at those locations where private facilities traverse public streets. 26. Condition No. 69 - (LOMR). In satisfaction of Condition No. 69 of the Resolution, Developer agrees that prior to transfer of responsibility of maintenance of any basins on the Project and release of the grading bond, to obtain a Letter of Map Revision (LOMR) from the Federal' Emergency Management Agency revising the current National Flood Insurance Program Maps to reflect the effect of the drainage improvements. Developer acknowledges and agrees that it shall be the responsibility of the Developer to revise the National Flood Insurance Program Maps to reflect all modifications and to ensure that no proposed lot will be created in a flood plain. 27. Condition No. 76 - (pad Elevations). In satisfaction of Condition No 76 of the Resolution, Developer agrees that all grading and pad elevations shall be within 2 feet of the grades and elevations shown on the approved tentative map or as otherwise approved by the City Engineer and Director of Planning and Building. 28. Condition No. 78 - (NPDES). In satisfaction of Condition No 78 of the Resolution, Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEP A) as set forth in the National Pollutant Discharge Elimination System (N.PD.E.S.) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.PD.E.S. regulations or requirements. Developer further agrees to file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.PD.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (S WPPP) concurrent with the co=encement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. The Developer further agrees to comply with all the provisions of the N.P.D.E.S. and the Clean Water Program during and after all phases of the development process, including but not limited to mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall submit a Water Quality Technical Report prior to obtaining any commercial building permits. The Developer shall design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactory to the City Engineer The San Diego Regional Water Quality Control Board has issued a Municipal Storm Water Permit (Order No. 2001-01). The permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential development. The Developer agrees to comply with all relevant City regulations, when they become effective, including but not limited to incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non-structural mitigation measures that would reduce pollution of storm water runoff to the maximum extent practicable. 13-35 SSIA R-19/MU-l 08/14/2006 29. Condition No. 89 - (Wall Maintenance). In satisfaction of Condition No. 89 of the Resolution, Developer agrees to provide a setback, as determined by the City Engineer based, on Developer's Soils Engineer reco=endations, between the property lines of the proposed lots and the top or toe of any slope to be constructed where the proposed grading adjoins undeveloped property or property owned by others. The City Engineer will not approve the creation of any lot that does not meet the required setback. 30. Condition No. 91 - (De-Silting Basins). In satisfaction of Condition No. 91 of the Resolution, Developer agrees to construct temporary de-silting basins at all discharge points adjacent to drainage courses or where substantial drainage alteration is proposed in the grading plan. The exact design and location of such facilities shall be based on hydrological modeling and determined pursuant to direction by the City Engineer. 31. Condition Nos. 92, 93 & 94 -(Dry weather flows). In partial satisfaction of Condition Nos. 92, 93 & 94 of the Resolution, Developer agrees to implement the dry weather study titled "Otay Ranch, Village Eleven Dry Weather Runoff Analysis" dated July 6, 2001, as amended from time to time, such that: a. Dry weather flows detention period does not exceed 72 hrs. b. Dry weather post-developed conditions for Salt Creek shall be the same as pre-developed conditions. 32. Condition No. 96 - (permitting agencies). In partial satisfaction of Condition No. 96 of the Resolution, Developer agrees to obtain approval from all applicable permitting agencies, including but not limited to FEMA, prior to any work within each of the agencies jurisdiction. Developer further acknowledges and agrees that all mitigation requirements will be the responsibility of the Developer. 33. Condition No. 109 - (Salt Creek Sewer). In partial satisfaction of Condition No. 109 of the Resolution, Developer agrees to not seek any building permits for the Project until the Salt Creek Trunk Sewer Improvements have been provided for as indicated in the report entitled "Overview of Sewer Service for Village Eleven SPA at the Otay Ranch Project" (Village Eleven SPA Sewer Report) prepared by Wilson Engineering dated March, 2001, or as amended by the Applicant and approved by the Director of Engineering. The Village Eleven SPA Sewer Report shall be consistent with the approved SPA Plan. 34. Condition No. 114 - (parks and Open Space). In partial satisfaction of Condition No. 114 of the Resolution, Developer agrees that the Village Eleven Project shall satisfY the requirements of the Park Land Dedication Ordinance (PLDO). The ordinance establishes a requirement that the project provide three (3) acres of local parks and related improvements per 1,000 residents. Local parks are comprised of co=unity parks and neighborhood parks. The Project's Neighborhood Park portion of the local park requirement shall be satisfied through the provision of a 7.0 net-acre Neighborhood Park (P-l). The remaining requirement shall be satisfied in a future Co=unity Park through the payment of fees, dedication of land, or a combination thereof in a manner acceptable to the Director of Parks and Recreation. 1 lh-3 6 SSIA R-19/MU-l 08/14/2006 35. Condition No. 116 - (pAD Fees). In satisfaction of Condition No. 116 of the Resolution, Developer has paid all applicable Parkland Acquisition and Development fees in affect at time of City Council approval to the City in accordance with C.V.M.C Chapter 17 10 prior to approval of each Final "B" Map. 36. Condition No. 118 - (park Site). In partial satisfaction of condition No. 118 of the resolution the Developer has co=enced construction of the project's Neighborhood Park P- I The Developer shall complete construction of the park by September 22, 2006. The term complete construction shall mean that the park construction has been completed according to the City approved construction plans and accepted by the Director of General Services. The maintenance/establishment period, while still the Developer's responsibility, is not part of the work the Developer is required to do in order to achieve complete construction. The Developer further agrees that at any time the Director of General Services may, at his sole discretion, modify the neighborhood development phasing and construction sequence for the Project's park should conditions change to warrant such revision. 37. Condition No. 121 - (parks). In satisfaction of Condition No. 121 of the Resolution, Developer agrees that at no time shall there be a deficit in "constructed neighborhood parks" Developer further agrees that the City may withhold the issuance of building permits for the Project, should such deficit occur. For purposes of this paragraph the term "constructed neighborhood park" shall mean the construction of the park has been completed and accepted by the City as being in compliance with the Park Master Plan, but prior to the City's required mandatory maintenance period. This is not intended to supersede any of the City's maintenance guarantee requirements. 38. Condition No. 122 - (parks). In satisfaction of Condition No 122 of the Resolution, Developer agrees that all local parks shall be designed and constructed consistent with the provisions of the Chula Vista Landscape Manual and related Planning and Building Department specifications and policies. 39. Condition No. 124 - (Town Square P-4). In partial satisfaction of Condition No. 124 of the Resolution, the Developer agrees to secure the construction of the Town Square Park as shown in Exhibit "B" and construct the Town Square Park by December 31, 2006, or to the satisfaction of the Director of Planning and Building and the Director of General Services. 40. Condition No. 137 - (Regional Trails). In satisfaction of Condition No. 137 of the Resolution, Developer shall obtain the approval of the Director of Parks and Recreation for appropriate signage indicating location of trail connections, handicap access, and bikeway locations to the Regional Trail, Village Greenway, and Chula Vista Greenbelt. Said signage shall be included on the Landscape and Irrigation Improvement Plan. Signage shall be installed upon the request of the Director of General Services and Director of Planning and Building. 41. Condition No. 139 - (Accessibility Guidelines). In satisfaction of Condition No. 139 of the Resolution, Developer agrees to comply with the current Regulatory Negotiation Hf.- 37 SSIA R.19/MU.l 0811412006 Committee Recommendations for Accessibility Guidelines: Outdoor Developed Areas Final Report, as may be amended from time to time, developed for V.S Architectural and Transportation Barriers Compliance Board when designing all trails and trail connections. 42. Condition No. 144 - (CC&R's). In satisfaction of Condition No. 144 of the Resolution, Developer agrees that prior to the approval of any future Map or commercial building permit, Declaration or Supplementary Declaration of Covenants, Conditions, and Restrictions (CC&R's) shall be submitted and be subject to the approval of the City Engineer. The CC&R's shall include the following obligations of the Master Homeowners Association. a. A requirement that the :MHOA shall maintain comprehensive general liability insurance against liability incident to ownership or use of the following areas: i. All open space lots that shall remain private, ii. Other Master Association property b The City shall review and may approve any revisions to provisions of the CC&R's that affect the City before they can become effective. The :MHOA shall not seek approval from the City of said revisions without the prior consent of 100 percent of the holders of first mortgages or property owners within the :MHOA. c. The :MHOA shall indemnify and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the :MHOA. d. The :MHOA shall not seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the :MHOA. e. The :MHOA is required to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than one million dollars combined single limit. The policy shall be acceptable to the City and name the City as additionally insured to the satisfaction of the City Attorney. f. The CC&R's shall incorporate restrictions for each lot adjoining open space lots containing walls maintained by the Open Space District to ensure that the property owners know that the walls may not be modified or supplemented nor may they encroach on City property g. The CC&R's shall include provisions assuring maintenance of all streets, driveways, drainage and sewage systems which are private. h. The CC&R's shall include provisions assuring :MHOA membership in an advance notice such as the USA Dig Alert Service in perpetuity. 13J-38 SSIA R-19/MU-l 08/14/2006 i. The CC&R's shall include provisions that provide the City has the right but not the obligation to enforce the CC&R provisions the same as any owner in the project. J The :MEOA shall not dedicate or convey for public streets, land used for private streets without approval of 100% of all the HOA members or holder of first mortgages withinthe:MEOA. k. The CC&R's shall prohibit "speed bumps" on private streets. The CC&R's shall also include language which states that any proposal by the HOA to allow "speed bumps" in the future shall require prior written approval of 100% of all the Homeowners Association members. 43. Condition No. 145 - (Homeowner Notification of MHO A Responsibilities). In satisfaction of Condition No. 145 of the Resolution, Developer agrees that future property owners shall be notified during escrow, by a document to be initialed by the owners, of the maintenance responsibilities of the NlHOA and their estimated annual cost. Developer shall submit the document and obtain the approval of the City Engineer and Director of Planning and Building prior to distribution through escrow 44. Condition No. 146 - (HOA Responsibilities). In satisfaction of Condition No. 146 of the Resolution, Developer agrees that an HOA shall be responsible for the maintenance and operation of all facilities within the common areas and streets behind any gated entrances. The facilities to be maintained include, but are not limited to' pavements, sidewalks, street trees, street lights including power supply, street sweeping, private drainage facilities and landscaping of private common areas. 45. Condition No. 147 - (HOA Responsibilities). In satisfaction of Condition No. 147 of the Resolution, Developer agrees to grade a level, clear area at least three feet wide (face of wall to top of slope), along the length of any wall abutting an open space district lot, as measured from face-of-wall to beginning of slope. Said area shall be as approved by the City Engineer and the Director of Planning and Building. 46. Condition No. 148 - (Open Space Lot Walls). In satisfaction of Condition No. 148 of the Resolution, Developer agrees that prior to close of escrow all buyers of lots adjoining open space lots containing walls maintained by the Open Space District sign a statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or encroach onto City property These restrictions shall also be incorporated in the CC&R's for all lots. 47 . Condition No. 149 - (Open Space Lots). In satisfaction of Condition No. 149 of the Resolution, Developer agrees that prior to approval of each Final Map, provide proof to the satisfaction of the City Engineer and Director of General Services that all improvements located on open space lots will be incorporated into and maintained by a Home Owner's Association or an Open Space District. 13...39 SSIA R-19/MU-I 08/14/2006 48. Condition No. 150 - (Maintenance District). In satisfaction of Condition No. 150 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the Project. 49. Condition No. 151 - (Landscape Funding Mechanism). In satisfaction of Condition No 151 of the Resolution, Developer agrees that prior to issuance of any grading permit which includes Landscaping and Irrigation (1&I) improvements to be installed in an open space lot to be maintained by the Co=unity Facility District (CFD), the Developer shall place a cash deposit, or other funding mechanism acceptable to the City, in the City's sole discretion, with the City which will guarantee the maintenance of the L&I improvements until the City accepts said improvements. Developer further acknowledges and agrees that in the event the improvements are not maintained to City standards as determined by the City Engineer and the Director of Building and Park Construction, the deposit shall be used to perform the maintenance. Developer further agrees that the amount of the deposit shall be equivalent to the estimated cost of maintaining the open space lots to City standards for a period of six months, ("Minimum Deposit Amount"), as determined by the City Engineer Developer further agrees that any unused portion of said deposit may be incorporated into the CFD' s Reserve Account, or returned to the Developer, according to the following: a. If, six months prior to the scheduled date of acceptance of Landscape and Irrigation improvements for maintenance by the CFD, the Reserve Account is less than the Minimum Deposit Amount, the difference between these two amounts shall be incorporated into the Reserve Account, or; b. If the Reserve Account is at or above the Minimum Deposit Amount, the unused portion of the deposit may be returned to the Developer in 6 equal monthly increments over the last six months of the maintenance period if the maintenance is being accomplished to the satisfaction of the Director of Building and Park Construction. 50. Condition No. 158 - (Grant Easements). In satisfaction of Condition No. 158, the Developer agrees to design Landscape and Irrigation Plans such that street tree placement is not in conflict with the sight visibility of any traffic signage. The Developer shall be responsible for the removal of any obstructions within the sight visibility of said traffic signs to the satisfaction of the City Engineer. 51. Condition No. 172 - (Withhold Permits per PFFP). In satisfaction of Condition No. 172 of the Resolution, Developer agrees: a. That the City may withhold building permits for the subject subdivision if anyone of the following occur: i. Regional development threshold limits set by the Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be 1G-40 SSIA R-19/MU-l 08114/2006 amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City The Developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Developer agrees that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (pFFP) for Otay Ranch Village Eleven SPA if the required public facilities, as identified in the PFFP or as amended by the Annual Monitoring Program have not been completed. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Connission, City Councilor any approval by its agents, officers, or employees with regard to this subdivision pursuant to Government Code Section 66499.37 provided the City promptly notifies the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City ofChula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this Project. 13-41 SSlA R-19/MU-l 08/1412006 52. Condition No. 173 - (Previous Agreements). In satisfaction of Condition No. 173 of the Resolution, Developer agrees to a. Participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMF). b. To not protest the formation of any future regional impact fee program or facilities. 53. Condition No. 174 - (previous Agreements). In satisfaction of Condition No. 174 of the Resolution, Developer agrees to comply with all previous agreements as they pertain to the Tentative Map. 54. Condition No. 175 - (Street Sweeping). In partial satisfaction of Condition No. 175 of the Resolution, Developer agrees to cause street sweeping to commence immediately after the final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, whichever is shorter. The Developer further agrees to provide the City Special Operations Manager with a copy of the memo requesting street sweeping service, which memo shall include a map of areas to be swept and the date the sweeping will begin. 55. Condition No. 176 - (Regional Impact Fees). In satisfaction of Condition No. 176 of the Resolution, Developer is required to equitably participate in any future regional impact fee program for regional facilities should the region enact such a fee program to assist in the construction of such facilities. The Developer agrees not protest the formation of any future regional benefit assessment district formed to fmance regional facilities. 56. Condition No. 177 - (Regional Impact Fees). In satisfaction of Condition No. 177 of the Resolution, Developer agrees to fund the cost of transit facilities. Said facilities, including but not limited to "transit stops" shall be designed in the manner consistent with the transit stop details as described in the Village Eleven Design Plan, as approved by the City's Transit Coordinator and Director of Planning and Building 57. Condition No. 180 - (Open Space Lots). In satisfaction of Condition No.180 of the Resolution, Developer agrees to construct and secure open space landscape improvements within the Final Map area as set forth on Exhibit "B" 58. Condition No. 181 - (Junior/High School Site). In partial satisfaction of Condition No. 181 the Developer agrees to further subdivide parcel S-2 to provide the Sweetwater Union High School District with a 25-net usable acre graded parcel for the High/Middle School and the City with the open space lots as shown on the Tentative Map. 59. Condition No. 183 - (pFFP). In satisfaction of Condition No. 183 of the Resolution, Developer agrees to install all public facilities in accordance with the Village Eleven Public Facilities Finance Plan (PFFP), or as required to meet the Growth Management Threshold standards adopted by the City Developer acknowledges and agrees that the City Engineer may 131-42 SSIA R-19/MU-l 08/14/2006 modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management Ordinance) as may be amended from time to time by the City Said Chapter includes but is not limited to Threshold Standards (19.09.040) Public Facilities Plan Implementation (19.09.090) and Threshold Compliance Procedures (19.09 100). 60. Condition No. 184 - (Interim facilities). In satisfaction of Condition No. 184 of the Resolution, Developer agrees that the maintenance and demolition of all interim facilities (public facilities, utilities and improvements) is the Developer's responsibility, and that construction and demolition bonds will be required to the satisfaction of the City Engineer. 61. Condition No. 189 - (Annual review). In satisfaction of Condition No. 189 of the Resolution, Developer agrees that pursuant to the provisions of the Growth Management Ordinance (Section 19 09 of the CYMC) and the Otay Ranch General Development Plan (GDP), and as they may be amended from time to time, the Developer shall complete the following: (1) Fund the preparation of an annual report monitoring the development of the co=unity 9f Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), Projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 62. Condition No. 190 - (project Manager). In satisfaction of Condition No. 190 of the Resolution, the owners of each Village shall be responsible for retaining a project manager to coordinate the processing of discretionary permit applications originating from the private sector and submitted to the City of Chula Vista. The project manager shall establish a formal submittal package required of each developer to ensure a high standard of design and to ensure consistency with standards and policies identified in the adopted SPA Plan. The project manager shall have a well-rounded educational background and experience, including but not limited to land use planning and architecture. 63. Condition No. 193 - (Phasing Plan). In satisfaction of Condition No. 193 of the Resolution, Developer agrees that any proposals to modify the Village Eleven SPA approved phasing plan, shall be submitted to the Director of Planning and Building for review and approval prior to approval of the first Final "BOO Map. The Developer further acknowledges and agrees that the PFFP shall be revised where necessary to reflect the revised phasing plan. 64. Condition No. 194 - (phasing Plan). In satisfaction of Condition No. 194 of the Resolution, Developer agrees that the phasing approved with the Village Eleven SPA Plan may be amended subject to approval by the Director of Planning and Building and the City Engineer. 18'-43 SSIA R.19/MU-l 08/14/2006 65. Condition No. 195 - (Phasing Plan). In satisfaction of Condition No. 195 of the Resolution, Developer agrees that if phasing is proposed within an individual map or through multiple Final Maps, the Developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any Final Map Developer further acknowledges and agrees that improvements, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. Developer acknowledges that the City reserves the right to require said improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of Police and Fire Departments, and that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees that the City Engineer may change the timing of construction of the public facilities. 66. Condition No. 196 - (phasing Plan). In satisfaction of Condition No. 196 of the Resolution, Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the Village Eleven SPA and tentative map with improvements installed in accordance with said plan or as required, to meet threshold standards adopted by the City of Chula Vista. Developer acknowledges that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the Proj ect area, that throughout the build-out of Village Eleven SPA, actual development may differ from the assumptions contained in the PFFP; and that neither the PFFP nor any other Village Eleven SPA Plan document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the Village Eleven SPA's facility improvement requirements to those identified in the PFFP Developer acknowledges that compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern Village Eleven SPA development patterns and the facility improvement requirements to serve such development. In addition, Developer acknowledges and agrees that the sequence in which improvements are constructed shall correspond to any future Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City and that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 67. Condition No. 197 - (phasing Plan). In satisfaction of Condition No. 197 of the Resolution, Developer agrees that prior to approval of any Final Map proposing the creation of Multi-family housing for the Project including Planning Areas R-17, R-18, R-19, R-23, R-24, R- 25 or MU-I as a condominium Project, co=unity apartment Project, or stock cooperative, as defmed in the applicable sections of the Government Code, Developer agrees to process a subsequent tentative map for said proposed condominium, co=unity apartment, or stock cooperative Project in said Planning Area pursuant to Section 66426 of the Subdivision Map Act. 68. Condition No. 198 - (Code Requirements). In satisfaction of Condition No. 198 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. Developer acknowledges and agrees that preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of 18&...44 SSlAR-19/MU-I 08/1412006 Chula Vista Subdivision Ordinance and Subdivision Manual. Developer further agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 69. Condition No. 199 - (Code Requirements). In satisfaction of Condition No. 199 of the Resolution, Developer agrees to pay the following fees in accordance with the City Code and Council Policy' a. The Transportation and Public Facilities Development Impact Fees. c. Signal Participation Fees. d. All applicable sewer fees, including but not limited to sewer connection fees. e. Salt Creek Sewer Basin DIF. f. The Pedestrian Bridge DIF g. The FIND Model reserve Fund Fee. 70 Condition No. 200 - (Code Requirements). In partial satisfaction of Condition No. 200 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer agrees to be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 71 Condition No. 202 - (Code Requirements). In partial satisfaction of Condition No. 202 of the Resolution, Developer agrees to comply with Council Policy No. 522-02 regarding maintenance of natural channels within open spaces. 72. Condition No. 203 - (Code Requirements). In partial satisfaction of Condition No. 203 of the Resolution, Developer agrees that all proposed development shall be consistent with the Otay Ranch Village Eleven SPA Planned Community District Regulations. 73 . Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Condition Numbers 1- 5, 8, 11-17,27,35-37,45,48-51,56,60,69,76,78,89,91-94,96, 109, 114, 116,118, 121-122, 124, 137, 139, 144-151, 158, 172-177, 179-181, 183-184, 189-190, 193-200, 202-203 of Resolution 2001-364 Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of subsequent Final Maps for the Project. 74 Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the tentative map, established by Resolution No. 2001-364 and shall remain in compliance with and implement the terms, conditions and provisions therein. 75 . Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 13"-45 SSIA R-19/MU-l 0811412006 76 . Building Permits. Developer and Guest Builders understand and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 77. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S mail, certified or registered mail, return receipt requested, first -class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Engineering DEVELOPER. Brookfield Shea Otay, LLC 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Attn: Ron Grunow, Vice President Tel. (858) 481-8500 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not defIne, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. 1~-46 SSIA R-19/MU-l 08/14/2006 e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation., enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amoilllt equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 21 (C:\DOCUME-l \RonGILOCALS-l\T"fC8lDl1"PEIEF34\SSIA-Final Mod 124.doc) SSIA R-19/MU-l 08114/2006 [PAGE ONE OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHULA VISTA TRACT NO. 01-11 R-19/MU-1 - B MAP] IN WTINESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor Attest: Susan Bigelow City Clerk Approved as to form. ~ , I :~ J;fV1~) 4r City Attorney 13-48 SSIA R-19/MU-l 08/14/2006 [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] [pAGE TWO OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHULA VISTA TRACT NO. 01-11 R-19/MU-1 - B MAP] DEVELOPERS/OWNERS. BROOKFIELD SHEA OTA Y, LLC, a California Limited Liability Company By' Brookfield Otay LLC, a Delaware Limited Liability Company, Member BY:~~ v.,p. By" ~.{t' M ~ Name$_J.I b 6"1A~ ~/ Name: e. M. 'lKI!'c1 t4~ PI'eI'. ylGl ri.l~ By' Shea Otay Village 11 LLC, a California Limited Liability Company, member ited Partnership, its Sole Member - Name: k-..~~"",...... f.-. f'L.-t>M ,....,;;rc.. (Attach Notary Acknowledgment and Company Signature Authority) 13-49 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California }ss. County of San Diego On August 14, 2006, before me, Nicole Sutherland, Notary Public, personally appeared Ronald D Grunow and E. Dale Gleed, ~ - - - - - - - - - - - - @ NICOLE SutHeRLAND - Commlaslcn # J 5554 J 3 ~ ~. Notary Public. Collfomlc ~ i Son Diego County f _ _ _ ~:a:":,~res_~2~2~9 personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above \(\~ (,ffiL ~ll/VApJ , Signature of Notary Public 13-50 CAlIFORN~A ALL.PURPOSE ACKNOWLEDGMENT ~~~~~~~~~~~~~~~~~~~~)JM'i!S.C'~~j!<&~*~ State of California } 55. County of 3CLh n I ~ ("', On f+'8US;;- \4 ')("(\(" before me, Date I personally appeared AlPxn ll~@[ <6 \Ie Name and TItle af Officer (e.g., "Jane Doe, Notary ublic") Q.Yl d. d, m t, \ el G re...., L ?\\s.hnp...... Name(s) of Signer(s) ~OnalIY known to me -- -- -- - --..-. - -- -- -- -- --I SARAH J. BEcKMAN l ~ CommisSIon II 1591362 ;; $ _. Notary PublIC. CclllomiC ~ ! SOn DIegO County i_ _ _ ~:~m.:.~k~J~I:.2~9( o proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above " OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document TItle or Type of Document Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: o Individual o Corporate Officer -TIlle(s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or ConselValor o Other' Top of thumb here Signer's Name: o Individual o Corporate Officer -TItle(s): o Partner - 0 Limited 0 General o Attorney in Fact o Tnustee o Guardian or Conservator o Other' RIGHT THUMBPRINT - OF SIGNER TOp of thumb here Signer Is Representing: Signer Is Representing: ~~~ <:;~ ~~y~y=~~~~~~~~~~~~~~~~ C 2004 National Notary Association. 9350 De Soto Ave., P.O. Box 2402 . Chatsworth, CA 91313.2402 Item No. 5907 Reorder: Call TolIMFree 1-800-876-6827 13-51 CERTIFIED TRUE COPY OF CORPORATE RESOLUTION (Brookfield Otay LLC) ELECTION OF OFFICERS RESOLVED, that the following persons are duly elected to serve as the officers of the Company by the Board of Managers or until the election and qualification of their respective successors or their earlier resignation or removal. STEPHEN P DOYLE SANDRA E. MOORE President Chief Financial Officer and Vice President Vice President Vice President Vice President Vice President Secretary Assistant Secretary E. DALE GLEED DAVIDR..POOLE R. CASEY SCHNOOR RONALD D GRUNOW ELIZABETH ZEPEDA WilLIAM B. SEITH "A" RESOLVED FURTHER, that the Acceptance of each Officer is attached hereto as EXHIBIT RESOLVED FURTHER, that except when otherwise authorized or directed by the Board of Managers, or by law, the officers of the Company are authorized to execute, acknowledge and deliver any and all instruments of writing, including but not limited to, subdivision maps, contracts, agreements for purchase and sale, leases, deeds, notes, security instruments and such other documentation necessary or appropriate in the ordinary course of business of the Company Unless specifically authorized by the Board of Managers to the contrary, any and all subdivision maps, contracts, agreements for purchase and sale, leases, deeds, notes, loan agreements, partnership agreements and security instruments, other than contracts involving amounts of less than $ I 00,000 and deeds for the sale of a single family residence, shall require the signature of two officers of the Company RESOLVED FURTHER, that no contract or obligation involving the transfer of a substantial right in any major asset of the Company shall be signed without prior approval of the Board of Managers or any committee thereof duly authorized to give such approval. This is to certify that the foregoing is a true copy of a resolution adopted by the Board of Managers of Brookfield Olay LLC, a Delaware limited liability company, managing member of Brookfield Shea Otay LLC, a California limited liability company, on the 15th day of March, 2005, and that such resolution is stilI in full force and effect unamended. In witness whereof, I have hereunto signed my name as Secretary of Brookfield Otay LLC, this 30th day of March, 2005 , t~:....... v'I." _(?- .b- Elizabeth Zepeda, Secretary 13-52 SSlA R-19/MU-l 08/1412006 EXHIBIT "A" PROPERTY DESCRIPTION Being A Subdivision of Parcel "A" of that certain Certificate Of Compliance recorded April 28, 2006 as Document No. 2006-0300433, Being a Lot Consolidation of Lot 9 ofChula Vista Tract No. 01-11 Otay Ranch Village 11 "A" Map No.2, according to map thereof No. 14780, filed in the office of the County Recorder on April 30, 2004 and Lot 10 of Chu1a Vista Tract No 01-11 Otay Ranch Village 11 "A" Map No.3, According To Map Thereof No. 15233, filed in the office of the County Recorder on December 28,2005, in the City ofChula Vista, County of San Diego, State of California. 13-53 SSIA R.19/MU.l 08/1412006 EXHIBIT "B" LIST OF SECURITIES CV WO No. Description Bond Amount Bonding Company Bond mrawin1! #) Name Number $416,000 Insurance Company of 1 Future Plans Village Square Park Landscape & Irrigation 2176553 Bond the West $210,000 2 06048 Traffic Signal; MU.l entrance Faithful Perfonnance Arch Insurance SU5020777 on Eastlake Parkway. BSO $210,000 Company Material & Labor 3 4 13-54 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN ENCROACHMENT AGREEMENT PE-702 FOR VARIOUS LOCATIONS WITHIN CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11, NEIGHBORHOODS MU-1 AND R-19. WHEREAS, Shea Homes, owners of Neighborhood R-19 of Village 11 in Otay Ranch, are proposing to construct enhanced concrete paving within portions of the Public Sewer easement and two storm drains within City's right-of-way; and, WHEREAS, according to Section 12.28.020 of the Chula Vista Municipal Code, a Council resolution must authorize the issuance of this encroachment permit, since the improvements are within a public easement and public street. NOW, THEREFORE, BE IT RESOL YED, the City Council of the City of Chula Vista does hereby authorize the issuance of Encroachment Permit PE-702 for construction of the concrete pavement within the Public Sewer Easement and the storm drains within the City's right-of-way BE IT FURTHER RESOL YED, that the City Clerk is hereby directed to record this resolution and permit. Presented by Approved as to form by ::::-\ ( I' ~ Cit ./ Leah Browder Acting Director of Engineering H:\ENGlNEERIRESOSlResos2006\08-22-06IReso for Encroachment Permit for R-19.doc 13-55 THE ATTACHED AGREE~NT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: 8/16/06 Authorization for Encroachment in City of Right-of-Way, PE-702 Otay Village 11, Neighborhood MU-l B Map and R-19 (CVT 01-11) 13-56 Recording requested iJy and please return to. City Clerk City of Chula Vista P.O Box 1087 Chula Vista, CA 91912 [X] This document benefits permittee. Recording lee required. [ (This space for Recorder's use, only) ] Affects Assessor's Parcel No(s) 643-612-02-00, 643-610-29-00, C.V File No. 0710-40-PE-702 AUTHORIZATION FOR ENCROACHMENT IN CITY RIGHT OF WAY Permit No. PE-702 Pursuant to Chapter 12.28 of the Chula Vista Municipal Code, permission is hereby granted by the City ofChula Vista (hereinafter "City") to: Brookfield Shea Otay, LLC (hereinafter "Permittee") whose mailing address is 12865 Pointe Del Mar Drive, Suite 200, Del Mar, CA. 92014-3859 to do work within a portion of City righ.of-way and a public sewer easement. All terms and conditions of this permit as to the Permittee shall be a burden upon Permittee's land and shall run with the land. All conditions apply to Permittee and all hislher/their heirs, assigns, successors or transferees. Whereas, the Permittee has requested the permission from City to encroach on said City's easement adjacentto and for the direct benefit of the following described property. ADDRESS: Neighborhood MU-I & R-19 in Otay Ranch Village 11 The Block between Eastlake Parkway Discovery Fails Drive and between Birch Road and Crossroads Street. LEGAL DESCRIPTION: Real property in the City ofChula Vista, County of San Diego, State of California, described as foilows: Parcel A. Lots 1,2 and 3 ofChula Vista Tract No. 01-11 OtayRanch Village II Neighborhoods MU-I andR-19, According To Map Thereof No. , Filed In The Office Of The County Recorder On , In The City Of Chula Vista, County Of San Diego, State Of California. Parcel B: All of those certain non-exclusive Sewer and General Utility and Access Easements as granted in Lots 1,2 and 3 ofChula Vista Tract No. 01-11 Otay Ranch Village II Neighborhoods MU-I and R,19, According To Map Thereof No. , Filed In The Office Of The County Recorder On , In The City Of Chula Vista, County Of San Diego, State Of California. PERMISSION IS HEREBY GRANTED to do the following work: The construction of portions of private Storm Drain facilities within a portion of Crossroads Street as shown on Exhibits "A" & "B" attached hereto and incorporated herein by this reference. 18"liSl 2. The construction of portions of enhanced pavement in several locations with the City's public Sewer Easement as shown on Exhibit "c" attached heroto and incorporated herein by this reference. (hereinafter "Encroachment") NOW, THEREFORE, in consideration of their mutual promises, and other good and valuable COnsideration, the parties hereto agree as follows: Permission is hereby granted Permittee for the above-mentioned Encroachment on the real property of City described above in accordance with the following conditions: Encroachment shall be installed and maintained in a safe and sanitary manner by Permitteeas determined by City. Permittee aclmowledges that the maintenance, replacement, and/or reconstruction of the Encroachment shall be the sole responsibility of the Permittee. 2. Encroachment shall, in no way interfere with the maintenance of or operation of existing water meters, CATV and telephone pedestals, public storm drain and sewer lines. Any costs arising from changes of or to any facility due to the Encroachment shall be the sole responsibility of Permittee and subject to placement of a lien on the property if incurred by the City 3 Said installation shall conform to all standards and specificallons as stated in the Chula Vista Municipal Code. 4 Permittee is to call Underground Service Alert (one call mark-out service) at 1-800-422-4133 a minimum of two working days prior to any excavation being done in the City' s righ~of-way 5 For all above ground Encroachments that could logically be subject to graffiti or similar acts, Permittee shall apply an anti-graffiti material to the encroaching object ofa type and nature that is acceptable to the Director of Public Works. 6. Permittee shall immediately remove any graffiti from the encroaching object. 7 City shall have the right to remove graffiti or paint the encroaching object, the paint being provided and the cost of labor paid by Permittee. 8. Permittee shall not allow Encroachmentto block the existing course of surface drainage to the extent that it may endanger the public or the surrounding properties or cause ponding of water. This permit is revocable upon thirty (30) days written notice to the Permittee, and upon such notice, the installation must be removed or relocated, as and wlien specified by the City, at Permittee's cost If Permittee fails to remove or relocate Encroachmentwithin the period allotted, the City may cause such work to be done and the cost thereof shall be imposed as a lien upon Permittee's property. Permittee shall defend, indemnify, protect, hold harmless and release the City, its elected and appointed officers and employees, from and against all past, present or future claims for damages, liability, cost and expense (including without lim itation attorneys' fees) arising out of or in any way related to the encroachment or the conduct ofthe Permittee, or any agent or employee, subcontractors, or others (including third parties) in connection with the execution of the work covered by this agreement. Except only for those claims arising from the sole negligence or sole willful conduct of the City, its officers, or employees. Permittee's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its 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 any such suit or action brought against the City, its officers, agents, or employees. Permittee's indemnification of City shall not be limited by any prior or subsequent declaration by the Permittee. Permittee hereby agrees to and shall release, hold harmless and defend City, it selective and appointive boards, officers, agents and employees against any claim, and in any suit or proceeding, at law or in equity, for damages caused, or alleged 11~sesz to have been caused, by actions taken or alleged to have been taken, or in anyway related to or arising from actions taken, under this permit by Permittee directly or by hislher/their agent(s), contractor(s), or agents or employees of same. Permittee further agrees to and shall indemnify and hold harmless City, its elective and appointive boards, officers, agents and employees, as indemnities, for any claim, suit or proceeding submitted, brought or instituted against City as a result of actions taken, or alleged to have been taken, or in anyway related to or arising from actions taken, under this permit, including, but not limited to, any asserted liability for loss of or damage to property or for personal injury, including death. The undersigned Permittee hereby accepts the foregoing Encroachment permit upon the terms and conditions stated herein and agrees to comply with all stated terms and conditions and with all applicable laws, including any applicable provision of the Chula Vista Municipal Code. It is further agreed that if any part of Permittee's Encroachment or Permittee's rights under this Encroachment Permit shouldinterfere with the future use of the City's right of way by the general public, it must be removed or relocated at Permittee's expense and such right shall be terminated as and when indicated by City In the event of a dispute arising as to the terms or interpretation of this permit, the City Engineer shall resolve said dispute in his sole and unfettered discretion, reasonably applied. (C:\Documents and Sd:tings\chrisli\LocaI Setting!Temporary Internet FileSOLK6B\Encroachment Permit P:&702.doc) 1 3~~g SIGNATURE PAGE CITY OF CHULA VISTA: Penn it approved by' Date: Silvester Evetovich Principal Civil Engineer (City Clerk to attach acknowledgment.) PERMITTEE: Signature: S:><, Affa.c.Ld Name: Date: Title: Signature: Name: Date: Title: (Notary to attach acknowledgmentfor each signature.) (Corporate Authority requiredfor each Signatory, if applicable.) (C:\Documents and ScttingSlchrisli\Local Settings.Temporary Internet FileSOLK6B\Encroachment Permit PS702.doc) 1 s!!ffd By: Shea Otay Village 11, LLC, a California limited liability company By: Shea Homes Limited Partnership, a California limited partnership, its Sole Member 13-61 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California }ss. County of San Diego On August 14, 2006, before me, Nicole Sutherland, Notary Public, personally appeared Ronald D Grunow and E. Dale Gleed, ~~---~-------~ @ NICOLE SUTHERlAND Commission # 15<i5413 ~.,; Notary Public. California ~ j San Diego County t _ _ _ ~:~m:...~res_~2~2~9 personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. ~ \/uuu ~LVl~ . Place Notary Seal Above Signature of Notary Public I ~ 13-62 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT --- ~-- -.~~~~- - ~;i!l'" -~:;!!I;:;;r -~~ -~.'I:if":=:;;!!" ~2^~~""'-" State of Califomia County of &v,"D i 'D ~ On A-~cJS t. I ~,~ before personally appeared Pn I J; bile... me, N"". and ~UdOffl'" (e.,." 'Jane Ooe, N6"", pubn" Karnt', '" a..n J IYYJ IL I 180 re / Name(s) of 81gner(s) / ~erSOnallY known to me SARAH J. BECKMAN ~ Commission # 1591862 $ _,.; Notary Public - California ~ ~. San DiegO counly l i __ __ __ '!' :c:'m. Ex~ir~ ~ 1,- 2a:: o proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behaif of which the person(s) acted, executed the instrument. Place Notacy Seal Above Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: o [ndividual o Corporate Officer - Tit[e(s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or Conservator o Other' Top of thumb here Signer's Name: o [ndividual o Corporate Officer - Tit[e(s): o Partner - 0 Limited 0 Genera[ o Attorney in Fact o Trustee o Guardian or Conservator o Other' RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer [s Representing: Signer Is Represent[ng: l.:"'-~ ~!iO.. _~~ ~~_~::<.;L- :.ii:__ _ ~ --=- :~~.~;;._.__:_-_ ~ ~~ C 2004 National Notary Association. 9350 De Seta Ave., P.O. Box 2402' Chatswcrth, CA 91313-2402 item No. 5907 Reorder: Call ToU.Free '0800-876-6827 13-63 COUNCIL AGENDA STATEMENT Item 1'-1 Meeting Date 8/22/06 ITEM TITLE: Resolution Ratifying City staffs action on approving change orders with Koch-Armstrong General Engineering, Inc. to complete the "Pavement Rehabilitation Program FY 04/05 Overlay in the City ofChula Vista, California" project, a component of the 2005 Pavement Rehabilitation project (STL-31 0) project Resolution Ratifying City staffs action on approving change orders with American Asphalt South, Inc. to complete the "Slurry/Chip Seal Pavement Rehabilitation FY04/05 in the City of Chula Vista, California" project, a component of the 2005 Pavement Rehabilitation project (STL-31 0) project SUBMITTED BY: Director of Ge/ ServicesC\~. City Manager :II ,J (4/5ths Vote: Yes _ No X ) REVIEWED BY: The City of Chula Vista awarded contracts to Koch-Armstrong General Engineering, Inc., for the "Pavement Rehabilitation Program FY 04/05 Overlay in the City of Chula Vista, California" project and American Asphalt South, Inc. to complete the "Slurry/Chip Seal Pavement Rehabilitation FY04/05 in the City of Chula Vista, California" project, in which both projects are components of the 2005 Pavement Rehabilitation project (STL-310) project. During the course of construction, unforeseen circumstances caused an increase in quantities for the overlay project beyond what was anticipated during the preparation of the project specifications, which resulted in a change order that exceeds the Director of Public Works authorized limits set per Council Policy No. 574-01 (Attachment A). In addition, streets located on supplemental List 2 of the slurry seal contract were directed to be completed by City staff. Said change orders are approximately $9,000 for the overlay portion and approximately $36,000 for the slurry portion of STL-31 O. Staff directed the Contractor to proceed with the work and prepared a Council Informational Item dated April 21, 2006 (Attachment B) regarding this issue. It is the intent of staff to request that the City Council ratify the actions taken for this project as stated in said Council Policy Funds are available in the STL-31 0 CIP to complete all necessary change orders for both the overlay and slurry seal projects. No additional appropriations are needed to undertake this work. Approval of tonight's resolution will ratify staff s action approving the change orders totaling $45,000 for said projects in accordance with the City Council Policy No. 574-01 and as presented in the Council Information Item submitted on April 21, 2006. RECOMMENDATION: That Council adopt the resolutions. BOARDS/COMMISSION: Not applicable. 14-1 14- Page 2, Item ~ Meeting Date 8/22/06 DISCUSSION: The City of Chula Vista awarded contracts for the overlay and slurry/chip seal projects, which are both components of the City's annual pavement rehabilitation program and consist of the repair and maintenance of our City streets' pavement surface. During the course of construction for the overlay project (Attachment C), unforeseen circumstances (poor subgrade and an increase in dig-out quantities) caused an increase in quantities beyond what was anticipated during the preparation of the 'project specifications for the overlay proj ect. Additional areas were repaired due to the failing areas increasing in size, which were primarily caused by heavy rainfalls earlier in the year. The above-mentioned construction changes resulted in a change order that exceeds the Director of Public Works' authorized limits set per Council Policy No. 574-01 Said change order are approximately $9,000 for the overlay portion and approximately $36,000 for the slurry portion of STL-31O. Staff directed the Contractor to proceed with the work for the following reasons: · The postponement of the rehabilitation of the streets would have caused an increase in dig-outs and cost even more than the approximate $9,000 overage, if conducted at a later time. · Delays in authorizing the work prior to obtaining City Council approval would have exposed the City to substantial claims by the Contractor for remobilization, insurance, bonds, and construction site maintenance, among other things. In the case of the slurry seal project, all locations in the Priority I and 2 lists (Attachment D) were completed. Typically for pavement rehabilitation projects, locations are shown in Priority I and Priority 2 with the intent to complete Priority 2 locations only if funds remain in the project after completing Priority I locations. Since a substantial amount of funds remained in the project to complete all of Priority 1 and the majority of Priority 2 locations, staff directed the Contractor to complete all locations listed in the contract. Staff requests that the City Council ratify the actions taken for this project as stated in said Council Policy The STL-310 Pavement Rehabilitation project, which was funded with $3.5 million in TransNet funds, was created to perform various pavement rehabilitation strategies (i.e. overlay, asphalt rubber aggregate membrane (ARAM), and slurry seals) throughout the City of Chula Vista. Funds are available in the STL-310 CIP account to complete all necessary change orders for both the overlay and slurry seal proj ects without additional appropriations by City Council. Approval of the resolutions will ratify staff s action approving the change orders totaling a maximum of $45,000.00 for said projects in accordance with the City Council Policy No. 574-01 and as presented in the Council Information Item submitted on April 21, 2006. 14-2 Page 3, Item I L1 Meeting Date 8/22/06 Decision Maker Conflicts Staff has reviewed the property holdings of the City Council and has found no such holdings within 500 feet of the property which is the subject of this action. FISCAL IMPACT: There is no impact on the General Fund and no additional appropriations are necessary as the funds for these improvements have been provided for as part of the Pavement Rehabilitation CIP STL-310 SLURRY SEAL COMPONENT OF THE STL-310 PAVEMENT REHAB PROJECT Base Construction Cost $988,050.00 Change Order No.1 $134,051.87 TOTAL $1,122,101.87 Contract Plus Contingencies $1,086,855.00 Net Chanl!e ReQuirinl! Council Action $35,246.87 OVERLAY COMPONENT OF THE STL-310 PAVEMENT REHAB PROJECT Base Construction Cost $519,451.90 Change Order No. I $43,482.80 Change Order No.2 $17,220.00 Final Change Order $27,999.19 TOTAL $608,153.89 Contract Plus Contingencies $600,000.00 Net Chanl!e ReQuirinl! Council Action $8,153.89 Attachment(s): A. Council Policy No. 574-01 B. Council Information Item dated April 21, 2006 C. Overlay Proj ect Locations D Priority 1 & Priority 2 Slurry Seal Proj ect Locations M:\General Services\GS Administration\Council Agenda\STL-310 Overlay\Change Order Al13, 8-S-Q6.doc 14-3 ATTACHMENT __4 COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: CHANGE ORDERS - DIRECTOR OF PUBLIC WORKS POLICY NUMBER 574-01 EFFECTIVE DATE 12-12-00 PAGE 1 of! ADOPTED BY: Resolution No. 12507 I DATED: 06-03-86 AMENDED BY: Resolution No. 2000-335 (09-26-00), Resolution No. 2000-451 (12-12-00) RACKGROTJND During the course of work on many City public works projects, it becomes apparent that certain changes must be made in the contract to obtain the finished product in its desired form. PlJRPOSF Since most of these changes are of a minor nature which do not change the scope of the project or affect the public health, safety, or welfare, delegating limited authority to approve change orders would result in significantly expediting these public works projects. POT.TrY The Director of Public Works is hereby delegated limited authority to approve change orders for work being done under City public works contracts, as follows: 1 All change orders, except for those change orders exceeding or causing the exceedence of the amounts specified herein, shall be processed and approved by the Director of Public Works in accordance with the applicable project specifications. 2. No individual change order shall increase or decrease the original contract amount by more than $50,000. 3 The aggregate amount of all change orders shall not increase the contract amount by more than the amount specified below' Original Contract Range Maximum Aggregate Increase in Change Orders Up to $100,000 $100,000 to $1,000,000 More than $1,000,000 10% of the original contract amount $10,000 plus 7% of the original contract amount over $100,000 $73,000 plus 5% of the original contract amount over $1,000,000 The Director shall also be authorized to increase the time allowed for contract completion in association with any change order granted under this policy 4 All change orders involving changes in the scope of project, increases of contract amounts greater than outlined above or aspects concerning the public health, safety, or welfare, shall be submitted to the City Council for consideration. In those cases where the City Manager and Director of Public Works determine that the public health and safety are involved or a substantial claim could be submitted by the contractor for delays, the City Manager may exceed the above amounts provided for both individual change orders or the aggregate amount of change orders. The change order shall be submitted to the Cowlcil at the next regular Council meeting for ratification. 14-4 .,~.W? -,- AiTACHMENT ,13 - General Services Department Informational Item CT1Y OF CHULA VISlA April 21, 2006 File: STL-3l0 TO: The Honorable Mayor and City Council Jack Griffin, Director of General Services ~}.. Dave Rowlands,~ Manager FROM: VIA: SUBJECT: Change Order for (STL-3l 0) Pav=ent Rehabilitation Program On November 22, 2005, per Resolution No. 2005-383, the City Council awarded the "Pavement Rehabilitation Program FY04/05 Overlay in the City of Chula Vista, California" project (STL- 310) to Koch-Armstrong General Engineering, Inc. for $519,451.90 The work consists of the application of Asphalt Rubber Aggregate Membrane (ARAM) seal coat and pavement overlay on various pavement locations in the City of Chula Vista, California. Work for this proj ect also includes the following: r=oval/replacement of failed pav=ent, striping, traffic control, and other miscellaneous work, and all labor, material, equipment, and transportation necessary for the project. This project includes streets, which were on previous contracts' secondary priority lists, but were not completed due to insufficient additional funds available to complete additional locations beyond the priority list. During the course of construction, unforeseen circumstances (poor sub grade and an increase in dig-out quantities) caused an increase in quantities beyond what was anticipated during the preparation of the project specifications. Additional areas were repaired due to the failing areas increasing in size, which were primarily caused by recent heavy rainfall. The above mentioned construction situation will result in a change order that exceeds the Director of Public Works authorized limits set per Council Policy No. 574-01. Staff estimates that said change order will be in the range of $30,000 to $40,000 Staff has directed the Contractor to proceed with the work because of the following reasons: · The postponement of the rehabilitation of the streets will cause an increase in dig-outs and necessitate additional funds beyond the change order, if not conducted at this time. · Delays would involve substantial additional claims by the Contractor for remobilization, insurance, bonds, construction site maintenance, etc. It is the intent of staff to request that the City Council ratify the actions taken for this project as stated in said Council Policy (attached). No additional appropriations are needed to undertake this work. M:\General Services\Design\STL310\lnfo Item for Change Order Apr1~5c B&P( >: .. ;: .. > o .... c .. Ii .. UJ .. c. .. 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"0 ::: ::: Vi '" <C U ~ E 1":- ~ 0 ::;: &l .8' '" 0 E < 0 0 !OJ :<: .8' ~ ~ 0 < 0 0 .... 5:<: ~ '" "0 v; = ~ :::::l OJ !!!. 3: 14-13 RESOLUTION NO. 2006-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RATIFYING CITY STAFF'S ACTION ON APPROVING CHANGE ORDERS WITH KOCH- ARMSTRONG GENERAL ENGINEERING, mc. TO COMPLETE THE "PAVEMENT REHABILITATION PROGRAM FY 04/05 OVERLAY m THE CITY OF CHULA VISTA, CALIFORNIA" PROJECT, A COMPONENT OF THE 2005 PAVEMENT REHABILITATION (STL-310) PROJECT WHEREAS, City staff awarded contracts to Koch-Armstrong General Engineering, Inc. for the "Pavement Rehabilitation Program FY 04/05 Overlay in the City of Chula Vista, California" project; and WHEREAS, during the course of construction, unforeseen circumstances caused an increase in quantities beyond what was anticipated during the preparation of the project specifications, which resulted in a change order that exceeds the Director of Public Works authorized limits set per Council Policy No. 574-01; and WHEREAS, staff directed the Contractor to proceed with the work and prepared a Council Informational Item dated April 21, 2006 regarding this issue; and WHEREAS, funds are available in the STL-310 CIP to complete all necessary change orders and no additional appropriations are needed to undertalce this work. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby ratify City staff s action on approving change orders with Koch-Armstrong General Engineering, Inc. to complete the "Pavement Rehabilitation FY 04/05 Overlay in the City of Chula Vista, California" project, a component of the 2005 Pavement Rehabilitation (STL-310) project. Jack Griffin Director of General Services Presented by 14-14 RESOLUTION NO. 2006-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RATIFYING CITY STAFF'S ACTION ON APPROVING CHANGE ORDERS WITH AMERICAN ASPHALT SOUTH, INe. TO COMPLETE THE "SLURRYICHIP SEAL PAVEMENT REHABILITATION FY 04/05 IN THE CITY OF CHULA VISTA, CALIFORNIA" PROJECT, A COMPONENT OF THE 2005 PAVEMENT REHABILITATION (STL-310) PROJECT WHEREAS, City staff awarded contracts to American Asphalt South, Inc. for the "Slmryl Chip Seal Pavement Rehabilitation FY 04/05 in the City of Chula Vista, California" project; and WHEREAS, during the course of construction, unforeseen circumstances caused an increase in quantities beyond what was anticipated during the preparation of the proj ect specifications, which resulted in a change order that exceeds the Director of Public Works authorized limits set per Council Policy No. 574-01; and WHEREAS, funds are available in the STL-310 CIP to complete all necessary change orders and no additional appropriations are needed to undertake this work. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby ratify City staffs action on approving change orders with American Asphalt South, Inc. to complete the "Slurry/Chip Seal Pavement Rehabilitation FY 04/05 in the City of Chula Vista, California" project, a component of the 2005 Pavement Rehabilitation (STL-310) proj ect. Presented by Approved as to fo Xii7 . Jack Griffin Director of General Services 14-15 COUNCIL AGENDA STATEMENT Item Meeting Date /5 8/22/06 ITEM TITLE: Resolution Accepting a reimbursement regarding the Salt Creek Recreation Facility from Rudolph and Sletten in the amount of $6,050.00 and appropriating the funds to Capital Improvement Project PR271, Salt Creek Recreation Facility SUBMITTED BY Resolution Accepting a reimbursement regarding minor capital improvements from the South Bay Little League in the amount of $19,604.80 and appropriating the funds to Capital Improvement Project GG175, C&R Minor Capital. Director of Ge;(-services >.J.9;}- City Manager JI (4/5ths Vote: Yes.x.. No --.J REVIEWED BY: The General Services Department has received two separate reimbursements for work related to two Capital Improvement projects. Staff is recommending that the reimbursements be appropriated to the projects from which the expenditure originally occurred. RECOMMENDATION: That Council accept the reimbursements and appropriate said funds. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: The General Services Department has received two separate reimbursements for work related to two Capital Improvement projects. The first reimbursement in the amount of $6,050.00 is due to a double billing error by the Design Builder, Rudolph and Sletten, Inc. for contract work regarding the construction of the Salt Creek Recreation Facility (PR271). The second reimbursement in the amount of $19,604.80 is for restroom work completed by City staff from the Minor Capital Improvement project (GG 195) for the Max Little League Fields at Rienstra Park in cooperation with the South Bay Little League. At this time, staff is recommending that the reimbursements be appropriated from the Recreation Facilities Development Impact Fund (RecDIF) for PR271 and Residential Construction Tax Fund (RCT) for GG 195 where the expenditure originally occurred. Decision Maker Conflicts Staff has reviewed the property holdings of the City Council and has found no such holdings within 500' of the property which is the subject of this action. FISCAL IMPACT: None. J:\General Services\GS Administration\Council Agenda\CIP Reimbursements\GG195 PS128 Reimb Approp.doc 15-1 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A REIMBURSEMENT REGARDING THE SALT CREEK RECREATION FACILITY FROM RUDOLPH AND SLETTEN IN THE AMOUNT OF $6,050.00 AND APPROPRIATING THE FUNDS TO CAPITAL IMPROVEMENT PROJECT PR271, SALT CREEK RECREATION FACILITY WHEREAS, the General Services Department has received two separate reimbursements for work related to two Capital Improvement projects; and. WHEREAS, the reimbursement in the amount of $6,050.00 is due to a double billing error by the Design Builder, Rudolph and Sletten, Inc. for contract work regarding the construction of the Salt Creek Recreation Facility (PR271); and. WHEREAS, the reimbursement will be appropriated to the Recreation Facilities Development Impact Fund (RecDIF) for PR271 where the expenditure originally occurred. NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby accept a reimbursement regarding the Salt Creek Recreation Facility from Rudolph and Sletten in the amount of $6,050.00 and appropriate funds to Capital Improvement Project PR271, Salt Creek Recreation Facility Presented by Approved as to form by Jack Griffm Director of General Services ~kL~P4 ~ Ann oore City Attorney 15-2 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A REIMBURSEMENT REGARDING MINOR CAPITAL IMPROVEMENTS FROM THE SOUTH BAY LITTLE LEAGUE IN THE AMOUNT OF $19,604.80 AND APPROPRIATING THE FUNDS TO CAPITAL IMPROVEMENT PROJECT GG 175, C&R MINOR CAPITAL. WHEREAS, the General Services Department has received two separate reimbursements for work related to two Capital Improvement projects; and. WHEREAS, the reimbursement in the amoWlt of $19,604.80 is for restroom work completed by City staff from the Minor Capital Improvement project (GG 195) for the Max Little League Fields at Rienstra Park in cooperation with the South Bay Little League; and WHEREAS, the reimbursement will be appropriated to the Residential Construction Tax FWld (RCT) for GGI95 where the expenditure originally occurred. NOW, THEREFORE, BE IT FURTHER RESOLVED that the City COWlcil of the City of Chula Vista does hereby accept a reimbursement regarding minor capital improvements from the South Bay Little League in the amoWlt of $19,604.80 and appropriate the funds to Capital Improvement Project GG 175, C&R Minor Capital. Presented by Approved as to form by ~ j{ 1- iCet;( IJJul liLer Ann Moore citY Attorney Jack Griffm Director of General Services 15-3 COUNCIL AGENDA STATEMENT Item I' Meeting Date 8/22/06 ITEM TITLE: Resolution Approving Agreement with the City of Lemon Grove for Animal Control Services SUBMITTED BY: Director of Gen7rviCes City Manager Jf ~Yr v REVIEWED BY: ( 4/5ths Vote: No x ) Chula Vista has provided animal control services to Lemon Grove since 1995. The existing agreement expired on June 30, 2005 Staff is recommending Council approve a new three-year Animal Control Agreement with option to extend administratively for two additional years upon mutual consent. RECOMMENDATION: That Council adopt resolution. BOARDS/COMMISSION: Not applicable. DISCUSSION: The City of Lemon Grove has contracted with the City of Chula Vista for animal control services since 1995 The agreement for the provision of animal control services between the City of Lemon Grove and the City of Chula Vista expired June 30, 2005 Staff has successfully reached agreement on a new three-year agreement with the City of Lemon Grove. The Lemon Grove City Council approved the agreement on July 18,2006. The three-year agreement includes an option to extend administratively for two additional years upon mutual consent. Chula Vista will continue to provide a full range of animal control services to the City of Lemon Grove. One Animal Control Officer is assigned full time, five days per week for 40 hours to service the Lemon Grove community Emergency responses after normal business hours will be paid by Lemon Grove on an overtime basis. The new contract amounts are based on an established formula that ensures full cost recovery of one Animal Control Officer, support staff and services to be rendered. The following is a summary of proposed annual rate increases: Fiscal Year Animal Control and Monthly Contract Julv 1 - June 30 Kennel Service Service Charge Current Rate 2005-06 $149,971 $12,498 Year 1 2006-07 $157,673 $13,139 Year 2 2007 -08 $162,404 $13,534 Year 3 2008-09 $168,088 $14,007 Optional Extensions Year 4 2008-10 $173,971 $14,988 Year 5 2010-11 $180,060 $15,512 16-1 Page 2, Item I V Meeting Date 8/22/06 The proposed agreement may also be adjusted annually up to 2% for related increases in the Animal Care Facility services and supplies budget increases with advance notification. FISCAL IMPACT: The proposed three-year agreement will result in a positive impact to the General Fund. The contract recovers all direct costs associated with staffing and services and supplies required to provide animal control services to Lemon Grove in addition to some indirect costs. Moreover, the proposed contract includes the actual cost calculations for the adopted salary increases in the Chula Vista Employees Memorandum of Understanding. M:\General Services\GS Administration\Council Agenda\ACF\Lemon Grove contract, 8-22-Q6.doc 16-2 RESOLUTION NO 2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT WITH THE CITY OF LEMON GROVE FOR ANIMAL CONTROL SERVICES WHEREAS, Chula Vista has provided animal control services to Lemon Grove since 1995, and, WHEREAS, the existing animal control services agreement expired on June 30, 2005, and, WHEREAS, staff is recommending Council approve a new three-year Animal Control Services Agreement with option to extend administratively for two additional years upon mutual consent; and, WHEREAS, Chula Vista will provide a full range of animal control services; and, WHEREAS, the City of Lemon Grove will pay the following rates as stipulated in the new agreement: Contract Fiscal Year Animal Control and Monthly Service Julv 1- June 30 Kennel Service Char!!e Current Rate 2005-06 $149,971 $12,498 Year 1 2006-07 $157,673 $13,139 Year 2 2007-08 $162,404 $13,534 Year 3 2008-09 $168,088 $14,007 Optional Extensions Year 4 2008-10 $173,971 $14,988 Year 5 2010-11 $180,060 $15,512 WHEREAS, The contract recovers all direct costs associated with staffing and services and supplies required to provide animal control services to the City of Lemon Grove., and, WHEREAS, The proposed agreement may also be adjusted annually up to 2% for related increases in the animal Care Facility services and supplies budget with advance notification by the City of Chula Vista; and 16-3 NOW, THEREFORE BE IT RESOLVED that the City Council adopts the resolution amending the FY06 General Services Animal Care Facility budget by deleting the .5 benefited Veterinarian position and adding a 75 Animal Adoption Counselor position, reclassifying an Animal Control Officer position to a Senior Animal Control Officer and an Animal Care Assistant position to Senior Animal Care Assistant Presented by Approved as to form by Jack Griffin Director of General Services ~'(""\\~,~~ Ann Moore ' City Attorney 16-4 THE ATTACHED AGREHvIENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~~l'{\~~~~\ Ann Moore ' City Attorney Dated: 8/16/06 Two-Party Agreement with the City of Lemon Grove Providing Full Animal Control Services 16-5 AGREEMENT BETWEEN CITY OF CHULA VISTA AND CITY OF LEMON GROVE PROVIDING FULL ANIMAL CONTROL SERVICES This agreement ("Agreement"), dated Juiy 18, 2006, for the purposes of reference only, and effective as of the date last executed is between the City of Chula Vista, ("Chula Vista"), a chartered municipal corporation of the State of California, whose business address is City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910; and the City of Lemon Grove ("Lemon Grove"), a municipal corporation of the State of California, whose business address is City of Lemon Grove City Manager, and his/her designee 3232 Main Street Lemon Grove, CA 91945 This "Agreement" is made with reference to the following facts: WHEREAS, Chula Vista has an animal care facility and provides a full range of animal control services to the citizens of Chula Vista; and, WHEREAS, Lemon Grove desires to enter into an agreement with Chula Vista to provide animal shelter and control services for the impounding, adoption, redemption, and disposition of dogs, cats, and other small animals; NOW, THEREFORE, BE IT RESOLVED, that the City of Chula Vista and the City of Lemon Grove do mutually agree as follows: I. SERVICES 1. Chula Vista agrees to provide animal control services to residents of Lemon Grove in the form of shelter services, full range of animal control services as expressed herein, and administrative services. SHELTER SERVICES. 2. Chula Vista agrees to permit Lemon Grove the use of the animal care facilities owned and operated by Chula Vista for the impounding, adoption, redemption, and disposition of dogs, cats and other small animals subject to the provisions of the Lemon Grove Animal Ordinances. The facility is Animal Control Services Agreement Page 1 16-6 located in the City of Chula Vista at 130 Beyer Way 3. Chula Vista agrees to provide animal care facility services for the animals of residents of Lemon Grove durtng normal facility hours, currently Monday through Friday 10:00 to 5:00 and Saturday 10:00 to 4:00. The facility will be closed on Sunday and all major holidays. Chula Vista agrees to notify Lemon Grove of changes to facility hours in advance of such changes. 4. Chula Vista agrees to accept all stray animals from Lemon Grove residents at no charge. Lemon Grove residents wishing to relinquish owned animals to the facility for euthanasia or adoption, or wishing to redeem animals will be charged appropriate fees in accordance with Chuls Vista's master fee schedule. 5. Chula Vista agrees to hold all dogs and cats for the minimum holding period required by the Califomia Food and Agricultural 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 expiration of the normal holding period. Veterinary medical care will be provided as needed for all impounded animals for the duration of their hold period as needed. Chula Vista will attempt to notify owners of identified animals that their animal is in the custody of the Chula Vista Animal Care Facility and advise them of the holding pertod. Lemon Grove shall relinquish to Chula Vista for disposition in accordance with all applicable laws, pOlicies or procedures as deemed appropriate by the Chula Vista Animal Care Facility Manager all animals held in the animal care facility and not claimed or adopted. Upon payment of all appropriate fees, Chula Vista will release to the legal owner, any impounded domestic animal. Chula Vista will have discretion without recourse to Lemon Grove to release animals under special circumstances regardless of payment of fees. 6. Chula Vista will conduct all impound and administrative hearings as required by law, including Lemon Grove's Municipal Code. Lemon Grove will provide a hearing officer if Chula Vista is unable to provide one due to conflicts of interest or prejudice or if the Lemon Grove Municipal Code specifies the hearing officer will be an official from Lemon Grove. 7. Chula Vista shall not be responsible to any resident of Lemon Grove, or to the City of Lemon Grove, because of the destruction of any animal delivered to and accepted by the Animal Care Facility pursuant to this Agreement, and the City of Lemon Grove agrees to hold harmless the City of Chula Vista from any claims, except those stemming form Chula Vista's sole negligence, arising from damage or injury to animals belonging to Anima' Controf Services Agreement Page 2 16-7 residents of Lemon Grove and accepted by the Chula Vista Animal Care Facility. 8. Chula Vista shall maintain its facility in a humane manner and shall keep its facility 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 Califomia. Chula Vista shall use humane methods in the care, euthanizing, and disposition of any animal coming under its jurisdiction. 9 Chula Vista will not sell or give any live or dead animal to a medical research facility at any time or from any jurisdiction. 10. Chula Vista will ensure all dogs, cats and rabbits adopted from the shelter are spayed 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 Care Facility will provide the public with low-cost spay/neuter information and assistance. PATROL SERVICES: 11 Chula Vista agrees to provide a uniformed Animal Control Officer to patrol Lemon Grove, five (5) days per week, not to exceed 40 hours per week, in the manner and to the extent that Chula Vista deems appropriate, unless a specific request is made by Lemon Grove, in which case such request shall be a priority. All special requests will be responded to pursuant to the priority system set forth below. 12. Patrol services shall include emergency transportation of injured or sick animals, the Issuance of citations for violations of state and local laws and ordinances, impounding of strays, investigation of biting incidents, vicious or dangerous animals complaints, trapping of animals (except as noted below), investigating humane complaints, investigating barking dog or animal noise complaints, picking up dead animals and educating the public about pet responsibility. Chula Vista may alter the patrol hours to include Saturdays on a rotating basis as is deemed necessary by both parties. Lemon Grove will pay for all overtime costs associated with emergency responses after normal business hours at the full cost recovery Tate approved by Chula Vista. 13 All requests for service will be handled in a reasonable time and manner and based on the priority system set forth below (see priority response chart). Chula Vista will employ staff as needed in emergency situations to assure reasonable response times. Chula Vista is excused from timely performance during equipment failures, strikes, labor disputes, personnel Animal Control SetVlces Agreement Page 3 16-8 shortages, severe weather, road impediments, disasters and other forces outside the control of Chula Vista. ANIMAL CONTROL SERVICES FOR LEMON GROVE: ChuJa Vista Animal Control Response Levels Tvee of Service Dangerous Animal Threatening Human Possible Rabid/Biter Animal at Large Major Injury to Animal Cruelty to Animal Animal Inside Vehicle Fighting Animals Dogs Harassing Livestock Sick or Minor Injury to Animal Animal Welfare Investigation Quarantine Biter Animal Confined Stay Animal Field Relinquished Animal Dog Running at large Priority Level In Proaress 1 1 1 1 1 1 1 2 2 3 3 3 3* Reseonse Guidelines Level 1 Not in Proaress 3 3 3 3 3 3 3 3 3 N/A N/A N/A 4* First priority, Officer will respond ASAP Level 2 Second priority, Officer will 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 *During normal business hours an Officer will respond ASAP Animal Control Services Agreement Page 4 16-9 14. Livestock will be removed under contract with a separate agency chosen by the Chula Vista Animal Care Facility. The contracting agency will be capable of removing livestock and will provide its own equipment and personnel. Actual trailering, board and other fees related to livestock will be paid by Lemon Grove. 15. Chula Vista agrees to conduct special enforcement animal control patrols as needed or as requested by Lemon Grove, provided there are no conflicts with the City of Chula Vista's needs. This will include special animal control patrol hours, sweeps and enforcement. All overtime costs for special enforcement patrols will be paid by Lemon Grove. 16. Chula Vista will provide Animal Control personnel for scheduled special events as requested, provided there are no conflicts with Chula Vista's needs. These events will be perfonned on an overtime basis and all overtime costs for special events will be paid by Lemon Grove. ADMINISTRATIVE SERVICES: 17. Chula Vista will provide licensing services to Lemon Grove and maintain a Dog License Data Base System of Lemon Grove's licensed and delinquent dogs. The cost for Chula Vista to administer a license program is $4.25 per license. Chula Vista will assist Lemon Grove with the implementation of a Rabies/Licensing clinic program. In order to provide these services, Lemon Grove will provide Chula Vista with the following: . Envelopes with a right-hand window . Letterhead with the Lemon Grove Logo . Dog tags subject to Chula Vista approval due to U.S. postal restrictions on size of tag. Lemon Grove may discontinue licensing services with the City of Chula Vista at any time with a written thirty-day notice. Chula Vista will negotiate alternative licensing programs with Lemon Grove as opportunities and computer programs become available. 18. Chula Vista will provide a representative to attend any Lemon Grove 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 a Lemon Grove administrator over operational issues associated with the administration of this Agreement. Animal Control Services Agreement Page 5 16-10 20. Chula Vista will provide monthly reports to Lemon Grove. These reports will include the number of impounds, redemptions, euthanizations, service responses, and adoptions. 21. ChuJa Vista shall establish a notification policy for its officers with the assistance of Lemon Grove officials. The policy shall identify the types of incidents for which Chula Vista Animal Control will be required to notify designated Lemon Grove officials. Notification shall include the nature, circumstances, and status of the incident. Chula Vista will also provide, if requested, copies of all supporting documents and information involving the incident. Lemon Grove will provide a list of its designated city officials to Chula Vista and the recommended methods to contact the designated individuals. 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. Only dangerous snakes will be removed from private property. 2. Dead animals on private property are the responsibility of the property owner. Sick or injured animals are the responsibility of the animal owner. Ill. LEMON GROVE RESPONSIBILITY PAYMENT OF SERVICES' 1 Lemon Grove will pay the actual cost for providing all services provided for under this Agreement. Actual Cost means all customary charges including, without limitation, labor, overtime, benefits, paid time off, administrative costs, indirect overhead charges, supply and food costs, and clerical support. 2. Chula Vista will credit Lemon Grove's account for Redemption Fees collected under this Agreement. 3. Lemon Grove agrees to proVide Chula Vista with a 4WD (four-wheel drive) 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 are the responsibility of Lemon Grove. The vehicle will be maintained at the same level of service as Chula Vista vehicles. Any variances of this maintenance schedule will be approved in advance by the Chula Vista Fleet Manager. If Lemon Grove and Chula Animal Control SeNices Agreement Page 6 16-11 Vista agree to extend or not extend services beyond this Agreement, the animal control vehicle remains the property of Lemon Grove. The vehicle will be identified with appropriate lettering spelling out "Lemon Grove Animal Control" and an appropriate Lemon Grove city seal will be placed on the left and right doors and the Chula Vista Animal Control phone number clearly displayed. 4. Chula Vista will automatically adjust the actual cost calculations for future salary and benefits increases and adjust Lemon Grove payments accordingly. Adopted salary increases in the Chula Vista Employees Memorandum of Understanding of 3%, 3%, 4%, 4%, 4% are included in the proposed contract amounts. The contract may also be adjusted annually up to 2% of the total services and supplies and operating capital budget. Overtime costs will be fully reimbursed by Lemon Grove. Chula Vista will notify Lemon Grove by April 30th of each fiscal year of any proposed contract adjustments. 5. Commencing on the date of the execution of this Agreement, and extending through June 30, 2008, Lemon Grove agrees to pay to Chula Vista the following Agreement amounts for the services and facilities provided in this Agreement: Fiscal Year Animal Control and Monthly Service Contract Julv 1 -.June 30 Kennel Service Charae Current Rate 2005-06 $149,971 $12498 Year 1 2006-07 $157,673 $13,139 Year 2 2007-08 $162,404 $13,534 Year 3 2008-09 $168,088 $14,007 Optional Extensions Year 4 2008-10 $173,971 $14988 Year 5 2010-11 $180,060 $15,512 6. Upon mutual agreement Chula Vista and Lemon Grove may extend the contract administratively for two additional years. The optional extensions may be adjusted for unanticipated costs not reflected in this Agreement. 7 Chula Vista shall, on the first day of each month, credit Lemon Grove with the amount of monies received during the previous month from Lemon Grove residents as fees for the redemption of animals ("Redemption Fees") owned by Lemon Grove residents. The Chula Vista Finance Office shall submit the billing to Lemon Grove 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. Additionally, a one and one half (1% %) finance charge per month will be assessed on the original Animal Control Services Agreement Page 7 16-12 delinquent amount. 8. Should Chula Vista terminate or default on this Agreement prior to an installment payment being due, Lemon Grove shall not be required to pay the outstanding installment. However, Lemon Grove shall not be entitled to a refund of any installment made for the prior year SUPPORT SERVICES: 1 . Lemon Grove 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. Lemon Grove will notify Chula Vista at least 72 hours in advance of any animal-related issues, which are anticipated to be scheduled on an agenda for the City Council or any legislative or administrative body of Lemon Grove when Chula Vista employees will be required to appear. 3 Lemon Grove agrees to provide all police services necessary to carry out its duties including police backup upon request of a Chula Vista Animal Control Officer. 4. Chula Vista Animal Control Officers are employees of the General Services Department of the City of Chula Vista and are required to carry tasers while on duty in their animal control uniform. Lemon Grove agrees to permit Chula Vista Animal Control Officers to use tasers within the City of Lemon Grove while on duty in their animal control uniform. Chula Vista Animal Control Officers also carry tranquilizer guns and equipment In their vehicles. Lemon Grove agrees to permit Chula Vista Animal Control Officers to use this equipment while on duty in their animal control uniform. 5. Lemon Grove agrees to adopt and/or follow the fee schedule established by Chula Vista. Both parties agree to meet and confer in good faith with Chula Vista's Animal Care Facility Administrator regarding operational matters upon request. 6 Lemon Grove 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. 7. Chula Vista shall indemnify and hold the City of Lemon Grove, its elected officials, employees, officers, agents and representatives harmless for any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or Animal Control Services Agreement Page 8 16-13 claimed to be caused by the acts or omissions of the City of Chula Vista, or its employees, agents, and officers, arising out of any services performed under this Agreement. Chula Vista's duty to defend and indemnify shall not extend to any claims or liabilities arising from the sole negligence or sole willful misconduct of the City of Lemon Grove, its agents, officers or employees. This duty to defend and hold harmless shall survive the termination of this Agreement. 8. Chula Vista hereby agrees to defend itself and the Lemon Grove hereby 'agrees to defend itself, from any claim, action or proceeding arising out of the concurrent acts or omissions of Chula Vista and Lemon Grove. In such cases, Chula Vista and Lemon Grove agree to retain their own legal counsel, bear their own defense costs, and waive their right to seek reimbursement of such costs, except as provided in subsection within this Agreement. 9 When requested by Lemon Grove, Chula Vista shall make available its employees and/or other percipient witnesses under its control, for any challenge stemming frcm the services provided herein (including but not limited to Municipal Code citations) as needed to testify in a court of law, administrative or other proceeding. This duty shall survive the termination of this Agreement. Chula Vista shall perform this duty at no additional cost, provided such duties are performed during regular work hours. When such duties occur outside regular work hours, the additional hours shall be compensated at one and one-half (1-1/2) times the employee's regular rate of pay. IV. TERMS AND CANCELLATION RIGHTS TERM: This Agreement shall become effective as of the last date executed (Effective Date). The initial term of the agreement shall run for a period of three (3) years from the effective date. The Agreement may be extended for an additional two (2) year period with the written consent of both parties. V 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 Lemon Grove 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. Animal Control Services Agreement Page 9 16-14 VI. 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, 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 Lemon Grove 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. VII. NOTICES AND DESIGNATION OF ADMINISTRATOR 1. 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 hislher designee, designated below for the respective party. If the Administrator, designee or address of either party changes, notice of the change shall be sent to the other party. After the receipt of the notice of change, all future notices or demands shall be sent as required by the notice of change. 2. The following, including their respective addresses, are hereby designated as Administrators for the purposes of this Agreement only: City of Chula Vista: Director of General Services, andlor hislher designee 276 Fourth Avenue Chula Vista, CA 91910 City of Lemon Grove City Manager, and his/her designee 3232 Main Street Lemon Grove, CA 91945 VIII. WAIVER 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 or her 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 Jater time. The exercise of any remedy prOVided in this Agreement shall not be a waiver of any other remedy provided by law, and any provision of this Agreement for any remedy shall not exclude any other remedies provided by law Animal Control Services Agreement Page 10 16-15 unless they are expressly excluded herein. 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. 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 of this Agreement 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 to this Agreement. 7. Authority Individuals signing this Agreement have full right and authority to bind their respective Parties to this Agreement. B. 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. Unless otherwise stated in this Agreement, all persons employed in the performance of services and functions for Lemon Grove under this Agreement shall be Chula Vista employees. No Lemon Grove 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 Lemon Grove employees. Lemon Grove Animal Conlrol SeNices Agreement Page 11 16-16 shall not be liable for the direct payment of any salaries, wages, or the compensation Chula Vista personnel performing services pursuant to this Agreement, or any liability other than that provided for in this Agreement. Unless specified otherwise, Lemon Grove 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. Next page is signature page Anhnai Control Services Agreement Page 12 16-17 SIGNATURE PAGE TO AGREEMENT BETWEEN CITY OF CHULA VISTA AND CITY OF LEMON GROVE PROVIDING FULL ANIMAL CONTROL SERVICES CITY OF CHULA VISTA Date: Approved as to form: Ann Moore City Attorney Stephen A. Padilla Mayor Attest Susan Bigelow City Clerk CITY OF LEMON GROVE Date: Approved as to form: ~ G\.-- Graham Mitchell City Manager s P. !:ough Attorney Attest: . c:::: ~ /-~_..... ~'I...-~ \._ --;ct...'-,.<...............- Susan Garcia City Clerk Animal Control Services Agreement Page 13 16-18 COUNCIL AGENDA STATEMENT Item 11 Meeting Date 08/22/2006 ITEM TITLE: RESOLUTION ACCEPTING THE COUNTY OF SAN DIEGO GRAND JURY REPORT ON FELONY WARRANTS AND AUTHORIZING THE MAYOR TO SIGN THE RESPONSE ON BEHALF OF THE MAYOR AND CITY COTICIL~ Chief of POIiC~ City Manager (f! (4/5ths Vote: Yes_No X) SUBMITTED BY: REVIEWED BY: On June 1, 2006, the San Diego County Grand Jury filed a report entitled "Felony Warrants- The Unsolved Problem" with the Clerk of the Court. The Grand Jury made seven (7) specific recommendations directed in part to all Mayors, County Board of Supervisors, Chiefs and the Sheriff in San Diego County Under State law, the City of Chula Vista and the Chief of Police must respond within 90 days to the recommendations contained in the Grand Jury report. RECOMMENDATION: That Council adopt the Resolution accepting the County of San Diego Grand Jury report on felony warrants and authorizing the Mayor to sign the response on behalf of the Mayor and City Council. BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: On June 1, 2006, the San Diego County Grand Jury filed a report entitled "Felony Warrants- The Unsolved Problem" (Attachment "A") with the Clerk of the Court. The Grand Jury report contained four "Findings" and seven "Recommendations" directed in part to all Mayors, County Board of Supervisors, Chiefs and the Sheriff in San Diego County Under Penal Code Section 933(c) it states in part that, "No later than 90 days after the grand jury submits a final report on the operations of any public agency subject to its reviewing authority, the governing body of the public agency shall comment to the presiding judge of the superior court on the findings and recommendations pertaining to matters under the control of the governing body." Staff has carefully reviewed the Grand Jury report and prepared a response (Attachment "B") to the Honorable Janis Sammartino, Presiding Judge San Diego Superior Court addressing the four findings and seven recommendations listed on pages 5 thru 7 of the Grand Jury report. It is requested that the Mayor and Council review the Grand Jury's report and the prepared response. It is further requested that the Mayor and Council accept the response and authorize the Mayor to add his signature along with the Chief of Police to the letter as the completed response from the City of Chula Vista. FISCAL IMPACT: None Attachments: A. Grand Jury Report "Felony Warrants-The Unsolved Problem" _ji/bfINCLf.lUD ;"~T B. Mayor and Chief's response letter to the Grand Jury Report COuA;CI t..... j?t9-G /7-/ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE COUNTY OF SAN DIEGO GRAND JURY REPORT ON FELONY WARRANTS AND AUTHORIZING THE MAYOR TO SIGN THE RESPONSE ON BEHALF OF THE MAYOR AND CITY COUNCIL. WHEREAS, On June 1, 2006, the San Diego County Grand Jury filed a report entitled "Felony Warrants - The Unsolved Problem" with the Clerk of the Court; and WHEREAS, the Grand Jury made seven (7) specific recommendations directed in part to all Mayors, County Board of Supervisors, Chiefs and the Sheriff in San Diego County; and WHEREAS, under State law, the City of Chula Vista and the Chief of police must respond within 90 days to the recommendations contained in the Grand Jury report. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept the County of San Diego Grand Jury report on felony warrants and authorizing the Mayor to sign the response on behalf of the Mayor and City Council. Approved as to form by' ~~t nn Moore v Ity Attorney 17-2 ~Vt.- i!iiII!iii - -~ ~-~~ ellY OF CHUlA VISTA POLICE DEPARTMENT July 21, 2006 The Honorable Janis Sammartino, Presiding Judge San Diego Superior Court POBox 122724 San Diego, CA 92112 Dear Judge Sammartino: Response to Grand JUry Report: "Felonv Warrants - The Unsolved Problem" On June 1, 2P06, the San Diego County Grand Jury filed the above-entitled report with the Clerk of the Court. The Grand Jury's report contained four "Findings" and seven "Recommendations" directed in part to all Mayors, County Board of Supervisors, Chiefs and the Sheriff in San Diego County The following response to the Grand Jury report is on behalf of Mayor Stephen Padilla and Police Chief Richard P Emerson for the City of Chula Vista. Following are the Grand Jury's four (4) findings with the responses of the City of Chula Vista: Finding 1) Currently, little or no progress is being made in the rate of apprehension of defendants with outstanding felony warrants in San Diego County. The City of Chula Vista disagrees in part with the finding. There is currently a full time City of Chula Vista Peace Officer assigned to the San Diego Regional Fugitive Task Force (SDRFTF). Additionally, for over a year, the City of Chula Vista Police Department has deployed a proactive team, on an overtime basis, to areas in the City where the largest concentration of criminal activity occurs and frequent felony warrant arrests are made. Patrol Officers receive bulletins on nearly a daily basis of wanted suspects and suspects wanted for outstanding felony warrants. Finding 2) The Grand Jury finds that this computer program (E-Warrants- offered free to San Diego law enforcement agencies), if used by City and County law enforcement agencies, would definitely increase apprehension of persons with multiple felony warrants. However, some municipalities still do not choose to take advantage of this program. The City of Chula Vista disagrees in part with the finding. While the general finding may be accurate in that some municipalities still do not choose to take advantage of this program, it would not be accurate to include the City of Chula Vista Police Department among those agencies. The City of Chula Vista Police Department has received training in this system and is actively bringing the technology on-line to make this resource available to every officer in the field. ~,,~ PRIDE AT WORK \ 315 Fourth Avenue. MS P-200 Chula Vista, CA 91910-3801 17-3 www.chulavistaca.gov o Po~I.Con!um~r R...~ycl...rl Pnp.r The Honorable Janis Sammartino, Presiding Judge Response to Grand Jury Report: Felony Warrants-The Unsolved Problem Page 2 of 3 July 21, 2006 Finding 3) More informative outreach must be considered by the San Diego Law Enforcement community, such as publication of photos of wanted criminals in neighborhood newspapers, or following the State of Missouri successful program of roadside billboards showing large photos of wanted felons with multiple outstanding Felony Warrants. The community response to this effort was outstanding. While the City of Chula Vista agrees that it is essential that all agencies evaluate new and creative ways to enhance the ability to apprehend wanted persons, the City of Chula Vista disagrees that billboards would be an effective method in accomplishing this task. The cost and associated resources needed to remain current with the high turnover and volume of wanted felons would make this program less effective than other options. While the concept of billboards may be effective in less populated regions or areas that have comparatively low numbers of wanted persons, this program would prove less successful in San Diego County The City Of Chula Vista Police Department currently provides a link within the departments' web site which accesses the County's top ten wanted felons. Finding 4) The Grand Jury found that every law enforcement agency in San Diego County has been contacted by the United States Marshal's office and invited to join their San Diego Regional Task Force. Currently, only the San Diego Sheriff's office has responded positively with the assignment of several deputies to assist with the Felony Warrant apprehension and other activities. The City of Chula Vista disagrees wholly with this finding. The Chula Vista Police Department has contributed one full time officer to the United States Marshal's San Diego Regional Task Force since 2003. Regarding the "Recommendations 06-70 thru 06-76" by the Grand Jury, the City of Chula Vista and Police Department offer the following responses: 06.70 Consider the significant benefits of joining the San Diego Regional Task Force. This includes outstanding Felony Warrant apprehension already established under the auspices ofthe San Diego office ofthe United States Marshal. The City of Chula Vista recognizes the benefit of participating in the San Diego Regional Task Force and has had an officer assigned to the Task Force since 2003. 06-71 That one officer, from each law enforcement agency, be assigned full time to this task force. An officer has been assigned full-time since 2003. 06-72 Create a database to search all applications presented for any governmental assistance, benefit or privilege. This would include, but not be limited to, all applicants for driver's licenses, veteran's benefits, worker's compensation, unemployment benefits, professional licenses, all vehicle registrations, and other applicable sources. This recommendation will require further analysis and may be unworkable for a variety of legai reasons. A Committee wouid need to be formed from all the relevant law enforcement agencies in the County including the specific agencies listed in this recommendation. CITY o~ <l'HtJ4A VISTA The Honorable Janis Sammartino, Presiding Judge Response to Grand Jury Report: Felony Warrants-The Unsolved Problem Page 3 of 3 July 21, 2006 06-73 Fund San Diego law enforcement agencies programs of "Wanted" billboards. This recommendation will not be implemented by the City of Chula Vista. The cost and associated resources needed to remain current with the high turnover and volume of wanted felons would make this program less effective than other options. 06-74 Install the E-Warrant computer program in Patrol Vehicles of all community Law Enforcement Agencies in San Diego County and San Diego City. The recommendation has not yet been fully implemented, but will be in the future. The Technology Unit of the City Of Chula Vista Police Department has been actively moving forward with this recommendation for the past several months. Currently the "E- Warrant" program is available to dispatchers and other members of the department and we fully expect to have this same access in patrol vehicles within the next 180 days. 06-75 Sponsor legislation that will provide law enforcement agencies with additional tools to apprehend felons through integration of information from DMV, Social Security, Veterans pensions and other state and federal agencies. As stated under 06-72 above, this recommendation will require significant analysis and may be unworkable for a variety of legal reasons. If pursued appropriate legislation would be supported. 06-76 Give apprehension of outstanding Felony Warrant offenders a greater priority than currently appears to be the norm. This recommendation will require further analysis. The City of Chula Vista Police Department constantly evaluates its programs and resources and allocates the resources on a broad spectrum of priorities and public needs. As previously stated, the City of Chula Vista Police Department is actively engaged with the United States Marshal's Regional Task Force. Additionally officers are provided 'look out' bulletins on a near daily basis of wanted suspects. Currently, our technology is moving forward in the direction of providing real time information to officers in the field to help identify and arrest wanted suspects. The City of Chula Vista Police Department currently provides a web link via the Police Department web site allowing citizens to run warrant checks on wanted suspects in San Diego County While all officers are encouraged to actively seek wanted fugitives, it is always in the context of other competing priorities in response to community needs. Additional data on specific issues contained in this report is available upon request. Sincerely, ~PL Stephen C. Padilla Mayor City of Chula Vista Richard P Emerson Chief of Police CITY OF CHULA VISTA COUNCIL AGENDA STATEMENT Item No Meeting Date IS 8/22/06 ITEM TITLE: RESOLUTION AUTHORIZING CONDITIONAL TEMPORARY CLOSURE OF A PORTION OF RANCHO DEL REY PARf<:NAY ON SEPTEMBER 9 AND 10, 2006, FOR THE ORANGE CRATE DERBY SUBMITTED BY: Chief of Police V ;(' City Manager J/ (4/5ths Vote: Yes,-- No ---1L) REVIEWED BY: The Bonita Orange Crate Derby Committee of the Bonita Valley Lions Club is requesting permission for temporary street closure on Rancho Del Rey Parkway on September 9 and 10, 2006 to conduct their 2th Annual Orange Crate Derby RECOMMENDATION: That Council approve the resolution and authorize conditional temporary closure of a portion of Rancho Del Rey Parkway on September 9 and 10, 2006 for the Orange Crate Derby, subject to staff conditions as stated in this report. BOARDS/COMMISSIONS RECOMMENDATIONS: Not applicable. DISCUSSION: The Bonita Orange Crate Derby Committee (sponsor) is requesting permission to conduct the 27th Annual Orange Crate Derby on Saturday and Sunday, September 9 and 10,2006. The event would be conducted on the west section of Rancho Del Rey Parkway, between Terra Nova Drive to the north, and Del Rey Boulevard to the south. Both Terra Nova Drive and Del Rey Boulevard, as well as all other sections of Rancho Del Rey Parkway, would remain open to traffic at all times. Diagrams of the event are attached (Attachment "A" and "B"). This is a two day event with the street closed to all traffic from 6:00 AM Saturday, until 6:00 PM Sunday The sponsor expects that approximately 150-200 youngsters, ages 7 to 13 years old, "driving" 75 separate derby cars, would be involved in the double elimination competition during the two day event. The derby cars are built by families, according to specifications provided by the sponsor Each car is equipped with a steering wheel (steering capacity is limited to avoid "over-steering" by young drivers) and a friction-drag braking device. Each car is inspected to verify that 18-1 Page 2, Item I g Meeting Date 8/22/06 safety equipment is in working order, and drivers are required to wear helmets, long pants, and sturdy shoes. The race course is approximately 1,000 feet in length, with no curves or turns. The entire course is separated with traffic safety cones. The use of cones serves two purposes; they delineate lanes, and also act as brakes if derby cars accidentally run over them. The run-out area below the finish line is also lined with traffic cones. Only two derby cars are permitted on the course at anyone time. Spectator areas are designated and separated from the course by flag lines. The sponsor would be required to provide insurance, portable toilets, appropriate trash containers and trash control, necessary traffic barricades, cones, and directional signs, and overnight security (most cars will remain at the event site overnight). The event has been conducted in the Rancho Del Rey area for the past eleven years. No significant problems with this event have been noted. The event would have very little impact on residents in the area, since all residential areas are fully accessible by alternate streets, and there are no homes on the race route. Approval of the request will be subject to the following conditions: 1 The sponsor shall submit proof of insurance in the form of a Certificate of Insurance for $1 million Commercial General liability insurance, or equivalent form, with a policy endorsement naming the City as additional insured, making their insurance primary with respect to the City's insurance and providing notification of cancellation. 2. Provide a letter acceptable to the City Attorney from the sponsors in which they agree: (1) Not to sue the City, its agents and employees from any act arising from the Orange Crate Derby; or (2) To defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from the Orange Crate Derby, excluding only that liability which may arise from the sole negligence or sole willful conduct of the City 18-2 Page 3, Item t' Meeting Date 8/22106 3. The sponsor shall provide, at their own expense, all necessary supplies and services required to safely conduct the event, including portable toilets, trash receptacles, trash control, crowd control, traffic control and traffic control equipment, signs and security. 4 Any services provided by the City before, during, or after the event will be reimbursed at the full cost recovery rate by the sponsor 5. Sponsor shall provide a fully refundable $250 cleaning/damage deposit. 6 Sponsor shall post applicable street closure signs at least 48 hours in advance of the event. 7 All event participants shall be required to sign liability waivers approved by the City Attorney as to form. These waivers must indicate that the City of Chula Vista will be indemnified and held harmless. 8. The sponsor shall provide adequate supervision of event spectators and participants to prevent damage to City property and landscaping. 9 The sponsor shall provide adequate and sufficient street barricades and supervision to insure that no vehicles are permitted into the event area throughout the duration of the event, including the overnight period. 10 Sponsors shall notify area residents that the event is being held 48 hours prior to the event. DECISION MAKER CONFLICTS: Staff reviewed the property holdings of the City Council and has found no such holdings within 500' of the property that is subject of this action. FISCAL IMPACT: There is no fiscal impact to the City. The event sponsors will be responsible for all event costs. Any services provided by the City before, during, or after the event will be fully reimbursed by the sponsor Attachments: "A" - General Site Plan 18-3 Page 4, Item If! Meeting Date 8/22/06 ATTACHMENT "A" General Site Plan Orange Crate Derby 18-4 RESOLUTION NO. RESOLUTION OF THE CITY OF CHULA VISTA AUTHORIZING CONDITIONAL TEMPORARY CLOSURE OF A PORTION OF RANCHO DEL REY PARKWAY ON SEPTEMBER 9 AND 10, 2006, FOR THE ORANGE CRATE DERBY WHEREAS, the Bonita Orange Crate Derby committee of the Bonita Valley Lions Club is requesting permission for a temporary street closure on Rancho Del Rey Parkway on September 9 and 10, 2006 to conduct their 2ih Orange Crate Derby; and WHEREAS, the sponsors shall submit proof of insurance in the form of a Certificate of Insurance and Police Endorsement for $1 million Commercial General liability insurance, or equivalent form, acceptable to the City, with a policy endorsement naming the City as additional insured, making their insurance primary with respect to the City's insurance and providing notification of cancellation; and WHEREAS, the sponsors shall provide a letter acceptable to the City Attorney in which they agree to defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from the Orange Crate Derby, excluding only that liability which may arise from the sole negligence or sole willful conduct of the City; and WHEREAS, the sponsors shall provide, at their own expense, all necessary supplies and services required to safely conduct the event, including portable toilets, trash receptacles, trash control, crowd control, traffic control and traffic control equipment, signs, and security; and WHEREAS, the sponsor shall develop and implement a solid waste management plan approved by the Conservation Program to prevent litter, provide recycling, and disposal throughout the affected area during the event including arrangements for professional street sweeping immediately following the event; and WHEREAS, the sponsors shall provide a fully refundable $250 cleaning/damage deposit; and WHEREAS, the sponsors shall post applicable street closure signs at least 48 hours in advance of the event; and WHEREAS, all event participants shall be required to sign liability waivers approved by the City Attorney as to form. These waivers must indicate that the City of Chula Vista will be indemnified and held harmless; and 18-5 Resolution no. Page 2 WHEREAS, the sponsors shall provide adequate supervision of event spectators and participants to prevent damage to City property and landscaping; and WHEREAS, the sponsors shall provide adequate and sufficient street barricades and supervision to insure that no vehicles are permitted into the event area throughout the duration of the event, including the overnight period; and WHEREAS, the sponsors shall notify area residents that the event is being held 48 hours prior to the event. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby authorizes temporary closure of Rancho Del Rey Parkway on September 9 and 10, 2006 for the Orange Crate Derby subject to conditions as noted above. Presented by Approved as to form by Richard P. Emerson Police Chief 18-6 COUNCIL AGENDA STATEMENT Item 1'1 Meeting Date: 08/22/06 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE APPLICATION AND, IF AWARDED, ACCEPTANCE OF A RECREATIONAL TRAILS PROGRAM GRANT FROM THE STATE OF CALIFORNIA FOR REHABILITATION OF ROHR PARK RECREATIONAL TRAIL, AUTHORIZING THE COMMITMENT OF MATCHING FUNDS THEREFOR; AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO IMPLEMENT THE APPROVED PROJECT SUBMITTED BY: Director OfPUbl?OrkS operation#' City Manager If (4/5 Vote: Yes_Nol) REVIEWED BY: BACKGROUND: As part of the City's ongoing commitment to provide safe and accessible recreational facilities to residents, Public Works Operations (parks & Open Space) plans to rehabilitate several sections of Rohr Park Recreational Trail for pedestrian and equestrian use. To help fund the project, the City proposes to apply for federal Recreational Trails Program grant funding from the California Department of Parks and Recreation. If awarded, the funds will become available in FY 2007/08. RECOMMENDATION: That Council adopt the resolution: . Authorizing the application and, if awarded, acceptance of a Recreational Trails Program grant; . Authorizing the commitment of matching funds therefor; . Certifying that the City has or will have available, prior to commencement of any work on the project included in the application, sufficient funds to operate and maintain the project; and . Authorizing the City Manager or his designee to execute all grant documents necessary to secure Recreational Trails Program grant funds and implement the approved grant projects. BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: The Recreational Trails Program was created by the Federal Highway Administration and provides Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA) funds to promote active recreation in California. Funds support the construction and rehabilitation of recreational trails for non-motorized use by hikers, runners, and horseback riders. 19-1 Page 2, Item li Meeting Date: 08/22/06 The City currently has a number of recreational trails throughout the City that are in need of significant improvements in order to support the increased demands of a growing population. Community groups such as the Bonita Roadrunners, and cross-country teams from Chula Vista and Otay Ranch High Schools have expressed an interest in seeing significant improvements to the facilities such as rehabilitation, fencing, and trailhead signage where none exists now Rehabilitated trails would be expected to support the activities of both long-time users and attract new residents from neighboring communities. The recreational trail proposed for this rehabilitation project is a heavily used urban trail. The 3 .3-mile Rohr Park Recreational Trail circuits both Rohr Park and the Chula Vista Golf Course. However, 2.5 miles of the trail are in need of a complete overhaul due to increasingly heavy use in recent years by a rapidly growing population. The trail is also severely eroded from the unusually heavy winter rains of2005 The City proposes to rehabilitate and stabilize the trail surface, upgrade fencing along the trail, add rnile markers at liz-mile intervals for cross-country runners and others, upgrade wayfinding signage, and create an interpretive signboard station at the trailhead with information and maps that illustrate linkages to the larger regional trail network within the San Diego National Wildlife Refuge. The new signboard will also post interpretive information about the history of the region, and the flora and fauna and endangered species trail users can expect to view along the regional trail network. Pending the grant award process, construction is anticipated to begin the Summer of2007, with a completion date in February of 2008. Grant guidelines specify a project performance period of four years from the date of the grant award. Project Costs: Estimated costs for the Rohr Park Recreational Trail project, totaling $378,469, are detailed in Attachment 2. To help fund the project, the City is proposing to apply for a $292,369 Federal grant which, if awarded, will be administered by the California State Department of Parks and Recreation. The grant requirements call for a minimum 12% City match with priority given to proposals with a higher match. Staff proposes that the City commit a 22.75% match. If the grant is awarded, staff will return to Council with a resolution executing a contract with the California Department of Parks and Recreation, creating the Capital Improvement Project (CIP), and appropriating the grant funds and the match. Decision Maker Conflicts. Staff has reviewed the property holdings of the City Council and has found a conflict, in that Councilmember McCann has holdings within 500' of the property, which is the subject of this action. 19-2 Page3, Item /0 Meeting Date: 08/22/06 FISCAL IMPACT: The total estimated project cost is $378,469 to rehabilitate Rohr Park Recreational Trail. Should the grant be awarded, the City would receive $292,369 in unanticipated grant revenue from the California State Parks Department. The net impact to the General Fund would be $14,100. This represents the City's share of the required match and would come from a contribution of in-kind City staff services of Parks & Open Space staff overseeing and working on the project. The remaining match would be met with California State Parks Proposition 40 Per Capita funds ($72,000), for a total match of $86, I 00 Any maintenance cost savings realized from the newly rehabilitated trail will be utilized for other required trail work. Attachments: 1. Project Site Map 2. Project Cost Estimate 19-3 Attachment 1 Rohr Park Recreational Trail 19-4 Attachment 2 PROJECT COST ESTIMATE Rehabilitation of Rohr Park Recreational Trail- City of Chula Vista Non-Construction Costs Description of Work Grant City Match Project Total 1 Employee salaries for pre- and post-award grant management, $ 10,000 $ 0 $ 10,000 desian and oroduction of trail maDS and interpretive materials Non-Construction Subtotals $ 10,000 $ 0 $ 10,000 Construction Costs Description of Work Grant City Match Project Total 2 1,100 tons decamposed granite @ $23.00 per ton $ 25,300 $ 0 $ 25,300 3 City labor to install 1,1 00 tons decomposed granite @ $30.001 ton $ 33,000 $ 0 $ 33,000 4 Labor and materials to install 1 ,400 linear feet timber retaining wall $ 24,000 $ 0 $ 24,000 5 Rental equipment for installation of retaining wall $ 1,000 $ 0 $ 1,000 6 Supply & install 2.5 miles 6' chain link fencing & posts $ 128,000 $ 72,000 $ 200,000 7 Supply & install 2,300 feet post & rail fencing @$10.60/Iinearfoot $ 24,380 $ 0 $ 24,380 8 Design and fabrication of wayfinding signs, mile markers, trailhead $ 11,500 $ 0 $ 11,500 si nboard station 9 City labor to install signage $ 1,228 $ 0 $ 1,228 $ 248,408 $ 72,000 $ 320,408 10 Construction management, inspection, and contingencies 15% $ 33,961 $ 14,100 $ 48,061 Construction Subtotals $ 282,369 $ 86,100 $ 368,469 Matching Funds Sources (by name) California State Parks Prop 40 Per Capita Funds $ 72,000 City Donated In-Kind Staff Services. $ 14,100 TOTAL MATCHING FUNDS $ 86,100 % Match 22.75% Prepared by Parks & Open Space Division, Public Works Operations, 08/14/2006 19-5 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE APPLICATION AND, IF AWARDED, ACCEPTANCE OF A RECREATIONAL TRAILS PROGRAM GRANT FROM THE STATE OF CALIFORNIA FOR REHABILITATION OF ROHR PARK RECREATIONAL TRAIL, AUTHORIZING THE COMMITMENT OF MATCHING FUNDS THEREFOR; AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO IMPLEMENT THE APPROVED PROJECT WHEREAS, the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" provides funds to the State of California for Grants to acquire, develop and/or maintain motorized and non-motorized trails, and WHEREAS, the State Department of Parks and Recreation has been delegated the responsibility for the administration of the program within the State setting up necessary procedures governing project application under the program; and WHEREAS, said procedures established by the State Department of Parks and Recreation require the City of Chula Vista to certify by resolution the approval of the application before submission of said application to the State; and WHEREAS, Chula Vista community groups and cross country teams have expressed an interest in seeing significant improvements to Rohr Park Recreational Trail facilities, and WHEREAS, the City proposes applying to the Recreational Trails Program for grant funding to rehabilitate the trail and upgrade trail facilities; and WHEREAS, grant requirements call for the commitment of a minimum 12% local match; and WHEREAS, the applicant will enter into an agreement with the State of California to complete the project; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the filing of an application and, if awarded, acceptance of a Recreational Trails Program grant; and 19-6 BE IT IS FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby authorize the commitment of matching funds therefor; and BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby certify that the City has or will have available prior to commencement of any work on the project included in this application, sufficient funds to operate and maintain the project; and BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby certify that the City has reviewed, understands, and agrees to the General Provisions contained in the Contract shown in the Procedural Guide; and BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby appoint the City Manager or his designee as agent to conduct all negotiations, execute and submit all documents, including but not limited to applications, agreements, amendments, payment requests and so on, which may be necessary for the completion of the Project; and BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby agree to comply with all applicable federal, state and local laws, ordinances, rules, regulations and guidelines. Presented by Approved as to form by Dave Byers Director of Public Works Operatiqns 4\"'f<i'~ \f'hf~\\ Ann Moore City Attorney 19-7 COUNCIL AGENDA STATEMENT ~,,..., Item ._ J Meeting Date: 08/22/06 ITEM TITLE: RESOLUTION AUTHORIZING THE SUBMITTAL OF GRANT APPLICATIONS TO THE CALIFORNIA INTEGRATED WASTE MANAGEMENT BOARD (CIWMB) FOR ALL AVAILABLE CIWMB TIRE-RELATED GRANTS DURING THE FIVE-YEAR PERIOD ENDING JUNE 30, 2011; AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO SECURE LOCAL GOVERNMENT TIRE-RELATED GRANT FUNDS AND IMPLEMENT THE APPROVED GRANT PROJECTS SUBMITTED BY: Director of Public Works Operations # / REVIEWED BY: City Manager {j/ (4/5 Vote: Yes_No..x.J BACKGROUND: In keeping with the City's policy to support the use of products manufactured with post-consumer recycled material, the City plans to dress city-owned landscaped facilities with a durable mulch product made from waste tire products. Adoption of the resolution would allow staff to apply for a Tire-Derived Products (TDP) Program Grant from the State of California to offset project costs. The resolution would further authorize the application to any of CIWMB' s grant programs for a period of five years. RECOMMENDATION: That Council adopt the resolution: . Authorizing the submittal of an application and, if awarded, acceptance of a Tire-Derived Products (I'DP) Program grant from the California Integrated Waste Management Board (CIWMB), and for all available CIWMB tire-related grants from the time this resolution is adopted, through June 30, 2011, and . Authorizing the City Manager or his designee to execute all grant documents necessary to secure local government tire-related grant funds and implement the approved grant projects. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: City-owned facilities and City streets are enhanced with thousands of square feet of landscaped medians and garden beds. To reduce irrigation costs and to protect delicate root systems, the City generally applies a 2-4" layer of wood mulch. 20-1 Page 2, Item c2 () Meeting Date: 08/22/06 Increasingly, alternative products are becoming available that not only meet these two basic landscaping requirements, but that offer additional benefits. One of these alternatives is a ground cover or mulch made from recycled California tires. Tires are chipped into pieces, colored and used in place of wood mulch. The resulting material has the attractive appearance of regular wood mulch but has many advantages: . Tire-derived mulch stays in place better than the lighter-weight tree bark, but still allows aeration of the soil . Compared to wood mulch, tire-derived mulch is far more durable. Because it does not decompose and retains color integrity over a long period of time, it requires less frequent replacement. This will be a significant cost savings to the City. . Tire-derived product is also more cost effective to use because it requires less irrigation. Unlike wood mulch, it does not readily absorb the irrigation water but instead directs the water to the earth below. . Tire-derived mulch is a deterrent to insects, cats and dogs; thus helping to promote cleaner, healthier common spaces. . Rubber Mulch can also be used for playgrounds and tot lots with the same environmental benefits, including ADA approval. . Finally, using tire-derived ground cover helps promote a sustainable environment. This product does not require cutting down trees. Moreover, it helps meet the California goal of decreasing the adverse environmental impacts created by stockpiled waste tires. The proposed project is also aligned with the City of Chula Vista's own Council-adopted policy to use environmentally preferable products whenever practical; in particular, products manufactured with post-consumer recycled material. Project Cost: Staff proposes applying for up to $100,000 (the maximum allowable) in grant funds to purchase sufficient tire-derived ground cover to mulch most of the City's existing high profile landscaped facilities (e.g., Police Station, libraries, newer parks). The City will be required to provide and post small CIWMB "Zero Waste California!" sponsorship signs at the project site(s). This small expense is not covered by the grant. The base cost of tire-derived product is higher than the cost of wood mulch ($200 versus $32 per cubic yard). However, if awarded, the grant would offset 100% of the purchase. If the grant is not awarded, staff will perform a cost-benefit analysis to determine the feasibility of including alternative products such as this one in future budget cycles. Over time, tire-derived mulch would be expected to generate significant replacement, irrigation, and maintenance cost savings to the City The Tire-Derived Products Grant: This is an incentive grant provided by the California Integrated Waste Management Board (CIWMB) to promote the use of recycled-content products derived from waste tires. CIWMB has allocated $2.4 million this year, which is generally insufficient to fund all applications; therefore, the grant is competitive. The grant reimburses material costs only, and there is no City match required. If the grant is awarded, the City cannot apply again for two years. 20-2 Page 3, Item :}.:i} Meeting Date: 08/22/06 CIWMB allows jurisdictions to file five-year blanket resolutions that will cover all grant applications to any of CIWMB's grant programs. Since various City departments plan to apply for a number of these grants, staff recommends that Council adopt the five-year resolution. If the grant is awarded, staff will return to Council with a resolution to appropriate the grant funds and execute an agreement with CIWMB. FISCAL IMPACT: The proposed project cost is estimated to be $100,000, which will be 100% reimbursed with unanticipated grant funds from a California Integrated Waste Management Board Tire-Derived Products Program grant, if awarded. As a condition of the grant agreement, the City will be required to supply and post small CIWMB "Zero Waste California!" sponsorship signs at the project site(s), at a cost to the General Fund ofless than $3,000 20-3 RESOLUTION NO RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE SUBMITTAL OF GRANT APPLICATIONS TO THE CALIFORNIA INTEGRATED WASTE MANAGEMENT BOARD (CIWMB) FOR ALL AVAILABLE CIWMB TIRE- RELATED GRANTS DURING THE FIVE-YEAR PERIOD ENDING JUNE 30, 2011, AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO SECURE LOCAL GOVERNMENT TIRE-RELATED GRANT FUNDS AND IMPLEMENT THE APPROVED GRANT PROJECTS WHEREAS, Public Resources Code (PRe) Sections 42800 et seq. established the waste tire program for the State of California and assigns responsibility for its implementation to the California Integrated Waste Management Board (CIWMB); and WHEREAS, CIWMB is authorized to award grants under the waste tire program as identified in its Five-Year Plan for the Waste Tire Recycling Management Program; and WHEREAS, procedures established by the CIWMB require the City of Chula Vista to certify by resolution the approval of the jurisdiction's governing authority for submittal of a grant application before submission of said application to the CIWMB; and WHEREAS, the City proposes applying for up to $100,000 in grant funds from the CIWMB Tire-Derived Products (TOP) Program to purchase environmentally friendly and cost-effective mulch to dress and protectthe City's landscaped facilities, common areas, and garden beds; and WHEREAS, the proposed project is expected to generate significant replacement, irrigation, and maintenance cost savings to the City; and WHEREAS, if awarded, the grant will require the City to provide and post CIWMB "Zero Waste California'" signs at project site(s); and WHEREAS, CIWMB allows jurisdictions to file a five-year blanket resolution covering all grant applications to any of CIWMB's grant programs; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby authorize the submittal of an application and, if awarded, acceptance of a Tire-Derived Products (TOP) Program grant from the California Integrated Waste Management Board (CIWMB); and 20-4 IT IS FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby authorize the submittal of grant applications to the CIWMB for all available CIWMB tire-related grants from the time this resolution is adopted, through June 30,2011, and IT IS FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby authorize and empower the City Manager or his designee to execute in the name of the City of Chula Vista all necessary grant related documents, including but not limited to, applications, agreements, amendments and payment requests, necessary for the purposes of securing grant funds to implement and carry out the programs specified in the grant applications. Presented by Approved as to form by Dave Byers Public Works Operations Director ~'{;.,'\c:J\ ~~~ Ann Moore \ City Attorney 20-5 COUNCn.. AGENDA STATEMENT Item ~ Meeting Date 08/22/06 ITEM TITLE: Resolution Amending the FY 07 budget by appropriating $33,486 from Open Space District 20, Zone 5 and Open Space District 8 funds; awarding a landscape maintenance contract per the terms & conditions of bid #01-04/05 to Aztec Landscaping in the amount of $242,3 78.24 for the period September 1, 2006, through June 30, 2007, for the landscape maintenance of Open Space District 20, Zone 5 and Open Space District 8; and authorizing the Purchasing Agent to renew the agreement for four (4) additional, one (1) year option periods SUBMfITED BY, Drr.ctM ,fpOb?"'" Opomti~ ~ REVIEWED BY: City Manager 'if! (4/5 Vote: Yes..x...No~ The current landscape maintenance contractor for Open Space Districts 8 and 20, Zone 5 is in default of their landscape maintenance contract. As a result, the second lowest bidder is being awarded the landscape maintenance contract for these open space areas, which represents an increase of$33,486 over the lowest bid. BOARD/COMMISSION RECOMMENDATION: N/A RECOMMENDATION: That council adopt the resolution amending the FY 07 services and supplies budgets of Open Space District 20, Zone 5 and Open Space District 8 by appropriating $32,676 and $810 from the available balances of those funds respectively; awarding a landscape maintenance contract per the terms & conditions of bid #01-04/05 to Aztec Landscaping in the amount of$242,378.24 for the period September 1,2006, through June 30, 2007, for the landscape maintenance of Open Space District 20, Zone 5 and Open Space District 8; and authorizing the Purchasing Agent to renew the agreement for four (4) additional, one (1) year option periods DISCUSSION: On June 20, 2006, New Way Landscape & Tree Services notified the City of their intention to default on their multi year landscape maintenance contract, effective July 1, 2006. Due to their default, the City holds, at its option, the debarment of New Way Landscape & Tree Services from bidding on City contracts for a specified period of time. New Way has agreed to, and has been, maintaining these areas on an interim month-by-month basis until the City awards another vendor these contracts. Staffhas contacted the second low bidder who has agreed to honor the bid they submitted 17 months ago when these districts were last formally bid (Apri114,2005). Aztec Landscaping was the second low bidder on both of the districts that will be abandoned by New Way. It is staff s opinion that these bid numbers are reasonable and fair in light of the current market and economic environment. 21-1 Page 2, Item J I Meeting Date 08/22706 Aztec Landscaping is currently providing satisfactory landscape maintenance for Open Space District 9 and Open Space District 20, Zone 6. Open Space District 20, Zone 5 and Open Space District 8 are also logical extensions to Aztec's current areas of responsibility as they are geographically near, or contiguous with Aztec's existing areas of responsibility. Aztec Landscaping has agreed and is ready to commence work in these two areas on September I, 2006. The contract amounts for the remaining fiscal year (FY07) are as follows: FY07 Open SDace District Contract Amount OSD 20 Zone 5 $219,913 42 OSD 8 $22,464.82 TOTAL $242,378.24 Original bid submittals are available in the Purchasing Agent's office. Performance standards and terms & conditions of Landscape Maintenance of Open Space Districts Bid # 1-04/05 shall apply to the new areas. Aztec will provide a performance & payment bond through the life of the contract, including option periods. The initial contract is for the remaining 10 months of the current fiscal year (September 06-June 2007), with four subsequent one-year options, if work performance is satisfactory. Additional one- year extensions shall be by mutual agreement of the Contractor and City Prices shall remain firm for the first contract year. For the option years, price increases are based on changes in the annual San Diego Consumer Price Index, for an amount not to exceed 5%. The City reserves the right to accept option year price increases or terminate the contract without penalty Decision Maker Conflicts. Staff has reviewed the property holdings of the City Council and has found a conflict, in that Councilmember Castaneda has holdings within 500' of the property, which is the subject of this action. FISCAL IMPACT All landscape maintenance costs will be borne by the respective homeowners in each Open Space District. Therefore, there is no impact to the General Fund. Attachments: City's letter dated August 9,2006, to New Way Landscape & Tree Services New Way Landscape & Tree Services "Release Offer Letter" dated August 11,2006 C:\Documents and Settings\robertb\My Documents\Bob\A113 OSD 20, Z5 & 8.doc 21-2 .s,vt.- ~.:a ~~=~.;.. em Of (HUlA VISTA PURCHASING DIVISION -\ ugust 9, 2006 NiL Rr:ndy Newh:,rd New Way Land.scape & Tree Sen'lces :485 Ronson Road Sa.'l Drego, CA 92111 Subject: Bid #1-04/05, Open Space Lalldscllpe vlaintenance Dear i'v'lr. :\ewhard; 1n accordance with City of Chula Vista Bid #1-04105, New Way Landscape & Tree Servic<,;s is obligated to continoe providing landscape maimenance sen'ices for one additional yc~r; through 6/30107. This requirerne.nt was covered in the pre-bid meeting and has been past practice for at 1 east ten years. Howewr. the City of Chu,a Vista is wimng to release New Way ii'om thelt obligation subJ~c; to the fo UO'.,l./ing cor:di1ion,$: L NeVl '"''lay Landscape ~1a~nlel1nnce & Tree Scrvic.e will continue to 1113111Lain Liel r [espec~i'{e op~n :;pacr;; districts through 8/31/00, 2, :\cw \Vay shaH maintain appropriate .Insurance & \\~orker"sCotnpcn$3.tio1l. ,~:.>v('r~tge througll 8/3I1U5. All other terms and conditions of the origlual agreemeut remain unchanged. ., .> In lieu of action against New Way's Perfonnanee Bond, the City will consider whether New Way Landscap~ng should he debarred from bidding on City contr",cts for a spccllled period of li:ne. Shculd the City decide that debanl1ent is an appropriate measure, you will be iIlfonn~d b,' J separate lener that sclS forth the te:-ms of the dehanl1ent 2nd your rights to al1 app.~al on I.l,e proposed debarment. Sincerely ce. Pub;ic">', ()rk~ Operations Departm~nt, OpCll Space Division 275 fOIJrth ,A;~e~H!.C" MS F,,10b. Oul. V"ta, C~ 91910 Phone (619) 397.6304 Fax. '"AX (619; 39' .6309 .7$,.\Jf? PRIDE ATWO&K www.chulavistaca.gov - 7. 1'Gfl.O:;r.iI.lff.l!:i ~K\'::~ ?'~;iOO" 21-3 ?Il,1i,l:-II-"';: lJii b'?J FROM-N.w Way LandsC3Plni BoHCS-8m T-m P 01/11 F-9:C & ~~;;.,;Ya~" s"'"" August 11,2006 Mr. lohn? Co~ins, CPoM, Pur<.:hasing Agent City ofChula Vista Purchasing Division 276 Fourrh Avenue i'vl$ F-106 Chula Vista, CA. 91 'IJ II ~ubjcct: Bid;/;' H)4JGS Upen Sp..~l:' ::"!IICd~;;::lpe Maln,enwlce Dear Mt. Cogg.ins, We are in r~cdpt ofyollr letter lkwd Al.g.U'! 9. 2006 regarrling Bia #1 . 04/05, Open Space Ll1l1liscjlpe MaiuIC:!1t:nCC' c'Rdf:3S<: Offer L:trer"). N!:!w W~y Llifldscap.: &. Tree Servi<:e:; ("New Way 'OJ ao.:cepb ~ (,ur otTer 10 release New Way frum its obligatiolls elTe.::,i;-c Aug~( 31, 20De, sub~.:cr TO In.:: 1"l1lb aud cOi.ditiullS ,>utlir.ed in your R.cle-ase Offer L::tter. We have enjoyed d-.c rllationSlli?", we nave l.'ulti,ated with your team over the years. ThllIlk you for your slIpport in tm, man..r. Pi,;as~ accept our kindest wishes for c\mrinued ~llccesS in your !<:arr.'5 e!ldel1\'ors. ?;if.? Rand::,- Newhard President 7485 R.On5on R.c)ad, San Dl~:;(), CA 92m (858) 505..s~OO FAX (8'i3) 505.8305 . t~ 27 ",501C32 \~""'w. tle\oV'\o'fay PI\).( 0 (fI, 21-4 RESOLUTION NO 2006-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FY 07 BUDGET BY APPROPRIATING $33,486 FROM OPEN SPACE DISTRICT 20, ZONE 5 AND OPEN SPACE DISTRICT 8 FUNDS; A WARDING A LANDSCAPE MAINTENANCE CONTRACT PER THE TERMS AND CONDITIONS OF BID #01-04/05 TO AZTEC LANDSCAPING IN THE AMOUNT OF $242,378.24 FOR THE PERIOD SEPTEMBER 1, 2006, THROUGH JUNE 30, 2007, FOR THE LANDSCAPE MAINTENANCE OF OPEN SPACE DISTRICT 20, ZONE 5 AND OPEN SPACE 8, AND AUTHORIZING THE PURCHASING AGENT TO RENEW THE AGREEMENT FOR FOUR (4) ADDITIONAL, ONE (1) YEAR OPTION PERIODS WHEREAS, on June 20, 2006, New Way Landscape & Tree Services notified the City of their intention to default on their multi year landscape maintenance contract, effective July 1, 2006; and WHEREAS, due to their default, the City holds, at its option, the debarment of New Way Landscape & Tree Services from bidding on City contracts for a specified period of time; and WHEREAS, New Way has agreed to, and has been, maintaining these areas on an interim month-to-month basis until the City awards another vendor these contracts; and WHEREAS, staff has contacted the second lowest bidder who has agreed to honor the bid they submitted 17 months ago when these districts were last formally bid (April 14, 2005), and WHEREAS, Aztec Landscaping was the second lowest bidder on both of the districts that will be abandoned by New Way It is staff's opinion that these bid numbers are reasonable and fair in light of the current market and economic environment; and WHEREAS, Aztec Landscaping is currently providing satisfactory landscape maintenance for Open Space District 9 and Open Space District 20, Zone 6; and WHEREAS, Open Space District 20, Zone 5 and Open Space District 8 are also logical extensions to Aztec's current areas ofresponsibility Aztec Landscaping has agreed and is ready to commence work in these two areas on September 1,2006; and WHEREAS, performance standards and terms & conditions of Landscape Maintenance of Open Space Districts Bid #1-04/05 shall apply to all new areas. Aztec will provide a performance and payment bond through the life of the contract, including option periods; and WHEREAS, the initial contract is for the remaining 10 months of the current fiscal year (September 06-June 2007), with four subsequent one-year options, if work performance is satisfactory Additional one- year extensions shall be by mutual agreement of the Contractor and City; and 21-5 WHEREAS, prices shall remain firm for the first contract year, for the option years, price increases are based on changes in the annual San Diego Consumer Price Index, for an amount not to exceed 5% The City reserves the right to accept option year price increases or terminate the contract without penalty. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby amends the FY 07 budget by appropriating $33,486 from Open Space District 8 funds, awarding a landscape maintenance contract per the terms and conditions of bid #0 I -04/05 to Aztec Landscaping in the amount of $242,378.24 for the period September I, 2006, through June 30,2007, for the landscape maintenance of Open Space District 20, Zone 5 and Open Space 8, and authorizing the purchasing agent to renew the agreement for four (4) additional, one (1) year option periods Presented by Approved as to form by Dave Byers Director of Public Works Operations ~{c:~t\~~~\)~ Ann Moore \ City Attorney J:lAttorneylRESO\FINANCElAmend FYO? 82206 21-6 COUNCIL AGENDA STATEMENT Item 2 z.. Meeting Date 8/22/06 ITEM TITLE: SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF THE OTAY LANDFILL Deputy City Attorney IIIW\G City AttorneyO .yY\, (4/5ths Vote: _ No~) SUBMITTED BY: REVIEWED BY: The Agreement between the County of San Diego and the City of Chula Vista regarding jurisdiction over and operation of the Otay Landfill contains certain provisions requiring the County to participate in the City's approval of General Plan Amendments affecting the landfill buffer area. The City and County agree these provisions should be removed. RECOMMENDATION: That City Council adopt the resolution: 1 Finding that the recommended amendment is not subject to the California Environmenta/ Quality Act because it is not a project that has potential for causing a significant effect on the environment. 2. Adopting and authorizing the Mayor to execute the agreement entitled Second Amendment to Agreement Between the County of San Diego and the City of Chu/a Vista Regarding Jurisdiction Over and Operation of Otay Landfill, removing subparagraphs 6(b) and (c), and paragraph 14 from the original agreement. BOARDS/COMMISSION: N/A DISCUSSION: On May 15, 1996, and as amended on April 4, 1998, the Agreement Between the County of San Diego and the City of Chu/a Vista Regarding Jurisdiction Over and Operation of Otay Landfill ("Agreement") was entered into (Attachment A). That Agreement dealt with measures to protect the ongoing operation of the Otay Landfill, while at the same time allowing land adjacent to the Otay Landfill to be annexed to the City of Chula Vista ("City"). One of the measures was the establishment of a 1 ,OOO-foot Otay Landfill Buffer Area ("Buffer Area") around the landfill. Within this Buffer Area, the City agreed to amend its General Plan to disallow residential land use, while allowing uses compatible with the operations of the landfill. The City complied with this provision of the Agreement. 22-1 Page 2, Item 2-~ Meeting Date 8/22/06 Subsection 6(b) of the Agreement requires the City to consult with the County of San Diego ("County") in writing if a General Plan Amendment ("GPA") is filed concerning the Buffer Area. The County is required to respond within 60 days, advising the City whether the proposed GPA is compatible with the landfill. Subsection 6(c) of the Agreement provides that in the event the City adopts a GPA allowing uses that the County has advised are incompatible with the landfill, the City will have breached the Agreement, and will be subject to special remedies set forth in paragraph 14 Paragraph 14's remedies amend (to the detriment of the City) the allocation of property taxes set forth in that certain Property Tax Transfer Agreement, entered into between the City and County concurrently with the Agreement. Consistent with subsection 6(b), on March 2, 2005 the County Board of Supervisors found that a proposed amendment to the City's General Plan that would apply residential land use designations within the Buffer Area would be incompatible with the landfill, and authorized the County Chief Administrative Officer to sign the County's written communication advising the City of the incompatibility Subsequently, the developer who proposed the GPA questioned the validity of subsections 6(b) and (c), and paragraph 14 of the Agreement. County and City reexamined these provisions and agreed that they should be deleted from the Agreement in order to make the Agreement legally enforceable. Removing subparagraph 6(b) will not preclude the County from commenting on any proposed GPA pertaining to the Landfill Buffer. Deleting subparagraph 6(c) and paragraph 14 will, however, eliminate the possibility of penalizing the City if it amends its General Plan in a manner the County deems incompatible with the operation of the landfill. City Geographical Information System ("GIS") records indicate that no City Council Member owns property within 500 feet of the Otay Landfill. ENVIRONMENTAL STATUS. Pursuant to California Code of Regulations Title 14, Chapter 3 Article 20, Section 15378(b )(5), the recommended amendment is not subject to the California Environmental Quality Act because it is not a project that has potential for causing a significant effect on the environment. FISCAL IMPACT: There is no fiscal impact from the recommended action. This action would result in no expenditures of funds, require no additional staff and will have no impact on the General Fund. 22-2 Page 3, Item l--t- Meeting Date 8/22/06 Attachments: Attachment A - Agreement Between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation of Otay Landfill, dated May 15, 1996. Attachment B - Second Amendment to Agreement Between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation of Otay Landfill. J:\Attorney\MichaeISh\Otay Landfill Agenda 22-3 "j . ' ,. ,. ~) ) ) " " 016001 AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF OTAY LANDFILL This agreement is entered into as. of the I~~ay of ~, 1996, by and between the County of San Diego, a political subdivision of th~ State of California (hereinafter "County") and the City of chula Vista, a municipal corporation of the State 'of California (hereinafter "Chula Vista"), with reference to the following: RECITALS A. The County and Chula Vista have jointly plaIUled and approved the development. of that project known as "Otay Ranch" on properties which lie generally easterly of Chula Vista's current easterly territorial boundary. In cOIUlection therewith, Chula Vista desires to amend its Sphere of Influence ("SOP'). This will require approval by the Local Agency Formation Commission of the county of San Diego ("LAFCO"). Chula Vista also desires to annex territory within the SOI. B. Pursuant to Revenue and Taxation Code Section 99', the County and Chula Vista have negotiated and, contemporaneously with this Agreement, are entering into an agreement entitled, "Agreement Between County of San Diego and City of chula Vista Regarding Terms Of otay Ranch Annexations To Chula Vista Including property Tax Transfer-Agreement" (hereinafter, the "Property Tax Transfer Agreement"). The Property Tax Transfer Agreement is on file with the Co'tns~861erk of the. Board. of Supervisors as Document No. ~'. . c. The County owns and. operates a solid waste landfill facility, composed of both (1) a portion which consists of approximately 265 acres lying within-the territorial limits of Chula Vista (the "Otay Sanitary Landfill"), and (2) the Otay Annex Sanitary Landfill, which is adjacent and consists of approximately 251 acres lying in the unincorporated territory of the County. The landfill facility is described and shown in the "otay Landfill Project Description" which is attached as "Exhibit A" hereto, and is hereinafter referred to as the "Landfill." The property owned by the County, on which the Landfill is operated, is shown on "Exhibit B" hereto and more particularly described on "Exhibit 0" he.reto, and is hereinafter refe::::::ed ~las'-t;he.,..\ "Landfill Property". , "'''''0 Gt:, \ D. The County and Chula vista each rea:;o...;.jliCle~he' b~eQt;s' . to the citizens of Chula Vista and of the Co1]nty_whlch ri~l-G \-(5) result from the continued operation of the Landfill by the County, and they both desire to ensure and facilitate such . continued operation ~otwithstanding any expansion,,()~ ~."SOI -0',];:(' 'I approvals of annexat~ons of nea!~:'!:4lands to ChUl<;\~, \l ~~'!-~0 ~ - '-- .~ t. .) 2 . end, the parties desire to detach from Chula Vista that portion of the Landfill Property which is currently within Chula Vista's territorial limits. E. Under California Law, the. County is generally not subject to regulation by Chula Vista in operation of County facilities on land which the County owns within the territorial boundaries of chula Vista; however, in the event that any portion of the Landfill remains or becomes included within Chula Vist~ls territorial limits, Public Resources Code Section 49400 requires the County to obtain the COnsent of Chula Vista's City Council for the acquisition and operation of the Landfill, and Public Resources Code Section 50000.5 prohibits the establishment or operation of a solid waste facility unless the city or county in which the site is located makes a finding that the establishment or expansion is consistent with the general plan of the city or county. WHEREFORE, the County and Chula Vista represent and agree as follows: AGREEHENT ) 1. County Position Reaardinq Sohere of Influence and Annexation. The County supports the amendment of Chula Vista's SOI to include that territory shown as "Sphere of Influence Area" on "Exhibit C" hereto~ so long as the Landfill Property remains designated as a "Special study Area." The County will formally communicate its position of support to LAFCO. The County further will not oppose annexation of any land within the sor territory shown as "Annexation Area'" on "Exhibit C" to Chula Vista, provided that the first sucb annexation is part of a reorganization which includes the detachment referred to in Section 2 below. These duties of the County shall in no way affect the discretion or voting of any members of LAFco which are also members of County's Board of Supervisors. 2, Detachment ofOtav Sanitary Landfill From Chula Vista. Chula Vista has filed an application with LAFco for the detaChment of the otay Sanitary Landfill property from Chula Vista, so that all of the Landfill Property will be located in the unincorporated area of the County. Chula Vista shall diligently and in good faith pursue said detachment proposal with the first application it files with LAFCC to annex any part of the otay Ranch property to Chula Vista. The County agrees to fully cooperate in good faith with Chula Vista to enable completion of said detachment, and to defend and indemnify Chula Vista for any litigation which may be Commenced to challenge said detachment solely on the grounds of allegedly inadequate environmental review. 3. Consent For Operation ~~ndfill. The following ) 3 " provisions of this Section 3 are applicable only during such time that any part of the Landfill. Property remains included within Chula Vista's corporate boundaries, and shall again become applicable at any tiJlle that all or any part of the Landfill Property, shall in the future be annexed to Chula Vista without the prior written approval of the County's Board of Supervisors: (a) Chula Vista hereby grants its consent to the operation of the Landfill, pursuant to Public Resources Code Sectidh 49400. Said consent includes the existing as well as the ultimate use, development and expansion of the Landfill as shown and described in "Exhibit A" hereto. (b) Chula vista further finds that the establishment and operation of the Landfill, including the ultimate use, development and expansion of the Landfill as shown in "Exhibit A" hereto; are consistent with the Chu1a Vista general plan. ) (e) Chula vista agrees that, except with the prior written approval of the County's Board or Supervisors, said consent and said finding of consistency shall remain in effect throughout the term of this Agreement. If either is withdrawn, rescinded, revised or amended with regard to the otay Sanitary Landfill prior to the date the detachment referred to in Section 2 becomes effective, Chula Vista shall be liable to County for any loss or damages resulting therefrom. If either is withdrawn, rescinded, revised, or.. amended with regard to any of the Landfill Property after any of the Landfill Property has been annexed to Chula Vista following the date of this Agreement, the Special Remedies provided at Section 14 shall apply. (d) Chula Vista further agrees and represents that, having given said consent and finding of consistency, no Conditional Use Permit or other permit or approval is or will be required from Chula vista for the continued operation of the Landfill as shown on "Exhibit A." -4. Imposition of Fees Upon. or Annexation or Reoulation of Landfill Property. ) (a) In the event that Chula Vista adopts any toll, "host fee" or other !ee or charga upon the establish:nent or operation of the Landfill, it shall immediately and no less than monthly, transmit to County all amounts collected thereby. (b) The Special Remedies provided at Section 14 of this Agreement shall apply if any portion of the Landfill . ,property is annexed to Chula Vista after the date of this Agreement without the priof2w8itten approval of the County's ) 4 ., Board of Supervisors. The Special Remedies provided at Section 14 shall not, however, apply in the instance of an annexation of any portion of the Landfill Property resUlting from state legislation if thechula Vista city .Council has expressed formal written opposition to the legislation. The Special Remedies provided at Section 14 of this Agreement shall also apply if, at an~ time when any portion of the Landfill Propertv is within Chula.Vista's jllr1Sdlct1on. Chula Vista amends or repeals its. general plan in such a way that the es 1shmen :or expans10 ecomes inconsistent with the general plan, or adopts or imposes any zo~ing, land use or other regulation or requirement (other than one covered by paragraph (a) of'this Section) upon, and which adversely affects, the op~ration of the Landfill. i"'~4- 5. Landfill Access streets. (a) Chula Vista agrees. to maintain in good condition throughout the term of this"Agreement the following streets which serve as access tb the Landfill: otay Valley Road, from I-80S to otay Rio Road; and Maxwell Road, from otay Valley Road to the Landfill For pUrposes of this. paragraph (a), "good condition" shall mean reasonable driving condition substantially equal to other -roads within Chula. Vista of a similar age and construction. but not less than an operable condition so as to facilitate such access by trash hauling vehicles. Said streets .may he closed temporarily for required maintenance or repair work, provided that, unless otherwise approved by County's Director of Public Works in advance and in writing, such closure shall not occur:more than once in any six month period and shall not be, for mora than seven days at a time. (h) Chula Vista further. agrees that, if it should ever impose upon said streets weight or other restrictions more severe than are stated in Chapter 5 of Division 15 of the -Vehicle Code, or if it should change the classifications of said streets as shown in its general plan circulation element on the date of this Agreement, then the Special Remedies provided for in Section 14 of this Agreement shall apply, unless such restrictions or change in ~lassification is approved in advance by County's Board of Supervisors. (c) chula Vista further agrees that if it should ever adopt Or impose any tolls or other fees or charges for the use of said streets upon trash trucks or other vehicles using said streets for access to the Landfill, it will immediately pay to County, no less frequentiy than monthly, all amounts collected thereby. 22-7 -)-- ., 5 " 6. Landfill BUffer Area. ) (a) Chula Vista shall commence, diligently and in good faith purs~e, and complete within 730 days after the date this Agreement is entered into, proceedings to revise its general plan, zoning and other applicable land use regulations so that no residential land uses are permitted within that area identified as "Village 2" in the ota-y Ranch General Development Plan (adopted by Chula Vista on October 15, 1993) and also within the otay Landfill Buffer Area as described in "Exhibit B'.' and shown on "Exhibit 0" hereto and all uses permitted are compatible with the use and ' operation of the Landfill. Chula Vista's failure to do so shall constitute a breach of this Agreement for which the Special Remedies specified' at Section 14 shall apply, except that the remedy of payment of closure costs (Section 14(c)) shall only apply if a court of competent juriSdiction orders the closure'of the Landfill based upon such incompatibility. Prior to holding any hearings on such general plan amendment, Chula vista shall consult with County by written communication to COUnty's Chief Administrative Officer and County agrees that it's Board of Supervisors will respond within 60 days, advising Chula Vista whether the proposed general plan amendment is compatible with the Landfill. The County agrees to fully cooperate in good faith with Chula Vista to enable completion of said general plan amendment. This 730 days shall be extended to compensate, daY-for-day, for the amount of time during which a court of competent jurisdiction, in a suit brought by a party other than ~hula Vista, has issued an order or judgment prohibiting Chula Vista from proceeding with said proceedings. In the event Chula Vista adopts such a general plan amendment, which is subsequently invalidated by court order, Chula Vista shall immediately recommence general plan amendment proceedings within said area, completing them and applying compatible land use designations within two years of the date of the court order. ) -(b) During the term of this Agreement, if a general plan amendment is filed applicable to any of the area shown as "otay Landfill Buffer Area" on Exhibit "0" hereto, Chula vista shall consult with the County by written communication to Co\mty's Chief Administrative Officer p=ior to holding any hearings on such general plan amendment. The County agrees that its Board of Supervisors will respond within 60 days, advising Chula vista whether the proposed general plan amendment is compatible with the Landfill. (e) In the event that Chula vista adopts into its general plan applicable to any of the area shown as "otay Landfill Buffer Area" on "Exhibit D"2f.s>jfeto, provisions which the 7\ ~~J 6 ) County's Board of Superviso~s has advised are incompatible with the Landfill, shall constitute a breach of this Agreement for which the remedies. specified at Section 14 shall apply, except that the: remedy 9f payment of ciosure costs (Section 14(c)) sha~l only apply if a court of competent jUrisdiction o~ders the closure of the Landfill based upon s~ch in~ompatibility. .Ho~ever~ a general plan amendment wh~ch allows. only.th~ cont~nuat~on of developed land uses which are in existence within the incorporated ,. portion of said buffer area on the. date of-this Agreement shall not constitute a breach.of.this Agreement. (d) If Chula Vista adopts a general plan amendment. applicabie to any o.f the- area sho~ as the "otay Land.fill Buffer Area" on Exhibit 0 attached hereto that permits Uses which the County's, Board; of Sllpervisors has advised are COmpatible with the Landfill,.the County and chula Vista shall share equally in the defense of any litigation which is brought challenging County's operation of the Landfill as being inconsistent with such general plan amendment. This obligation to share in the defense shall not obligate Chula Vista to pay any damages awarded as a result of such litigation; however, the County and Chula Vista shall share equally in payment of any award of attorneys' fees. (e) Within 30 days after the date this Agreement is approved by both parties, the County's Board of Supervisors will advise Chula Vista in writing as to which of Chula Vista's-existing nqn-residential general plan land Use designations permit Uses Which are, in County's opinion, compatible with the Landfill. (f). As a condition precedent to annexation only and not as a commitment to perform, landowners in Villages 2 and 3 and Planning Area 18B of the Otay Ranch General Development Plan are expected to grant to County "Landfill NUisance :Easements" substantially in' the form attached as "Exhibit E" hereto, covering ~ll land which is both within said Villages and Planning Area and also with:;n the area shown as "Otay l'.andfill BUffer Area" on "Exhibit Oil hereto. All of said easements shall be signed, notarized and deliVered to County prior to the time of LAFCO approval of any annexation of property within otay Ranch to Chula Vista. In the event that said easement~ have not been so. g=antad to the County by said time, Chula Vista agrees to withdraw any application for annexation which is pending and agrees not to complete or take any further action in furtherance of SUch annexation. Failure by Chula Vista to comply with the provisions of this paragraph shall constitute a breach of this Agreement for which the Special Remedies specified at Section 14 shall apply.r 22-9 .'3" :;...., " ) ) ., 1 , 7., Transpo~ation of Bu:nAsh Material: Chula Vista agrees not to ~nterfere ~n any way w~th the use of ~ts street system for transportation. of any burn ash material.being delivered to the Landfill from any site, without limitation as to amount or point of origin, provided that applicable state and federal laws are complied with. 8. Conversion of Landfill To other Users). In the event that the. County determines to cease use of the Landfill and convert the use of the Landfill Property to other uses, the County shall first consult with Chula Vista regarding the new uses. Consultation shall be accomplished as foilows: the County shall deliver written notice of its intention to convert the use of the Landfill Property to other uses to Chula Vista's City Manager at least 120 days prior to taking any action which commits the County to any particular new use. Chula Vista's City Council shall provide its written.' recoliunendations to the County if any, within said. 120 days. . The County shall in good faith ' take Chula Vista's recommendations into consideration in' its deliberations, and the use{s) to which the Landfill Property is converted shall be compatible with a closed landfill. 9. Retained Riqhts To Review and Comment. Each party retains its rights as provided by any applicable law to review and comment upon a project proposed by the other. Such review and comment by Chula Vista of any.of county's proposed uses, alterations or expansions of the ~ndfill shall not be considered a breach of this Agreement provided that it does not in effect rescind, modify or contradict the'consent and finding given by Section 3 above. 10. otav Vallev Road Widenina.. Chula Vista shall cause the completion of the otay Valley ROad Widening Project, as described in more detail in "Exhibit F" hereto. Upon completion of this proj~ct, the County shall pay Chula vista a share of the project costs, as follows: The County's share shall be $327,000.00. This amount shall be paid in equal annual installments. of $65,400.00 per year, fOr five years, the first installment being due on or before either June 30, 1997 or 90 days after completion of tIle project, whichever is later, and subsequent installments being due on June 30 each year. Sai~ payment shall be the sole contribution from the County for this project, and Chula Vista shall not impose any other assessment, charge or fee upon the County or its agenciss in relation to this proj~ct. 11. Hazardous Waste Facilitv Taxes and User Fees. In the event that, following detachment from Chula Vista of the otay Sanitary Landfill, a hazardous waste processing or transfer facility operates on a portion of that property, being operated by a for-prOfit business, and the County imposes a tax or user fee pursuant to Health and Safety Code Section 25173.5 upon such operation, the County shall paY22h~bF Vista 50 per cent of all o )" -, '(I."! v ) 8 ~ taxes or user fees in fact collected from that business. 12. County's Present Landfill Plans. The County represents' to Chula Vista' that it currently plans to use the Landfill Property only for the development, use and operation of the Landfill as shown on plans and permits which have been approved or for which expansion applications-have been filed' prior to th~ date of this Agreement. 13. Propertv Tax Transfer Aqreement. This Agreement is contingent upon and shall only become effective if the County and Chula Vista'also contemporaneously approve-the Property Tax Transfer Agreement. 14. Special Remedies For Certain Breaches. The continued operation of the Landfill without limitation, restriction or interference is of the essence in' the making and performance of this agreement. The County and Chula. Vista agree that, in the event of a breach of a provision of this Agreement which expressly provides that Special Remedies pursuant to this Section shall apply, the County will incur damage, the amount of which is extremely impractical and difficult to determine, and lieu of such actual damages, the following Special Remedies shall apply: (a) The allocation of property tax pursuant to Section 2.B of ,the Property TaX Transfer Agreement shall be changed so that the base revenue and the annual tax increment, includ;in<1 revenue for both the County and any special districts from which property is detached, shall be allocated 59 per cent to the County and 41 per cent to Chula vista. This change shall be effected by the County's AUditor Upon receipt of a resolution adopted pursuant to paragraph (b) of Section 15. Chula Vista shall pay to the County, within 180 days of written demand therefor accompanied by a certified copy-of said resolution, an amount which equals the difference between the property tax received by Chula Vista pursuant to the Property Tax Transfer Agreement for all years subsequent to the date of this Agreement and the amount which Chula Vista would have -received if the allocation of property tax had been changed to 59 per cent to the County and 41 per cent to Chula Vista upon the commencement of operation of the Property Tax Transfer Agreement, together with interest at the thirtY-day London !nterbanking Offe=~d Rate (LIBOR) i~ effect cn the date of adoption of the resolution referred to in paragraph (b) of Section 15. Said interest rate shall be applied as follows: For each fiscal year (July 1 through June 30) during any portion of which this Agreement has been in effect, the total amount of difference in property tax (as described above) shall be computed as of June 30 of that fiscal year, and interest at said rate on said total amount shall be deemed earned and2~Yin to accrue as of the January ",,:) "~:..iJ 9 ~ 1 of each such until the date paragraph. (b) The total amount of funds which have been, transferred to Chula Vista pursuant to Section 2,. C of the Property Tax Transfer Agreement, together wi~ ,interest computed at the thirty-day London lriterbanking' Offered Rat,e (LIBOR) i.1i effect on the date' of adoption of the resolution referred"to in p~ragraph (b) of Section 15~ Said, interest, shall be deemed earned and begin to accru~'as of the date of payment by County of each transfer p"Ylllent, and shall-continue:to accrue until the date of repaYlllent by Chula Vista to the County. Such repaymel;lt shall be lIIade within ~ao- days of receipt by Chula vista of a resolution adop:tea pUrsuant to paragraph (I;l) of Se<;:tlon 15. of't.hif? 'Agreelllent. Transfer payments reqilired by Section ;2.C of the Property Tax Transfer Agreement for'alI years following the date of the breach shall not be made and shall ba retained by the County.' -- fiscal year; and payment is made shali continue to accrue to County pur~uant to this ~) (c) In the event that the, Co~nty determines that the action by Chula vista which constitutes a breach of this Agreement for which this Agreement specifies that this Special Remedy is applicable, has the effect of ~~ing continued operation of the Landfill infeasible or'impracticable, it may determine that it is necessary to close the, Landfill. In that, event, chula Vista shall PaY all of the County's costs associated with such closure, including, but not limited to, the following: design and construction of a final cover system, design and construction of drainage structures, design and implementation of a landscaping plan,- monitoring and management of groundwater, landfill gas, and leachate, inspection and maintenance activities, and consulting, environmental, legal, and administrative costs associated with closure. The amount of closure costs payable shall be reduced by any amounts which are contained in the closure fund which the County maintains for the Landfill as of the date of the breach which causes the closure. ) 15. Procedures For Enforcinq Breach. Except in cases where closure of the Landfill has been ordered by a court, prior to effectuating any of the Special Remedies for breach of this Agreement specified at Section 14, the County shall complete the following procedures: (a) The County shall first2~ide Chula Vista with written 29" ".. ..... o' 10 ". notice that a breach. has occurred, specifying the facts constituting the breach, and shall provide a reasonable amount of time (to be specified in the notice) for Chula Vista to cure the breach. Said notice shall clearly reference this Agreement, state that the alleged violation could cause the Special Remedies for" breach herein provided and repeat.said Special Remedies in the notice. Said notice shall be provided to both the City Manager and the City Attorney of Chula Vista. l (b) County's Board of Supervisors shall consider the matter at a proceeding at which Chula Vista is provided notice and a reasonable opportunity to be heard. If the Board reasonably determin~s that a breach of this Agreement has occurred to which these Special Remedies apply, it shall adopt a resolution in which the Board: determines that a breach of this Agreement has occurred for which this Agreement specifies that these Special Remedies are applicable: states the factual circumstances SUPPorting that determination: directs the Auditor to make the change referred to in paragraph (a) of Section 14 for all subsequent fiscal Years: and, pursuant to paragraph (b) of Section 14, demands repayment of prior tranSfer payments and directs that future transfer payments not be made. 16. JUdicial Review. chula Vista shall have the right to seek judicial review of the County's determination that a breach of this Agreemel1t has Occurred, except where closure of the Landfi11 has been ordered by a court. In any such action, the parties agree that the standard of jUdicial review shall be the "substantial evidence" standard, whereby the County's determination shall be upheld if it is supported by substantial evidence in the record before the County. In any action in which the County's determination that a breach of this Agreement requires closure of the Landfill is reviewed by a court, except where closure of the Landfill has been ordered by a court, the parties agree that the County's determination shall be reviewed by the" court exercising its independent jUdgment. ~7. Force Maieure. No violation or breach of this Agreement shall be deemed to have occurred if caused by an event or act that is beyond the control ofChula" Vista, such as an Act of God, natural disaster (inClUding, but not limited to, a flood, fire, dam inundation, ~arthquake, landslide or subsidence). riot, rebellion, or civi+ strife. . 18. Entire Aoreement. This Agreement and the Property Tax Transfer Agreement set forth the entire agreement between the County and chula Vista contemplated by them regarding this matter, and sUpersede any and all prior or contemporaneous agreements, understandings or representations, In particular, any existing Conditional Use Pe~~!~~) issued by chula Vista, 'M." ".-:Y )' " '11 " including No. PCC-72-l, are deemed terminated ah~ unnecessary for the continued operation of the-Landfill, based'upon the consent and findings granted by Chula Vista in this Agreement and the detachment of all Landfill Property frOm chula Vista's territory required by this Agreement. 19. Partial Invaliditv. If any material covenant, term condition or provision d~ this Agreement is held invalid, void or unenforceable by final order or judgment of a court of. competent jurisdiction, the remainder of., this agreement shall nevertheless remain valid and enforceable. 20. Addresses. Unless otherwise herein indicated, any written cOlDJllupica tii::m required to be" gi venby this Agreement shall be delivered,personally or by first ~lass mail, addressed as follows: To the County: Chief Administ~ative Officer County of San Diego 1600 Pacific Highway San Diego, CA 92101-3472 To the City: City Manager city of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 21. Assiqnment of Riohts. Chula Vista acknowledges that County may determine to transfer ownership, operation, or maintenance of the Landfill to a Solid Waste Authority or other successor agency', and County may in connection therewith assign to such successor agency. any or all of its rights, but not its obligations, Under this Agreement. 22. Recision. Modification and Termination. Either the County or Chula Vista may rescind its approval of this Agreement at any time prior to the date for which LAFCO has scheduled the cOIl1lllencement of a hearing on the first annexation to which the Property Tax Transfer Agreement relates, provided that the Property Tax Transfer Agreement is rescinded at the same time. Thereafter, no amendment, mOdification, recision or termination of this Agreement or any provision thereof shall be valid or binding unleSs it be in writing and approved by both the County's Board of Supervisors and Chula Vista's city Council. This Agreement shall terminate upon closure of the Landfill (except that the parties shall thereafter comply with Section B) or after fifty years, or upon the date that the Property Tax Transfer Agreement terminates pursuant to its terms, whichever is earlier. COUNTY OF SAN DIEGO f~ ,\. VilA/I-- CITY OF CHULA VISTA By Sh~~nT 22-14 By -.-' :-----... 1"1'(.111(1'::' J. ro::..;.lL.:d,'l.I ____ CI'~rk of the Board of Supervisors ^ppnm:ED :~,~ !,1 ;::~.,.; ~1'.,.! I ".AO "'PU RESOLUTION NO 2006-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF THE OTA Y LANDFILL WHEREAS, On May 15, 1996, and as amended on April 4, 1998, the Agreement Between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation ofOtay Landfill ("Agreement") was entered into; and WHEREAS, the Agreement dealt with measures to protect the ongoing operation of the Otay Landfill, while at the same time allowing land adjacent to the Otay Landfill to be annexed to the City of Chula Vista; and WHEREAS, one of the measures was the establishment of a 1,000-foot Otay Landfill Buffer Area ("Buffer Area") around the landfill; and WHEREAS, within the Buffer Area, the City of Chula Vista agreed to amend its General Plan to disallow residential land use, while allowing uses compatible with the operations of the landfill; and WHEREAS, subsection 6(b) of the Agreement requires the City of Chula Vista to consult with the County of San Diego in writing if a General Plan Amendment is filed concerning the Buffer Area; and WHEREAS, the County of San Diego is required to respond within 60 days, advising the City of Chula Vista whether the proposed General Plan Amendment is compatible with the landfill, and WHEREAS, subsection 6(c) of the Agreement provides that in the event the City of Chula Vista adopts a General Plan Amendment allowing uses that the County of San Diego has advised are incompatible with the landfill, the City of Chula Vista will have breached the Agreement, and will be subject to special remedies set forth in paragraph 14; and WHEREAS, paragraph 14's remedies amend (to the detriment of the City) the allocation of property taxes set forth in that certain Property Tax Transfer Agreement, entered into between the City and County concurrently with the Agreement; and WHEREAS, consistent with subsection 6(b), on March 2, 2005 the County of San Diego Board of Supervisors found that a proposed amendment to the City's General Plan that would apply residential land use designations within the Buffer Area would be incompatible with the 22-15 landfill, and authorized the Chief Administrative Officer to sign the County's written communication advising the City of the incompatibility; and WHEREAS, the developer who proposed the General Plan Amendment questioned the validity of subsections 6(b) and (c), and paragraph 14, and the County and City reexamined these provisions and agreed that they should be deleted from the Agreement in order to make the Agreement legally enforceable; and WHEREAS, removing subparagraph 6(b) will not preclude the County from commenting on any proposed General Plan Amendment pertaining to the Landfill Buffer. Deleting subparagraph 6(c) and paragraph 14 will, however, eliminate the possibility of penalizing the City if it amends its General Plan in a manner the County deems incompatible with the operation of the landfill, and WHEREAS, pursuant to California Code of Regulations Title 14, Chapter 3 Article 20, Section 15378(b)(5), the recommended amendment is not subject to the California Environmental Quality Act because it is not a project that has potential for causing a significant effect on the environment. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve a Second Amendment to the Agreement between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation of Otay Landfill and authorizes the Mayor to execute the same. Presented by Approved as to form by Michael J Shirey Deputy City Attorney III a~ Y1t~~~ Ann Moore City Attorney J:\Attorney/MichaelSh/Otay Landfill Reso 22-16 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL CA. 1/1( .~~_ Ann Moore City Attorney Dated: 8/16/06 Second Amendment to the Agreement with the County of San Diego Regarding Jurisdiction Over and Operation of the Otay Landfill 22-17 SECOND AMENDMENT TO AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF OTAY LANDFILL This SECOND AMENDMENT is entered into as of this day of , 2006, by and between the parties hereto, with reference to the following facts: RECITALS A. The County of San Diego, a political subdivision of the State of California (hereinafter "County"), and the City ofChula Vista, a municipal corporation of the State of California (hereinafter "City") entered into that certain Agreement between the County of San Diego and the City ofChula Vista regarding jurisdiction over and operation of Otay Landfill as of May 15, 1996 (the "Agreement). B. The County and city wish to amend the Agreement as authorized by Paragraph 22 thereof. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1 Subparagraphs 6(b) and (c), and paragraph 14 are deleted and deemed void ab initio, as if they never existed, and shall have no force and effect whatsoever. 2. Except as amended by the First Amendment, and this Second Amendment, the Agreement shall remain in full force and effect. 22-18 SIGNATURE PAGE TO THE SECOND AMENDMENT TO AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF OTA Y LANDFILL City of Chula Vista County of San Diego By' Stephen C. Padilla Mayor By' Thomas J Pastuszka Clerk of the Board of Supervisors Date: Date; ATTEST Susan Bigelow, City Clerk Approved as to form by' Approved as to form bY' Arm Moore, City Attorney C. Ellen Pilsecker, Senior Deputy County Counsel l:\Attomey\MichaeISh\Otay Landfill 2nd Amend.doc 22-19 COUNCIL AGENDA STATEMENT Item 25- Meeting Date 8/22/2006 ITEM TITLE: Public Hearing to consider testimony for FY 2006/2007 levy of assessments and collection against those assessments for City Open Space District 20. SUBMITTED BY: Resolution Levying the assessments and collectibles for Open Space District 20 Acting Director ofEngi7ng~ InterimCityManager 41 (4/5thsVote: Yes_NoX) REVIEWED BY: This is one of three (3) companion agenda items to the primary Open Space assessments agenda item, approved by Council on August 1, 2006, which provided general background information and detail on the proposed Open Space District assessments for FY 2006/2007 The present item includes information specific to Open Space District 20. RECOMMENDATION: That Council conduct the Public Hearing and adopt the Resolution levying the assessments and collectibles for Open Space District 20. BOARDS/COMMISSIONS: N/A DISCUSSION: Open Space District 20 is located North of East H Street and West of Otay Lakes Road (Attachment 1). Table 1, below compares the current year's assessment to the proposed assessment for FY 2006/2007 Table 1. Historical and Proposed FY 2006/07 Assessments/Collectibles Open Space District or Zone 20 Zone 1 - Desilting Basin $ 55.711 $ 57741$ 59.B5 $ 34.00 1$ 14.00 I $ (20.00) I -59% $ 12,349.12 Zone 2 - Rice Canyon $ 4.231 $ 4.381 $ 4.54 $ 4.38 1$ 4.54 [ $ 0.16\ 4% $ 17,975.59 one 3 - H Street $ 6.031 $ 6.251 $ 6.48 $ 6.00 1$ 5.00 I $ (1.00) I ~17% $ 30,712.51 Zone 4 - Business Center $ 22.431 $ 23.251 $ 2410 $ 23.20 1$ 24.00 I $ 0.801 3% $ 62,460.00 Zone 5 -SPA [ $ 338.47 $ 350.821 $ 363.66 $ 342.00 1$ 247.00 I $ (95.00) I -28% $ 443,365.00 Zone 6 - SPA II $ 260.071 $ 269.561 $ 279.43 $ 180.00 1$ 143.00 I $ (37.00) I -21% $ 81,254.03 Zone 7 - SPA III $ 160.541 $ 166.401$ 172.49 $ 166.00 1$ 172.001$ 6.00 I 4% $ 202,407.88 Zone 8 - N Oesilting Basin $ 37.01 [ $ 38.361 $ 39.76 $ 37.50 1$ 11.00 I $ (26.50) I -71% $ 1,307.02 Zone 9 - Tel C n Channel $ 29.38 $ 30.45 $ 31.56 $ 30.00 $ 31.00 $ 1.00 3% $ 1,626.26 Tota $ 853,457.41 (1) Assessment may be set at or below this amount without being subject to a vote and majority protest. 23-1 ~~ . '...< Page 2, Item~ 0 Meeting Date 08/22/2006 The City of Chula Vista Municipal Code makes the distinction between the assessment and the amount that the City may collect against the assessment (i.e., the collectible). The assessments for FY 2006/07 are proposed at the FY 2005/06 amounts adjusted by the inflation factor of 3 66% pursuant to the Municipal Code. (The inflation factor is based upon the lower of two separate, published inflation factors.) In the mid-1990's (and for all Open Space Districts established after that date), Council approved the assessments with an inflation factor. Since that date, Council may annually increase the assessment by this inflation factor without this increase being subject to a protest vote under Proposition 218. The collectible, on the other hand, is the amount to be actually collected from the property owner and is equal to, or lower than, the proposed assessment. As detailed in Attachment 2, the collectible is based on the budget, the reserve requirement, savings and fund balances, earned interest, and prior years' savings. Reserves While staff recommends using savings from prior years when necessary to supplement collections, it is important to note that staff also strives to maintain at least a 50% reserve. The Municipal Code allows reserves between 50%-100%. A minimum of 50% reserve is needed to provide the funds to pay for costs during the first six months of the fiscal year before the collectibles have been paid via the first installment of the tax bill. Reserves in excess of 50% are used, in part, to maintain as stable a collectible as practicable while retaining sufficient funds to offset future anticipated increases. Reserves also allow the City to return excess funds to property owners in the form of a lower collectible. Table 2 outlines the recommended reserve amount for Open Space District No. 20 Table 2. Historical and Proposed FY 2006/07 Expenditure Budget/Reserve Budget Open Space District ":;J;:;l:,:,~'::',;y:~~,:;'~~; ~'~YeR:g:~)~~; orZone , F'i"05J06~:..F'(06JO.7 20 Zone 1 . Desiltin Basin $ 52,792.49 $ 49,600.00 $ 50% 100% 50% Zone 2 . Rice Can on $ 17,975.59 $ 35,413.00 $ 0% 0% 0% Zone 3 . H Street $ 39,803.41 $ 36,586.00 $ 80% 100% 20% Zone 4 . 8usiness Center $ 62,720.25 $ 74,987.00 $ 52% 58% 6% Zone 5. SPA I $ 652,769.70 $ 595,145.00 $ 92% 100% 8% Zone 6 . SPA II $ 158,774.92 $ 115,818.00 $ 100% 100% 0% Zone 7. SPA III $ 202,984.51 $ 268,461.00 $ 36% 40% 4% Zone 8 . N Desiltin Basin $ 4,724.28 $ 0.00 $ 75% 75% 0% Zone 9 . Tel C n Channel $ 1,655.64 $ 5,031.00 $ 82% 69% -13% Total $ 1,194,200.79 $ 1,181,041.00 $ A vera e $ 132,688.98 $ 131,226.78 $ 63.00% 71.33% 8.33% 23-2 "'~ --=:S Page 3, Item ==--- Meeting Date 08/22/2006 NOTICE: The public hearings were noticed pursuant to Government Code 6061, which requires that notice be published in a newspaper general of circulation at least 10 days before the public hearing. Plans, specifications, and assessment rolls are on file in the Engineering Department. RESOLUTION: Approval of the resolution approves the levy of assessments and collectibles as recommended. CONFLICT OF INTEREST: Staff has reviewed the property holdings of the City Council and has found a conflict in that Council Members Patricia Chavez and Steve Castaneda have holdings within 500' of the District that is the subject of this action. FISCAL IMPACT: The full cost of providing maintenance services in this district totals $1,181,041.00. This entire amount is recovered through the OSD collectible and reserves, as detailed on the District Cost Summary worksheets (Attachment 2). OSD 20, Zone 2 is operating in deficit this year and may require a reduction in services. Should the City proceed with a ballot process (as described in more detail in the August 1 reports), any services reduced may be restored, along with outreach and balloting expenses potentially recovered. It is anticipated that a proposed process for this situation will be brought to Council for consideration before the end of the calendar year Attachments: 1 District Map 2. Cost Summaries 23-3 ~~jj~~ ~1Jl6~ ~ ~ - ~ ~ U -= tS ~ I Q ~ ~ u 1: ill 't; . ~ ~ i= ~ D (t~ ! - CITY OF CHULA VISTA aSD 20 (Rancho del Rey Zone 1) 2006/07 Fiscal Year District Cost Summary Description 2006107 Amount 2005/06 Amount 2004/05 Amount Personnel Services $0.00 $0.00 $0.00 Utility Charges 0.00 0.00 5,648.00 Trash Collection & Disposal Fees 0.00 0.00 0.00 Water Charges 0.00 0.00 0.00 Services to maintain structures, grounds 0.00 0.00 0.00 City Staff Services 7,368.00 7,153.00 1,10100 Contract Services 0.00 0.00 0.00 Landscape Supplies 0.00 0.00 0.00 Materials to maintain structures, grounds 0.00 0.00 0.00 Backflow Certification 0.00 000 0.00 Professional Services 0.00 0.00 0.00 Supplementals 1,816.00 1,816.00 0.00 Other Commodities 0.00 0.00 0.00 Advertising 0.00 0.00 0.00 Transfer' Corporate Yard Debt Services 416.00 1,503.00 68.00 Storm Maintenance 40,000.00 144,818.00 144,818.00 Special Maintenance Fund 0.00 0.00 6,700.00 Estimated Maintenance Cost $49,600.00 $155,290.00 $158,335.00 Reserve Requirement (1) $9,600,00 $5,236.00 $3,408.50 Reserve Percent 100% 50% 50% Special Reserve 138,667 00 33,849.00 27,149.00 Fund Balance (2) 185,830.75 164,754.07 183,529.05 Net Assessment (3) $12,036.25 $29,620.93 $5,363.45 Equivalent Dwelling Units (EDU's) 882.08 876.24 882.08 Collectible/EDU $13,65 $33,80 $6.08 Percent change from prior year -60% 456% 43% (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve - Fund Balance+Costs from monies previously collected + Amortized Costs (4) CPI Change for FY 2006/2007 = 3.66% (5) BudgeUEDU does not include expenditures from Special Reserve Fund in the amount of $144,818 23-5 ATIACHMENT ;A CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 2) 2006/07 Fiscal Year District Cost Summary Description 2006/07 Amount 2005/06 Amount 2004/05 Amount Personnel Services Utility Charges Trash Collection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Supplies Materials to maintain structures, grounds Backfiow Certification Professional Services Supplementals Other Commodities Advertising Transfer Corporate Yard Debt Services Storm Maintenance Special Maintenance Fund Estimated Maintenance Cost $0.00 136.00 280.00 5,36400 200.00 6,663.00 18,589.00 460.00 500.00 0.00 1,400.00 1,459.00 0.00 0.00 362.00 0.00 0.00 $35,413.00 Collectible/EDU Percent change from prior year $10.34 136% $0.00 $0.00 136.00 136.00 280.00 280.00 5,364 00 5,364.00 200.00 200.00 6,469.00 6,132.00 17,819.49 22,938.00 460.00 460.00 500.00 500.00 0.00 0.00 1,200.00 1,200.00 1,459.00 40.00 0.00 0.00 0.00 0.00 332.00 381.00 0.00 0.00 0.00 0.00 $34,219.49 $37,631.00 $0.00 $0.00 0% 0% 000 0.00 940.80 15.420.41 $17,342.00 $16,620.59 3,959.38 3,959.39 $4.38 $4.20 4% 1% Reserve Requirement (1) Reserve Percent Special Reserve Fund Balance (2) Net Assessment (3) $0.00 0% 0.00 15.528.48) $40,941 48 Equivalent Dwelling Units (EDU's) 3,959.38 COr;tE;QTIBt:Ei;"ievei:1j$f:th:lOllrjf~:~,";;!;i;i;; Revenue from even dollar payment A""ES ME""f['~"'i!!>'''(' n.~''!:'('''''' ""_T_I_~;:,,;i.lW.0i!,~i~ Assessment with CPI (4) Bud!.letlE;ouli! ~..~ ,= Percent Change from prior year (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve - Fund Balance+Costs from monies previously collected + Amortized Costs (4) CPI Change for FY 2006/2007 = 3.66% 23-6 CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 3) 2006/07 Fiscal Year District Cost Summary Description 2006/07 Amount 2005/06 Amount 2004/05 Amount Equivalent Dwelling Units (EDU's) $0.00 $0.00 $0.00 409.00 409.00 409.00 0.00 0.00 0.00 7,799.00 7,799.00 7,799.00 400.00 400.00 400.00 5,618.00 5.454 00 5,170.00 14,547.00 15,170.00 12,642.00 2,260.00 2,260.00 2,260.00 2,00000 2,000.00 2,000.00 0.00 0.00 0.00 1,000.00 800.00 800.00 2,250.00 2,250.00 40.00 0.00 0.00 0.00 0.00 0.00 0.00 303.00 28100 321.00 0.00 0.00 0.00 0.00 0.00 0.00 $36,586.00 $36,823.00 $31,841.00 $36,586.00 $29.458.40 $25.472.80 100% 80% 80% 0.00 0.00 0.00 43.251.02 29.577.54 26.520.40 $29,920.98 $36,703.86 $30,793.40 6,142.50 6,142.50 6,14749 $4.87 $5.98 $5.01 -18% 19% 18% Personnel Services Utility Charges Trash Collection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Supplies Materials to maintain structures, grounds Backflow Certification Professional Services Supplementals Other Commodities Advertising Transfer' Corporate Yard Debt Services Storm Maintenance Special Maintenance Fund Estimated Maintenance Cost Reserve Requirement (1) Reserve Percent Special Reserve Fund Balance (2) Net Assessment (3) Collectible/EDU Percent change from prior year ,l\iQliEI;~ili!E!.li~if1!e(li,$'lI!!1QlJnt,x;;~i;~ Revenue from even dollar payment ~.Sl?!;~~JY!~.~j Assessment with CPI (4) B"'d'et!EDUl''''''' w .' ' ".";tI"._9"'''''''''''WHCO,.,,.}i:J/;J '"'~'''' .,,", Percent Change from prior year (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve - Fund Balance+Costs from monies previously collected + Amortized Costs (4) CPI Change for FY 200612007 = 3.66% 23-7 CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 4) 2006/07 Fiscal Year District Cost Summary Description 2006/07 Amount 2005/06 Amount 2004/05 Amount Personnel Services Utility Charges Trash Collection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Supplies Materials to maintain structures, grounds Backflow Certification Professional Services Supplementals Other Commodities Advertising Transfer' Corporate Yard Debt Services Storm Maintenance Special Maintenance Fund Estimated Maintenance Cost $0.00 409.00 280.00 23,074.00 1,769.00 14,004.00 29,296.00 860.00 1,500.00 0.00 3,000.00 138.00 0.00 0.00 657 00 0.00 000 $74,987.00 CollectiblelEDU Percent change from prior year $24.07 4% $0.00 $0.00 409.00 409.00 280.00 280.00 23,074.00 23,074.00 1,769.00 1,769.00 13,596.00 12,887.00 28,141.56 29,684.00 860.00 860.00 1,000.00 1,000.00 0.00 0.00 2,300.00 2,300.00 138.00 120.00 0.00 0.00 0.00 0.00 660.00 723.00 0.00 0.00 4,002.00 4,002.00 $76,229.56 $77,108.00 $37,558.33 $37,284.06 52% 51% 60,030.00 56,028.00 113,395.24 113,092.31 $60,422.65 $57,327.75 2,602.50 2,602.50 $23.22 $22.03 5% 1% Reserve Requirement (1) Reserve Percent Special Reserve Fund Balance (2) Net Assessment (3) $43,492.46 58% 64,032.00 119,857.07 $62,654.39 Equivalent Dwelling Units (EDU's) 2,602.50 c;P"'J:::r=,Qil;'I!'!.!LE,i,~iElq~rj:;~lahiQu!!~!,i]@iiGiiw?'i Revenue from even dollar payment A$~J;~"~.MIO!l!~~Jill;lfi'.t1IJ Assessment with CPI (4) 1;l!!~g'!if.l!;qJAflff;ji;~ >, Percent change from prior year 2% (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve. Fund Balance+Costs from monies previously collected + Amortized Costs (4) CPI Change for FY 200612007 = 3.66% 23-8 CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 5) 2006/07 Fiscal Year District Cost Summary Description 2006/07 Amount 2005/06 Amount 2004/05 Amount Personnel Services Utility Charges Trash Collection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Supplies Materials to maintain structures, grounds Backfiow Certification Professional Services Su pplementals Other Commodities Advertising Transfer' Corporate Yard Debt Services Storm Maintenance Special Maintenance Fund Estimated Maintenance Cost $0.00 3,314.00 3,360 00 209,218.00 11,602.00 111,720.00 222,929 00 7,700.00 8,250.00 0.00 9,55000 1,833.00 0.00 0.00 5,669.00 0.00 0.00 $595,145.00 Collectible/EDU Percent change from prior year $246.44 -28% $0.00 $0.00 3,314.00 3,314.00 3,360.00 3,360.00 209,218.00 209,218.00 11,602.00 11,602.00 108,466.00 102,81100 214,148.00 267,119.00 7,700.00 7,700.00 7,500.00 7,500.00 0.00 0.00 8,900.00 8,900.00 1,833.00 800.00 0.00 0.00 000 0.00 5,581.00 6,314.00 0.00 0.00 34.617.00 34.617.00 $616,239.00 $663,255.00 $566,939.88 $471,478.50 92% 75% 535,295.00 500,678.00 1.104.466.40 1.026.251.70 $614,007.48 $609,159.80 1,795.00 1,795.00 $342.07 $339.36 1% 12% Reserve Requirement (1) Reserve Percent Special Reserve Fund Balance (2) Net Assessment (3) $595,145.00 100% 569,912.00 1.317.849.86 $442,352.14 Equivalent Dwelling Units (EDU's) 1,795.00 .co.LlE9TIBLEl<;'eve!l$\l!mQu~~~:.i6i: ., Revenue from even dollar payment ~~SES~MENJ~~~. Assessment with CPI (4) (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve ~ Fund Balance+Costs from monies previously collected + Amortized Costs (4) CPI Change for FY 200612007 = 3.66% 23-9 CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 6) 2006/07 Fiscal Year District Cost Summary Description 2006/01 Amount 2005/06 Amount 2004/05 Amount Personnel Services Utiiity Charges Trash Coliection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Supplies Materiais to maintain structures, grounds Backftow Certification Professionai Services Supplementais Other Commodities Advertising Transfer' Corporate Yard Debt Services Stonm Maintenance Special Maintenance Fund Estimated Maintenance Cost $0.00 818.00 2,240.00 29,071.00 9,690.00 19,74700 44,502.00 1,700.00 2,200 00 0.00 4,300.00 609.00 0.00 0.00 941.00 0.00 0.00 $115,818.00 Equivalent Dwelling Units (EDU's) 568.21 $0.00 $0.00 818.00 818.00 2,240.00 2,240.00 29,071 00 29,071.00 9,690.00 9,690.00 19,171 00 18,172.00 42,321 00 36,809.00 1,700.00 1,700.00 1,800.00 1,800.00 0.00 0.00 4,000.00 4,000.00 609.00 240.00 0.00 0.00 0.00 0.00 939.00 1,052.00 0.00 0.00 0.00 0.00 $112,359.00 $105,592.00 $112,359.00 $87,641.36 100% 83% 0.00 0.00 121.278.84 86.818.65 $103,439.16 $106,414.71 568.21 573.20 $182.04 $185.65 -2% 26% Reserve Requirement (1) Reserve Percent Speciai Reserve Fund Balance (2) Net Assessment (3) $115,818.00 100% 0.00 150,539.96 $81,096.04 CollectiblelEDU Percent change from prior year $142.72 -22% (;O";l"t;C;TI~~E:., ,llveiJ; $ am9l!nlrt;'Z:'l;',""'Z' :''':'''',~;,''ii~.'N.,$:t!l3.0lJj- Revenue from even dollar payment $81,254.03 Assessment with CPI (4) B'lid' tJ<=D'Ii!"~'''''''' ".'."-'. g~,,,,,,'''''','-'''~~'ijt~f.k;fJ! Percent change from prior year (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve ~ Fund Balance+Costs from monies previously collected + Amortized Costs (4) CPI Change for FY 2006/2007 = 3.66% 23-10 CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 7) 2006/07 Fiscal Year District Cost Summary Description 2006/07 Amount 2005/06 Amount 2004/05 Amount Personnel Services Utility Charges Trash Collection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Su pplies Materials' to maintain structures, grounds Backflow Certification Professional Services Supplementals Other Commodities Advertising Transfer' Corporate Yard Debt Services Stomn Maintenance Special Maintenance Fund Estimated Maintenance Cost $0.00 1,159.00 2,240.00 80,760.00 16,550.00 45,066.00 105,065.00 3,750.00 3,550.00 0.00 6,500.00 1,590.00 0.00 0.00 2,231.00 0.00 0.00 $268,461.00 Collectible/EDU Percent change from prior year $171.20 3% $0.00 $0.00 1,159.00 1,159.00 2,240.00 2,240.00 80,760.00 80,760.00 16,550.00 16,550.00 43,753.00 41,472.00 100,000.00 91,664.00 3,750.00 3,750.00 3,150.00 3,150.00 0.00 0.00 5,600.00 5,600.00 1,590.00 800.00 0.00 0.00 0.00 0.00 2,267.00 2,500.00 0.00 0.00 0.00 0.00 $260,819.00 $249,645.00 $93,894.84 $124,822.50 36% 50% 0.00 0.00 158.431.99 187.284.95 $196,281.85 $187,182.55 1,176.79 1,176.79 $166.79 $159.06 5% 2% Reserve Requirement (1) Reserve Percent Special Reserve Fund Balance (2) Net Assessment (3) $107,38440 40% 0.00 174.381.19 $201,464.21 Equivalent Dwelling Units (EDU's) 1,176.79 .GQ!-LE.GJIBLE:';;e've!1t$',a!!!Quht""';~%ilit*~ Revenue from even dollar payment ASSESSMENl'i":~.""t"iI:W;'i ~. '~".,.~'.',..'_. "....,"_,.._.,~,.,..~_"'_,...^..~,;tiji..j;;:~'!.:I'~,._.^ ."_ .. ' Assessment with CPI (4) BuCl"etlcD''':'''''~':~' "l:l~' .. ""'<'--~"'"'~''''~~IM" "~. ",,,,,'4t.,_~ Percent change from prior year (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve - Fund Balance+Casts from monies previously collected + Amortized Costs (4) CPI Change for FY 200612007 = 3.66% 23-11 CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 8) 2006/07 Fiscal Year District Cost Summary Description 2006/07 Amount 2005/06 Amount 2004/05 Amount Personnel Services Utility Charges Trash Collection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Supplies Materials to maintain structures, grounds Backfiow Certification Professional Services Supplementals Other Commodities Advertising Transfer' Corporate Yard Debt Services Storm Maintenance Special Maintenance Fund Estimated Maintenance Cost $0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 $0.00 $0.00 $0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 101.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 4.431.85 4.431.85 $4,532.85 $4,431.85 $75.75 $0.00 75% 50% 17,835.55 13,403.70 17.985.49 14.042.95 $4,458.66 $3,792.60 118.82 118.82 $37.52 $31.92 18% -10% Reserve Requirement (1) Reserve Percent Special Reserve Fund Balance (2) Net Assessment (3) $0.00 75% 22,26740 21.018.04 $1,249.36 Equivalent Dwelling Units (EDU's) 118.82 Collectible/EDU Percent change from prior year $10.51 -72% c;QtLECJ:IBLEi:.~e1!e!i:.~a:lijpun_J"0~,;',, Revenue from even dollar payment (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as of June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve. Fund Balance+Costs from monies previously collected + Amortized Costs (4) CPI Change for FY 200612007 = 3.66% 23-12 CITY OF CHULA VISTA OSD 20 (Rancho del Rey Zone 9) 2006/07 Fiscal Year District Cost Summary Description 2006/07 Amount 2005/06 Amount 2004/05 Amount Personnel Services Utility Charges Trash Collection & Disposal Fees Water Charges Services to maintain structures, grounds City Staff Services Contract Services Landscape Supplies Materials to maintain structures, grounds Backfiow Certification Professional Services Supplementals Other Commodities Advertising Transfer' Corporate Yard Debt Services Storm Maintenance Special Maintenance Fund Estimated Maintenance Cost $0.00 000 0.00 0.00 0.00 310.00 1,435.00 0.00 0.00 0.00 0.00 245.00 0.00 0.00 4100 3,000.00 0.00 $5,031.00 Equivalent Dwelling Units (EDU's) 52.46 $0.00 $0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 301.00 285.00 1,435.00 1,435.00 0.00 0.00 000 0.00 0.00 0.00 0.00 0.00 245.00 0.00 0.00 0.00 0.00 0.00 42.00 18.00 3,000.00 3,000.00 300.00 300.00 $5,323.00 $5,038.00 $1,658.86 $869.00 82% 50% 692.00 392.00 6.103.64 4.763.29 $1,570.22 $1,535.71 52.46 52.46 $29.93 $29.27 2% 30% Reserve Requirement (1) Reserve Percent Special Reserve Fund Balance (2) Net Assessment (3) $1,401.39 69% 992.00 5784.93 $1,639.46 Collectible/EDU Percent change from prior year $31.25 4% .COLlEC1]~LE:iJ: evenL$;;arnount:~:t::t~:t~: Revenue from even dollar payment ~S.l:i.qSSMEI\lTiL%iW~l(~ Assessment with CPI (4) 'r{.9L0,_g!,'-"ib.~,;<~,i~ ,,"'r Percent change from prior year (1) Reserve Requirement = Estimated Maintenance Cost x Reserve Percent (2) Estimated fund balance as af June 30 of each year (3) Net Assessment = Estimated Maintenance Cost + Reserve Requirement + Additional Reserve - Fund Balance+Costs from monies previously collected + Amortized Casts (4) CPI Change for FY 200612007 = 3.66% (5) BudgetlEDU does not include expenditures from Special Reserve Fund in the amount of $3,000 23-13 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA LEVYING THE ASSESSMENTS AND COLLECTIBLES FOR OPEN SPACE DISTRICT NO 20 WHEREAS, prior to the adoption of this resolution, the City Council caused the formation of various districts under and pursuant to state law; and WHEREAS, pursuant to Article 4, Chapter I, part 2 of Division 15 of the California Streets and Highways Code, also known as "Landscaping and Lighting Act of 1972" and Chula Vista Municipal Code Chapter 17.07, NBS Government Finance Group, DBA NBS has prepared and filed the annual reports for all existing Open Space Maintenance Districts in the City; and WHEREAS, on July 18,2006, Council approved these reports and set August 1, 2006 as the date for the public hearing; and WHEREAS, Council continued the public hearing for Open Space District No. 20 to August 22, 2006; and WHEREAS, the proposed assessment for Fiscal Year 2006/2007 is as follows: Open Space District No. 20 (Zones 1 - 9) 20 n/a n/a n/a N/a n/a n/a n/a n/a Zone 1 - Oesilting Basin $ 55.71 $ 57.74 $ 59.85 $ 34.00 $ 14.00 (20.00) ~59% ~ 12,349.12 Zone 2 - Rice Canyon $ 4.23 $ 4.38 $ 4.54 $ 4.38 $ 4.54 0.16 4% $ 17,975.59 Zone 3 - H Street $ 6.03 $ 6.25 Is 6.48 $ 6.00 $ 5.00 (1.00) -17% $ 30,712.51 Zone 4 - Business Center $ 22.43 $ 23.25 1$ 2410 $ 23.20 $ 24.00 0.80 3% $ 62,460.00 Zone 5 -SPA I $ 338.47 $ 350.82 1$ 363.66 $ 342.00 $ (95.00) I .28% $ 443,365.00 Zone 6 -SPA II $ 260,97 I~ 269.56 ~ 279.43 $ 180.00 1$ (37.00) I -21% $ 81,254.03 Zone 7 - SPA III $ 160,54 1$ 166.40 $ 172.49 $ 166.00 1$ 6.00 4% $ ~02,407.88 1$ - (26.50) I. Zone 8 - N Oesilting Basin $ 37.01 38.36 $ 39.76 ~ 37.50 L -71% $ 1,307.02 Zone 9 - Tel C n Channel $ 29.38 $ 30.45 $ 31.56 $ 30.00 $ 1.00 3% $ 1,626.26 District Total $853,457.41 {1} Assessment may be set at or below this amount without being subject to a vote and majority protest. 23-14 NOW, THEREFORE, BE IT RESOLVED as to all Open Space and Maintenance Districts herein referenced that the City Council of the City of Chula Vista does hereby find that written protests against the proposed assessment have not been made by owners representing more than one-half of the area of land to be assessed from the improvement; confirm the diagram and assessment contained in the Engineer's Report; and order the open space and maintenance facilities to be maintained. The adoption of this resolution constitutes the levy of assessments and collectibles as proposed in the Engineer's Report for the 2006/2007 fiscal year and sets forth hereinabove for Open Space District 20 Presented by Approved as to form by ~'{L~~ Ann Moore City Attorney Leah Browder Acting Director of Engineering 23-15 COUNCIL AGENDA STATEMENT Item "2 4- Meeting Date Julv 22. 2006 ITEM TITLE: REPORT ON THE EXECUTIVE SEARCH PROCESS FOR THE CITY MANAGER BY BOB MURRAY OF BOB MURRAY AND ASSOCIATES. REVIEWED BY: Director of Human Resources fVtL ,<(\ City Manager i (4/5ths Vote: Yes_ No-Xl SUBMITTED BY: The City has contracted with Bob Murray and Associates to conduct an Executive Search for the next City Manager. Mr. Murray will speak to the Council regarding issues and recommendations related to the executive search and seek Council input regarding those issues. Mr. Murray will report back to Council once he is prepared to recommend a group of finalists for the position. RECOMMENDATION: That Council provides direction to Mr. Murray BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: Bob Murray and Associates has been selected to conduct the executive search for the next City Manager Mr Bob Murray will be working with Council and staff to discuss qualifications, procedures and other issues related to the executive search. Mr. Murray is scheduled to meet with the Mayor and Council individually, and staff as time permits, at meetings throughout the day on Tuesday, August 22, 2006. The purpose of the individual meetings is to gather input for discussion at the Council meeting. Later that evening, in open session during the Council meeting, Mr. Murray will have an opportunity to summarize the input he received regarding the position and to hear any additional comments from the Council and potentially the public, as well as answer questions related to the executive search process. Mr Murray will report back to the Council once he is prepared to recommend a group of finalists for the position. FISCAL IMPACT: N/A ;{/f~1 Page 1, Item: Meeting Date: ;;c; 8/22/06 COUNCIL AGENDA STATEMENT ITEM TITLE: Selection of Applicants to be Interviewed for Appointment as Port Commissioner /'( SUBMITTED BY: Interim City Manager V' (4/Sths Vote: Yes _ No .x ) On August 8, 2006, the City Council approved the attached appointment process for selecting a new Port Commissioner. RECOMMENDATION: That Council. (I) Individually submit to the City Clerk in writing, when this item comes up on the August 22, 2006 Council agenda, the names of the candidates they wish to nominate for Port Commissioner. (2) Direct the City Clerk to announce the nominees and the names of Councilmembers who made the nomination. Each applicant receiving two or more votes will continue in the interview process. (3) Determine whether to hold a special Council meeting on August 29, 2006 at 6:00 p.m., or select an alternate date( s) to interview those applicants who received two or more votes. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: At its August 8, 2006 meeting, the City Council accepted Port Commissioner Bill Hall's resignation, and approved the attached appointment process for selecting a new Port Commissioner. The new Port Commissioner will serve for the balance of the current term, which expires on January 2, 2007, and will be eligible to apply for a full term at that time. The application period will be open for ten days, from August 9,2006 through 3 p.m. on Friday, August 18. Applicants have been asked to complete an application form, submit a resume, and complete a Form 700 (financial disclosure statement). The City Clerk will prepare a list of the applicants and compile their applications for the Council by 5 p.m. on Friday, August 18. Councilmembers will be asked to submit to the City Clerk in writing the names of the candidates they wish to nominate when this item comes up on the agenda at the August 22 Council meeting. DECISION MAKER CONFLICTS. Not Applicable FISCAL IMPACT: None. Attachment: Appointment Process for Port Commissioner 25-1 APPOINTMENT PROCESS FOR PORT COMMISSIONER 1 Council accepts Port Commissioner's resignation (8/8/06) 2. City Clerk accepts applications from residents of Chula Vista for 10 days, from 8/9/06 throuah 3pm on Fridav. 8/18/06, with staff publicizing the application process. 3 Applicants should fill out an application form (attached), submit a resume, and complete a version of the Port District's Form 700 (financial disclosure statement). 4 City Clerk to compile an alphabetical list of the applicants and their applications by 5pm on Friday, 8/18/06, and submit it to the Council. 5 At the Council meeting on Tuesday, 8/22/06, each Councilmember will submit to the City Clerk in writing the names of the candidates they wish to nominate. The City Clerk shall announce the nominees and the names of Councilmembers who made the nomination. Each applicant receiving two or more votes will continue in the process. 6 The Council will hold a special Council meeting on 8/29/06 or another date selected by Council on 8/22/06, to continue the interview process. Those applicants who received two or more votes will be further interviewed by the Council, and a review of potential conflicts of interest conducted. 7 The Council will then vote in public until a candidate receives at least three votes. Attachment 25-2 COUNCIL AGENDA STATEMENT Item olG Meeting Date 11/22/06 SUBMITTED BY: Report on requests by the Rolling Hills Ranch Community Association and residents to amend the Truck Route designations on Lane Avenue, Proctor Valley Road and Hunte Parkway Acting Director of Engineering -W Chief of Police Interim City Manager ~ (4/5ths Vote: Yes~o~ ITEM TITLE: REVIEWED BY: Due to new major roadways in the eastern part of the City, there was a need to update the City's truck routes per Chapter 10.64 (Truck Routes) of the Chula Vista Municipal Code. On March 21, 2006, Ordinance 3033 was introduced to the City Council for a first reading and on March 28, 2006 this Ordinance was adopted by the City Council, thereby amending Ordinance 2482 dated 1991 Tonight, Council will discuss the residents' concerns about Truck Route designations on Lane Avenue, Proctor Valley Road and Hunte Parkway RECOMMENDATION: Based upon agreements made with the community at a meeting on July 31,2006, that Council: 1) Maintain the designation of Lane Avenue, Proctor Valley Road and Hunte Parkway as Truck Routes; 2) Direct staff to proceed with a review of Truck Route signage along Lane Avenue; and, 3) Direct staff to proceed with implementation of trial traffic safety alternatives for Lane Avenue as agreed to with the community and to return with recommendations for Council's consideration after a minimum two-month trial period. BOARD/COMMISSIONS RECOMMENDATIONS: Not applicable. DISCUSSION: Ordinance 3033 (March 2006) added various major streets to the truck circulation plan for the city, including Proctor Valley Road (east of SR 125), Hunte Parkway (from Proctor Valley Road to Olympic Parkway) and Lane Avenue (between Proctor Valley Road and Otay Lakes Road). At the June 6, 2006 City Council Meeting, residents of properties abutting Lane Avenue asked the City Council to reconsider the decision to designate Lane A venue as a Truck Route. This request was later expanded by a letter from the Rolling Hills Ranch Association (June 19, 2006) to include Proctor Valley Road and Hunte Parkway (see Attachment 1). The concerns of the residents were further explored during a Community Meeting on July 31, 2006 at Thurgood Marshall Elementary School. While the viewpoints of the residents are understood and appreciated, should the Truck Route designation be removed from Proctor Valley Road, Hunte Parkway and/or Lane Avenue, truck traffic would be prohibited on these and all surrounding streets, 26-1 Page 2, Item ;Z G Meeting Date Oll/22/01i per Chula Vista Municipal Code Section 10.64.010. Furthermore, without designated Truck Routes in the northeastern portion of the city, trucks would be allowed to choose and travel upon whatever street provides the most direct route to and from their destination opening streets such as MacKenzie Creek Road and Rocking Horse Drive to truck traffic. Therefore, it is recommended that the Truck Route designations remain as adopted in March 2006 given the framework provided by the California Vehicle Code (CVC) and Chula Vista Municipal Code (discussed in detail below), but also that the temporary traffic controls agreed to with the residents be put into place along Lane Avenue. R~ckgrollnci California Vehicle Code (CVC), Section 35701 grants local agencies the authority (by ordinance) to establish "Truck Routes." Section 10.64.010 of the Chula Vista Municipal Code states, 'it is unlawful to operate a vehicle weighing in excess of 10,000 pounds except upon a truck route designated within the city limits. This section is effective when signs marked "truck route" have been installed along the designated truck routes, and the city engineer has installed signage at each vehicular point of entry into Chula Vista restricting vehicles in excess of 10,000 pounds to designated truck routes. The city engineer shall maintain within a register Schedule VII listing all streets or portions of streets that are designated "truck routes.'" Furthermore, Section 35703 of the CVC states, "No ordinance adopted pursuant to section 35701 shall prohibit any commercial vehicles coming from an unrestricted street having ingress and egress by direct route to and from a restricted street when necessary for the purpose of making pickups or deliveries of goods. " (see Attachment 2). The circulation plan for truck traffic (Truck Routes) in a city should be regularly reviewed and updated as required. With the adoption of the General Plan, including a traffic circulation plan (see Attachment 3), in December and significant changes to the Chula Vista street network since designated Truck Routes were last updated in 1991, a review of the city's Truck Routes was recently completed. The City has experienced many changes since 1991 including the opening of a large number of roadways east of the 1-805 Freeway The 1991 Truck Route designations essentially did not include the area south of Telegraph Canyon RoadlOtay Lakes Road or anything east of the SR 125 The updated citywide Truck Route designations were implemented with the adoption of Ordinance 3033 on March 28,2006 (see Attachment 4). In selecting roads for Truck Route designation, the City's Traffic Engineer considers the CVC, the Municipal Code, the General Plan, the General Plan (Traffic) Circulation Element, roadway design, connectivity needs/most direct routes, citywide consistency and accepted engineering practices. The Truck Routes designated with this latest action are all on major circulation roadways and avoid Page 3, Item ;JJv Meeting Date OR/22/n1i trucks, have wider lanes, less grades and larger centerline curves to better accommodate turns. Truck use on any City street is permitted, regardless of Truck Routes designations or truck prohibitions, if it is necessary to use such a street to deliver or pick-up merchandise or engage in any construction activities on private property, buildings, etc. Therefore, designated truck routes are intended to connect major City streets and do not automatically prohibit trucks from using any other City streets not designated as truck routes if those streets are necessary for egress and ingress by direct route to and from restricted streets for the purpose of loading or unloading. Within the Circulation Plan of the updated Chula Vista General Plan, Proctor Valley Road is identified as a six-lane Prime Road; Hunte Parkway as a four-lane Major Road and Lane Avenue as a Class I Collector. These major roadways were planned, designed and constructed to handle significant traffic, including trucks, and were designated as Truck Routes with this latest action in order to connect the northeastern part of the city to the road network for the transportation of goods to and from that part of the city All homes along these roads are buffered by adjacent open space lots with no residential driveways fronting the roadway and five-foot masonry walls along their backyard boundaries. Northbound Lane Avenue north of McKenzie Creek Road looking west Southbound Lane Avenue at Stone Canyon Road looking east Currently, trucks rated 10,000 pounds (five-tons) and above in gross vehicle weight use Proctor Valley Road, Hunte Parkway and Lane Avenue regularly to deliver goods to businesses, shops and residences located nearby. Restricting truck use on these roads would displace truck traffic from one roadway to another, perhaps onto streets such as MacKenzie Creek Road and Rocking Horse, which run adjacent to Thurgood Marshall Elementary and where homes and driveways front the roadways, and would be in conflict with the planned function of the roadway Communication from residents indicates the area of most concern is Lane Avenue; therefore, the information that follows provides additional detail specific to Lane Avenue. Lane Avenue varies in width from 64 feet to 74 feet. Street classifications for Lane Avenue have remained the same since the adoption of the General Plan in July of 1989, including the land use 26-3 Page 4, Item ;2& Meeting Date OIl/22/01i zoning in this area. The southern portion of Lane Avenue is located within the East Lake Business Center and is surrounded by light industrial and commercial businesses, while the northern half is within the Rolling Hills Ranch subdivision. South of MacKenzie Creek Road, Lane A venue is currently zoned as Business Center (BC), which includes commercial and light industrial uses per the 1998 General Plan and the General Plan update of December 2005. Fnv1rnnmP.l1t::ll r()n~iClf':TMi()n~ · On January 29,1985 the City Council approved the Eastlake I SPA and certified the project EIR. The Eastlake I SPA designated the land between Otay Lakes Road and MacKenzie Creek Road as Light Industrial. · On July 11, 1989 Resolution No. 15176 for the General Plan was adopted which classified Lane Avenue as a four-lane Class I Collector Street between Otay Lakes Road and Proctor Valley Road, which it rernains today · On March 24, 1992, the Salt Creek Ranch (now called Rolling Hills Ranch) SPA was approved and the project EIR was certified. The EIR for Salt Creek Ranch (Rolling Hills Ranch) (91-03) contained an analysis of all potentially significant impacts related to the project, including noise. For purposes of the noise analysis, the EIR assumed the following: - Lane A venue south of East "H" Street (Proctor V alley Road) would be classified as a Class I Collector roadway with a vehicle mix of 97% cars, 2% medium trucks and 1 % heavy trucks; - East "H" Street (Procter Valley Road) west of Hunte Parkway would be classified as a Prime Road with a vehicle mix of 94% cars, 4% medium trucks and 2% heavy trucks with a vehicle speed of 50 mph. The EIR identified areas where traffic-related noise impacts would occur. Mitigation measures were included to require noise walls in those areas. All noise walls identified in the EIR have been constructed. The mitigation measures stipulated that noise walls would be required on East "H" Street from the bOlmdary of the project to Lane Avenue and then down a short way along Lane Avenue. It should be noted that in fact noise walls were constructed by the Developer on Lane Avenue all of the way to MacKenzie Creek Road even though their construction was not identified as a required mitigation measure. As a result of concerns about the Truck Route designation raised by the residents, an updated analysis of potential noise impacts associated with the Truck Route designation was done using the following trucks to vehicle mix based on the actual counts done by the Engineering Department after the Truck Route designation was implemented (see more detailed information below in "Field Data" section). The actual count for Lane Avenue over a 12-hour period (6:00 a.m. to 6:00 p.m.) totaled 5,388 vehicles (1 74% medium trucks, 0.9% heavy trucks WIth the remainder, 97% cars). Actual present day counts were lower than the vehicle to truck mix anticipated in the Salt Creek Ranch (Rolling Hills Ranch) EIR. A significant amount of the heavy truck activity in the most 26-4 Page 5, Item )0 Meeting Date Oll/22101'i recent COWlt appeared to be construction related. To assess the noise effects caused by the trucks on the roadway, the noise contribution with the actual cOWlted trucks was compared to the noise levels that would occur without trucks. Given the volume of trucks/vehicles on the road currently the noise levels would be less than one decibel louder than a roadway with no trucks. If the truck volumes were double the current levels, the noise increase would be between one and two decibels. Changes ofless than three decibels are in general not noticeable in the outdoor environment, which is consistent with the City's threshold for determining if there is a significant noise impact. The City's General Plan noise standard is a CNEL. This is a 24-hour average that penalizes noise levels during evening and nighttime hours. The use of the CNEL is intended to accoWlt for the sensitivity of noise occurring during the evening and nighttime. Of course, noise levels vary As such, each individual truck occurrence may result in a noise level that could be perceived as an annoyance. Because the City standard is a 24-hour weighted average, individual occurrences are evened out and do not result in a significant impact in this case. T "ne A venne Fidel D"I" On Tuesday, July 11, 2006, City staff conducted traffic cOWltS and vehicle classification COWltS in order to determine the amoWlt of heavy trucks in the neighborhood. A total of 5,388 vehicles were classified for the 12- hour period from 6:00 a.m. to 6:00 p.m. using the Federal Highway Administration (FHW A) classifications shown below. Note that Class 3 vehicles are usually pick up trucks and sport utility vehicles and Class 4 vehicles (buses) are not excluded from truck routes. Class 5 vehicles can be rated at less than or more than five-tons. Heavy trucks are those identified with an (H) and are rated at over five-tons: Lane Avenue Vehicle Count & Tvnes Class Definition Volume Volume Total % Northbound Southbound I Motorcvcles 12 10 22 0.41 2 PassenQer Cars 1707 1542 3249 60.30 3 Sinole Unit Vehicle Two-Axle Four-Tire 961 1014 1975 36.66 4 Buses 2 4 6 0.11 5 SinQle-Unit Trucks Two-Axle Six-Tire 48 39 87 1.61 61R1 Sinole-Unit Truck Three Axle 19 14 33 0.61 71Hl SinQle-Unit Truck. Four or More Axle 6 I 7 0.13 81R1 Single-Trailer Truck Four or Fewer Axle 2 2 4 0.07 9 (H) SinQle- Trailer Truck Five Axle 2 0 2 0.04 10lHl Sinole-Trailer Truck Six or More Axle 0 2 2 0.04 11 lID Multi-Trailer Truck. Five or fewer Axle 0 0 0 0.00 121Hl Multi-Trailer Truck Six-Axle I 0 I 0.02 13 (H) Multi-Trailer Truck Seven or More Axle 0 0 0 0.0 Heavv Trucks IHl total 0.91 % oflolal TOTAL VEIDCLES 2760 2628 5388 100.00 26-5 Page 6, Item :2b Meeting Date Oll/22/Oli (Celifornie Vehide (Cone enn Fnfor~""'P.nt Since public roadways are subject to the regulations within the CVC, the City must always ensure that local regulations do not conflict with the CVC so that safety and enforceability can be accomplished. To that end, Sections 35700, 35701 and 35703 of the CVC authorize cities to prohibit the use of a street by any commercial vehicle or any vehicle exceeding a maximum gross weight limit, such as 10,000 pounds, with exceptions. The 10,000-pound restriction applies to all commercial vehicles with exceptions, including buses, govemmental fire service vehicles, public utility vehicles and trash trucks. Chula Vista's Municipal Code essentially makes it unlawful to operate a vehicle weighing in excess of 10,000 pounds except upon a truck route designated within the city limits. Therefore, should the truck route designation be removed from Proctor Valley Road, Hunte Parkway and/or Lane Avenue, truck traffic would be prohibited on these streets (and surrounding streets), per Chula Vista Municipal Code Section 10.64.010 leaving the northeastern portion of the city open to trucks choosing whatever street provides the most direct route to and from their destination. The CVC does allow the prohibition of any commercial vehicle exceeding a maximum gross weight of 14,000 pounds if, by accepted engineering standards, the bridge, defective roadway structure, street, road or highway cannot support such vehicle. There are no such conditions in this area of the city Residents expressed their viewpoint that Lane Avenue is residential in nature and therefore, trucks should be prohibited from using this street. The California Vehicle Code specifically defmes a residential street as one where homes have direct frontage onto a street. Since these major roadways of Hunte Parkway, Lane Avenue and Proctor Valley Road have landscaped common areas as separate parcels located between the homes and the major roadway and the rear of the homes abut the roadway, the definition is not met. Rf':~lc1p.nt~' ~:1fp.ty r()nc.?m" for T ;;:!np. AVp.nllf;~ Residents have also expressed concerns about pedestrian safety on Lane Avenue. On Monday, July 31 st, City staff from the Engineering, Planning & Building, and Police Departments met with a group of about 18 residents to discuss the Truck Route designations. At that meeting, residents further voiced their concerns and indicated a desire to pursue legal action. The community was noticed via hand posted meeting postcards placed on doors of almost 200 residences, email contact with two residents who had agreed to be communication linkages, posting on the Rolling Hills Ranch Community Association web page and an information item to City Council. The residents further emphasized their concerns regarding traffic safety and truck traffic noise in the Rolling Hills Ranch community in general and specifically on Lane A venue. The group was able to reach consensus for installation of potential roadway enhancements, given the Truck Route designation, which the City Council is asked to authorize for trial installation (see Attachment 5). These include: · All-Way Stop control with painted crosswalks at Lane Avenue and MacKenzie Creek Road. 26-6 Page 7, Item ~ (p Meeting Date OR/22/O/i . All-Way Stop control with painted crosswalks at Lane Avenue and Boswell Road. All-way stop control at Stone Canyon Road was also recommended by City staff, however this option was eliminated by attendees because of the vehicle noise concerns voiced by a family living on that particular comer. Residents have previously requested all-way stops and crosswalks on Lane Avenue at Stone Canyon Road and MacKenzie Creek Road. These possibilities were considered by the Safety Commission and were not approved since requirements were not met. However, the designation of this road as a Truck Route changes the condition and thus staff recommends that we proceed with trial installation of all-way stop controls as described above. The residents have agreed to a trial period of 60 days after which staff would return to the City Council with a recommendation for a [mal disposition pursuant to CYMC 10.12.030.D whereby the City Engineer may test traffic control devices under actual traffic conditions. A review of the accident rate on this roadway shows that the accident rate of 0.77 accidents per million vehicle miles is 76% below the statewide accident rate of 3 18 for similar roadways in California. The speed limit is posted at 35 MPH within the industrial zone and at 40 MPH within the subdivision. The difference in speed limits is due to the fact that the roadway is wider within the subdivision at 74- feet and the 85th percentile speed is at 41 MPH while the south end of the street is 64-feet in width with an 85th percentile speed of38 MPH. Speed limits are generally set at the closest five-mile per hour interval to the 85th percentile speed. rnndm:;:lon An efficient truck route network is one that has been established so that the need for trucks that exceed five-tons in weight to travel on residential streets will be reduced as much as possible. It is undesirable to have heavy trucks on MacKenzie Creek Road, River Rock Road, Rocking Horse Drive, Stone Canyon Road or any other residential collector road (40- feet wide) or minor residential roadway (36-feet or less) within this subdivision. Removing the Truck Route designations on Proctor Valley Road, Hunte Parkway and/or Lane Avenue would likely increase truck traffic on smaller local streets which homes and driveways front. Due to the proximity of the industrial park and the soon to open commercial complex at the comer of Proctor Valley Road and Mount Miguel Road, even without a Truck Route designation, Lane Avenue would likely continue to experience similar volumes of trucks legally traveling the most direct route to their destination. Should the truck route designation be removed from Proctor Valley Road, Hunte Parkway and/or Lane A venue, truck traffic would be prohibited on these streets (and surrounding streets), per Chula Vista Municipal Code Section 10.64010 leaving the northeastern portion of the city open to trucks choosing whatever street provides the most direct route to their destination. Eliminating the Truck Route designations would also hamper the Police Department's ability to cite heavy trucks deviating from major streets. Therefore, it is recommended that the Truck Route designations as adopted with Ordinance 3033 remain on the major streets identified within the Rolling Hills Ranch subdivision. 26-7 Page 8, Item 02~ Meeting Date OR/22101i However, it is further recommended that trial traffic control devices agreed to by the residents in attendance at the July 31, 2006 community meeting be installed for a trial period of at least 60 days to be evaluated at that time by the community After that point, staff will return to the City Council with any related recommendations. Additionally, residents voiced concerns about the noticing procedures associated with the March Agenda Item. Although the March items met all noticing requirements, staff will be investigating the implementation of broader notification procedures for future situations such as this. CONFLICT OF INTEREST: Staffhas reviewed the property holdings of the City Council and has found no such holdings within 500' ofthe property that is the subject of this action. FISCAL IMPACT: There is no fiscal impact to the General Fund with this project at this time. Attachments: I - Rolling Hills Ranch Letter 2 - California Vehicle Code (CVe) Sections 515, 35700, 35701, and 35703 3 - Circulation Plan East and West of2005 General Plan 4 - Approved Truck Route per Ordinance 3033 5 - Potential Roadway Enhancement locations (File No.. TF339/KY-158) J'\EngineerIAGENDA\CAS2006\08-22-06\TRUCKROUTE.doc 26-8 ATTACHMENT \ . Rolling-HillsRanch RECEIVED JUN 2 3 2006 June 19, 2006 The Honorable ~n C. Padilla Mayor, CityyrChula Vista 276 Fou;:tI1Avenue Ch~ista, CA 91910 RE: Truck Route through the Rolling Hills Ranch Community Dear Mayor Padilla: We are writing on behalf of the residents and homeowners of Rolling Hills Ranch. Rolling Hills Ranch is a Master Planned Community with about 1,650 homes, with several times that number of residents. It has five multi-million dollar Swim Clubs and extensive landscaping. Rolling Hills Ranch is also located in the vicinity of a Light Industrial Park and both north and south of Proctor Valley Road, east of the East H Street ingress and egress intersection of the new SR-125. While the residents of Rolling Hills Ranch knew that these conditions existed when they purchased their homes, the businesses located in the Light Industrial Park also knew that there was a residential neighborhood abutting this area. Until recently, the route for trucks over 5,000 pounds traveling east from 1- 805 was east on Otay Lakes Road, and then north on either EastLake Parkway or Lane Avenue, with the northern boundary street of Boswell Rd. However, with no prior notice to the homeowners of Rolling Hills Ranch, the 5,000 lb. weight limit signs on Lane Ave. north of Boswell as well as on Hunte Parkway and Proctor Valley Rd. east of SR-125 have been replaced with "Truck Route" signs. Upon investigation by some of the homeowners in the community, it was discovered that this change was made at the March 21, 2006 meeting of the City Council, at which an amendment to Chapter 10.64 of the Chula Vista Municipal Code was approved. This change now means that trucks in excess of 10,000 Ibs. will be able to operate on the streets within this entirely residential area. It also appears that this change enables heavy trucks, with no time constraints, to follow either Lane Ave., or Hunte Parkway to Proctor Valley Rd. in order to access the on or off ramps SR-125. Corporate Office 9665 Chesapem Drive. Suite 300 San Diego. CA 92123-1364 (858) 495-0900 . Fax (858) 495-0909 ,. 26-9 Regional Office 2300 Boswell Road. Suite 209 Chuia Vista, CA 91914-3534 (619) 656-3220 . Fax (619) 656-6617 The Rolling Hills Ranch Community Association Board of Directors and its homeowners respectfully request that this decision be revisited and reversed. There is still adequate access on Lane Ave. and EastLake Parkway for these heavy trucks to go to Otay Lakes Road and then to SR-125 without traveling through a residential neighborhood. The increased traffic, noise, and pollution at all hours of the day and night will be disruptive to the quiet enjoyment of the homes in Rolling Hills Ranch. From what we have seen, it does not appear these environmental impacts were properly considered prior to establishing the new truck routes. More importantly, there is a significant public safety issue. There are several schools in the area, as well as the new Montevalle Park. Requiring that children travel to and from school or to the park across streets where 10,000 Ib _ plus trucks are traveling is unquestionably unsafe. This matter is one that needs the immediate and decisive attention of you and the City Council. As mentioned above, the existing truck routes to the commercial areas are more than adequate, and avoid the Rolling Hills Ranch neighborhoods. The plan to run these same trucks through an entirely residential neighborhood is not acceptable to those living there. The Rolling Hills Ranch Community Association Board of Directors, the homeowners, and indeed the entire community, looks forward to the reversal of this change and the restoration of the 5,000 lb. weight limit in their neighborhood. David M. Stuc President Rolling Hills Ranch Community Assn. Cc: Rolling Hills Ranch Community Association Board of Directors Chula Vista City Council Chula Vista Engineering Department City of Chula Vista Planning Department City of Chula Vista Police Department Walters Management RHR Web Page 26-10 ATIACHMENT 2 Residence District 515. A "residence district" is that portion of a highway and the property contiguous thereto, other than a business district, (a) upon one side of which highway, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 13 or more separate dwelling houses or business structures, or (b) upon both sides of which highway, collectively, within a distance of a quarter of a mile, the contiguous property fronting thereon is occupied by 16 or more separate dwelling houses or business structures. A residence district may be longer than one-quarter of a mile if the above ratio of separate dwelling houses or business structures to the length of the highway exists. Article 4. Local Authorities Increases 35700. (a) The legislative body of any county or city may by ordinance permit the operation and moving of vehicles and loads upon highways under their respective jurisdictions of a maximum gross weight in excess of the maximum gross weight of vehicles and loads specified in this code. Decreases by Local Authorities 35701 (a) Any city, or county for a residence district, may, by ordinance, prohibit the use of a street by any commercial vehicle or by any vehicle exceeding a maximum gross weight limit, except with respect to any vehicle which is SUbject to Sections 1031 to 1036, inclusive, of the Public Utilities Code, and except with respect to vehicles used for the collection and transportation of garbage, rubbish, or refuse uSing traditionally used routes in San Diego County when the solid waste management plan prepared under Section 66780.1 of the Govemment Code is amended to designate each traditionC!lIy used route used for the purpose of transporting garbage, rubbish, or refuse which intersects with a local or regional arterial circulation route contained within a City or county's traffic circulation element and which provides access to a solid waste disposal site. (b) The ordinance shall not be effective until appropriate signs are erected indicating either the streets affected by the ordinance or the streets not affected, as the local authority determines will best serve to give notice of the ordinance. (c) No ordinance adopted pursuant to this section after November 10,1969, shall apply to any state highway which is included in the National System of Interstate and Defense Highways, except an ordinance which has been approved by a two-thirds vote of the California Transportation Commission. 26-11 (d) The solid waste management plan prepared under Section 66780.1 of the Government Code by San Diego County may designate the traditionally used routes. (e) "Traditionally used route," for purposes of this section, means any street used for a period of one year or more as access to or from a solid waste disposal site. Amended Ch. 616, Slats. 1987 Effective January 1, 1988. 35703. No ordinance adopted pursuant to Section 35701 shall prohibit any commercial vehicles coming from an unrestricted street having ingress and egress by direct route to and from a restricted street when necessary for the purpose of making pickups or deliveries of goods, wares, and merchandise from or to any building or structure located on the restricted street or for the purpose of delivering materials to be used in the actual and bona fide repair, alteration, remodeling, or construction of any building or structure upon the restricted street for which a building permit has previously been obtained. 26-12 ATTACHMENT .3 ~!~Chula f~ Vista ~Vision , 2020 Circulation Plan. East f"~-'-- i__ -, , I Bin 'Stioe/ ( , " I }J "; ,~ I .'-:.. .1 ....\ ;:l'.t~: .-".~~ Legend =F,~ =<::JExp",o.war \l or $ U.ne) :JIJD Hone Prime === .6 une Major = 4 une Major *** Cia... I Coneetcr ...... 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'--".", JI"~ ~\I .~> ,; .---- ..j!::.. -,,' '~I ,c~, .',.,;10 ""'.:;..: COUNCIL AGENDA STATEMENT Item 27 Meeting Date 08/22/06 SUBMITTED BY: Status Report on the Major Intersection Safety Program allowing the City Council to provide policy direction regarding the potential use of red light camera enforcement in the city Acting Director(oJ Engineering~ Chief ofPolic~ / Interim City Manager (/, (4/SthS Vote: Yes_ No..x) ITEM TITLE: REVIEWED BY: In 2005, the Neighborhood Traffic & Pedestrian Safety Program was created in order to focus on neighborhood traffic calming, major intersection safety and pedestrian and bicyclist safety The importance of this effort was underscored by the results of the 2005 Chula Vista Police Department Resident Opinion Survey, which indicated that four of the five top areas of concern for our residents were traffic related. This item provides a status update on program efforts in this area and provides the opportunity for the City Council to have a policy discussion regarding the potential use of red light camera enforcement in our city RECOMMENDATION: That Council accept the report and direct staff to proceed with further investigation of the potential to utilize red light camera enforcement in the city BOARDS/COMMISSIONS RECOMMENDATION: The (Traffic) Safety Commission has received presentations on the Neighborhood Traffic and Pedestrian Safety Program, as well as the Major Intersection Safety effort and provided many suggestions and indicated general support. The Public Safety Sub-Committee received a presentation regarding Major Intersection Safety at its June 28, 2006 meeting. The Sub-Committee provided additional ideas and suggestions and indicated general support. DISCUSSION: Beginning in Fiscal Year 2006, the Engineering Department began development of a formal Neighborhood Traffic and Pedestrian Safety Program (NT&PSP) with the intention of updating our City's approach to problem solving in three areas of focus: Neighborhood Traffic Calming, Major Intersection Safety, and Pedestrian and Bicyclist Safety The approach to problem solving incorporates the "Three E's"--Engineering, Enforcement and Education. 27-1 Page 2, Item_ Meeting Date 08/22/06 During calendar year 2004 (the most recent year for which data is available), Chula Vista had a total of 1,650 vehicle collisions! resulting in five fatalities; 67 involved pedestrians and 40 involved bicyclists. NT &PSP goals include: · Reduction of the number of collisions within intersections · Reduction of the number of accidents involving pedestrians and bicyclists · Improvement of pedestrian safety and vehicular circulation adjacent to schools The importance of this effort has been underscored by the results of the recent resident opinion survey done by the Chula Vista Police Department showing that top concerns for our residents include speeding vehicles, aggressive driving, vehicles running red lights and traffic accidents. This report focuses on the Major Intersection Safety component of the work completed to date and is intended to provide an update on current status, next steps and to respond to a Council Referral (April 11, 2006) regarding red light cameras. Although the tendency is to want to begin this effort with a discussion of red light cameras, it is critically important to fully analyze each intersection for potential engineering and/or enforcement enhancements with red light cameras being considered only as one of the enforcement tools available for consideration, if authorized by Council. MAJOR INTERSECTION SAFETY Background According to the Office of Traffic Safety, Federal Highway Administration (FHWA), more than 2.8 million intersection-related crashes occurred in the year 2000, representing 44 percent of all reported crashes. Approximately 8,500 fatalities (23% of the total fatalities) and almost 1 million injury crashes (more than 48% of all injury crashes) occurred at or within an intersection environment. Intersection safety is one of the emphasis areas in the American Association of State Highway and Transportation Officials Strategic Safety Plan, as well as the Safety Action Plan developed by the Institute of Transportation Engineers. Driving near and within intersections is one of the most complex conditions drivers encounter The crossing and turning maneuvers that occur at intersections create numerous opportunities for vehicle-vehicle, vehicle-pedestrian, and vehicle-bicycle conflicts, explaining the high concentration of traffic crashes, injuries and deaths occurring at intersections. I Due to a change in our approach to data collection to support the new program, this number includes 183 incidents that would not have required a report in the past. 27-2 Page 3, Item_ Meeting Date 08/22/06 Evaluation Approach Although Chula Vista's approximately 250 signalized intersections meet all engineering standards and requirements, this program began with the intention of reviewing the City's top 20 intersections given the latest in state-of-the-art research and tools for enhancement of intersection safety. Intersections were selected for further evaluation after consideration of traffic volumes, total collisions, accident rates, frequency of injury and, given program goals, collisions involving pedestrians, bicyclists and fatalities. The data review encompassed a three- year time period (October 2002 through September 2005) to allow like comparison to statewide accident rates, which are calculated in this manner. Also taken into consideration was community input (further discussed in the "Red Light Running" section below). Due to tie numbers in the scoring and the desire to include intersections that had experienced fatalities during the last three years, the final study list included 31 intersections (see Attachment 1). Intersection site visits are being conducted and enhancement recommendations will be developed based on the following objectives: . Reduce frequency and severity of intersection conflicts through traffic control and operational improvements including ensuring appropriate number of signal heads; high visibility of signal heads; appropriate all-red and yellow intervals; potential use of advance warning signs and advance yellow flashing lights; setting of appropriate approach speed; optimal traffic signal coordination; modifying signal phasing; providing pavement markings; and revising and/or restricting turn movements. . Maximize sight distance at signalized intersections by ensuring clear sight lines in each quadrant of an intersection. . Improve driver awareness of intersections and signal control by optimized signing, delineation, lighting and, potentially, pavement textures. . Improve driver compliance with traffic control devices through public education and enforcement to reduce traffic law violations. Automated enforcement (red light cameras) of traffic signals is an increasingly common approach to improving driver compliance with safety traffic laws. At certain intersection approaches, implementing speed-reduction measures may provide an approaching driver with additional time to make safer intersection-related decisions. For reasons outlined in the "Red Light Running" section below, the engineering evaluation also specifically includes a review of all factors identified as important to reducing red light running as provided by the FHWA, the National Highway Traffic Safety Administration and the Institute of Transportation Engineers. These evaluation areas are included as a result of a FHW A study that showed the following causes for red light running reported in a review of 139 crashes where traffic- signal violation was established as a contributing factor 27-3 Page 4, Item_ Meeting Date 08/22/06 )0> 40% did not see the signal, )0> 25% tried to beat the yellow light; )0> 12% thought they had a green light; )0> 8% intentionally violated the signal, )0> 6% were unable to bring their vehicle to a stop )0> 4% followed another vehicle into the intersection and did not look at the signal indication; )0> 3% were confused by another signal at the intersection; )0> 2% were varied in their cause. Our evaluation and development of recommendations for the 31 Chula Vista intersections also includes a review of collision reports to learn more about accident victims and witness perspectives regarding factors contributing to accidents. Red Light Running A comprehensive literature review and best-in-class survey conducted during program development led to special attention on what is considered to be the primary cause of crashes at signalized intersections-red light running. The FHWA's 2002 figures indicate a national incidence of 218,000 red light running crashes resulting in 181,000 injuries, 880 fatalities and an economic loss of $14 billion. The FHW A states that red light running is on the rise with other aggressive driving behaviors, which is of particular interest to us given the resident survey data2 ranking aggressive driving as the second top resident concern behind speeding vehicles. In order to further our understanding of resident concerns in this area, an additional survey was distributed in both English and Spanish via email to over 500 residents. A 22% response rate was achieved with the following results: · 86% are concerned about red light running · 51 % witness red light running several times a week · 82 intersections were identified as areas of concern . 30 ofthose intersections were mentioned by more than one respondent Enforcement Each intersection evaluation also includes consideration of enforcement as an intervention where engineering enhancements are not warranted or until engineering measures can be installed. Enforcement activities used to treat safety problems can be categorized as one of two types: officer and camera. 22005 ChuIa Vista Police Department Resident Opinion Survey conducted by SANDAG 27-4 Page 5, Item_ Meeting Date 08/22/06 Officer Enforcement: This enforcement method is frequently requested and is generally regarded as successful in reducing violations but is labor-intensive. Officer enforcement is typically done by a single officer taking an inconspicuous position at an intersection where the signal can clearly be seen. After observing a violation it is necessary to follow the violator through the intersection in order to stop and cite the driver. A safer alternative requiring a higher staff commitment, involves the use of separate observer and pursuit officers. The first officer witnesses the violation and then radios the information to the second officer who is commonly located downstream of the signal and will stop the driver and issue the citation. Enforcement lights are an alternative to team enforcement. An enforcement light is attached to the signal head and is wired directly to the corresponding red light. These lights are illuminated while the traffic signal indication is red. They allow a single officer stationed downstream of the signal to observe vehicles entering the intersection and note whether the signal indication is red. Enforcement lights eliminate the need for team enforcement and, therefore, have a lower operating cost. More importantly, they increase the safety of single officer enforcement. Our intersection evaluations include consideration ofthis tool as an enforcement option. Research done by the Texas Transportation Institute in cooperation with the FHW A and Texas Department of Transportation indicates that officer enforcement strategies vary in effectiveness depending on whether the approach is overt (officer and vehicle visible) or covert. Visible officers are likely to have a more significant impact on violation frequency than hidden officers. However, the effectiveness of the enforcement diminishes rapidly once the officer leaves the intersection with violation rates returning to pre-enforcement levels within a day or so after. The more successful officer enforcement efforts are likely those that are implemented on an area-wide basis with innovative enforcement strategies (e.g., visible officer presence and random location selection) and include a public awareness campaign. Since Chula Vista has over 250 signalized intersections each with multiple approaches, sworn officers can monitor compliance at only a few intersections for only a few hours at a time. In light of the data discussed above and best practices in place in other cities (both in the United States and in the United Kingdom), new strategies are being developed for testing in our City These include the implementation of a more systematic approach to officer enforcement at the 31 priority intersections using high visibility tactics and advance warning strategies. Camera Enforcement: Red light cameras have been deployed with the greatest success where they have been implemented as one element of an overall traffic safety management program. Red light cameras should not be viewed as the sole solution to red light running. There is no one remedy for the traffic safety enhancements or the 27-5 Page 6, Item_ Meeting Date 08/22/06 reduction in collisions at signalized intersections but rather a toolbox of measures all of which have a role to play The most comprehensive study to date regarding the impact of red light cameras on serious crashes (U.S. Department of Transportation, 2005) included seven jurisdictions and 132 intersections using red light cameras. Findings included the following: · 25% decrease oftotal right-angle crashes · 16% decrease of injury right-angle crashes · 15% increase of rear-end crashes · 24% increase of injury rear-end crashes It is important to note that right-angle crashes are more likely to result in more significant injuries than rear-end collisions. The Federal Highway Administration supports the trade off in accident types noting that the severity of rear-end crashes and type of injuries typically sustained in rear-end crashes are usually much less than damages experienced in right-angle crashes. Cities using red light cameras have also begun to report reductions to collisions citywide along with reductions just at enforced intersections suggesting a potential "halo effect" of positive benefit. While cities using red light cameras are required to post "Photo Enforcement" signs at red light camera intersections, they are also permitted to post the signs at entrance points to the city, as well as at unenforced intersections. Ventura, California indicates a 29% collision reduction citywide and an 80% reduction at enforced intersections. Data from Escondido, California shows a 40% collision reduction citywide and a 40% reduction at enforced intersections. The emailed resident survey discussed above also included questions regarding the potential implementation of red light cameras in Chula Vista. Responses indicate the following: · 65% support implementation of red light cameras · That number increases to 72% when respondents leam about the potential reduction in right-angle crashes · 15% needed more information before making a decision · 13% opposed the use ofred light cameras Red Light Camera Installation in Chula Vista As noted above, 31 major intersections are undergoing evaluation (see Attachment 1). It is anticipated that approximately ten to fifteen intersections will be identified for further evaluation for potential red light camera installation. Of those ten to fifteen, should Council support continuing with red light camera evaluation, it is anticipated that five to ten locations will be recommended for installation of cameras in Phase One of a red light camera program. 27-6 Page 7, Item_ Meeting Date 08/22/06 Should Council direct proceeding with evaluation of red light camera enforcement; a Request for Proposals (RFP) will be issued before the end of the calendar year. The RFP will model the most successful and comprehensive points incorporated in other jurisdictions and ensure that all issues raised by the State Auditor's evaluation (discussed in more detail below) are addressed. Of significant importance is the requirement for the vendor to set up test cameras at the potential Phase One locations to collect actual data regarding traffic safety and vehicle violations before a final determination for red light camera installation is made. Recommendations for installation of actual cameras would be brought back to Council in coordination with the FY 2008 and 2009 budget process. Future recommendations for additional red light cameras, if any, would consider the results of the first phase. Red Light Camera Considerations In order to better protect public agencies from litigation, significant legislative changes were put into place in 2002. These included. . Program must be managed by the public agency (not by a vendor) . Vendors paid based on a fixed monthly fee (not per ticket) . Increased technical requirements for Red Light Camera and traffic signal operation In spite of those changes and requirements as identified in the California Vehicle Code, significant due diligence is required to ensure implementation of a comprehensive and fair program. Areas requiring special attention are summarized below Operational Weaknesses: In 2002, the California State Auditor issued an audit report concerning the implementation, application and efficacy of red light camera programs statewide done at the request of the Joint Legislative Audit Committee. The report concluded that red light cameras have contributed to a reduction of accidents (3% to 21 % in six of the seven study cities); however, significant operational weaknesses were identified in the programs studied. The report recommended that local governments take several actions to ensure that they comply with state law for using red light cameras, maintain control over their programs, and minimize the risk for legal challenges. Recommended actions included conducting more rigorous oversight of vendors, establishing shorter periods for destroying certain confidential information, developing added controls to ensure that vendors only mail authorized and approved citations, and periodically inspecting red light camera intersections. Before installing red light cameras, local governments were encouraged to consider whether engineering measures would improve traffic safety and be more effective in addressing red light violations. Finally, to avoid overlooking dangerous intersections that are state owned, local governments should diligently pursue the required state approvals through Caltrans, despite any resulting delays to installing their cameras. 27-7 Page 8, Item_ Meeting Date 08/22/06 All information regarding rigorous program administration is being thoroughly reviewed by staff to develop policies, procedures and business rules for management of a potential red light camera program. Legal Considerations: There are significant legal requirements that must be met with implementation of red light cameras and the issuance of citations for violations. There are also legal considerations in light of previous legal challenges. This dimension includes questions such as whether photographs can be used for purposes other than to prosecute red light violations (e.g., c<Ujacking with a homicide, hit-and-run accident, armed robbery, etc.) These areas are also being thoroughly reviewed by the City Attorney's Office and staff to ensure compliance and comprehensive inclusion in policies, procedures and business rules. Court System. There have been varied reports regarding the success of red light camera programs in relation to the court systems within different jurisdictions. The next phase of staff work includes continuing our dialogue with the EI Cajon Police Department and the East County Court to understand their success to date and inviting our South Bay Court into the process to do all that we can to ensure success with this aspect of the program. Revenue and Cost Considerations: The State Auditor's Report was based on a review of seven cities and supported survey data we gathered from 16 cities indicating that most programs were breaking even at best with some having to budget funds for program support. A preliminary review of best practices and program audits indicates that additional staffing and funds may be required to meet the engineering and police requirements, as well as construction inspection and legal support. Should the Council direct proceeding with implementation of a red light camera program; a full program recommendation addressing this issue will be brought forward with the FY 2008 and 2009 budget. Public Outreach and Education A more comprehensive public outreach and education campaign is being launched in conjunction with this action. Public education campaigns trying to address driver behavior face special challenges. Surveys from across the nation show high percentages of drivers having significant concerns in common areas (e.g., red light running, speeding, driver inattention/cell phone use, eating while driving, etc.); and high percentages indicate a desire for stiff penalties to curb these behaviors, but high percentages also indicate that they themselves regularly engage in those troubling behaviors. The outreach plan includes development and distribution of a public information brochure (see Attachment 2); awareness banners posted at major city gateways and close to shopping malls (see Attachment 3); collaboration with local schools to distribute information and display marquee messages; launching of an updated web page; coverage in the City's Spotlight publication, Communique and E-Brief; and enforcement sweeps incorporating the advance warning and high visibility tactics mentioned above; and press 27-8 Page 9, Item _ Meeting Date 08/22/06 releases. The campaign also includes new traffic safety messages to be released quarterly during the upcoming year again utilizing the communication vehicles mentioned above. FISCAL IMP ACT: To date, staff work has been absorbed within existing budgeted funds with public outreach materials funded through the NT &PSP Capital Improvement Project. However, it is anticipated that eventual program implementation recommendations will identify the need for additional staffing, staff time reimbursement and educational outreach funds. Amounts will be dependent on the [mal recommendations related to the NT &PSP Staff anticipates that these recommendations will be done in conjunction with the FY 2008 and 2009 budget process. Attachments: Attachment I - 3 I Major Intersections Attachment 2 - Stop on Red Public Education Brochure Attachment 3 - Stop on Red Barmer J :\EngineeMGENDA\CAS2006\08-22-06\StopOnRed.doc 27-9 ATTACHMENT 1 Major Intersection Safety 31 Evaluation Intersections Intersection 1 H Street and Otav Lakes Road 2 E Street and Broadway 3 H Street and Third Ave 4 Paseo Ranchero and H Street 5 Telegraph Canyon Rd and Otav Lakes Rd 6 J Street and Broadwav 7Wildaur St and Medical Center Dr 8 Palomar Street and Broadwav 9 H Street and Broadway 10 Third Ave and L Street 11 Third Ave and Orange 12 I Street and Fourth Ave 13 H Street and Fifth Ave 14 Otav Lakes Rd and Gotham Street 15 Palomar Street and Industrial Blvd 16 I Street and Broadwav 17 H Street and Paseo Del Rey 18 Fourth Ave and E Street 19 Telegraph Canvon Rd and Paseo Ranchero 20 Moss Street and Broadway 2! Oxford Street and Broadwav 22 H Street and Del Rev Blvd 23 Naples Street and Broadway 24 L Street and Broadwav 25 Olympic Pwv and La Media Rd 26 Otay Lakes Rd and Eastlake pwy 27 H and Hidden Vista Drive 28 H Steet and Tierra De! Rev 29 Bonita Road and Bonita Glen Drive 30 Main Street and Melrose Avenue 31 H Street and Hilltop 27-10 BE SAFE 1. Keep an eye out for traffic signals. Forty percen nning crashes happen becau e traffic signals. ht. crashes happen ugh the yellow 3. But it if yo , PROTEJASE 1. Est. alerta alas sefiales de trafico. EI 40 por cienlo de los choqu el semafora en luz raja se debe no yen las sefiales de trafi 2. en luz amarilla. or pasarse el 105 conductores I?' del semafQro 3. , pero $J. elno \C) t- :z w ~ :t: (.) ~ <( 27-15 COUNCIL AGENDA STATEMENT Item 2.8 Meeting Date 8/22/06 ITEM TITLE: Resolution Approving the Park Master Plan for the 7.6 acre public neighborhood park site in the Otay Ranch Village 7 subdivision and approving the name of the park to be All Seasons Park Director of General Services ~ ~~ Director of Public Works Operation Director of Recreation CitYManagerf (4/SthsVote: Yes_No.K...) SUBMITTED BY: REVIEWED BY: The proposed park is located south of Birch Road, west of SR-125, east of La Media Road and within the Otay Ranch Village Seven Subdivision. The park site shares boundaries with an elementary school site, Wolf Canyon Open Space, Magdalena Avenue and Wolf Canyon Loop. The Village Greenway Trail, running along the northern boundary of the park site, links the park to the future Eastern Urban Center to the east and the future Otay Ranch Community Park to the west as well as the City's Greenbelt Trail system. RECOMMENDATION: That Council approve resolution. BOARDS/COMMISSION: The Parks & Recreation Commission approved the master plan for the Village 7 Neighborhood Park at their meeting of July 20, 2006 and also made the recommendation to Council that the name of the park be "All Seasons Park." DISCUSSION: Park Development In October 2004, City Council approved the Sectional Planning Area (SPA) for Village Seven in Otay Ranch. The Village Seven master planned subdivision consisted of a predominantly residential environment with 1,204 dwelling units, including: two Community Purpose Facility sites (CPF), two school sites, a commercial site and a 7.6-acre neighborhood park. The park acreage obligation is determined by the number and type of approved dwelling units, in accordance with Chapter 17 10 Parklands and Public Facilities of the City of Chula Vista Municipal Code. The SPA Plan Village Park and Recreation Program indicates that, to the extent practical, parks shall be located near school sites to increase the potential for shared use of facilities. In addition to the typical park features such as lawns, picnic shelters, picnic tables and park walkways, the SPA Plan also identified the park site as potentially including the following: restrooms, a tennis court, a multi-purpose field, two basketball courts, two childrens' play areas, a skateboard practice area and parking. 28-1 Item Meeting Date 8/22/06 The park site, as irrevocably offered for dedication, complies with the criteria for selecting and accepting parkland for use as a neighborhood park as listed in the City of Chula Vista Parks & Recreation Master Plan (November 12, 2002). The program was then further refined with technical input from City staff, including members from the departments of General Services, Recreation, and Public Works Operations, Planning, Fire, and Police. Staff took into account physical site characteristics, as well as cost projections for the improvements in developing the master plan. Design Philosophv This neighborhood park is in close proximity to the future Otay Ranch Community Park site, a distance of approximately % mile along the Village Greenway Given the proposed active, athletic characteristic of the future Otay Ranch Community Park, staff has made a conscious decision to design a neighborhood park for local use that is somewhat more passive in nature. Organized league and athletic activities are not intended to be programmed at this park. Certain landscape themes will be apparent in the construction detailing such as the use of mostly, if not all, deciduous tree species so that the appearance of the park will dramatically change throughout the year with each season. Tree species selected will be those that provide vibrant fall color, display interesting branching structures during the winter, a profusion of flower blossoms in the spring and a canopy of shade during the summer months. There will also be an emphasis on recycling; using reclaimed material where possible for construction. The park will also include a demonstration composting area where on-site green waste can be composted and reintroduced as fertilizer and mulch for park plantings. The intention is to create the seasonal aspects and the demonstration compost garden as educational resources for park users. Since the park site is adjacent to the Wolf Canyon open space in the core of the village, the design seeks to complement this open space giving the combined appearance of a green corridor through the center of the village. In addition to the east/west Village Greenway, there will be trail links to the residential neighborhoods north of Wolf Canyon from the park as well as a link to the elementary school south of the park. The point where all the trails intersect is the proposed location for a 'Heritage Tree'. A single tree that is a focal point and eventually grows into a large specimen and becomes a local landmark. Park Activities Program The proposed Park Master Plan for the 7.6-acre site includes the following program elements: . Basketball Court (1) - Lighted, standard size court (differs from the potential program identified in the SPA). 28-2 Item Meeting Date 8/22/06 . Children's Play Areas (2) - The play areas will have equipment suitable for children of varying age groups. One area will be designed for the youngest age group of children, ages 2-5 and the second play area will target children ages 5 to 12. The equipment selected will include items that suggest a 'rustic' environment including things like climbing boulders and climbing nets. · Circulation - The park site will include a paved pathway looping the entire park site to accommodate pedestrian and joggers. The walkways will tie into the Village Greenway trail on the north side of the park making the park accessible to the rest of the City trail network. Security lighting will be provided along park walks. . Restroom - Centrally located and within easy reach of the tot lot and picnic structures. . Topography - The park comprises two level pads connected by a gently sloping 5'1 grass area which will provide an informal view area without impeding accessibility . Low-maintenance/Drought Tolerant Landscape Design - Where possible, low- maintenance and low water use plantings will be specified. Some of these areas will reflect the planting palette of the adjacent Wolf Canyon open space and emphasize California native plants. A separate demonstration garden, adjacent to the compo sting area, will also be created to provide landscape ideas for homeowners. This demonstration garden may also include raised planters enabling wheelchair users to better experience the garden. . One (1) Field - One multi-purpose field is proposed (150 feet by 300 feet), located on the upper mesa. (The dimensions correspond to those of a minimum sized FIF A standard soccer field.) . Provisions for a Possible Future Skate Area - An area will be set aside for the potential addition of a small skate area. . Parking - 28 on-site spaces including parking for the disabled. On-site parking is to be gated to restrict vehicle access after 10:00 p.m. . Picnic Areas Group-Use (2) - Two (2) shelters/shade structures with varying quantities of tables will be located in the park. The picnic shelters are within easy access from parking areas to facilitate loading and unloading. . Picnic Facilities Individual-Use - Individual areas with picnic tables located throughout the park. The precise number of these has yet to be determined. . Benches - Benches will be located throughout the park to encourage users to stop, relax and enjoy the change in seasons. . Storage - Park operations storage will be provided in the restroom building. The proposed park plan is compliant with the Americans with Disability Act (ADA). Lighting The walkways and parking lot will be provided with security lighting for public safety The basketball court will also be lighted to a level of 3D-foot candles. Ambient light levels at the park boundary are to be at or below 0.5-foot candles. Fire and Police Fire and Police staff have reviewed the plan, and provided input to insure that issues regarding public health and safety have been addressed. 28-3 Item Meeting Date 8/22/06 Park Name The name recommended by the Parks and Recreation Commission is: All Seasons Park - To reflect the park's theme of creating a unique place in the city, where citizens can experience seasonal changes throughout the year through the planting of deciduous trees throughout the park. Environmental Status The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposed project was adequately covered in the previously adopted Village Seven Sectional Planning Area Plan and Tentative Maps Final Environmental Impact Report (EIR #04-06). Thus, no further environmental review or documentation is necessary Decision Maker Conflicts Staff has reviewed the property holdings of the City Council and has found no such holdings within 500 feet of the property which is the subject of this action. FISCAL IMPACT: The Park cost of $2,450,000.00 is to be funded by the City's Parkland Acquisition and Development Ordinance. Both developers are contributing to park development in relationship to the number of dwelling units for their respective portions of the subdivision project. McMillin Land Development is providing the land and park development dollars for the neighborhood park as part of their park obligation. The Otay Ranch Company will be providing land and park development dollars towards the Otay Ranch Community Park in satisfaction of their park obligations. Staff has performed a preliminary estimate of probable cost for park construction and the initial establishment/maintenanc.e period. This estimate will be further refined as the Park Master Plan evolves into construction drawings, and as actual park construction commences. However, staff is of the opinion that the estimate is an adequate representation of anticipated costs for the improvements proposed. Implementation of the park construction will be through a General Services design build contract. After the park is accepted for use by the City, future park maintenance costs for the public park will be paid through the City's General Fund and is estimated at $81,320 per year. Attachments: 1. Park Master Plan M:\General Services\GS Administration\Council Agenda\All Seasons Park\V7 Neigh Park Council Agenda Statement.doc 28-4 '" '7 ':. 1. ~l ~~ "ll~ ! . "ll' ~~ ,~ o i ':;.."ii' cetl.~ ~ i 2 -. 0 ~ -~ ,:H ~U ~:3"~ '- <IJ '1:l ] .... o ;g~ .~......... Z~ ~:~i 3 " 'E~ ~U ~_>.---------------------------------~~--- ~.~ .....cJl ~~ S g ~~ ~cJl ll:;;' <~ j~ 5 ill ~" o. .! j ~ ~ t ~ ._ 0 -- ~ ~ P.. "f ~ ~ :": !>O ..8" Q c: tiS;" -13 jijrj';~ <C u _ ~!II U c: g I:: '\i~ IR~ .g ,a ~.~.5 r~.5~ ~ o:S ::l g,,~.!l.9 6~ ~.......3: ~~.J'!. 81J i · ]c"~:;~ c! -a~.B tlll t U .5 e-!:l SJ >.~ = "2 Ii ~ ii r.--a <;; <( c: .O!.,..o~~ .~ 1i"~ 82 <II.~ l:i ill '::l'; i{.2 E 5~il ~"2 6ll~.a It ~ ~ t e ::I 01 "!.J! c.. u r: g OJ !!I ' .. .5.a,:" ~ i! ~ ..0,", 9 E ,a> i5..~ Q.I:l::l ....!!...=.<::.!l'" ~.@] ~:E.5.5 gV it 8 ~):~ .:; ~ _f:l.].fi~ jj I c..~ld ~1l ;:: 'a .. ~ li'~ .. o .~ ~.!! =ll -a !:! U~ ~U'2 1'2 CJ ..e g B:g:t:~] ta ~~.:!!.!l='Bb~ ~ U ..>l:t: a..... "'0" ;..>ol<Jlllll1!: a ~ .:;- h~ ~ >oJ ~~e]] 8'~ 0..... u,.i:l !t , . s 5 !!lB 'l:lllll cS ~:E ~J:.~... 8 i .!.l,rS oS ~8J;j~~o i:!u ~;S..e ~ o..!! :t:' 8 QC" " E8~ I.!u" \ ~ .!!A-a ""'8 \ ll.~; ~~ " - .~~ :t.~ '~: ~ , . . !.. ~ , ... f~ I\; ,,~ t! > fQ '1:l o o 11 ! .~ OJ Z .,~ n ~ 1 ~ . ~ i ~ t: ~ ~[\j~ o..:::a ~~ <.;;. Q ~ Q ~-E: t:.8 ~.c:: '-'l'~ c:~ ~ I ~~ V) (JJ ::::::c:l) ",!s! s -S ~ c::: ~ ~ o ! < - ~ j a: "i:! r]' ~ ~ ~" ~<=' 3 ~1j. ~~ ~ J.~ ~ ~ ~1I~i ~~~ RESOLUTION NO RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE PARK MASTER PLAN FOR THE 7.6 ACRE PUBLIC NEIGHBORHOOD PARK SITE IN THE OTA Y RANCH VILLAGE 7 SUBDIVISION AND APPROVING THE NAME OF THE PARK TO BE ALL SEASONS PARK WHEREAS, in October 2004, City Council approved the Sectional Planning Area (SPA) for Village Seven in Otay Ranch. The Village Seven master planned subdivision consisted of a predominantly residential environment with 1,204 dwelling units, including: two Community Purpose Facility sites (CPF), two school sites, a commercial site and a 7.6-acre neighborhood park. The park acreage obligation is determined by the number and type of approved dwelling units, in accordance with Chapter 17 10 Parklands and Public Facilities of the City of Chula Vista Municipal Code; and WHEREAS, the park site, as irrevocably offered for dedication, complies with the criteria for selecting and accepting parkland for use as a neighborhood park as listed in the City of Chula Vista Parks & Recreation Master Plan (November 12,2002); and WHEREAS, the program was then further refmed with technical input from City staff, including members from the departments of General Services, Recreation, and Public Works Operations, Planning, Fire, and Police. WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposed project was adequately covered in the previously adopted Village Seven Sectional Planning Area Plan and Tentative Maps Final Environmental Impact Report (EIR #04-06). Thus, no further environmental review or documentation is necessary; and. WHEREAS, the name recommended by the Parks and Recreation Commission is "All Seasons Park" to reflect the park's theme of creating a unique place in the city, where citizens can experience seasonal changes throughout the year through the planting of deciduous trees throughout the park. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Park Master Plan for the 7.6 acre public neighborhood park site in the Otay Ranch Village 7 Subdivision and the recommendation of the Parks and Recreation Commission for the name of the park "All Seasons Park" Presented by Approved as to form by ~ ;V~,,)/uLJ oore . Attorney Jack Griffin Director of General Services 28-6 ~~~ -.- .......,;:""...".,.~.....: ~~~~ Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO CllY OF CHUlA VISTA Wednesday, August 16, 2006 RE: Safety Commission Appointments TO: Lorraine Bennett, City Clerk FROM: Zaneta Salde Encarnacion, Constituent Services Manager _ The Mayor would like to recommend Mr. John Liken to fill the vacancy on the Safety Commission left by Robert White. Please place on the next council agenda for ratification. If you should have any questions, please contact me at x5812. Cc: Tom Oriola, Chief of Staff ~l'-1 ~ c/ /Cc-w Joe4 Iw-r hc;r:Wi?- I UK- ~~..( ~ 0s~' ~ --r- C --p-n (ftvt ~h ~//7 J11r. ~k',ee.1 ;:J~(/)~'ty. ~~cJ/ ~ ~ .$"a,/eJy ~/.rSI€JVl ~ /9?4~r ~d. ~;!. ~\ll Of-. f00 t::..,\.~I) ~ €l04-- 30-1 . . . ~\f? -.- "--- ---- ~=----:: Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 61 9.476.5379 Fax C1lY OF CHUlA VISTA MEMO TO' Lorraine Bennett, City Clerk Zaneta Salde Encarnacion, Constituent Services Manager ./ /fA /'/ g~?'L/ FROM: RE. Mobilehome Rent Review Commission VVednesday,August16,2006 The current vacancy on the MHRRC, left by Mr Jerrold Siegel, must be filled by recommendation fmm Council Seat #3, Councilmember Jerry Rindone. Councilmember Rindone would like to recommend Mr Brett Davies to fill this vacancy Please place on the next council agenda for ratification. If you should have any questions, please contact me at x5812. Cc: Jerry Rindone, Councilmember Tom Oriola, Chief of Staff , ~. 1::t:LVI ~ I S tufr.e~/y $t.rYI ~ /t- J-. &/1'\~1-- ~S{)l.VI..e.e LOi'\ser-~.""'7I -e.~f'/US ~!30/0'7) J;(i Oh~ {lUr...... Ole... e-.>- 3/A--1 0" " ojJ'...p\~-, OFFICE OF THE CITY COUNCIL August 10, 2006 The Honorable Mayor and Council The City of Chula Vista · 276 Fourth Avenue Chula Vista, CA 91910 Dear Honorable Mayor and Council, This letter is to recommend that the Council take immediate action to eliminate the position of Intergovernmental Affairs Coordinator from the Department of Mayor and Council. This position was created by ordinance in 2004 pursuant to the provisions of Chula Vista Municipal Code section 2.03.020, which allows for the assignment of positions to the Department of Mayor and Council as needs or budgetary issues require. The position is currently an at-will, unclassified, middle-management position. Pursuant to Charter Code section 501, the Council may abolish the assignment of specific functions performed by a department, including the Department of Mayor and Council. It is our belief that the Intergovernmental Affairs Coordinator, as currently placed, is not meeting the needs of the City and the people ofChula Vista. It is our further recommendation that the Council direct City staff to study the placement of the position of Intergovernmental Affairs Coordinator under the supervision of the City Manager, as set forth in Charter Sections 401 and 500. The position of Intergovernmental Affairs Coordinator was originally created in July 1998 to be under the supervision of the City Manager. As noted, it was transferred to the Department of Mayor and Council in 2004. We would like to see the position studied again pursuant to Civil Service Rule 1.02, with the job specifications prepared in 2001 reevaluated for the current needs of the City. If appropriate, the City may then open the position through the established employment process ofthe City. Thank you for your immediate attention to this matter. Sincerely, A < ~ e R. indone C ncil ember 3/B 276 FOURTH AVENUE' CHULA VISTA' CALIFORNIA 91910' (619) 691-5044' FAX (619) 476-5379 d..; Post-Consumer Recycled Paper