HomeMy WebLinkAboutAgenda Packet 1995/10/03
Tuesday, October 3, 1995
4:00 p.m.
"I de~lare tln<:';cr penalty of perjury that I llfIlI
employed by the City of Chu~a Vista in the
OHice of the City ClerIc Emd tha.:i I posted
this AgendajNolJ:e on the Du!letin Board at
the Public 'arv; es BuilrJin3 and at City l:Iall on
DATED, ? :2 SIGNED'
e la eeli '1 C
Council Chambers
Public Services Building
CALL TO ORDER
1.
ROLL CALL:
Councilmembers Alevy _, Moot_, Padilla~, Rindone _' and
Mayor Horton _'
2. PLEDGE OF ALLEGIANCE TO THE FLAG. Sn.ENT PRAYER
3.
APPROVAL OF 1\flNUTES:
September 26, 1995 (Regular Meeling of the City Council) and
September 26, 1995 (Joint Meetinll of the City Council/Redevelopment
Agency)
4. SPECIAL ORDERS OF THE DAY: None submiued.
.....
Effective April I, 1994, theTe have been new amendmenls 10 Ihe Brown Act. The City Council must now
Tecon~ene mlo open session 10 Teport tiny J1Jro1. actions laken in closed session tlnd to tldjourn Ihe meeting.
BeCQuse of Ihe coslln~o/~ed, Ihere will be no videolaping 01 the recon~ened portion 01 the meeling. However,
flnalllctions reported will be ncorded in the ",inules which will be available in Ihe City Clerk's Office.
.....
CONSENT CALENDAR
(Items 5 through 10.1)
7'he sJtJ/1 recommendatio.ns Te,arding the following ileills lisled ullder Ihe Consenl Calendar will be enacled by
the Council by one motion w,lhoul discussion. unless tI Councilmember, lI.member of Ihe public or Cily Slaff
Tequests Ihallhe ilem be pulled lor discus$ion. lfyou wish to speak on one oflhese ilems, pleas. fill oul a
"RequesJ to Sp.al: Fa",," availabl. In the lobby an" submil il to the City Clerk prior 10 Ihe meeling. (Complele
the gTee" fa"" to spltll: In jQvor of the slD.ll recommendalion; compl.le the pink foml 10 sp.ak iti opposition to
the staff recommendation.) Items pulleil from Ihe Consenl Ctllendtlr will be discussed after BOlIrdllnd
Commlisfon Recommendations IInd Action .Itellls. Items pull.d by tile public will be Ihe first ilems of business.
S. WRITTEN CO!\fI\f1JN1CATIONS:
a. Letter from the City Attorney stating that there was no observed reportable action taken in
Closed Session on 9/'1.6/95. It is recommended that the lell~r be rec~ived and filed.
6.
RESOLlmON 18050
AUTHORIZING CITV TO AWARD BJI) TO BAKER & TAYLOR FOR
PURCHASE OF LIBRARY BOOKS AND AUDIO VISt,JAL MATERIALS-
For the last 17,. ears, the City has participaled in a cooperative bid arran~einent
with th~ City 0 San Diego for th~purcha&<l of books and audio visual materials.
In a leller of August 1995 the current book and malerials vendor, Bak~r &
Taylor. informed th~ Library thai Chula VislJl would no klnger be extended the
same tenns as the San Diello Public Library. Based on that decision. the
Library prepared bid specifications which were issued in lat~ August. Four
major vendors in the public library market responded. SlJIff recommends
approval of the resolution. (Library Director)
.Agenda
7.
RESOLlITlON 18051
8.
RESOLlITlON 18051
9.A.
RESOLUTION 18053
B.
RESOLlITlON 18054
C.
RESOLlITlON 180~5
10.
RESOLlITlON 18056
.2-
October 3, 1995
ACCEPTING CALIFORNIA DEPARTMENT OF EDUCATION ACULT
BASIC EDUCATION SECTION 311 GRANT FUNDS AWARDED TO TIlE
CHULA VISTA LITERACY TEAM, APPROPRIATING FUNDS, AND
AMENDING FISCAL YEAR 1995/96 BUDGET - On 6/6/9S, Council ratified
the Library's application for Adult Basic Education 321 graJ\t funds for fiscal
year 1995/96. The grant award of $S,606 will be used to. provide staff
development and training to the Adult Literacy Coordinator. tutor trainer and/or
staff. Additional funds will be used to cover the costs. of printing literacy
outreach and recruitment materials. Staff recommends approval of the
resolution. (Library Director) 4/5th's vote required.
ADOPTING NEGATIVE DECLARATION IS-95-30; APPROVING THE
CLOSURE OF CENTER STREET BETWEEN THIRD A VENUE AND
CHURCH A VENUE ON THURSDAY AFTERNOONS BETWEEN 1:00
P,M. AND 7:00 P,M. FOR A FARMERS' MARKET SPECIAL EVENT
SUBJECT TO CONDITIONS; AND WAIVING BUSINESS LICENSE FEES
FOR THE VENDORS PARTICIPATING IN THE SPECIAL EVENT - On
8/2/94, Council approved the closure of Third Avenue between "E" Street and
Davidson Avenue for a one year period to accommodate a Fanners' Market on
Thursday afternoons which is sponsored by the Downtown Business. Association
(DBA). In July of this year, the DBA Board of Directors evaluated the Market
operation aJ\d reevaluated its location and voted to relocate the Market to Center
Street east of Third Avenue for the 1996 season. Staff recommends approval
of the resolution. (Director of Community Development)
WAIVING CONDITION NUMBER 38 OF RESOLUTION 17618
APPROVING THE TENTATIVE SUBDIVISION MAP FOR TRACT 88.
3A, EASTLAKE SOUTH GREENS - On 12/6/94, Council approved the
Tentative Subdivision Map for Tract 9S-OI, EastLake South Greens, Unit. 21,
known as Fieldstone Crest. On 7/18/89, Council also approved the Tentative
Subdivision Map for Tract 88-3, EastLake Greens. On 8116/94, Council
approved an amendment to the southerly portion> of said EastLake Greens
tentative map, designated as EastLake South Greens, Tract 88-3A. Staff
recommends approval of the resolutions. (Director of Public Works)
APPROVING FINAL MAP AND SUBDIVISION IMPROVEMENT
AGREEMENT FOR TRACT 95-01 EASTLAKE SOUTH GREENS, UNIT
27, FIELDSTONE CREST
APPROVING SUPPLEMENTAL SUBDIVISION IMPROVEMENT
AGREEMENT REQUIRING DEVELOPER. TO COMPLY WITH
CERT AtN UNFULFlLLEI> CONDITIONS OF RESOLUTIONS NUMBER
17749 AND 15200 APPROVING A TENTATIVE MAP FOR PARCEL R-
. '1.7, KNOWN AS FIELDSTONE CREST, AND AUTHORIZING THE
!\fA YOR TO EXECUTE SAME
APPROYING AGREEMENT AMONG THE COUNTY OF SAN DIEGO,
SOUTHWESTERN COMMUNITY COLLEGE DISTRICT ANI) CITY OF
CHULA VISTA FOR .cONSTRUCTION, MAINTENANCE AND
OPERATION OF THE SOUTHWESTERN COLLEGE BUS STOP
IMPROVEMENT PROJECT -The agreement specifies the responsibilities for
construction and maintenance of the Bus Stop Improvement Project. Staff
recommends approval of the resolution. (Director of Public Works)
')~
Agenda
10.1
RESOLUTION 18063
-3-
October 3, 1995
AUTHORIZING A DEFERRAL OF TRIPS FOR FUTURE CITY
FACILITIES IN RANCHO DEL REY AND ASSIGNING THOSE TRIPS
TO THE PROPOSED YMCA ON PASEO RANCHERO - The YMCA is
proposing to construct a new facility on PlIseo Ranchero to serve residents. It
was determined that the facility had not bee.n given any trip assignments in
previous studies and anenvin;>nmenlal impact may result from the additional
trips. The YMCA is requesting the City consider offsetting, 011 a temporary
basis, the traffic generated from the new facility against future traffic from the
fire slations and library located within the same traffic analysis zone. An
assignment of trips would allow the YMCA to prepare a mitigated negative
declaration and to proceed with the design review of the new building. Slaff
recommends approval of the resolution. (Director of Public Works and Director
of Planning)
· · END OF CONSENT CALENDAR · ·
PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES
The 10Uowing ilems have been advertised and/or posted as public hearings as required by law. If you wish to
speak to any item, please jill out the "Request to Speak Form" al'ailable in the lobby and submit it to the City
Ckrle prior to the meeting. (Complete the green jom, to speak in lavor 01 the staff recommendation; complete
the pink form 10 speak in opposition 10 tIre staff recommendation.) Commtnts are limited to Jive minults per
individual. .
11.
PUBLIC HEARING
12.
PUBLIC HEARING
A.
RESOLUTION 18057
B.
RESOLUTION 18058
CONSIDERING VACATION OF A PORTION OF ORANGE AVEl'.'UE
ALONG THE FRONTAGE OF DON LUIS MOBILE ESTATES AT 121
ORANGE A VENUE - On ~/12/9S, Council declared its intention to vacate an
excess portion of Orange Avenue right-of-way along the fronlage of the Don
Luis Mobile Estates mobile home park and set 10/3/95 as the date for the public
hearing. Staff recommends the nuhlic hearin~ be continued to 10/10/95.
(Director of Public Works)
CONSIDERING A CONDITIONAL USE PERMIT PCC-9547 TO
ESTABLISH A. 20,000 SEAT OUTDOOR AMPHITHEATER AND AN
OPEN AIR MARKET LOCATED AT THE SOUTID\'E.ST QUADRANT
OF OT A Y V ALLEY ROAD AND OT A Y RIO ROAD. BITTERLIN.BRICE
DEVELOPMENT PARTNERS FOR MCA CONCERTS, INC. AND
KOBEY'S CHULA VISTA MARKET PLACE, LLC; AND CONSIDERING
THE V ACA TION OF VARIOUS STREETS IN OTAY RIO BUSINESS
PARK . Billerlin-Brice Development Partners as representatives of MCA
Concerts, Inc. is proposing to construct a 20,000 seat capacity amphitheater in
the Olay Rio Business Park lOcated at the southwest quadrant of Olay Valley
Road and Otay Rio Road. Also, Kobey's Marketplace proposed to operate an
open air market on the site on certain days of the week when the amphitheater
is not in use. Staff recommends approval of the resolutions. (Director of
Community Development, Director of Planning and Director of Public Works)
Continued from the meeting of 9/26/95. - Time Certain 6:00 D.m.
CERTIFYING FINAL ENVIRONMENTAL IMPACT REPORT EIR-95-03,
MCA CHULA VISTA AMPHITHEATER
APPROVING (I) A TRJ-PARTY AGREEMENT WITH LOS ALlSOS
COMPANY AND MCA CONCERTS, INC.; (2) GROUND LEASE BY AND
BETWEEN LOS ALlSOS COMPANY AND MCA CONCERTS, INC.;
AND (3) SUBLEASE WITH MCA CONCERTS, INC.
3
AlIenda
c.
RESOLUTION 18059
D.
RESOLlITION 18060
E.
RESOLUTION 18061
13.
PUBLlC HEARING
ORDINANCE 2642
-4-
October 3, 1995
GRANTING A CONDITIONAL USE PERMIT, PCC-9S-47, TO
BITTERLIN-BRICE DEVELOPMENT PARTNERS FOR MCA
CONCERTS, INC. TO CONSTRUCT A 20,000 SEAT CAPACITY
AMPHITHEATER AT THE SOUTHWEST QUADRANT OF OTAY
V ALLEY ROAD AND OT A Y RIO ROAD
GRANTING A CONDITIONAL USE PERMIT, PCC-9S-47, TO KOBEY'S
CHULA VISTA MARKETPLACE, LLC, TO OPERATE AN OPEN AtR
MARKET AT THE SOUTHWEST QUADRANT OF OTAY VALLEY
ROAD AND OTAY RIO ROAD
ORDERING THE VACATION OF VARIOUS STREETS IN OTAY RIO
BUSINESS PARK
ZONING TEXT. AMENDMENTPCA-96-01; REQUEST TO ADD
WORDING TO SECTION 19.68.020 T.l OF THE MUNICIPAL CODE
WHICH WOULD CLARIFY THAT NOISE ASSOCIATED WITH THE
NORMAL OPERATIONS OF ANY LAND USE APPROVED BY A
COllo'DITIONAL USE PERMIT IS CONSIDERED "ENVIRONI\1ENTALu
RATHER THAN NUISANCE NOISE BITTERLlN-BRICE
DEVELOPMENT PARTNERS, AGENTS FOR MCA CONCERTS, iNC. -
The amendment would clarify the distinction between "nuisance noise" as
opposed to "environmental noise" as it would relate to conditional uses in
general and the operations of the MCA Amphitheater in particular. The
Environmental Review Coordinator has concluded that the text amendment is
exempt from environmental review pursuant to Section IS061(b)(3) of the
California Environmental Quality Act. Staff recommends Council place the
ordinance on first readinll. (Director of Planninll) Continued from the
meeting of 9/26/95.
AMENDING SECTION 19.68.020 T.l, TITLE 19 OF THE I\ruNlCIPAL
CODE TO CLARIFY THAT NOISE NORMALLY ASSOCIATED WITH
A CONDlTIONALL Y PERMITTED LAND USE IS TO BE CONSIDERED
THE SAI\1E AS NOISE NORI\1ALL Y ASSOCIATED WITH A
PERMITTED LAND USE /fitst readin~)
ORAL COMl\fiJNlCATIONS
'nIis Is 1111 opponunity lor the generol public to lIdt!ress the City CQuncil on any subjecl mailer wilhin the
Council'sJurlsdiction Ihllt is 1lRl an ilem on Ihis agenda /or public discussion. (Slale law. howtver. generally
prohibits the City Council/rom /akill,ac/ion on any issues nOI included Oil the posted agendl/.) 1/ you wish 10
tuldress the Council on such II. subJecl, pltase complele the yellow "Request to Speak Under Orol Communications
Form" llvailllb/e in the lobby IInd sub"Jjt it to the City Cleric prior to the mtati",. Those who wish to speak.
please give your IIOme 11M address lor record purposes and lollow up act/on. Your t/Il/e is limiled to three
.unuttS per speo.ker.
BOARD AND COMMISSION RECOMMENDATIONS
'nI1s Is the time the City Council wiil consider ilems which have <<elllorwarded 10 thtm for COIISU/trot/Oll by Olle
01 the City's Boards, Commissio.s alldlor CommittetS.
None submiued.
4
Agenda
-5-
October 3, 1995
ACTION ITE~
71w items Usttd in this section ollhe ogtIJdo on expecled to eUcit subslonliDl discussions and deliberotions by
the Council, stqff, or members ollhe generol public. The ilems will be considered individually bylhe CouncU
ondS/ofl n_elldotions may in cer/oin costS be pnsenled in Ihe olterllotive. Those who wish to speak, please
Jill out a "Refuest to Speak" lornl avo!fable In the lobby tlnd submit it 10 Ihe City Clerk prior 10 the meeting.
PubUc commellls art Unliled 10 five minutes.
14.
RESOLlITlON 17986
15.
RESOLlITlON 18061
16.
REPORT
APPROVING AN AGREEMENT WITH EASTLAKE DEVELOPMENT
COMPANY REQUIRING EASTLAKE TO TRANSFER ECONOMIC
INCENTIVES TO NYPRO SAN DIEGO, A HIGH TECH COMPANY
WISHING TO RELOCATE AND EXPAND WITHIN TIlE CITY'S HIGH
TECH/BIOTECH ZONE:, IN EXCHANG':: FOR .TIIE Crry PROVIDING
CERTAIN CONCESSIONS TO EI\STLAKE - On 4/18/95, Council approved
in concept an allreement with the EastLake Development Company providinll for
EaslLake to pay for NYPRO development related f_ as an economic
development incentive, in exchange for the City providinll EastLake with certain
concessions. Council directed staff to prepare the necessary agreement. Related
item under Closed Session. Staff reconunends approval of the resolution.
(Director of Conununity Development) Continued from the meetinll of
9119/95. If the Council reoue.rs. or the Citv Attomev determines a need for.
~ial1el!al advice relating to notential1iti~ation. the Council may adiourn to
Closed Se..c;sion to receive that advice.
AJ\IENDING TIlE FISCAL YEAR 1995/96 BUDGET TO REDUCE A
SENIOR LIFEGUARD POSITION FROM 0.7SFllLL TIME
EQUIVALENT (FfE) TO 0.50 Ff& AND TO APPROPRIATING $3,715
IN ADDITIONAL FUNDS FOR TIlE POSITION '. During the budget
process, a proposal to delete a 0.75 full time equivalent (FTE) senior lifeguard
(permanent part-lime benefitted) position in the aquatics section was considered
by Council. A decision was made to cont.inue 10 fund the position for a period
of three months in fiscal year 1995/96, pending an analysis of further options. .
Slaff has evaluated three options. Staff reconunends approval of the resolution.
(Director of Parks and Recreation) 4/5th's vote required.
FROM TIlE CHARTER REVIEW COMMISSION AND CITY
ATTORNEY REGARDING VACANCY REF.ORM - On a referral by
Council, the Charter Review Commission and City Allomey reconunends that
Council submit to the People, for inclusion in the Charter, a Vacancy Reform
proposal. It is reconunended Ihat Council approve the Vacancy Reform
amendments to the Charter for inclusion on the March, 1996 Ballot, and dir~t
the City Allorney and City Clerk to include said language on the Resolution
calling for the March, 1996 election. (City Allomey and Charter Review
Commission)
ITEMS PULLED FROM TIlE CONSENT CALENDAR
This is the ... the City Council will discuss items which have been nmoved lrom Ihe ConstIJl Colelldor.
Agelldo items ,ullt4 at the nquest ollhe pubUc will beco.nsldend prior 10 those pulled by Councllmembers.
Pub1le COI<I_.ts _1indIe410 five minutes per individual.
s-
Agenda
-6-
October 3, 1995
OTHER BUSINESS
17. CITY MANAGER'S REPORTlSI
.. Scheduling of meetings.
18. MAYOR'S REPORTISI
.. Letter to Commissioners, Board Members, Committee Members, and Department Heads
encouraging them to discuss ethical rules.
19. COUNCIL COMMENT
.. Short faU (and/or non-booking of loans) for $5.1 million Sewer Fund and other funds.
ADJOURNMENT
The meding will adjourn to (a closed session and thence to) a Council CIP Tour on Saturday, October 7, 1995 at
9:00 a.m. and thence to the Regular City Council Meeting on October 10, 1995 at 6:00 p.m. in the City Council
Chambers.
....*
CLOSED SESSION
Unless the City Attorney, the City Manager or Ihe City Council states otherwise at Ihis time, Ihe Council will
discuss and deliberale on Ihe Jol(owing items oj business which ore pennllted by low 10 be the subject oj 0 closed
session discussion, and which Ihe.Council Is adl'l$ed should be discussed In closed session to beSI protect the
interests oJthe Cu,. The Council Is required by low 10 return 10 open session, issue any reports of JiJJJJl action
lIl1ce. ill closed session, and the votes talcen. 1I0wevtr, due to the IJplcallength oj time take" up by closed
seSsiDlI$, Ihe vldeolaplng will be lemlinated at "* point in order to save costs so that the Council's relurn Jrom
closed sessiOn, reports oj JlJml aCllontaleen, and adjournment wUl not be vldeotaped. Nel'ertheless, the report
oj ,/i1uIlottioo 1Il1ce. will be recorded in Ihe minutes which will be al'alloble In the City Clerk's OJfice. .
20. CONFERENCE WITH LABOR NEGOTIATOR - Pursuant to Government Code Section 54957.6
. Agency negotiator: John Goss or designee for CVEA, weE, POA, IAFF, Executive
Management, Mid-Management, and Unrepresented.
Employee organization: ChuIa Vista Employees Association (CVEA) and Western Council of
Engineers (WCE), Police Officers Association (POA) and International Association of Fire
Fighters (IAFF).
U..ep. ,18<1 employee: Executive Management, Mid-Management, and Unrepresented.
21. REPORT OF ACTIONS TAKEN IN CLOSED SESSION
.....
{
6
September 28, 1995
SUBJECT:
The Honorable Mayor and czty Co cil
John D. Goss, City Manager
city Council Meeting of 0 ober 3, 1995
TO:
FROM:
This will transmit the agenda and related materials for the regular
city council meeting of Tuesday, October 3, 1995. Comments
regarding the Written Communications are as follows:
5a.
This is a letter from the city Attorney
were no observed reportable actions taken
in Closed Session on September 26, 1995.
~HAT THE LETTER BE RECEIVED AND FILED.
stating that there
by the city council
IT IS RECOMMENDED
JDG:mab
'7
COUNCIL AGENDA STATEMENT
ITEM TITLE:
ItemL
Meeting Date 10/3/95
Resolution / d'" pi f ~thorizing City to award bid to Baker & Taylor for
purchase of library books and audio viaua1 materia1s.
SUBmlTEDBY: LibraryDirector~
REVIEWED BY: City ManagerJt, ~ ~ (4/5ths Vote: Ycs_Nol
On August 26, 1995 the City's Purchasing ~gen:7ssued specifications to select the primary
supplier of library books and audio visual materials for a contracted two-year period ending July
1997. Four vendors, representing the major book suppliers in the public library marketplace,
responded. After evaluating the responses, it is recommended that the bid be awarded to Baker
& Taylor and that the City enter into a two-year agreement with that vendor.
RECOMMENDATION: That Council adopt the resolution accepting the bid and entering into
a two-year agreement with Baker & Taylor.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
Bookjobbers or vendors are universally used by American public and academic libraries in order
to obtain better discounts and to reduce the cost of paperwork. These vendors are able to offer
libraries considerable discounts off the retail book price. Savings also occur because orders are
batched and sent to one jobber rather than sending individual orders to separate publishers.
During fiscal years 1995-97, the Library expects to spend approximately $810,000 with the
selected vendor. This amount represents both the projected general fund monies from the City's
annual operating budget as well as CIP funds to establish a foundation library collection at the
South Chula Vista Library.
Since 1978, the firm of Baker & Taylor has voluntari1y offered the City ofChula Vista the same
terms that it has provided (as a result of competitive bidding) to the City of San Diego for the
purchase of library books. Due to the higWy favorable nature of the City of San Diego's discount
schedule, the City of Chula Vista's Purchasing Agent has annually recommended that the City
Council accept these terms.
However, in August, Baker & Taylor informed the City that they would no longer offer Chula
Vista the discount schedule (valued at $307,016) in effect for the City of San Diego. Baker &
t-;
,~'
Item 1-- Page 2
Meeting Date: 10/3/95
disparity in volume and composition of the Library's orders between the City of San Diego and
Chula Vista as reasons why they could not continue the previous arrangement.
As a result of Baker & Taylor's actions, it was determined that the City would immediately need
to go to bid as a lot for book/audio-visual vendor services. A set of bid specifications, based
upon examples from local libraries, was developed. On August 26, 1995 bid specifications were
mailed to five major book vendors that served the public library market. The formal bid opening
was September 11, 1995 at 3:00 pm.
Competitive bids were received from four firms, Emery-Pratt, Brodart, Ingram and Baker &
Taylor. A committee of three staff members, Margaret Blue, Head of Technical Services,
Maureen Roeber, Head of Collection Development, and Diane Bednarski, Library Automation
Manager, was created by the Library Director to evaluate the bids. After an evaluation of the
responses, it is recommended that Baker & Taylor be awarded the bid.
CRITERIA AND EVALUATION
As outlined in the bid specifications, the responses were evaluated based upon on the following
criteria.
1. Ability to supply all the categories of books and audio visual materials listed in the
specifications.
2. Discounts offered
3 . Availability of electronic interface with the Inlex acquisition module
1. Ability to Supply l!.!! Categories of Books and Audio Visual Materials as Listed in the
Bid Specifications (See Attachment A)
Of the four vendors responding, Baker & Taylor and Emery-Pratt were the only vendors to
indicate they could supply the complete range of books and audio visual materials required
in the bid specifications. Brodart and Ingram did not bid all categories of materials.
Furthermore, Ingram's bid indicated that they would only report on and fill items currently
in their database or as indicated in the CD-Rom product Books in Print Plus. A check of a
pending retrospective order against Books in Print Plus shows that 50% of the titles were
not in Ingram's database. Therefore, the Library would be unable to complete the South
Chula Vista Library's foundation collection, which must include retrospective as well as
newly published material using Ingram as its primary book jobber.
~-,;2..
9
Item.!L... Page 3
Meeting Date: 10/3/95
1. Discounts Offered (See Attachment A)
Vendors were asked for their proposed discount rates as applied to the chief purchase
categories, including trade books, reference and technical books, mass market paperbacks,
compact discs, audio and video cassettes, and computer software.
The overall highest rate of discount (or savings) was determined by applying each proposed
discount rate to the estimated expenditures for each category. For example, ifBrodart said
they would provide an 18.0 % discount on a total expenditure of $60,000 for books with
"library bindings", then the City could expect to receive a savings (or discount) valued at
$10,800. Based upon this analysis these firms would offer the following discounted savings
off the retail purchase price of books and audio visual materials:
Baker & Taylor
Ingram
Brodart
Emery-Pratt
$296,705
$296,134
$275,070
$244,800
Note: If Baker and Taylor had extended to Chula Vista the discounts being offered to
San Diego Public Library, we would have received a discount savings of $307,016,
or $ 1 0,311 more than currently being offered by the top bidder.
3. Availability of Electronic Interface with the Inlex Acquisition Module
A critical selection criteria was based on the vendor's ability to interface their electronic
ordering with the Library's existing Inlex operating system. Only Baker and Taylor and
Ingram could offer this interface.
SELECTION
Based upon Baker and Taylor's ability to supply as a lot the complete range of library materials,
their ability to interface electronically with Inlex, their 17 years of demonstrated ability to provide
satisfactory service to Chula Vista, and the highest overall discount this firm is recommended.
FISCAL IMPACT:
A total of $237,000 has been budgeted in the General Fund for the Civic Center Library and
EastLake and $838,835 in CIP for the new South Chula Vista Library for books and audiovisual
materials for FY 1995-96. An additional amount equal at least to the current General Fund
budget of $237,00 and $838,835 in CIP monies is estimated to be available for FY 1996-97 . A
majority of the purchases will be through Baker & Taylor.
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THIS PAGE BUNK
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RESOLUTION NO.
/8"#fC
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING CITY TO AWARD BID TO
BAKER & TAYLOR FOR PURCHASE OF LIBRARY BOOKS
AND AUDIO VISUAL MATERIALS
WHEREAS, on August 26, 1995, the city's Purchasing Agent
issued specifications to select the primary supplier of library
books and audio visual materials for a contracted two-year period
ending July, 1997; and
WHEREAS, based upon Baker and Taylor's ability to supply
as a lot the complete range of library materials, their ability to
interface electronically with Inlex, their 17 years of demonstrated
ability to provide satisfactory service to Chula vista, and the
highest overall discount, it is recommended that the bid be awarded
to Baker & Taylor and that the City enter into a two-year agreement
with that vendor.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula vista does hereby authorize the City to award bid
to Baker & Taylor for purchase of library books and audio visual
materials for a two-year period ending July, 1997.
David Palmer, Library Director
J
by
Presented by
Bruce M.
Attorney
C:\rs\libbooks.bids
6-f
I:;)
COUNCIL AGENDA STATEMENT
ITEM ?
MEETING DATE 10/03/1995
/ g .1...r1
ITEM TITLE: Resolution accepting California Department of Education
Adult Basic Education Section 321 grant funds awarded to the
Chula Vista Literacy Team, appropriating funds, and amending FY
1995-96 budget
SUBMITTED BY: Library Directo~6>_G~
REVIEWED BY: City Manag~ ~~s Vote: YES _X_ NO..-:l
The Chula Vista Public Library applied in June, 1995, for ABE Section 321 funds
through the California Department of Education. The primary purpose of these grant
funds is to improve the quality and responsiveness of programs which enable adults to
acquire basic literacy skills. A grant of $5,606 has now been awarded to the Library. The
award is divided into two parts. The base grant ($3,500) must be used for supplemental
staff development, assessment, and/or networking. Additional funds ($2,106) are
calculated based on the number of learner attendance hours, and these may be used for
other enhancements to program quality. The Library has been a recipient of these funds
since 1990.
RECOMMENDATION: That Council adopt the resolution accepting California
Department of Education Adult Basic Education Section 321 grant funds awarded to the
Chula Vista Literacy Team, appropriating funds, and amending FY 1995-96 budget.
BOARD/COMMISSION RECOMMENDATION: On April 26, 1995, the Library Board
of Trustees voted to support the Library's ABE Section 321 application. (Attachment A.)
DISCUSSION:
On June 6, 1995, Council ratified the Library's application for ABE 321 grant funds for
FY 1995-96. These grant funds will be used to provide staff development and training to
the Adult Literacy Coordinator, tutor trainer and/or staff. Additional funds will be used to
cover the costs of printing literacy outreach and recruitment materials.
FISCAL IMPACT: Accepting this grant will provide $5,606 to implement this
program in FY '95-96 through the Chula Vista Literacy Team. Funds cannot be used to
supplant the current volunteer tutor program. These funds will be appropriated into fund
260-2602. (See Attachment B).
7-1
t3
RESOLUTION NO. 1~t1~
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING CALIFORNIA DEPARTMENT OF
EDUCATION ADULT BASIC EDUCATION SECTION 321
GRANT FUNDS AWARDED TO THE CHULA VISTA
LITERACY TEAM, APPROPRIATING FUNDS, AND
AMENDING FY 1995-96 BUDGET
WHEREAS, in June, 1995, the Chula vista Public Library
applied for ABE section 321 funds through the California Department
of Education; and
WHEREAS, the primary purpose of these grant funds is to
improve the quality and responsiveness of programs which enable
adults to acquire basic literary skills; and
WHEREAS, a grant of $5,606 has been awarded to the
Library and is divided into two parts: the base grant of $3,500
which must be used for supplemental staff development, assessment,
and/or networking and additional funds of $2,106 are calculated
based on the number of learner attendance hours, and these may be
used for staff development and/or other enhancements to program
quality; and
WHEREAS, on April 26, 1995, the Library Board of Trustees
votes to support the Library's application for ABE section 321
grant funds.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula vista does hereby accept California Department of
Education Adult Basic Education section 321 grant funds awarded to
the Chula vista Literacy Team.
BE IT FURTHER
amended by appropriating
Attachment B.
RESOLVED that the FY 1995-96 budget is
$5,606 into Fund 260-2602 as set forth in
Presented by
JO 0=1
City
David Palmer, Library Director
C:\rs\abe321.grt
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,
ILl
ATTACHMENT A
Library Board of Trustees
-3-
April 26, 1995
ill. NEW BUSINESS
ACTION
ACTION
A
B.
Literacy Team application for ABE 321 grant
Literacy Team application for Families for Literacy funds
Director Palmer reported that infonnation on these grants was mailed to
the Trustees in their packet. The Literacy Team has received both of
these grants for a number of years.
MSUC (Alexander/Clover-Byram) the Library Board supports the Literacy
Team's application for these two grants.
Action C.
Computer Lab Rules
Guidelines have been developed for use of terminals in the Computer Lab to
prevent monopolization and abuse of the equipment. These guidelines apply only
to the terminals running word processing and spreadsheet software and do not
apply to computerized informational resources.
The guidelines, at this time, do not allow patrons to load their own software and
places a two-hour limit on computer usage if someone else has reserved computer
time or if other people are waiting. He stressed that these rules are not intended to
keep people from using the information resources on the CD network in the
library.
MSUC (ViescalClover-Byram) the Library Board of Trustees endorses the
computer lab user guidelines dated July I, 1995.
IV. LIBRARY DIRECTOR'S REPORT
A Buy a Book Update
Over 100 responses have been received, totalling over SIO,OOO, from this direct
mailing to approximately 650 individuals.
StaIfis preparing an action plan for developing a Library foundation and will ask
for the Trustees for their formal endorsement of activity at either the Mayor June
meeting.
7-;3
r5
ABE SECTION 321 FUNDS
FY 1995-96
9/20/1995
BUDGET ACCOUNT: 260-2602
5212 Printing
5224 Training
TOTAL:
)--i
$2,100.
$3,506.
$5,606.
ATTACHMENT B
(I::,
CITY COUNCIL AGENDA STATEMENT
Item
Meeting Date 10/03/95
~
SUBMITTED BY:
RESOLUTION / rt'5~ (1) ADOPTING NEGATIVE
DECLARATION IS-95-30; (2) APPROVING THE CLOSURE OF
CENTER STREET BETWEEN THIRD A VENUE AND
CHURCH AVENUE ON THURSDAY AFTERNOONS
BETWEEN 2:00 P.M. AND 7:00 P.M. FOR A FARMERS'
MARKET SPECIAL EVENT SUBJECT TO CONDITIONS, AND
(3) WAIVING BUSINESS LICENSE FEES FOR THE VENDORS
PARTICIPATING IN THE SPECIAL EVENT INITIAL STUDY
FEE
C. . / ~.
ommuruty DevelOpm~eDlfector L.. ~
City Manager VA' ~
-.J~ " (4/5ths Vote: Yes _ No..x->
Council Referral No.
ITEM TITLE:
REVIEWED BY:
BACKGROUND:
On August 2, 1994, the City of Chula Vista approved the closure of Third Avenue between E
Street and Davidson Avenue for a one year period to accommodate a Farmers' Market on
Thursday afternoons which is sponsored by the Downtown Business Association (DBA). InJuly
of this year, the DBA Board of Directors evaluated the Market operation and reevaluated its
location and voted to relocate the Market to Center Street east of Third Avenue for the 1996
season. This will require the temporary closure of Center Street between Third Avenue and
Church Avenue.
RECOMMENDATION:
That the City Council adopt a resolution:
1) adopting Negative Declaration IS-95-3; and,
2) approving the temporary closure of Center Street between Third A venue and Church
Avenue from 2:00 pm to 7:00 pm on Thursdays from March 1996 through October 1996
subject to conditions; and,
3) waive business license fees for the vendors participating in the special event.
BOARDS/COMMISSIONS RECOMMENDATION:
On Thursday, September 7, 1995, the Town Centre Project Area Committee voted 7-0 to
recommend that the City Council: 1) adopt Negative Declaration IS-95-30, and 2) approve the
temporary closure of Center Street between 3:00 p.m. and 7:00 p.m. on Thursdays from March
1996 through October 1996.
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Page 2, Item Y
Meeting Date 10/03/95
On September 14, 1995, the Safety Commission voted 7-0 to recommend that the City Council
approve the temporary closure of Center Street between Third Avenue and Church Avenue from
3:00 p.m. to 7:00 p.m. on Thursdays from March 1996 through October 1996.
DISCUSSION:
Since June 1994, the Downtown Business Association (DBA) has been conducting a Farmers'
Market within the Third Avenue right-of-way between E Street and Davidson Avenue on
Thursdays from 2:00 p.m. to 7:00 p.m. (Approval for closure at 3:00 p.m. was erroneously
requested at the Town Centre Project Area Committee and Safety Commission. Closure at 2:00
p.m. for a one hour set-up period should hl\ve been requested. Members of the Town Centre
Project Area Committee and Safety Commission have been contacted and no member objected
to the 2:00 p.m. closure time.) The Association decided to relocate the Market to Center Street
primarily because of complaints received from merchants adjacent to the market about restricting
access to their businesses and because the labor and material costs involved with setting-up and
closing-down the market (extensive traffic control signs, barriers, etc.) are not cost effective.
In addition, the DBA decided to limit the market's operation to the months between March and
October because the number of vendors and customers drop off during the winter, there is
limited produce, and the market can be "rained-out" without notice. The 1995 market will end
on October 26 and the 1996 market will begin in mid-March 1996 at the new location.
The DBA proposes to relocate the existing vendors with the exception of the pony ride to the
Center Street location. (Center Street is not wide enough to accommodate the pony rides so they
will be eliminated.) The growers will park along both sides of Center Street up to the west side
of Church A venue. The north/south alley that runs parallel to Third A venue will be marked-out
by cones but will remain open for emergency traffic. The public parking lot located at the
comer of Center Street and Church A venue will remain open. The advantages of the new
location are anticipated to be:
. Center Street is a one way street with limited traffic which would result in a
major reduction in the disruption of vehicle traffic on Third Avenue during the
markets hours of operation.
. A major reduction in labor costs to set-up and close the Market.
. Restoration of Third Avenue access to businesses along Third Avenue north of
Davidson on Thursday afternoons.
. Chula Vista Transit will no longer need to be re-routed.
DBA representatives have approached neighbors of the portion of Center Street that is proposed
to be closed including the Congregational Towers Board and advisory committee, the Reverend
of the Baptist Church located on Church Avenue and the Reverend of the Congregational
Church. The DBA reports that the Congregational Towers and advisory committees and the
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Page 3, Item ?"
Meeting Date 10/03/95
Baptist Church approve of the relocation. The Reverend from the Congregational Church
indicated that there may be a conflict with funeral services that may be conducted during the
operating hours of the Farmers' Market.
A Notice of the Safety Commission and Town Centre Project Area Committee meeting was
mailed to all property owners located within 300 feet of the Center street location was mailed
to the 350 members of the Downtown Business Association.
FISCAL IMPACT:
The DBA will assume all costs for traffic signs, will provide the labor for posting signs, and will
operate the Farmers' Market. The City is providing public noticing and processing, and
guidance related to vehicle traffic control. Revenue from the parking meters located along the
portion of Center Street proposed for closure will be lost. Those revenues include income from
(8) I-hour meters and (10) lO-hour meters for about 4 hours per week; however, those revenues
will most likely be transferred to the public parking lot located in the back of the Third Avenue
businesses in the vicinity of the market and will most likely be increased as a result of the
market which will off-set the loss.
The lost parking revenue is estimated to be $13.60 and the increased parking lot revenue is
estimated to be $10.50.
Est. Lost Revenue Est. Increased Revenue
Street Parking Adjacent Parking Lot
10 spaces x $.10 x 4 hrs. = $ 4.00 351 spaces x $.10 x 4 hrs. = $10.50
8 spaces x $.30 x 4 hrs. = $ 9.60
$13.60
The market will be able to accommodate up to 14 vendors. (The current Market has an average
of 10 vendors per week.) Annual business license fees for vendors is $52.50. If the City
waives the business license fees for those vendors participating in the market, a maximum of
$735 in revenue will not be remitted. However, it is anticipated that the market will stimulate
a increase in sales within the Downtown which should in turn result in a net increase in area
sales tax to the City. It is expected that the increase in sales tax will off-set any loss in business
license revenue.
[prb/disk#9/lempclos. .13]
lThe adjacent public parking lot at Church and Center Street has 71 metered spaces at $.10
an hour. The lot is normally half full. Based on the current Farmer's Market parking patterns,
it is anticipated that the Church and Center parking lot will be full during the Market hours.
That means it can be expected that during the Market an addtional 35 spaces will be occupied
at $.IO/hr. for 3 hrs. (3p.m. to 6 p.m. while the meters are in operation).
8" ;> p-J/
1"\
RESOLUTION / 3"tJ 5';2..
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA (1) ADOPTING NEGATIVE DECLARATION IS-95-30; (2)
APPROVING THE CLOSURE OF CENTER STREET BETWEEN THIRD
AVENUE AND CHURCH AVENUE ON THURSDAY AFTERNOONS
BETWEEN 2:00 P.M. AND 7:00 P.M. FOR A FARMERS' MARKET
SPECIAL EVENT SUBJECT TO CONDITIONS, AND (3) WAIVING
BUSINESS LICENSE FEES FOR THE VENDORS PARTICIPATING IN
THE SPECIAL EVENT
WHEREAS, the City Council of the City of Chula Vista established a Business
Improvement Area on November 16, 1971 which created the Downtown Business Association;
and,
WHEREAS, the Downtown Business Association has requested to close Center
Street between Third Avenue and Church Avenue on Thursdays between 2:00 pm and 7 pm in
order to conduct a certified Farmers' Market special event; and,
WHEREAS, the Downtown Business Association has requested a waiver of the
Business License Fee for the vendors taking part in the Farmers' Market special event; and,
WHEREAS, the proposed Farmers' Market special event will further the
Redevelopment effort within the Town Centre I Project Area; and,
WHEREAS, the City Council has reviewed and considered Negative Declaration
IS-95-30.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA
VISTA does hereby find, order, determine and resolves:
1. That the Council hereby adopt Negative Declaration IS-95- 30 and finds that
the project will have no significant environmental impact.
2. That Center Street shall be closed to vehicular traffic between Third
Avenue and Church Avenue on Thursday afternoons between 2:00 pm and 7:00 pm for a
Farmers' Market special event between March 1996 and October 1996 subject to sooner
revocation by the sole discretion of the Council subject to conditions attached hereto as though
fully contained herein.
BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista
approves the waiver of the City's Business License Fee for the vendors participating in the
Farmers' Market.
e~~
Chris Salomone
Community Development Director
[prb/disk#9/fmclosur ,res]
APPRZ ~~ J:?2
Bruce M. Boogaard
F',}J~
PRESENTED BY:
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EXHffiIT A
CONDITIONS OF APPROVAL
1. The subject street closure shall be permitted for a one year period unless sooner revoked
to accommodate the Downtown Farmers' Market. At the end of one year, the Farmers' Market
shall be evaluated by the Community Development Director and City Engineer and their findings
shall be reported to the City Council by October 1, 1996. The City Council, at that time, may
consider an extension of the street closure for the continuation of the special event for the next
year.
2. All vendors or activities to take place within the closed street right-of-way, other than
those approved herein shall be approved by the Community Development Director prior to their
participation in the Farmers' Market.
Aooroved Vendors and Activities
a) Certified Farmers' Market'
b) Arts and Crafts hand made by the seller
c) Promotional activities that enhance the Market but do not detract from the
Downtown business enviromnent or create significant noise, congestion, or safety
hazards
d) Downtown Business Association (DBA) merchants and businesses in good
standing may sell or demonstrate merchandise and services that are currently sold
within their Downtown premises.
3. The DBA shall provide, set-up and remove all signs, barricades, temporary traffic control
devices related to the Farmers' Market and street closure in a timely manner (set-up completed
no later than 3:30 p.m. and removal completed no later than 7:00 pm). All traffic control
devices, signs, and barricades shall be placed in accordance with the sign placement plan
prepared by the City Traffic Engineer and attached as Attachment I and shall conform to the
State of California traffic control requirements.
4. The DBA will be responsible for the coordination and implementation of all activities and
regulations related to the street closure and Farmers' Market and the appropriate City Chula
lA certified Farmers' Market is a location approved by the County Agricultural
Commissioner, where certified farmers offer for sale only those items they grow themselves.
Only the inunediate family and salaried employees of a certified producer may act for and sell
the products of that producer. Items include fresh and dried fruits and herbs, vegetables, nuts,
honey, eggs house plants and cut flowers, jerky, fresh fish, olives and baked goods.
%'7
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Vista departments and staff and any applicable County, State, or Federal requirements.
5. The DBA shall provide evidence of a certificate of insurance and the policy endorsement
satisfactory to the City, naming the City of Chula Vista as additional insured.
6. The DBA shall execute an agreement to hold the City harmless from any liability from
the activities within the street right-of-way and resulting from the Farmers' Market special event.
7. The DBA shall be responsible for implementing the following Storm Drain Pollution
Prevention Program for the Downtown Farmers' Market:
a) Debris and/or other pollutants shall not be swept or otherwise made/allowed to
go into storm drain inlets or facilities at any time.
b) The street right~of-way shall be thoroughly swept and all solid debris shall be
placed in containers following the close of the Farmers' Market.
c) The street and sidewalks may be washed with water to prevent health hazards.
d) This plan may be revised as necessary to prevent, control, or eliminate the
discharge of pollutants to the storm drain system resulting from the outdoor
activities of the downtown Farmers' Market.
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:1."3
MINUTES
TOWN CENTRE PROJECT AREA COMMITTEE
CITY OF CHUlA VISTA
Thursday, September 7, 1995
8:45 a.m.
Council Conference Room
City Hall
1. Roll Call - 8:48 a.m.
Members Present: Chairman 81akely, Members Altbaum, Apodaca, Hawk,Killian,
Mason and Winters.
Members Excused: None.
Staff Present: Pamela R. Buchan, Principal Community Development Specialist
and Miguel Z. Tapia, Community Development Specialist.
2. Approval of Minutes of June 15, 1995.
MSUC (Mason/Altbauml (6-0-0-1, Apodllca abstained due to the fact that she was appointed
after the meeting of June 15) to approve the minutes as mailed.
REDEVELOPMENT BUSINESS
3. Relocation of Farmers' Market to Center Street
MSUC (Mason/Hawk) (7-0), to recommend that the City Council adopt Negative Declaration
15-95-3 and approve the temporary closure of Center Street between Third Avenue and
Church Avenue from 3:00 p.m. to 6:00 p.m. on Thursdays from March 1996 through October
1996.
ADJOURNMENT: The meeting was adjourned at 9:25 a.m. to the regular meeting of
September 21, 1995.
[tcpacmindisk/b:\sep07-95.min)
/%// 118-/~
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MINUTES OF A JOINT WORKSHOP & REGULAR MEETING
OF THE CHUlA VISTA SAFETY COMMISSION
Thursday, September 14,1995
6:50 p.m.
Council Chambers
Public Services Building
WORKSHOP MEETING
1. Roll Call:
Present:
Chair liken, Vice-Chair Miller, Commissioners: Acton, Bierd (in at 6:55), Cochrane,
Hoke, and Smith
Also Present:
Hal Rosenberg, Traffic Engineer; Frank Rivera Associate Traffic Engineer; Sgt. Gene
d' Ablaing; and Shirley Buxton, Recording Secretary
2. MeetinS! Pro2ression Procedures
Recording Secretary Shirley Buxton presented a brief outline of meeting progression procedures for the benefit
of new commissioners. Some of the topics covered were how to make motions, when discussion should occur,
voting procedures, and conflict of interest requirements.
3. Adjourned at 7:05 to regularly scheduled meeting.
CALL TO ORDER
1. Roll Call
Chair liken called the regularly scheduled Safety Commission meeting to order at 7:05 p.m. and noted that all
members were present.
2. Pledee of Alleeiance/Silent Praver
3. Ooenine Statement - Read by Chair Liken
Chair liken welcomed new Commissioners Harriet Acton and Audrey Hoke.
4. Aooroval of Minutes:
MSC (Smith/Miller) to approve the minutes of July 13, 1995 as presented. Approved 5-0-0-2 with
Commissioners Acton and Hoke abstaining since they were not members of the Commission.
MEETING AGENDA
5. REPORTon Temporary Closure of Center Street between Third Avenue and Church Avenue for the Farmer's
Market
Pam Buchan, Community Development Specialis~ clarified that the closure of Center Street would be from 3:00
p.m. to 7:00 p.m. The Market ended at 6:00 p.m. and then clean up would occur between 6:00-7:00 p.m.
Commissioners Bierd, Smith, Hoke, and Cochrane said they felt the new location would be an improvement over
the current location and were glad to see the change.
6//3
UNOFFICIAL MINUTES
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Safety Commission Minutes
September 14, 1995
Page 2
Chair Liken spoke with several business owners directiy affected by the change and most owners were
enthusiastic about the Market. A concern was raised by the Congregational Church that the closure might affect
some church parking in a widened area in front of the church.
Pam Buchan and Frank Rivera said the area would not be affected by the Farmer's Market.
Chair Liken said the report indicated that vendors would be parking on the sidewalk which was of concern to one
business owner.
Pam Buchan clarified that the statement was in error and that all parking and stands would be set up in the street
right-of-way, leaving the middle of Center Street and the sidewalk available to customers of the Market.
Chair Liken saw the change as a positive one.
MSUC (8ierdlActon) to approve the temporary closure of Center Street b~tween Third Avenue and Church
Avenue from 3:00 p.m. to 7:00 p.m. on Thursdays from March 1996 through October 1996 and adopt Negative
Declaration IS 95-3.
6. REPORT on Request from the Paul Miller Company regarding an on-street Passenger Loading Zone at 276
Church Avenue
Frank Rivera showed slides of the area.
Commissioner Bierd indicated he had visited the area and found that his van did not fit well in the proposed
loading zone area. He asked how it would affect vans who transported elderly patients to the doctor's office in
that complex.
Frank Rivera said the loading zone would accommodate light trucks or passengers vehicles.
Vice-Chair Miller asked for clarification if the white curb meant a three minute time limit, and if staff's
recommendation had been discussed with the Paul Miller Company.
Frank Rivera verified that a white curb would be a three minute limit and that the Paul Miller Company was in
agreement with staff's recommendation.
Commissioner Hoke asked if staff was considering both alternatives or just one. She saw benefit for alterative
one, but felt alternative two would be more beneficial for larger vehicles.
Hal Rosenberg said the area was sensitive to parking needs and staff was trying to comprise without jeopardizing
safety and not remove any parking metered spaces. The proposed site would not remove any parking.
Commissioner Cochrane did not feel alterative 2 was worth considering, due to the fact of excess traffic trying
to access the bank driveway.
Chair Liken had viewed a van delivering a wheel chair patient which did not have any difficulties and felt the site
was the best option.
Commissioner Smith asked if the curb would be modified to include an ADA pedestrian ramp.
Frank Rivera said the area would not include a pedestrian ramp. The passenger loading zones he was aware of
did not have pedestrian ramps.
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UNOFFICIAL MINUTES
;l(,
negative declaration
PROJECT NAME: Certified Farmers Market Relocation
PROJECT LOCATION:
Center Street Right-of-Way between Third Avenue and Church
Avenue
ASSESSOR'S PARCEL NO.: N/A
PROJECT APPLICANT: Chula Vista Downtown Business Association (DBA)
CASE NO: IS-95-30
DATE: August 21,1995
A. Proiect Settin!!:
The project site is within the Center Street right-of-way between Third Avenue and Church
Avenue. There wOuld be no permanent modifications to the right-of-way. The project site
is quite flat, there are no biological resources present nor are there any geologic hazards in
the project vicinity. the project site is bound to the east and west by the retail business and
other services that front on Center Street.
B. Proiect Descriotion
The Downtown Business Association proposes to continue running a certified Farmers'
Market every Thursday between 3;00 and 6;00 p.m. The market will begin set up at 2:00
and the street will reopen no later than 7;00 p.m. The Farmers' Market is currently located
on Third Avenue, between Davidson and E SU'eet. After careful study and review, the
Downtown Business Association would like to relocate the Farmers' Market to Center Street,
between Third A venue and Church Street.
The rationale for the relocation to CeRter Street are:
1. Closing a major thoroughfare such as Third Avenue takes extensive labor every
week. The labor cost involved in closing Center SU'eet will cost 50% less, thus
saving the Downtown Business Association a major expense.
2. Chula Vista Transit will no longer have to be re-routed.
3. City engineers will not have to alter U'affic signals.
4. The lesser nffic flow on Center SU'eet, versus Third Avenue, provides for a safer
environment.
5. It is in closer proximity to Congregational Towers and the Norman Park Center, both
primary customers of the Farmers' Market.
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city of chula vista plaMlng department 0lY OF
envlronmenta' review section. mUlA VISTA
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6. There is excellent visibility of the Farmers' Market from Third Avenue.
Growers would park along the sidewalks on both sides of Center Street, and sell towards the
center of the street. The alley would be coned off, but would remain open for delivery
traffic and emergency vehicles.
The Certified Farmers' Market will be supervised by an experienced Market Manager who
will recruit growers, enforce market rules and regulations, and oversee the market. The
Market Manager assists in the street closure, checks in the growers, assigns spaces, monitors
sales and collects the DBA's percentage of gross sales from the growers at the close of the
market.
In conjunction with the Market Manager, the Chula Vista Downto\\ll Business Association
intends to maintain a high profile at the weekly market. Various promotions and activities
will be planned in conjunction with the market. Arts and crafts will also be displayed during
key selling seasons. .
The DBA will establish a Market Committee to oversee the market and resolve issues as they
arise. The committee will monitor the market budget and plan the advertising and
promotions.
C. Comoatibility with Zonine: and Plans
The project will require the approval of the use of the Center Street right-of-way which is
part of the Circulation Element of the Chula Vista General Plan. Because of the limited
once-a-week use of the right-of-way, the project is in substantial compliance with the General
Plan Circulation Element. The property is zoned C-B and the uses would, therefore, comply
with the zoning of the site. The right-of-way is part of the Circulation Plan for the Town
..Centre Redevelopment Plan and because of minimal use of the site (6 hours, once a week)
the project complies with the redevelopment project. .
D. Identification of Environmental Effects
An initial study conducted by the City of Chula Vista (including the attached Environmental
Checklist Form) determined that the proposed project will not have a significant
environmental effect, and the preparation of an Environmental Impact Report will not be
required. This Negative Declaration has been prepared in accordance with Section-15070
of the State CEQA Guidelines.
The following impacts have been determined to be less than significant. A discussion of each
of these less than significant impacts from the ~roposed project follows.
Traffic
During the month of June 1994, the Farmers' Market was conducted on a trial basis. During
this time, traffic counts were taken, turning movement counts made and observations made
by Traffic Engineering staff and Environmental Planning staff. It was concluded that during
the operations of the Farmers' Market when Third Avenue is closed between Davidson and
E Street, the level-of-service on primary access roads would not change and would. not
exceed level-of-service .C., the design ADT volume. The relocation to Center Street was
proposed to provide better traffic flows and emergency access.
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The project site is in an urbanized area with existing commercial land uses. There is,
therefore a commensurate urban noise level in the project area. This market noise level has
been observed to be lower than the traffic noise which is otherwise present. Neither is an
intrusive noise level given the land use.
The second element of the change in noise level is due to the shift in traffic from Center
Street to other streets providing circulation in the project area. E Street and F Street are
east-west streets that have primarily retail commercial zoning with some office-commercial
zoning. There are primarily retail commercial uses and some areas of public uses along
these streets. Church A venue and Landis A venue are north-south streets that parallel Third
Avenue. These streets have office-commercial zoning with primarily office and public
parking land use. The shift traffic to these commercial east-west and north-south streets
would not create any acoustical incompatibilities.
E. Mitil!ation necessary to avoid sil!nificant effects
The proposed project will not result in any significant or potentially significant environmental
impacts, therefore, no project specific mitigation is required.
F. Consultation
I. Individuals and Orl!anizations
City of Chula Vista: Roger Daoust, Engineering
Cliff Swanson, Engineering
Hal Rosenberg, Engineering
Bob Sennett, Planning
Ken Larsen, Director of Building & Housing
Carol Gove, Fire Marshal
Crime Prevention, MaryJane Diosdada
Marty Schmidt, Parks & Recreation Dept.
Glenn Googins, Assistant City Attorney
Chula Vista City School District: Kate Shurson
Sweetwater Union High School District: Tom Silva
Applicant's Agent: Jim Fergus, 385 Third Avenue, Chula Vista 91910
2. Documents
Chula Vista General Plan (1989) and EIR (1989)
Title 19, Chula Vista Municipal Code
Town Centre Redevelopment Plan
Master EIR Town Centre Redevelopment Plan
3. Initial Study
This environmental determination is based on the attached Initial Study, any
comments received on the Initial Study and any comments received during the public
review period for this Negative Declaration. The report reflects the independent
judgement of the City of Chula Vista. Further information regarding the
F---/7
<;
"j
environmental review of this project is available from the Chula Vista Planning
Department, 276 Fourth Avenue, Chula Vista, CA 91910.
~
EN 6 (Rev. 5193)
g-/J'
-:;>-.
<~G
APPLICATION CANNOT BE ACCEPTED UNLESS SITE
PLAN IS FOLDED TO FIT INTO AN 8-1f2 X II FOLDER
A
INITIAL STUDY
---f6iOifiifvJiitQ;;jy;-
CaSe No:IS~tt.5~~D?
-DpSL Arone 8/_
Receip(Nd: 8-<-}
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l10Jcct No,FA-(:7:X
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City of Chula Vista
Application Form
BACKGROUND
1. ProjectTitle - '::;-,vdnp",~m/M.kd ~,
2. Project Location (Street address or description) tloo I3Im.k. '1 ~j;;.) ~
6.
3.
Assessors Book. Page & Parcel No.
Brief Project Description J.#. tvI:J-" flit J....
-
IV It- -
4.
Name of Applicant. {),..O" V~?M. 1>M1iT&wY1 ~ ~,
Address P D, 6cJ!. oS { Fax# '-122- I qiJ2 Phone 4- 2. z- {q r 2.
City (lit.., to. ,If ~ Stale (A- Zip '1 L 1/ L
Name of Preparer/A$ent ~ u-.A~,d, t:~
Address~ Fax# Phone
City Stale Zip
Relation to Applicant-=:r~ fv\..t;,., n~.J - (~~
Indicate all permits or approvals. and enclosures or documents required by thg ~
Review Coordinator.
5.
a. Permits or approvals required.
_ General Plan Amendment
_ RezoneIPrezone
, _ Grading Permit
_ Tentative Parcel Map
_ Silc Plan & Arch. Review
_ Special Use Permit
_ Design Review Application
_ Tentative Subd. Map
_ Redevelopment Agency OPA
_ Redevelopment Agency DDA
_ Public Project
Annexatioo
_ Specific Plan
Conditional-Use Permit
Variance
_ Coastal Development
vOther Permit
~ ~ct~
~, .
H project is a General Plan Amendment and/or rezone, please indicate the change in designation from
/V .4 to
b.
Enclosures or documents (as required by the Environmental Review Coordinator).
_ Arch. Elevations _ Hydrological Study
_ Landscape Plans _ Biological Study
_ Tentative Subd. Map _ Archaeological Study
_ Improvement Plans _ 'Noise Assessment
- Soils Report ) _ Other Agency Permit
- Geotechnical ~ / 9' ~ _ .:J.() Other
_ Grading Plan
_ Parcel Map
Precise Plan
= Specific Plan
_ Traffic Impact Report
Hazardous Waste Assessment
31
DOWNTOWN
CHULA VISTA
CERTIFtEP FARMERS' MARKET
PROPOSAL
Chula Vista Downtown Business Association
360 Third Avenue
Chula VIsta. CA 91910 t. .
422-1982
. 8'~:L1 ~- "<
::? ~)
,---,I ",.,..~.
PURPOSE
The purpose of a weekly Certified Farmers' Market is to provide a weekly self-
supporting event that has the potential to attract between 3,000 and 4,000.
shoppers into the Downtown core.
BACKGROUND
A Certified Farmers Market Is an effort to reestablish the traditional link between
farmers and consumers. A a;lrtified fantlers Is a location approved by the county
agricultural commissioner, where certified farmers offer for sale only those items
they grow themselves. I:3efore a certified produCer certificate Is issued, the
agricultural commissioner visually Inspects the applicant's field to verify that
the applicant Is actually the producer of the crops listed on the certificate.
Only the immediate family and salaried employees of a certified producer may
act for and sell the prod.ucts of the produa;lr.' Items include fresh and dried fruit
. and herbs, vegetables, nuts, honey, eggs, house plants and cut flowers. Also
approved for sale are jerky, fresh fish, olives and baked goods.
Certified Farmers' Markets are being used statewide to reverse the trend of
shopping in the suburbs and bringing people back Downtown. CL:rrently
markets are being held in Ocean Beach, Coronado, Pacific Beach, La Mesa,
Escondido, Mission Valley, Oceanside, Vista, Poway, and Del Mar. Both the
Ocean Beach and Escondido Farmers' Market involve an evening street closure.
Surveys taken at three different markets in 1994 indicated :
*01 the market customers interviewed, more than half consider themselves regular
customers.
* Customers spend between $2.00 and $25.00.
* Half the customers indicated that they typically shopped outside the Downtown
for groa;lries.
* More than half the customers expected to tie the trip with other shopping.
Typically, for every dollar spent at the market, $3.00 is spent at neighboring
businesses.
* Almost half reported being previously unfamiliar with the Downtown area and now
liking it.
* The presena;l of the market improved the customers Image of the shopping area.
PROPOSAL
The Downtown Business Association proposes to continue running a Certified
Farmers' Market every Thursday between 3:00 and 6:00 P.M. The market
will begin set up at 2:00 and the street will reopen no later than 7:00 P.M.
3-cl3
-::; ~>
'--Co)
The Farmers' Market is currently located on Third Avenue, between Davidson
and E street. After careful study and review, the Downtown Business Association
would like to relocate the Farmers' market to Center Street, between Third
Avenue and Church Street.
The rationale for the relocation to Center Street are:
1. Closing a major thoroughfare such as Third Avenue takes extensive labor
every week. The labor costs involved in closing Center Street will cost 50% less,
thus saving the Downtown Business Association a major expense.
2. Chula Vista Transit will no longer have to be re-routed.
. 3. City engineers will not have to alter traffic signals.
4. The lesser traffic flow on Center Street, versus Third Avenue, provides
for a safer environment.
5. It is in closer proximity to Congregational Towers and the Norman
Park Center, both primary customers of the Farmers' Market.
6. There is excellent visibility of the Farmers' Market from Third Avenue.
Growers would park along the sidewalks on both sides of Center Street, and
sell towards the center of the street. The alley would be coned off, but would
remain open for delivery traffic and emergency vehicles.
Please refer to the attached diagraham
The Certified Farmers' Market will be supervised by an experienced Market Manager
who will recruit growers, enforce market rules and regulations, and oversee the
market. The Market Manager assists in the street closure, checks in the growers,
assigns spaces, monitors sales and collects the DBA's percentage of gross sales from
the growers at the close of the mraket.
In conjunction with the Market Manager, the Chula Vista Downtown Business
Association intends to maintain a high profile at the weekly market. Various
promotions and activities will be planned in conjunction with the market.
Arts and crafts will also be displayed during key selling seasons.
The DBA will establish a Market Committee to oversee the market and resolve
issues as they arise. The committee will monitor the market budget and plan
the advertising and promotions.
The DBA requests the following:
1. The weekly closure of Center Street between third Avenue and Church
Street.
2. A waiver of the sidewalk sales ordinances and business license
requirement for the Certified Farmers Market and participating growers
and vendors.
21~J V
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If ~. CERTIFICATION
Print name
J ,I
I 1:8)'{ ~~
i
or
I, consultant or agent"
-:r~+y i
Print name
HEREBY AFFIRM, that to the best of my belief, the statements and infonnation herein contained are in all
respects true and COITeCt and that all known information concerning the project and its setting has been
included in thiS application for an Initial Study of possible environmental impact and any enclosures for
attachments thereto.
--JtII"IL~;" J f~J
Owner/Owner in Escrow Signature
or
t
~ 4, .1'\<"
Date
"H acting for a COrporation, include capacity and company name.
g -:;j ~
;x
Page 7
~02J"""93(Rcf.I02O.93)(Rcf.I022.93)
.~()
'f 1.
4.
5.
6.
THE CITY OF ClillLA VISTA DISCLOSURE STATEMENT
Statement of disclosure of certain ownership interests. payments, or campaign contributions, on all maners which
will require discretionary action on the pan of the City Council, Planning Commission, and all other official bodies.
The following information must be disclosed:
Ust the names of all persons bave a financial interest in the contract, i.e., contractor, subcontractor,
mate~ supplier. ~ rn ~
. U(fV\Y\e... \)ovvt'l~ I (lJ. (fA~
2.
If any person idenrified pursuant to (I) above is a cotpOration or partnersbip, list the names of all
individuals owning more than 10% of the shares in the cotpOration or owning any partnership interest in
the partnership.
3.
If any person identified pursuant to (I) above is non-profit organization or a trust, list the names of any
person serving as director of the non-profit organization or as trustee or beneficiary or trustee of the trust.
Have you bad more than $250 worth Of business transacted with any member of the City staff, Boards,
Conunissions, CommillCes and Council within the past twelve months?
\.1)\:0 .
Please identify each and every person, including any agents, employees, consultants or independent
contractors wbo you have assign~o represent you before the City in this mailer.
::fu..dy lJJ-Llfy ( I OWh fY\CUl~ex)
Have you and/or your officers or agents, in the aggregate, contributed 'more than $1,000 to a Council
member in the current or preceding election period? Yes [ ) No l><f If yes, state \vhicb Council
member(s): .
PolIO. is defUltd as: "Ally iadividual, linn. co-parII1Onhip,joiDl VCDllI~, associalioa,1OCiaI club, mlemaJ O'lanizatioa. corponlioa, ....Ie.
InISI, receiver, l)'Ildicate, Ibis IDd In)' _ _, city IDd COUDl)', city, -,.L-ipolily, disuict or odler polilicaJ subdivisioa, or In)' odler IlOUp
or COIIIbilwion acliDa as a UlIit. "
(N0lE: Aaach addiliooal pa((es as ac:<eSSlI)')
(?€S;/J
Date: ~
'r,
Signature of contractor/applicant
-:s;; 'Mo S. 1) CS}~~J /) J
Print or rype name of contractor/applic .
~~ c2 7
_WPC:F:\HOME\PLANNING\STOREO\l02I.A.~Ref. t020.9)l(Rd. IOn.93)
Page 11
ROUTING FORM
DATE:
June 21, 1995
.".
','l'I'
"
TO: Ken Larson, Building & Housing
John Lippitt, Engineering (EIR only)
Cliff SWanson, Engineering (EIR only)
Hal Rosenberg, Engineering (EIR only)
Roger Daoust, Engineering (IS/3, EIR/2)
Richard Rudolf, Asst city Attorney (Draft Neg Dec & EIR)
Carol Gove, Fire Department
Ifarty Schmidt, Parks & Recreation
Crime Prevention, Police Department (M.J. Diosdado)
Community Development, Redev. Economic Dev. only
CUrrent Planning
Duane Bazzel, Advance Planning
Bob Sennett, City Landscape Architect
Bob Leiter, Planning Director
Chula Vista Elementary School District, Kate Shurson
Sweetwater Union H.S. District, Tom Silva (IS & EIR)
Maureen Roeber, Library (Final EIR)
LAFCO (IS/Draft EIR - If annexation is involved)
Matin Miller, Project Tracking Log (route form only)
Other
FROM:
Joe Monaco
Environmental Section
SUBJECT: Application for Initial study {IS-95-30/FA-~/TA001
Checkprint Draft EIR (20 days) (EIR-_/FB-_/DQ )
Review of a Draft EIR (EIR-_/FB-_/DP)
Review of Environmental Review Record (FC- _ERR-_)
Review of Draft Neg Dec (IS- /FA- /DQ- )
The Project consists of: The Farmer's Market is currently lpcated
on Third Aveue, between Davidison and 'E' Street. After careful
study and review, the Downtown Business Association would like to
relocate the Farmer's Market to Center Street, between third Avenue
and Church Street.
Location: Center Street, between Third Avenue and Church Street
Please rlJ!view the document and forwarll to me any comments you have
byJulv 5. 1995 .
Comments:
~
~M\~
rr'L If" Jff
DATE:
.
.
~rJ\
ROUTING FORM
RECEIVED
June 21, 1995
,jUN 21 1995
CITY OF CHJLA Vi,,4
BUILDING & HOUSING DEPi,
Ken Larson, Building & Housing
Jo~ Lippitt, Engineering (EIR, only)
Cliff SWanson; Engineering (EIR only)
Hal Rosenberg, Engineering (EIR only)
Roger Daoust, Engineering (IS/3, EIR/2)
Richard Rudolf, Asst City Attorney (Draft Neg Dec & EIR)
Carol Gove, Fire Department
Marty Schmidt, Parks & Recreation
Crime Prevention, Police Department (M.J. Diosdado)
Community Development, Redev. Economic Dev. only
CUrrent Planning
Duane Bazzel, Advance Planning
Bob Sennett, city Landscape Architect
Bob Leiter, Planning Director
Chula Vista Elementary School District, Kate Shurson
Sweetwater Union H.S. District, Tom Silva (IS & EIR)
Maureen Roeber, Library (Final EIR)
LAFCO (IS/Draft EIR - If annexation is involved)
Matin Miller, Project Tracking Log (route form only)
Other
Joe Monaco
Environmental Section
SUBJECT: Application for Initial Study (IS-95-30/FA-678 /TAQQL)
Checkprint Draft EIR (20 days) (EIR- _/FB- _/DQ )
Review of a Draft EIR (EIR-_/FB-_/DP)
Review of Environmental Review Record (FC- _ERR-_)
Review of Draft Neg Dec (IS- /FA- /DQ- )
The Project consists of: The Farmer's Market is currently located
on Third Aveue, between Davidison and 'E' Street. After careful
study and review, the Downtown Business Association would like to
relocate the Farmer's Market to Center Street, between third Avenue
and Church Street.
Location: Center Street, between Third Avenue and Church Street
Please review the document and forwarr! to me any comments you have
byJulv 5. 1995 .
Comments:
AJD
~g-d-/'
'7 f ~ [ct5" i<-!] .~
DATE:
~
f~
lV
~
ROUTING FORM
June 21., 1.995
~f/e ~(qqS--
Ken Larson, Building & Housing
John Lippitt, Engineering (EIR only)
Cliff SWanson, Engineering (EIR only)
Hal Rosenberg, Engineering (EIR only)
Roger Daoust, Engineering (IS/3, EIR/2)
Richard Rudolf, Asst City Attorney (Draft Neg Dec & EIR)
Carol Gove, Fire Department
Marty Schmidt, Parks & Recreation
Crime Prevention, Police Department (M.J. Diosdado)
community Developm~t,..pedev. Economiq Dev. only
CUrrent Planning . <5j~ tviUi:::t #/S
Duane Bazzel, Adva e Planning
Bob Sennett, City Landscape chitect
Bob Leiter, Planning. Director
Chula vista Elementary School District, Kate Shurson
SWeetwater Union H.S. District, Tom Silva (IS & EIR)
Maureen Roeber, Library (Final EIR)
LAFCO (IS/Draft EIR - If annexation is involved)
Matin Miller, Project Tracking Log (route form only)
other
Joe Monaco
Environmental Section
SUBJECT: Application for Initial Study (IS-95-30/FA-~/TAOO1. )
Checkprint Draft EIR (20 days) (EIR- _/FB- _/DQ )
Review of a Draft EIR (EIR- _/FB- _/DP )
Review of Environmental Review Record (FC-_ERR-_)
Review of Draft Neg Dec (IS- /FA- /DQ- )
The Project consists of: The Farmer's Market is currently located
on Third AvEiue, between Davidison and 'E' Street. After careful
study and review, the Downtown Business Association would like to
relocate the Farmer's Market to Center Street, between third Avenue
and Church street.
Location: Center Street, between Third Avenue and Church Street
Please review the document and forwara to me any comments you have
byJulv 5. 1.995 .
Comments: i<ev. lPe- <;1 ~ f1ov...;ded co.v..~S + ~Vl11nt~
~~~. ~efNt iZl-Th€ {ZPk. (1atf were Vle(f'~l'lL;r Gv1lJiV'cYt-
lo~a-c.. eN'\.- V\&L~) hcwev-ey- ~ t1't~~----(ZJ ~'~ VJ-i~
ICUvt. S~J [J ~
'!S-b2'-j
"
ROUTING FORM
DATE:
J""ON'E 3o,('t"f~
TUJl:l.a 21, ~JJJ
~: :PO:
Ken Larson, Building & Housing
John Lippitt, Engineering (EIR only)
Cliff SWanson, Engineering (EIR only)
Hal Rosenberg, Engineering (EIR only)
Roger Daoust, Engineering (IS/3, EIR/2)
Richard Rudolf,Asst City Attorney (Draft Neg Dec & EIR)
Carol Cove, Fire Department
Marty Schmidt, Parks & Recreation
Crime Prevention, Police Department (M.J. Diosdado)
Community Development, Redev. Economic Dev. only
Current Planning
Duane Bazzel, Advance Planning
Bob Sennett, City Landscape Architect
Bob Leiter, Planning Director
Chula vista Elementary School District, Kate Shurson
Sweetwater Union H.S. District, Tom Silva (IS & EIR)
Maureen Roeber, Library (Final EIR)
LAFCO (IS/Draft EIR - If annexation is involved)
Matin Miller, Project Tracking Log {route form only}
Other
(l>:~:
Joe Monaco
Environmental Section
SUBJECT: Application for Initial Study {IS-95-30/FA-678 /TA~}
Checkprint Draft EIR (20 days) (EIR-_/FB-_/DQ )
Review of a Draft EIR (EIR-_/FB-_/DP )
Review of Environmental Review Record {FC-_ERR--1
Review of Draft Neg Dec (IS- /FA- /DQ_ )
The Project consists 0;[: The Farmer's Market is currently lOcated
on Third Aveue, between Davidison and 'E' Street. After careful
study and review, the Downtown Business Association would like to
relocate the Farmer's Market to Center Street, between third Avenue
and Church Street.
Location: Center Street, between Third Avenue and Church Street
Please review the document and forwarlI to me any comments you have
byJulv 5. 1995 .
comments{Df?eV(Sf:: T'f?AFt=fC PCHJ AS Sl{ew~ 'N ArrACIfEJ::> "MA-f!.""-uP~ CCPY OF
. 712.AFt= Ie.. ~ AIN1:> 'fZ.EslJEt./ IT"" 71> 77?AFF I G SE.e:rr ~ ("MAf?-K.~pJgf "";';F-/G
(j)f.JO ~DPfT7ONAc.. CcM.M.E,.LTr. ( Br-rGrN~"'G)
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DEL MAR .L AVENUE
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CHULA VXSTA POLXCE DEPARTMENT
CRXME PREVENTXON UNXT
PLAN REVIEW RECOMMENDATIONS
DATE:
TO:
VIA:
FROM:
July 21, 1995
~e Monaco, Environmental
~J~aptain witherS,~igations
Mary Jane Diosda PS
PROJECT :
Farmer's Market
..JQL
The Crime Prevention Unit does not have any comments at
this time.
Information on this project, or within the plans, does not
provide enough detail to permit crime prevention analysis.
See attached comments below for recommendations regarding
this project.
Please forward the following information to the Crime
Prevention Unit when available.
Elevations
Design Review
Conditional Use Permit
Floor Plans
Site Development Plans
Landscape and Lighting Plans
Other(s)
Comments: Response times within this grid area are within the
recommended thresholds. P-1 1.12% of calls, 3:25 A.R.T.
P-2 28.65% of calls, 5:13 A.R.T.
Moving the Farmer's Market to Center Street should only improve
the traffic conditions on Third Avenue. I don't anticipate any
significant impact in the calls for service on Third Ave.
If you have questions, please feel free to contact me any time if
you have questions.
Thank you for the opportunity to have input in the planning
process.
cc:
Brookover, SCA
CPTED Routing form
PD/cpu 06/93
%--J'J ~
Case No. 1.5- 16-3U
FIRE DEPARTMENT
A.
What is the distance to the nearest fire station? And what is the Fire Department's estimated
reaction time? '3 iSl "<: Ys ~M;,v .
B.
Will the FIre Department be able to provide an adequate level of fiJe )'rotection. for the
proposed facility without an increase in equipment or personnel? ~.s
C. Remarks No ~---~
r2 w/~
ire Marshal
t/d-II'7:5-
Date
WPC-~022.93 (J.d.I02I.93)(Rd.IOlO.93)
g-:;1 ~1
Poge6
Case No. 18-95-30
ENVIRONMENTAL CHECKLIST FORM
1. Name of Proponent: Chula Vista Downtown Business Association
2.
Lead Agency Name and Address:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
3. Address and Phone Number of Proponent: P.O. Box 381, Chula Vista, CA 91912
4. Name of Proposal: Downtown Chula Vista Certified Farmers' Marice! Relocation
S. Date of Checklist: August 21, 1995
A:\larmermkt.1iI
2i<YS- ~
Page 1
I. LAND USE AND PLANNING. Would .the
proposal:
a) Conflict with general plan designation or
zoning?
b) Conflict with applicable environmental plans or
policies adopted by agencies with jurisdiction
over the project?
c) Affect agricultural resources or operations (e.g.,
impacts to soils or farmlands, or impacts from
incompatible land uses)?
d) Disrupt or divide the physical arrangement of an
established community (including a low-income
or minority community)?
Comments: The project, because of its limited impact on the Chula VISta General Plan Circulation
Element (i.e., 6 hours a day, once a week), will be in substantial compliance with the Chula Vista
General Plan and the Town Centre Redevelopment plan. Further, the project involves the relocation of
existing activities to a.lesser utilized circulation facility. Because the project site is within a public
right-of-way there are no agricultural resources present and there are no land use related environmental
plans or policies that would relate to this type of use in a public right-of-way. (Ref: City of Chula
Vista General Plan, City ofChula Vista General Plan Update ElR, May 31,1989, Town Centre
Redevelopment Plan, Town Centre Redevelopment Plan, Master EIR, Chula Vista Municipal Code.)
II. POPOLATION AND HOUSING. Would the
proposal:
a) Cumulatively exceed official regional or local
. population projections?
b) Induce substantial growth in an area either
directly or indirectly (e.g., through projects in
an undeveloped area or extension of major
infrastructure)?
c) Displace existing housing, especially affordable
housing?
Comments: The project is not residential in nature and will not increase any population projection
individually Or cumulatively. The project site and area is uroani7M and no extension or expansion of
any right-of-way is proposed. There is no housing present that would be displaced by the project.
(Ref: Project Description Initial Study Application IS-95-3O, Chula Vista General Plan & Site VISits.)
.
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..........
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o
o
o
~
o
o
o
~
o
o
o
~
o
o
o
~
o
o
.~
o
o
o
~
o
o
o
~
o
m. GEOPHYSICAL. Would the proposal result in or
expose people to potential impacts involving:
a) Unstable earth conditions or changes in geologic 0 0 0 ~
substructures?
b) Disruptions, displacements, compaction or 0 0 0 ~
overcovering of the soil?
A:V...mermkt.1iI
Page 2
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P......... .......... ..........
.......... u..... ........... N.
1.- .......... 1.- ..,...,.
C) Change in topography or ground surface reli~f 0 0 0 181
features?
d) The destruction, covering or modification of any 0 0 0 181
unique geologic or physical features?
e) Any increase in wind or water erosion of soils, 0 0 0 181
either on or off the site?
t) Changes in deposition or erosion of beach sands, 0 0 0 181
or changes in siltation, deposition or erosion
which may modify the channel of a river or
stream or the bed of the ocean or any hay inlet
or lake?
g) Exposure of people or property to geologic 0 0 0 181
hazards such as earthquakes, landslides, mud
slides, ground failure, or similar hazards?
Comments: The proposed project would not alter the project site nor are there any geophysical
conditions on or near the project site which could expose the project site to geologic hazards. (Ref:
City of Chula Vista General Plan update ElR May 31, 1989, Town Centre Redevelopment Plan Master
EIR.)
IV. WATER. Would the proposal result in:
a) Changes in absorption rates, drainage patterns, 0 0 0 181
or the rate and amount of surface runoff?
b) Exposure of people or property to water related 0 0 0 181
hazards such as flooding or tidal waves?
c) Discharge into surface waters or other alteration 0 0 0 181
of surface water quality (e.g., temperature,
dissolved oxygen or turbidity)?
d) Changes in the amount of surface water in any 0 0 0 181
water body?
e) Changes in currents, or the course of direction 0 0 0 181
of water movements, in either marine or fresh
waters?
t) Change in the quantity of ground waters, either 0 0 0 181
through direct additions or withdrawals, or
through interception of an aquifer by cuts or
excavations?
g) Altered direction or rate of flow of 0 0 0 181
groundwater?
h) Impacts to groundwater quality? 0 0 0 181
i) Alterations to the course or flow of flood 0 0 0 181
waters?
tT~ 37
~
Page 3
A:\tarmetmkt.tit
P.lIlially
Patelll-.u,- ........... I.- ,...
.......... U.... ...- N.
I..... Milipled I..... 1.-
0 0 0 181
j) Substantial reduction in the amount of water
otherwise available for public water supplies?
Comments: The project site is urbanized and the project will not result in changes in absorption rate,
drainage patterns or the rate or amount of surface runoff. The project would use the existing urban
infrastructure including stonn drain system. There will be no change in surface conditions such as
landscaping or paving and therefore, no change in ground water conditions. There will be no increase
in impervious surfaces and therefore no significant change in surface runoff. Street cleaning is a
required element of the project's stonn water pollution prevention plan. (Ref: Lawrence, Fogg, Florer
& Smith Drainage Study, City ofChula Vista 1965, Town Centre Redevelopment Plan Master EIR.)
V. AIR QUALITY. Would the proposal:
a) Violate any air quality standard or contribute to
an existing or projected air quality violation?
b) Expose sensitive receptors to pollutants?
c) Alter air movement, moisture, or temperature,
or cause any change in climate, either locally or
regionally?
d) Create objectionable odors?
e) Create a substantial increase in stationary or
non-stationary sources of air emissions or the
deterioration of ambient air quality?
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
181
181
181
181
181
Comments: The project generates about 2000 automobile trips during the 6 hour period of Thursday
street closure. This would not result in any regionally or locally significant air quality impacts and not
all of these trips would be "new.' These trips would be transferred from the currently operating .
Fanners' Marlcet on Third Avenue. (Ref: City ofChula Vista General Plan Update ErR May 31,
1989, Town Centre Redevelopment Plan Master ErR.)
VI. TRANSPORTATION/CIRCULATION. Would
the proposal result in:
a) Increased vehicle trips or traffic congestion?
b) Hazards to safety from design features (e.g.,
sharp curves or dangerous intersections) or
incompatible uses (e.g., farm equipment)?
c) Inadequate emergency access or access to nearby
uses?
d) Insufficient parking capacity on-site or off-site?
e) Hazards or barriers for pedestrians or bicyclists?
t) Conflicts with adopted policies supporting
alternative transportation (e.g. bus turnouts,
bicycle racks)?
o
o
o
o
o
o
o
o
o
o
o
o
181
o
181
o
o
o
o
181
o
181
181
181
A:\fumermh.1it
Page 4
g--JJ- ~
g) Rail, waterborne or air traffic impacts?
Pote.....lly
P.......1b' ........... .........
.......... U..... Slp.IrlCllat N.
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0 0 0 ~
0 0 0 ~
h) A "large project" under the Congestion
Management Program? (An equivalent of 2400
or more average daily vehicle trips or 200 or
more peak-hour vehicle trips.)
Comments: During the month of June 1994, the existing Farmers' Market operation on Third Avenue
was conducted on a trial basis. During this time, traffic counts were taken, turning movement counts
made and observations made by Traffic Engineering staff and Environmental Planning staff. It was
concluded that during the operations of the Farmers' Market when Third Avenue is closed between
Davidson and E Street, the level-of-service on primary access roads would not change and would not
exceed level-of-service "C", the design ADT volume. The relocation of the market to center Street
would reduce traffic impacts of the current operation on Third A venue. This combined wit the limited
once-a-week operation of the market creates an observable, but less than significant impact.
There is need to maintain emergency services on Center Street and to the storefronts along the street.
This is accomplished by maintaining the alley between Third Avenue and Church A venue. (Ref: IS-
94-2C, Interdepartmental Comment Sheets, Engineering Division, II Transportation & Fire Department;
field observations.)
VII. BIOLOGICAL RESOURCES. Would the proposal
result in impacts to:
a) Endangered, sensitive species, species of 0 0 0 ~
concern or species that are candidates for
listing?
b) Locally designated species (e.g., heritage trees)? 0 0 0 ~
c) Locally designated natural communities (e.g, oak 0 0 0 .~
forest, coastal habitat, etc.)?
d) Wetland habitat (e.g., marsh, riparian and vernal 0 0 0 ~
pool)? .
e) Wildlife dispersal or migration corridors? 0 0 0 ~
f) Affect regional habitat preservation planning 0 0 0 ~
efforts?
Comments: The project site is urbanized and there are no sensitive habitats, species, or corridors
present. There is ornamental landscaping present that will not be altered by the operation of the
market.
VIII. ENERGY AND MINERAL RESOURCES. Would
the proposal:
a) Conflict with adopted energy conservation plans? 0 0 0 ~
b) Use non-renewable resources in a wasteful and 0 0 0 ~
inefficient manner?
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Page 5
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-....... v..... ......... N.
I..... .......... I..... 1.-
0 0 0 181
c) If the site is designau-.d for mineral resource
protection, will this project impact this
protection?
Comments: The project consists of an intermittent land use that is not regulated or governed. by any
energy conservation plans. Only minimal resources would be consumed by the operation of the market.
The diversion of traffic could result in a very minor increase in trip lengths, but not to a significant
level. This could be offset by avoiding longer trips to similar facilities selling similar products. (15-94-
26- Interdepartmental Comment Sheets, Engineering Division, II Transportation.)
d) Exposure of people to existing sources of
potential health hazards?
e) Increased fire hazard in areas with flammable
brush, grass, or trees?
Comments: The operation of this project does not involve the use of any petroleum products,
pesticides, chemicals or radioactive material. As long as the proposed emergency access is maintained
there would be no conflict with emergency plans, no hazards created and there is no condition present
that would expose people to a hazard. This is an urban area. There 8re no flammable brush, grass Or
trees present. (Ref: Application form for 15-95-30, Interdepartmental Comment Sheets, Fire
Department.)
IX. HAZARDS. Would the proposal involve:
a) A risk of accidental explosion or release of
hazardous substances (including, but not limited
to: petroleum products, pesticides, chemicals or
radiation)?
b) Possible interference with an emergency
response plan or emergency evacuation plan?
c) The creation of any health hazard or potential
health hazard?
X. NOISE. Would rhe proposal result in:
a) Increases in existing noise levels?
b) Exposure of people to severe noise levels?
o
o
o
181
o
o
o
181
o
o
o
181
o
o
o
181
o
o
o
181
o
o
o
181
o
o
o
181
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Comments: The project site is in an urbanized area with existing commercial land uses. There is,
therefore a commensurate urban noise level in the project area. The closure of Center Street, this
traffic noise component of the ambient noise level would be largely eliminated and would be replaced
by noise associated with the Farmers' Market. This market noise level has been observed to be lower
than the traffic noise which is otherwise present. Neither is an intrusive noise level given the land use.
The second element of the change in noise level is due to the shift in traffic from Center Street to other
streets providing circulation in the project area. E Street and F Street are east-west streets that have
primarily retail commercial zoning with some office-commercial zoning. There are primarily retail
commercial uses and some areas of public uses along these streets. Church Avenue, Third Avenue and
Landis Avenue are north-south streets. These streets have office-commercial zoning with primarily
office and public parldng land use. The shift traffic to these commercial east-west and north-south
streets would not create any a.coustical incompatibilities. (Ref: City of Chula Vista General Plan
Update ErR May 31, 1989; Interdepartmental Comment Sheets.)
XI. PUBLIC SERVICES. Would the proposal have an
effect upon, or result in a need for new or altered
goverfll7lent services in any of the following areas:
a) Fire protection? 0 0 0 181
b) Police protection? 0 0 0 181
c) Schools? 0 0 0 181
d) Maintenance of public facilities, including 0 0 0 181
roads?
e) Other governmental services? 0 0 0 181
Comments: The Fire and Police Departments have indicated they can provide an adequate level o(
service with existing facilities and manpower. Schools will not be impacted by the proposed projecl
because it is a retail commercial use. The project will be adequately served by all other existing
infrastructure (Ref: IS-95-30 All City data sheets; Town Centre Redevelopment Plan Master EIR.)
XII. Thresholds. Will the proposal adversely imp= the
City 's Threshold Standards?
o
o
o
181
As described below, the proposed project does not adversely impact any of the seven Threshold
Standards.
a) FirelEMS
The Threshold Standards. requires that fire and medical units must be able to respond to
calls within 7 minutes or less in 85 % of the cases and within 5 minutes or less in 75 % of
the cases. The City of Chula Vista has indicated that this threshold standard will be met,
since the nearest fire station is one-half mile away and would be associated with a two
minute response time. The proposed project win comply with this Threshold Standard.
Comments: As long as the project maintains emergency access to Fire Department it will provide an
adequate level of service. (Ref: 15-95-30, City Data Sheets, Fire Department.)
A:\Carmermkt.lb
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Page 7
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b) Police
The Threshold Standards require that police units must respond to 84 % of Priority I calls
within 7 minutes or less and maintain an average response time to all Priority I calls of 4.5
minutes or less. Police units must respond to 62.10% of Priority 2 calls within 7 minutes
or less and maintain an average response time to all Priority 2 calls of 7 minutes or less.
The proposed project will comply with this Threshold Standard.
Comments: (Ref: City Data Sheets, Chula Vista Police Department Crime Prevention Unit, Plan
Review Recommendations, date July 21, 1995.)
c) Traffic
The Threshold Standards require that all intelsections must operate at a Level of Service
(LOS) "C" or better, with the exception that Level of Service (LOS) "0" may occur during
the peak two hours of the day at signalized intersections. Intersections west of 1-805 are
not to operate at a LOS below their 1987 LOS. No intersection may reach LOS "E" or
"F" during the average weekday peak hour. Intersections of arterial with freeway ramps are
exempted from this Standard. The proposed project will comply with this Threshold
Standard.
Comments: To mitigate for the street closure, traffic control to direct traffic to the detour route which
will be provided and any significant impact will be avoided. (lS-95-30 Interdepartmental Comment
Sheet, Engmeering Division, II Traffic.)
d) Parks/Recreation
The Threshold Standard for Parks and Recreation is 3 acres/I ,000 population. The
proposed project will comply with this Threshold Standard.
Comments: . No park acreage will be approved. for the project.
e) Drainage
The Threshold Standards require that storm water flows and volumes not exceed
City Engineering Standards. Individual projects will provide necessary
improvements consistent with the Drainage Master Plan(s) and City Engineering
Standards. The proposed project will comply with this Threshold Standard.
Comments: The project will utilize the existing drainage facilities that are adequate to serve the project
(lS-95-30 Interdepartmental Comment Sheets, Engineering Division I Primary).
f) Sewer
The Threshold Standards require that sewage flows and volumes not exceed City
Engineering Standards. Individual projects will provide necessary improvements
consistent with Sewer Master Plan(s) and City Engineering Standards. The
proposed project will comply with this Threshold Standard.
Comments: The discharge of waste water will be into the existing sewer system, will be at an off peak
time period and the system will be adequate (Ref: IS-95-30, Interdepartmental Comment Sheet,
Engineering Division VI Waste Generation).
A:\fatmetmkt.1h
S--Y,;L- -:B?-
Page 8
g) Water
P..iIl.,.
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No
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The Threshold Standards require that adequate storage, treatment, and transmission
facilities are constructed concurrently with planned growth and that water quality standards
are not jeopardized during growth and construction. The proposed project will comply
with this Threshold Standard.
Applicants may also be required to participate in whatever water conservation or fee off-set
program the City of Chula Vista has in effect at the time of building permit issuance.
Comments: N/A
XIII. UTILITIES AND SERVICE SYSTEMS. Would
the proposal rt!Sult in ;. need for new systems. or
substantial alterations to the following utilitit!S:
a) Power or natural gas? 0 0 0 181
b) Communications systems? 0 0 0 181
c) Local or regional water treatment or distribution 0 0 0 181
facilities?
d) Sewer or septic tanks? 0 0 0 181
e) Storm water drainage? 0 0 0 181
t) Solid waste disposal? 0 0 0 181
Comments: The project is a once-a-week, 6 hour operation that will only have a minor effect on the
provision of these utility and service systems.
XIV. AESTHETICS. Would the proposal:
a) Obstruct any scenic vista or view open to the
public or will the proposal result in the creation
of an aesthetically offensive site open to public
view?
b) Cause the destruction or modification of a scenic
route?
c) Have a demonstrable negative aesthetic effect?
d) Create added light or glare sources that could
increase the level of sky glow in an area or
cause this project to fail to comply with Section
19.66.100 of the Chula Vista Municipal Code,
Title 19?
e) Produce an additional amount of spil1light?
o
o
o
181
o
o
o
181
o
o
o
181
o
o
o
181
o
o
o
181
A:\farmctmh.1is
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Page 9
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Comments: The project site is in the urbanized downtown area of Chula Vista and there are no
opportunities for scenic vistas or view points nor would the project create an offensive site open to the
public. There are no scenic routes in the project area and the project adds no significant light or glare
source. (Ref: Chula Vista General Plan, Town Centre Redevelopment Plan and Master EIR.)
a) Will the proposal result in the alteration of or
the destruction or a prehistoric or historic
archaeological site?
b) Will the proposal result in adverse physical or
aesthetic effects to a prehistoric or historic
building, structure or object?
c) Does the proposal have the potential to cause a
physical change which would affect unique
ethnic cultural values?
d) Will the proposal restrict existing religious or
sacred uses within the potential impact area?
e) Is the area identified on the City's General Plan
EIR as an area of high potential for
archeological resources?
Comments: The project will not ~ult in any physical change in the condition of the project site. This
is an Urha"i7M area with no historical sites and the General Plan Update EIR shows that it has a low
potential for cultural resources. (Ref: General Plan Update EIR May 31, 1989, Chula Vista Register
of Historical sites.)
XVI. PALEONTOLOGICAL RESOURCES. Will the
proposal result in the alteration of or the destruction
of paleontological resources?
Comments: The project site has a low potential for Paleontological Resources and the project will not
involve any subsurface development. (Ref: Chula Vista General Plan Update, May 31, 1994.)
XV. CULTURAL RESOURCES. Would the proposal:
o
o
o
~
o
o
o
~
o
o
o
~
o
o
o
~
o
o
o
~
o
o
~
o
xvn. RECREATION. Would the propasal:
a) Increase the demand for neighborhood or 0 0 0 ~
regional paries or other recreational facilities?
b) Affect existing recreational opportunities? 0 0 0 ~
c) Interfere with recreation paries & recreation 0 0 0 ~
plans or programs?
Comments: Neither the project site nor the adjacent area contain park ilr recreational facilities or
opportunities that could be affected by the project. There are also no plans or programs for plltks or
recreation that could be affected by the proposed project. (Chula Vista General Plan.)
A:\latmmnkt.1k
~
Page 10
'g'_tjL/
XVIII. MANDATORY FlNDINGS OF SIGNIFICANCE:
See Negative Declaration for mandatory findings of
significance. If an EIR is needed, this section
should be completed.
a) Does the project have the potential to degrade
the quality of the environment, substantially
Illduce the habitat of a fish or wildlife species,
cause a fish or wildlife population to drop below
self-sustaining levels, threaten to eliminate a
plant or animal community. reduce the number
or restrict the range of a rare or endangered
plant or llDimal OT eliminate iuportant examples
of the major periods or California hi-tory or
prehistory?
Comments: The project site does not involve any significant fish, wildlife, or plants or their habitats
that could be affected by the project. This is an urhani7ed are a of ChuJa Vista that does not involve
any historic or prehistoric sites. (General Plan Update EIR May 31, 1989 Chula Vista Register of
Historic Sites.)
b) Does the project have the potential to achieve
short-term, to the disadvantage of long-term,
environmental goals?
Comments: The project is an attempt to enhance the long term viability of the downtown area. The
certified Farmers' Market is an effort to re-establish the traditional link between farmers and
consumers. They are being used statewide to reverse the trend of shopping the suburbs and bring
people back downtown.
c) Does the project have i:npacts that are
individually limited, but cumulatively.
considerable? ("Cumulatively considerable"
means that the incremental effects of a project
are considerable when viewed in connection with
the effects of past projects, the effects of other
current projects, and the effects of probable
future projects.)
Comments: There are no known probable future projects that could result in a cumulatively significant
environmental impact. The test and observation period of operations demonstrated that the proposed
project with past and current projects would not result in a significant impact.
d) Does the project have environmental effect
which will cause substantial adverse effects on
human beings, either directly or indirectly?
Comments: There are no air quality, water quality, hazardous materials, geologic or other adverse
conditions on the project site or resulting from the operation of the Farmers' Marlcet that could
adversely affect human beings directly or indirectly.
......"'IJ
.........
1-....
......"'IJ
SlpIl'.....
v.....
.........
N.
1-....
'-,...
...........
1-....
o
o
o
181
o
o
o
181
o
o
o
181
o
o
o
181
A:\llrmcrmkt.1iI
g~1S- ~
Page 11
ENVIRONMENTAL FACfORS POTENTIALLY AFFECfED:
........
The environmental factors checked below would be potentially affected by this project, involving at least one
impact that is a "Potentially Significant Impact" or "Potentially Significant Unless Mitigated," as indicated by
the checklist on the following pages.
-<
o Air Quality
o Noise
o Mandatory Findings of Significance
o Public Services
o Utilities and Service Systems
o Aesthetics
o Cultura1 Resources
o Recreation
. 0 Land Use and Planning
o Population and Housing
o Geophysical
o Water
o Transportation/Circulation
o Biological Resources
o Energy and Mineral Resources
o Hazards
DETERMINATION:
On the basis of this initial evaluation:
I fmd that the proposed project COULD NOT have a significant effect on the environment, and 1KI
a NEGATIVE DECLARATION will be prepared.
I find that although the proposed project could have a significant effect on the environment, 0
there will not be a significant effect in this case because the mitigation measures described on an
attached sheet have been added to the project. A MITIGATED NEGATIVE DECLARATION
wiIl be prepared.
I find that the proposed project MAY have a significant effect on the environment, and an 0
ENVIRONMENTAL IMPACT REPORT is required.
I find that the proposed project MAY have a significant effect(s) on the environment, but at least 0
one effect: 1) has been adequately analyzed in an earlier document pursuant to applicable legal
standards, and 2) has been addressed by mitigation measures based on the earlier analysis as
described on attached sheets, if the effect is & "potentially significant impacts" or "potentially
significant unless mitigated." An ENVIRONMENTAL IMPACT REPORT is required, but it
must analyze only the effects that remain to be addressed.
r;lP~
S' lure
-
~//f)'
D:lte
~t"'" 1'11~ #c/
Environmental Review coOrdinator
City of Chula Vista
A:\f.tmennkt....
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Page 12
.~. ~ --""-~.,..~.~
,^,."'~"'''''~~;;''":'~',"'''''''''''''''-'''''~' ~., ..~..."""'~""'~:~"~~""""'~,
~."WI.I~~"l'''.!;'"<\'''''''':{!!~'''''_'''''!$\''''_'_~;~'~''7_
PUBUC J-IEARlNG DATE:
~
PUBUC HEARING <J-IECK UST
/fl:/j~
d..
a;
SUBJECT:
"
c::;; ~
~~
PER GC ~54992 Legislative Staff, Construction lndusny Fed, 6336 Greenwich Dr Suite F. San Diego, 92122
LOGGED IN AGENDA BOOK ~J;~f
COPIES TO:
MAILED NOTICES TO PROPERTY OWNERS
NO. MAILED
Planning
-y
~V
-zP-
Administration (4)
Originating Department
Engineering
Others
City Clerk's Office (2)
POST ON BULLETIN BOARDS
SPECIAL INSTRUCTIONS:
7/93
-55-
~ [S-Jj7
...
ftECEIV!9
MEMORANDU~ SB',a P3:09
aYICtllILA VISTI,
- E~~t~~~~\8, 1995
File No. PV-062
TO:
Beverly Authelet, City Clerk (\ ~
John W. Hardesty, Permits Engi~ .
, /
"7 I, j/
/ '$):1\)/ J
.",. .
FROM:
.//.;..-
SUBJECT: Notice for Star News Regarding Street/E~seinent Vacation
,.,//
Beverly, attached is the notice of public hearin~fo e vacation of a portion of Orange
Avenue pursuant to Council Resolution 18031. ease forward to the Star News in time
to have it published two consecutive weeks be ore the hearing scheduled for October 3,
1995.
If you have any problems with the time limits, let me know. Or if you have any
questions, give me a call at 5115.
Engineering staff will handle the mailing of the public hearing notices to the surrounding
property owners.
Thank you.
JWH
Attachment
r g--Jj7
NOTICE OF PUBLIC HEARING
BY THE CITY COUNCIL OF
CHULA VISTA, CALIFORNIA
NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BY THE CITY
COUNCIL of Chula Vista, California, for the purpose of consideringla request for vacation of
a portion of Orange Avenue along the frontage of Don Luis Mobile Estates, located at 121 Orange
Avenue. j In accordance with ~ 8333 of the California Streets and Highways Code, a public street
may be vacated by the City Council after a public hearing is held to consider the matter. The
vacation request was filed by Don Luis Mobile Estates. Details are available in the Department
of Public Works, Engineering Division, located in the Public Services Building, 276 Fourth
Avenue.
--staff is recommending that the vacation be granted by Council after finding that all facts exist
warranting the vacation. If you wish to challenge the City's action on this matter in court, you
may be limited to raising only those issues you or someone else raised at the public hearing
described in this notice, or in written correspondence delivered to the City Council at or prior to
the public hearing.
SAID PUBLIC HEARING WILL BE HELD BY THE CITY COUNCIL, in accordaneewith
~IlCitResoh:rtiQn..of..ImlmtiorrN(). 18031, on Tuesday, October 3, 1995, at 4:00 p.m. in the
Council Chambers, located in the Public Services Building, 276 Fourth Avenue, at which time
any person desiring to be heard may appear.
DATED: September 18, 1995
~V~
~
........~~
em OF
CHUlA VISTA
OFFICE OF THE CITY CLERK
TELEFAX COVER LETIER
Telecopier No. (619) 585-5612
DATE:
~C/ /13
/ /
TO: Star News LeS!:a1 / Teresa
FAX NO: (619) 426-6346
FROM: C~d0#-
SUBJECT: /3:~. v4~
TOTAL NO. PAGES (including cover): ;...
PUBUCATION DATE: :?pJA~"7'- ~~5
/ / / /
If all pages are not received, please call Carla @ (619) 691-5041.
r ~rSV
276 FOURTH AVENUE' CHULA VISTA' CALIFORNIA 91910 . (619) 691.5041
@ ""<---...
NOTICE OF PUBLIC HEARING
BY THE CHULA VISTA CITY COUNCIL
CHULA VISTA, CALIFORNIA
NOTICE IS HEREBY GIVEN THAT THE CHULA VISTA CITY COUNCIL will hold
a public hearing to consider the following:
A request for vacation of a portion of Orange Avenue along the frontage of Don
Luis Mobile Estates, located at 121 Orange Avenue.
If you wish to challenge the City's action on this matter in court, you may be limited to
raising only those issues you or someone else raised at the public hearing described in this
notice, or in written correspondence delivered to the City Clerk's Office at or prior to the
public hearing. For further information call the Engineering Department at 691-5021.
SAID PUBLIC HEARING WILL BE HELD BY THE CITY COUNCIL on Tuesday,
October 3, 1995, at 4:00 p.m. in the Council Chambers, Public Services Building, 276 Fourth
Avenue, at which time any person desiring to be heard may appear.
DATED: September 20, 1995
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MINUTES
TOWN CENTRE PROJECT AREA COMMITTEE
CITY OF CHULA VISTA
Thursday, September 7, 1995
8:45 a.m.
Council Conference Room
City Hall
1. Roll Call - 8:48 a.m.
Members Present: Chairman Blakely, Members Altbaum, Apodaca, Hawk,Killian,
Mason and Winters.
Members Excused: None.
Staff Present: Pamela R. Buchan, Principal Community Development Specialist
and Miguel Z. Tapia, Community Development Specialist.
2. Approval of Minutes of June 15, 1995.
MSUC IMason/Altbaum) 16-0-0-1. Apodaca abstained due to the fact that she was appointed
after the meeting of June 15) to approve the minutes as mailed.
REDEVELOPMENT BUSINESS
3. Relocation of Farmers' Market to Center Street
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MSUC (Mason/Hawk) 17-0). to recommend that the City Council adopt Negative Declaration
15-95-3 and approve the temporary closure of Center Street between Third Avenue and
Church Avenue from 3:00 p.m. to 6:00 p.m. on Thursdays from March 1996 tl?rough October
1996.
ADJOURNMENT: The meeting was adjourned at 9:25 a.m. to the regular meeting of
September 21.1995.
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MINUTES OF A JOINT WORKSHOP & REGULAR MEETING
OF THE CHULA VISTA SAFETY COMMISSION
Thursday, September 14, 1995
6:50 p.m.
Council Chambers
Public Services Building
WORKSHOP MEETING
1. Roll Call:
Present:
Chair Liken, Vice-Chair Miller, Commissioners: Adon, Bierd (in at 6:55), Cochrane,
Hoke, and Smith
Also Present:
Hal Rosenberg, Traffic Engineer; Frank Rivera Associate Traffic Engineer; Sgt. Gene
d'Ablaing; and Shirley Buxton, Recording Secretary
2. Meetinl! Prol!ression Procedures
Recording Secretary Shirley Buxton presented a brief outline of meeting progression procedures for the benefit
of new commissioners. Some of the topics covered were how to make motions, when discussion should occur,
voting procedures, and conflid of interest requirements.
3. Adjourned at 7:05 to regularly scheduled meeting.
CALL TO ORDER
1. Roll Call
Chair Liken called the regularly scheduled Safety Commission meeting to order at 7:05 p.m. and noted that all
members were present.
2. Pledee of Alleeiance/Silent Praver
3. ODenine Statement - Read by Chair Liken
Chair Liken welcomed new Commissioners Harriet Adon and Audrey Hoke.
4. ADDroval of Minutes:
MSC (Smith/Miller) to approve the minutes of July 13, 1995 as presented. Approved 54-0-2 with
Commissioners Acton and Hoke abstaining since they were not members of the Commission.
MEETING AGENDA
5. REPORTon Temporary Closure of Center Street between Third Avenue and Church Avenue for the Farmer's
Market
Pam Buchan, Community Development Specialist. clarified that the closure of Center Street would be from 3:00
p.m. to 7:00 p.m. The Market ended at 6:00 p.m. and then clean up would occur between 6:00-7:00 p.m.
Commissioners Bierd, Smith, Hoke, and Cochrane said they felt the new location would be an improvement over
the current location and were glad to see the change. UNOFFICIAL MINUTES
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Safety Commission Minutes
September 14, 1995
Page 2
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Chair Liken spoke with several business owners directly affected by the change and most owners were
enthusiastic about the Market. A concern was raised by the Congregational Church that the closure might affect
some church parking in a widened area in front of the church.
Pam Buchan and Frank Rivera said the area would not be affected by the Farmer's Market.
Chair Liken said the report indicated that vendors would be parking on the sidewalk which was of concern to one
business owner.
Pam Buchan clarified that the statement was in error and that all parking and stands would be set up in the street
right-of-way, leaving the middle of Center Street and the sidewalk available to customers of the Market.
Chair Liken saw the change as a positive one.
MSUC (BierdlActon) to approve the temporary closure of Center Street between Third Avenue and Church
Avenue from 3:00 p.m. to 7:00 p.m. on Thursdays from March 1996 through October 1996 and adopt Negative
Declaration IS 95-3.
6. REPORT on Request from the Paul Miller Company regarding an on-street Passenger Loading Zone at 276
Ch u rch A ven ue
Frank Rivera showed slides of the area.
Commissioner Bierd indicated he had visited the area and found that his van did not fit well in the proposed
loading zone area. He asked how it would affect vans who transported elderly patients to the doctor's office in
that complex.
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Frank Rivera said the loading zone would accommodate light trucks or passengers vehicles.
Vice-Chair Miller asked for clarification if the white curb meant a three minute time limit, and if staff's
recommendation had been discussed with the Paul Miller Company.
Frank Rivera verified that a white curb would be a three minute limit and that the Paul Miller Company was in
agreement with staff's recommendation.
Commissioner Hoke asked if staff was considering both alternatives or just one. She saw benefit for alterative
one, but felt alternative two would be more beneficial for larger vehicles.
Hal Rosenberg said the area was sensitive to parking needs and staff was trying to comprise without jeopardizing
safety and not remove any parking metered spaces. The proposed site would not remove any parking.
Commissioner Cochrane did not feel alterative 2 was worth considering, due to the fact of excess traffic trying
to access the bank driveway.
Chair Liken had viewed a van delivering a wheel chair patient which did not have any difficulties and felt the site
was the best option.
Commissioner Smith asked if the curb would be modified to include an ADA pedestrian ramp.
Frank Rivera said the area would not include a pedestrian ramp. The passenger loading zones he was aware of
did not have pedestrian ramps.
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negative declaration
PROJECf NAME: Certified Farmers Market Relocation
PROJECf LOCATION:
Center Street Right-of-Way between Third Avenue and Church
Avenue
ASSESSOR'S PARCEL NO.: N/A
PROJECf APPLICANT: Chula Vista Downtown Business Association (DBA)
CASE NO: IS-95-30
DATE: August 21, 1995
A. Proiect Settinl!
The project site is within the Center Street right-of-way between Third Avenue and Church
Avenue. There would be no permanent modifications to the right-of-way. The project site
is quite flat, there are no biologic3I resources present nor are there any geologic hazards in
the project vicinity. the project site is bound to the east and west by the retail business and
other services that front on Center Street.
B.
Proiect Descriotion
The Downtown Business Association proposes to continue running a cenified Farmers'
Market every Thursday between 3:00 and 6:00 p.m. The market will begin set up at 2:00
and the street will reopen no later than 7:00 p.m. The Farmers' Market is currently located
on Third Avenue, between Davidson and E Street. After careful study and review, the
Downtown Business Association would like to relocate the Fanners' Market to Center Street,
between Third A venue and Church Street.
The rationale for the relocation to Cellter Street are:
1. Closing a major thorollghfare such as Third Avenue takes extensive labor every
week. The labor cost involved in closing Center Street will cost 50% less, thus
saving the Downtown Business Association a major expense.
2. Chula Vista Transit will no longer have to be re-routed.
3. City engineers will not have to alter traffic signals.
4. The lesser traffic flow on Center Street, versus Third Avenue, provides for a safer
environment.
5. It is in closer proximity to Congregational Towers and the Nonnan Park Center, both
primary customers of the Farmers' Market.
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city of
chula vista planning department OJY Of
environmental revf_ aectlon. OiUlA VISTA
6. There is excellent visibility of the Farmers' Market from Third A venue.
Growers would park along the sidewalks on both sides of Center Street, and sell towards the
center of the street. The alley would be coned off, but would remain open for delivery
traffic and emergency vehicles. _
The Certified Farmers' Market will be supervised by an experienced Market Manager who
will recruit growers, enforce market rules and regulations, and oversee the market. The
Market Manager assists in the street closure, checks in the growers, assigns spaces, monitors
sales and collects the DBA's percentage of gross sales from the growers at the close of the
market.
In conjunction with the Market Manager, the Chula Vista DOwntOY,l1 Business Association
intends to maintain a high profile at the weekly market. Various promotions and activities
will be planned in conjunction with the market. Arts and crafts will also be displayed during
key selling seasons. .
The DBA will establish a Market Committee to oversee the market and resolve issues as they
arise. The committee will monitor the market budget and plan the advertising and
promotions.
C. ComDatibilitv with Zonin!! and Plans
The project will require the approval of the use of the Center Street right-of-way which is
part of the Circulation Element of the Chula Vista General Plan. Because of the limited
once-a-week use of the right-of-way, the project is in substantial compliance with the General
Plan Circulation Element. The property is zoned CoB and the uses would, therefore, comply
with the zoning of the site. The right-of-way is part of the Circulation Plan for the Town -...
Centre Redevelopment Plan and because of minimal use of the site (6 hours, once a week)
the project complies with the redevelopment project. .
D. Identification of Environmental Effects
An initial study conducted by the City of Chula Vista (including the attached Environmental
Checklist Form) determined that the proposed project will not have a significant
environmental effect, and the preparation of an Environmental Impact Report will not be
required. This Negative Declaration has been prepared in accordance with Section-15070
of the State CEQA Guidelines.
The following impacts have been determined to be less than significant. A discussion of each
of these less than significant impacts from the proposed project follows.
Traffic
During the month of June 1994, the Farmers' Market was conducted on a trial basis. During
this time, traffic counts were taken, turning movement counts made and observations made
by Traffic Engineering staff and Environmental Planning staff. It was concluded that during
the operations of the Farmers' Market when Third Avenue is closed between Davidson and
E Street, the level-of-service on primary access roads would not change and would. not
exceed level-of-serv"ice .C., the design ADT volume. The relocation to Center Street was
proposed to provide better traffic flows and emergency access.
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The project site is in an urbanized area with existing commercial land uses. There is,
therefore a commensurate urban noise level in the proj~ct area. This market noise level has
been observed to be lower than the traffic noise which is otherwise present. Neither is an
intrusive noise level given the land use.
The second element of the change in noise level is due to the shift in traffic from Center
Street to other streets providing circulation in the project area. E Street and F Street are
east-west streets that have primarily retail commercial zoning with some office-commercial
zoning. There are primarily retail commercial uses and some areas of public uses along
these streets. ChurCh Avenue and Landis Avenue are north-south streets that parallel Third
Avenue. These streets have office-commercial zoning with primarily office and public
parking land use. The shift traffic to these commercial east-west and north-south streets
would not create any acoustical incompatibilities.
E.
Miti~ation necessary to avoid si~nificant effects
The proposed project will not result in any significant or potentially significant environmental
impacts, therefore, no project specific mitigation is required.
F. Consultation
1. Individuals and Or~anizations
City of Chula Vista: Roger Daoust, Engineering
Cliff Swanson, Engineering
Hal Rosenberg, Engineering
Bob Sennett, Planning
Ken Larsen, Director of Building & Housing
Carol Gove, Fire Marshal
Crime Prevention, MaryJane Diosdada
Marty Schmidt, Parks & Recreation Dept.
Glenn Googins, Assistant City Attorney
Chula Vista City School District: Kate Shurson
Sweetwater Union High School District: Tom Silva
Applicant's Agent: Jim Fergus, 385 Third Avenue, Chula Vista 91910
2. Documents
Chula Vista General Plan (1989) and EIR (1989)
Title 19, Chula Vista Municipal Code
Town Centre Redevelopment Plan
Master EIR Town Centre Redevelopment Plan
3.
Initial Study
This environmental determination is based on the attached Initial Study, any
comments received on the Initial Study and any comments received during the public
review period for this Negative Declaration. The report reflects the independent
judgement of the City of Chula Vista. Further information regarding the
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environmental review of this project is available from the Chula Vista Planning
Department, 276 Fourth Avenue, Chula Vista, CA 91910.
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APPLICA nON CANNOT BE ACCEPTED UNLESS SITE
PLAN IS FOLDED TO FIT INTO AN 8-1/2 X II FOLDER
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6.
INITIAL STUDY
"'Forbffidgli~o;;;Y'i
Case No. IS-V!5"''JO
Dpst Arnnt. . 8
Receipt Noc, . &-.<..,i
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Pr:ojcct No, FA-/:7':?<
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City of Chula Vista
Application Fonn
BACKGROUND
1. Project Title . ::';-1Vr.h1PA-~ m wJ.z.d ~ , .
2. Project Location (Street address or description) :loa J6p.bfJJz.. bJ (d~) .f;/Ad
3.
. Assessors Book, Page & Parcel No.
Brief Project Description L. a..AJ-" /lJ. ~
IV A- -
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4.
s.
Name of Applicant, r1 ,,0 Q V ~~ l>owira-wn~.....a ~.
Address P. Q. 6ar. 0[5 ( Fax# L/ 22-1 </102. Phone 4- 2 Z- {q f 2.
City (lL-P -'L v' ~ State fA- Zip '1 L 11 L
Name,ofPreparer/A~ent ;::r~},O~
Address ~ Fax# Phone
City State Zip
Relation to Applicant-=:r~ ~ /i 'aP'.J - (~~
Indicate all permits or approvals' and enclosures or documents required by thg~
Review Coordinator.
a. Pennits or approvals required.
_ General Plan Amendment
_ RezoneIPrezone
. _ Grading Permit
_ Tentative Parcel Map
_ Site Plan & Arch. Review
_ Special Use Permit
_ Design Review Application
_ Tentative Subd. Map
_ Redevelopment Agency OPA
_ Redevelopment Agency DDA
_ Public Project
Annexation
_ SpecifIC Plan
Coadt1ionatUse Permit
Variance
_ Coastal Development
vOther Permit
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IT project is a General Plan Amendment and/or rezone, please indiCate the change in designation from
IV~ to
b. Enclosures or documents (as required by the Environmental Review Coordinator).
_ Grading Plan
_ Parcel Map
Precise Plan
. Specific Plan
_ Traffic Impact Report
_ Hazardous Waste Assessment
Arch. Elevations
-Landscape Plans
= Tentative Subd. Map
_ Improvement Plans
_ Soils Report
_ Geotechnical Report ~
g~k~
_ HydrOlogical Study
_ Biological Study
_ Archaeological Study
'Noise Assessment
= Other Agency Permit
Other
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COUNCIL AGENDA STATEMENT
ITEM TITLE:
Item 9
Meeting Date 10/3/95
Resolution I~~:! Waiving Condition No. 38 of Resolution 17618
Approving the Tentative Subdivision Map for Chula Vista Tract 88-3A,
Eastlake South Greens
Resolution ItD ~If Approving Final Map and Subdivision Improvement
Agreement for Chula Vista Tract 95-01 Eastlake South Greens, Unit 27,
Fieldstone Crest
Resolution I'6o!S Approving Supplemental Subdivision Improvement
Agreement Requiring Developer to Comply with Certain Unfulfilled
Conditions of Resolutions No. 17749 and 15200 Approving a Tentative
Map for Parcel R-27, known as Fieldstone Crest, and Authorizing Mayor
to Execute Same
On December 6, 1994, by Resolution 1 (Exhibit A) the City Council approved the
Tentative Subdivision Map for Chula Vista Tract 95-01, Eastlake South Greens, Unit 27,
known as Fieldstone Crest. Council also approved on July 18, 1989, by Resolution 15200
(Exhibit B) the tentative subdivision map for Chula Vista Tract 88-3, Eastlake Greens and on
August 16, 1994, approved an amendment to the southerly portion of said Eastlake Greens
tentative map (designated as Eastlake South Greens, Chula Vista Tract 88-3A) by Resolution
17618 (Exhibit C). Said resolutions contain conditions of approval applicable to Fieldstone
Crest. The final map for Eastlake South Greens Unit 27 is now before Council for approval.
(4/5ths Vote: Yes_NoX)
SUBMITTED BY: Director of Public Work
REVIEWED BY: City Manager ~
RECOMMENDATION: That Council adopt the resolutions waiving Condition No. 38 of
Resolution 17618, approving the final map and subdivision improvement agreement, and
approving the supplemental subdivision improvement agreement for Eastlake South Greens
Unit 27.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The project is generally located on the west side of Hunte Parkway south of Clubhouse Drive
and consists of 40 lots for single family residential units and 3 lettered lots for open space.
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Meeting Date 10/3/95
The fmal map for Eastlake South Greens Unit 27 has been reviewed by the Public Works
Department and found to be in substantial conformance with the approved tentative map.
Approval of the fmal map constitutes acceptance by the City, on behalf of the public, of Indian
Creek Drive and Arrowhead Court, acceptance of utility easement, acceptance of general utility
and sidewalk easement, acceptance of tree planting and maintenance easements and rejection
of open space Lots A and C, all as shown on the fmal map. Lots A and C are rejected because
the open space is to be maintained by the Eastlake Master Homeowner's Association instead
of the City. The City reserves the right to accept the rejected open space lots in the future per
Section 66477.2 of the Subdivision Map Act. Lot B is a private open space lot to. be granted
to the Homeowner's Association subsequent to recordation of the fmal map. A public access
easement over Lot B is being granted on the map to provide access to the golf course overlook.
The developer has executed a Supplemental Subdivision Improvement Agreement to satisfy the
following conditions:
1. Condition No. 30 of Resolution No. 15200 requires the Developer to enter into an
agreement with the City for the withholding of building permits if traffic on Otay Lakes
Road, Telegraph Canyon Road, EastLake Parkway, or East "H" Street exceed the level
of service identified in the City's adopted thresholds.
2. Condition No. 31.C of Resolution No. 15200 requires the Developer to enter into an
agreement with the City wherein Developer agrees to not protest the formation of an
assessment district for the construction of street improvements to connect Orange
Avenue and Palomar Street to existing improvements west of EastLake Greens and to
not protest inclusion of the subject improvements as projects in the Eastern Territories
Development Impact Fee System.
3. Condition NO.4 of Resolution No. 17749 requires the Developer to construct an 8 foot
wide sidewalk for the Golf Course Neighborhood Trail as shown on the EastLake
Greens Trails Plan along Hunte Parkway from So. Greensview Drive to the southerly
boundary of Unit 27.
4. Condition No. 5 of Resolution No. 17749 requires the Developer to develop the golf
course trail access corridor parcel (Lot B) and the golf course vista point in accordance
with the Golf Course Trail conceptual development plan attached thereto and made a
part thereon and construct all improvements indicated thereon concurrently with the
improvement of Street A.
5. Condition NO.6 of Resolution No. 17749 requires the Developer to provide for the
maintenance of the proposed sewer pump station on East Orange Avenue in accordance
with Council Policy #570-03 adopted by Resolution 17491 and the Agreement to
Provide Sewer Pump Station Maintenance for the EastLake Greens and amendments
thereto.
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Page 3, Item
Meeting Date 10/3/95
6. Condition No. 14 of Resolution No. 17749 requires the Developer to enter into an
agreement with the City whereby:
a. The developer agrees that the City may withhold building permits for any units
in the subject subdivision if anyone of the following occurs:
(I) Regional development threshold limits set by the East Chula Vista
Transportation Phasing Plan have been reached.
(2) Traffic volumes, levels of service, public utilities and/or services exceed
the adopted City threshold standards.
b. The developer agrees that the City may withhold building permits for any of the
proposed development if the required public facilities, as identified in the Public
Facilities Financing Plan (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 Planning Director and City Engineer.
7. Condition No. 15 of Resolution No. 17749 requires the Developer to enter into an
agreement to indemnify and hold harmless the City from any claims, actions or
proceedings against the City to attack, set aside, void or annul any approval by the City
with regard to the Fieldstone Crest project.
8. Condition No. 16 of Resolution No. 17749 requires the Developer to enter into an
agreement to indemnify and hold harmless the City from any liability for erosion,
siltation, or increase flow of drainage resulting from the Fieldstone Crest project.
9. Condition No. 17 of Resolution No. 17749 requires the Developer to enter into an
agreement with the City relating to the provision of franchise cable television services
as more particularly set forth in Condition No. 34 of Resolution No. 17618.
10. Condition No. 23 of Resolution No. 17749 requires the Developer to comply with the
terms and conditions of the AcquisitionlFinancing Agreement for Assessment District
94-1, CO 94-064, approved by Council Resolution RI7483 as said terms and conditions
may be applicable to this development.
11. Condition "D" of General Conditions of Approval of Resolution No. 17749 requires that
the Developer implement previously adopted conditions of approval pertinent to project.
Unless otherwise conditioned, Developer shall comply with all unfulfilled conditions
of approval of the EastLake Greens Tentative Map, Chula Vista Tract 88-3 established
by Resolution No. 15200 approved by Council on July 18, 1989 and as amended by
Resolution 17618 approved by Council on August 16, 1994 and shall remain in
compliance with and implement the terms, conditions and provisions of EastLake
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Page 4, Item
Meeting Date 10/3/95
Greens Sectional Planning Areas, EastLake Greens Planned Community District
Regulations, the EastLake Greens Development Agreement, the Water Conservation
Plan and the Air Quality Plan, Design Guidelines and the Public Facilities Financing
Plan.
Condition No. 38 of Resolution No. 17618 and amended by Resolutions 17765 (Exhibit D) and
17835 (Exhibit E) requires the developer to update the Eastlake Greens Public Financing Plan
(PFFP) prior to approval of the first fmal map for Phase 2 of the Eastlake South Greens. The
PFFP is scheduled to be submitted for review by the Planning Commission on 9/27/95 and for
Council consideration on 10110/95. The map before Council, Unit 27, is within Phase 2 of the
Eastlake South Greens. However, since all infrastructure required for this subdivision has
either been constructed or has approved plans and bonding in place, staff recommends that
Council waive the Condition No. 38 and consider the Unit 27 final map for approval. All other
conditions of approval have been satisfied.
The developer has also executed a Subdivision Improvement Agreement and has provided
bonds to guarantee construction of the required public improvements (CV drawings 95-309
through 95-312) within the subdivision. The developer has paid all applicable fees and has
provided a bond to guarantee the subdivision monumentation.
A plat is available for Council viewing.
FISCAL IMPACT: None. All staff costs associated with processing of improvement plans
and fmal map will be reimbursed from developer deposits.
Attachments:
Exhibit A - Resolution 17749
Exhibit B - Resolution 15200
Exhibit C - Resolution 17618
Exhibit D - Resolution 17765
Exhibit E - Resolution 17835
Exhibit F - Plat - Eastlake South Greens Unit 27
Exhibit G - Disclosure Statement
File: ELG 27
(M":\homc\cngincct\agenda\FIEIDSlN.GV)
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September 28, 1995
TO:
The Honorable Mayor and City Council
Bruce M. Boogaard, City Attorney~
Agenda Item No. 9 - Eastlake South Greens, unit 27
Fieldstone Crest
FROM:
RE:
The City Attorney's approval of the resolutions and agreements will
be provided at the Council meeting Tuesday night.
Any problems discovered will be discussed at that time. Resolution
will provide that approval shall not affect resolution of parks
dispute.
If not reviewed, we will ask that the matter be continued.
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RESOLUTION NO. 17749
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING AND IMPOSING CONDITIONS ON THE
TENTATIVE SUBDIVISION MAP FOR FIELDSTONE CREST,
CHULA VISTA TRACT IS-Cn, MAKING THE NECESSARY
FINDINGS AND READOPTING THE MITIGATED NEGATIVE.
DECLARATION AND THE MITIGATION MONITORING AND
REPORTING PROGRAM FOR IS.84-1,
I. RECITALS
A.
e
e
Project Site
WHEREAS. the Itea of land which Is the subject matter of this rllolution Is
diagrammatically reprasented In Exhibit A Ittached hereto Ind Incorporated
herein by this reference. is commonly known .s Unit 27 of ElltLlk. Gr..ns
Tentstive Subdivision Map, Chula Vist. Trect 88-3; Ind for the purpose of
genera' description herein consists of 9.21 acr.s loeeted It theeouthwest
corner of Hunte Perkway Ind Clubhouse Drive within the ElstLake Greens
Sectional PlaMing Area of the ElStLake PlIMld Community C.Project Site");
.nd.
B.
Project; Applicetion for Discretionery Approval
WHEREAS, on August 11. 1894 Fieldstone Communiti.s, Inc. C"D1veloper")
Ind Western Salt Company C"Owner") fil.d a tent.tive aubdivision mlp
IppliCltion with the Planning D1pertment of the City of Chule Vlltl Ind
requasted epprovel of the Tentltive Subdivision Map for ""ldstone Crllt. Chuls
Vista Tract 8S-01 in order to subdivide the Project Site Into 43 lots C"Project");
and,
C.
Prior Discretionary ApprovIls
. WHEREAS, the development of the Project Site hes been the aub)ect mstter of
1) . G.ner.1 Development Plen, ElstLake II CbstLeke I Expenslon) General
Development P1en previously Ipprovad by City Council ""olution No. 11188
C.GDP"); 2) the E.stLake Gr..ns Sectional Plenning Arel Plen, previously
adopted by City Council RlloIution No. 11 1 89 C.SPA .); and 3) . Tentative
Subdivision Map, previously approved by City Council ".solution No. 11200
C"TSM"), ChuI. Vistl Trect 18-3, .11 .pproved on July 11, tl81; 4) In Air
Qullity Improvement Plen, ElstLake Gr..ns AIr Qullity Improvement Plan
CAQlP): .nd III Wlter Consarvltion Plen, bstLeke Gr..ns Wlter Consarvltion
P1ln (WCP); both previously Ipproved by City Council RlloIutlon No.1 6898 on
November 24, 1992; Ind 611 GDP, SPA, TSM, AOIP and WCP .mendment
previOUSly .pproved by City Council Resolution No. 17811 CII August 16,
1994; .nd.
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'~esollrtion No. 17749
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D. P18Ming Commission Record on Applicltion
WHEREAS. the P1.nning Commission held .n .dv.rtilld public he.ring on uid
project on Nov.mber I. 1894. .nd yot.d 1.0 to recommend that the City
Council .pprove the Project In .ccord.nee with R.solution PCS.15001 .nd
"sad upon the findings .nd lubject to the conditions liat.d below.
E. City Council Record of Applic.tion.
WHEREAS. a duly c.lI.d and noticed public he.ring was held before the City
Council of the City of Chul. Vi.t. on December I. 1194. on the Project and to
receive the recommend.tiona of the P1.nning Commluion, and to hear public
testimony with reg.rd to ume; .nd.
NOW. THEREFORE. BE IT RESOLVED th.t the City Council does her.by find. d.termine
and re.oIve al follows:
II. PLANNING COMMISSION RECORD
The procHdings .nd .11 evid.nce Introduced before the P1.nning Commission .t their
public he.ring on this project held on November I. 1814. and the minute. and
re.oIutions resulting ther.from. .re hereby incorpor.ted Into the record of this
proceeding.
.......
III. MITIGATED NEGATIVE DECLARATION REVIEWED AND CONSIDERED; MITIGATION
MONITORING AND REPORTING PROGRAM; FINDINGS; APPROVALS
A. Milig.ted Neg.tive D.cl.r.tion
The City CouncR of the City of Chul. Vi.t. he. revlew.d, analyzed and
considered the pr.vlously .pproved Mitig.ted Neg.tive Decl.r.tlon on IS.14.1 1
(known IS Document No. C094.1 80 on file In the Office of the City Clerk) and
comments thereon. the environment.1 imp.eta therein identified for thil project .
and the Mitig.tion Monitoring and R.portlng Progr.m (-Progr.m-) (known a.
Document No. C014.181 on fil.1n the Offic. of the City Clerk) thereon prior
to approvlng the Project. ....d on the Initi.1 Study and commenta thereon, the
Council findl thet there II no lub.t.ntilll al!id.nee that the Project win have a
Ilonlfic.nt affect .on the anvlronment and thereby re.dopts the Mitigeted
Neg.tive Decl.r.tion.
.. MItig.tion Monitoring and ".porting Progr.m
The City Council of the City of Chut. VIsta find. thet the a1gnlflCllnt
environmental effectC.lldentified In the Mitig.ted Neg.tlve Declar.tion will be
reduced to below a level of e1gnlficancl If the mitig.tlon me..urel In the
Milig.tlon Monitoring and "eportlng Progr.m are Implemented. The Mitlg.tion
.......
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"esolution No. 17749
Pege 3
e
Monitoring and Reporting Program II heraby readoptld to ansure that Its
provisions are compliad with.
IV. CERTIFICATION OF COMPLIANCE WITH CECA .
The City Council does hereby find that the Mitigltld NIgltive Declarltion on IS.I4- 1 I
and Mitigation Monitoring Ind Rlporting Program heve bean prlparld In accordsncI
with requirements of thl Cllifomia Envlronmlntel Qullity Act, the State EIR
Guidllines, and the Envlronmlntsl Revllw Procadures of the City of Chula Vlsts.
V. INDEPENDENT JUDGMENT OF CITY COUNCIL
The City Council finds that Mitigstld Negstive Declaration 15.14-11 rlflects the
Independent judgmlnt of the City of Chuls Vista City Council.
VI. TENTATIVE SUBDIVISION MAP FINDINGS
A.
Pursuant to Govemment Code Section 66473.5 of the Subdivision Map Act,
the City Council finds thst the Tentstive Subdivision Map as conditioned herlln
for Filldstone Crist. Chuls Vlsts Tract No. 15-01 II in conformsnel with the
elemlnts of the City's Glneral Plan, basld on the following:
a. Land Use
e
The proposed density of 4.3 dulac is In complllnee with the prlvlously
approved ElstLakl Grltns SPA Plan dlnsity renge C0-5 du/ac) for the
aubject parcel.
b. Circulation
All of the on-aite and off.aite public atrllts required to IIrve the
aubdivlsion will be constructld or DIF filS paid by the dlvlloper In
accordanel with the ElatLake Grllns Public Financing Plan and
Developmlnt Agrllmlnt.
The publiC atreats within the aubdlvlslon will be designed In accordanel
with the CIty design atlndlrda and/or requlremente. The Idjoinlng
nllt ayatlm was dlslgned to hendle the anticipated flow of traffic
from this and other arll pro)eCtl.
c.
Housing
The EIstLakl Grltns SPA Plan aria hes beln conditioned to provide a
minimum of 10% affordlbll housing Including a mix of housing types
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4.3
Resolution No. 17749
'.g. 4
Ind lot liz.. for .ingl.-f.mily, townhou.... condominium Ind various
Ip.rtm.nt d.n.iti.. thet will provide I wid. .pectrum of hou.ing pric..
for per.ons of v.riou. incomes. The propo..d .ingl.-f.mily d.t.ched
....id.nti.1 hou.ing type Is consi.t.nt with the E..t1.Ik. Gr..ns SPA
Plen.
~
d. Cons.rv.tion
The Mitig.t.d N.gltiv. Decl.r.tion Ind Mitig.tion Monitoring Ind
Rlporting Progrlm for IS-94-18 .ddr....d the goel. .nd poIicl.. of the
Cons.rv.tion Elem.nt of the Cenerll P1.n .nd found the d.velopment
of this .it. to be con.i.tlnt with the.. gOII. .nd policie..
.. '.rk. .nd Recreation, Open SPIC'
..
The proj.ct .ite I. loclted within the ElstLek. Gr..ns SPA P1.n .r...
The EestL.k. Gr..n. SPA Pl.n provid.s public plrk., tr.i1. .nd open
'PIC. consistent with City policies. The project wllllmplem.nt In Plrt
condition. of .pprov.' for the E.stLlke Greens SPA P1.n requiring the
provi.ion/construction of . golf course trail.
f. Seismic Slf.ty
~
The propo..d subdivision I. in conformlnc. with the goels .nd policl..
of the Seismic Element of the Gener.1 P1.n for this .it..
g. Slfety
The Fire Oeplrtment .nd other .mergency IIMC. .genci.. hev.
revi.wed the proposed .ubdivision for conform.nce with City IIfety
policies .nd hive determined thlt the propo..1 m.ets the City Thre.hold
St.nderds for .mergency services.
h. Nois.
Noi.. mitigltion mlnur.. Included In the Environrn.ntellmpect R.port
SEIR-86'()4 .nd Mitiglt.d Negltlve Decler.tion 11-14-11 ldequately
Iddre.. the noi.. pOlicy of the Gener'l Plen. All dw.lllng unite within
the project will be required to be d..igned 10 .. to not .xceed the
interior noise level of 411 dBA. Additionally,.1I .xterlor private open
.pec. will be shielded by I combination of IIrth, berm, w.lI, end/or
bUilding. to .chieve . 811 dBA noise level for outaIcIe prlvat. er....
I. Scenic HighwlY
The projlct lit. Is loclted .Iong the w.1t lide of Hunte Perkw.y, . -.
deligneted sc.nIc highw.y.
~1-1
"eaolutlon No. 177411 .
PegelS
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J.
The project, .. conditioned, will be required to prOYicle . Iandacepe
buffer in conformance with landform grading and acenic highway
prlnclplll of tha General Plan.
licyc" Routll
Bicycl. Ianea have been incorporated within tha hstuke Gr..ns
Planned Community .rea dllign and are pr..endy in UII. The public
streeta within the project are of adequate width to accommodate bicycle
travel within the interior of tha aubdiviaion. .
e
k. Public Buildinga
No publiC building. are proposed on the project alt.. The project Ie
aubject to RCT f.1I prior to laauanc. of building permita.
B. Purauant to Section 66412.3 of the Subdivlaion Map Act, tha Council certif..a
that It ha. considered the .ffect of this approval on tha houaing need. of tha
region and ha. balanced those ne.d. .gainat tha public IIrvice need. of the
'lIidents of the City .nd the available fiacel and .nvlronm.ntal rllowclI.
The configuration, orientation and topography of tha a1te partially allowa for the
optimum aiting of lots for passive or natural heating .nd cooling opportunitias
.. required by Government Code Section 66473.1.
C.
D. The aite ia phyaically auitable for reaidentlal development .nd tha propoaal
conform. to all standard. established by tha CIty for auch projectl.
E. The condition. herein Impoaed on tha grant of permit or other entitlement
herein contained ia approximately proportional both In netura and .xtent to tha
Impact created by the proposed development.
BE IT FURTHER RESOLVED that the City Council doea hereby approve the Project
aubj.ct to tha general.nd epecial conditions lit forth below.
VIII. GENERAL CONDITIONS OF APPROVAL
The epproval of tha foregoing Tentativa Subdivlaion Map which .. ItIted to be
conditioned on -General Conditions- Ie hereby conditioned .. follow.:
A. Project Site Ie Improved with Project
Developer, or thalr IUCce..or. in interest, shall improve tha Project Site with
the Project as dllcribed In the Mitigated N.gative Declaration IS-lI4- 1 II exc.pt
ea modified by this Rllolutlon.
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"esolution No. 17749
Page 6
I.
Implement Mitigation Measures
~
Developer shill diligently Implemlnt, or Cluse the Impllmentltion of, III
mitigation mlasures pertaining to the Project Identified In the FINlI
Supplementll Impact Report for Elstllke Greens FEIR-88-04 end Mitlglted
Negative Decllrltion 15-94-19.
C. Implement the Mitigation Monitoring Ind Reporting Progrlm
Developer shill implement, or Cluse the Implementetion of, ell portione of IS-
14-19 Mitigltion Monitoring Ind Reporting Program pertlinlng to the Project.
D. Implement previously Idopted conditions of IpprovII pertinent to project.
Unless otherwise conditioned, developer IhllI comply with III unfulfilled
conditions of Ipproval of the EastLlke Greens Tentative Map, Chule Vistl Trlct
88-3 established by Resolution No. 115200 Ipproved by Council on July 18,
1989 Ind shall remain in compliance with end Implement the terms, conditions
Ind provisions of Eastlake Greens Sectlonsl P1lnning Arel, Eestllke Greens
P1enned Community District Reguletions, the Eastleke Greens Development
Agreement, the Water Consarvation Plan end the Air Q~lity P1ln, Design
Guidelines Ind the Public Facilities Financing Plan.
E.
Implement Public Flcilitles Finsneing Plan
~
Developer shall install public facilities In Iccordanel with the EIstlake Greens
Public Facilities Financing Plan II Imended or es rlQulred by the City Engineer
to meet threshold standards Idoptad by the City of Chula Vistl. The City
Engineer and Planning Director may, It their discretion, modify the llquenee of
Improvement construction should conditions chlnge to wlrrlnt such I revllion.
F. Project Phasing
Developer shall submit Ind obtain Ipproval for I development phlling p1ln by
the City Engineer Ind Director of Planning prior to IpprOVlI of eny finsl mep,
if phlsing Is proposed within In individual mep or ttvough multiple fIneI meps.
The phlling p1ln shllllnelude:
e. A lite p1en showing the lot lines Ind lot numbe,., the phi.. .... end
phi.. numbers Ind number of dwelling units In .Ich phi...
b. A ubleshowlng the phlse number, the lotelnc1olded In the phIM end
the number of units Included In .Ich phi...
Improvements, flcilities Ind dedicetione to be provided with elch phi.. or unit
of development shill be es determined by the City Engineer Ind Director of
"""'"
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IX.
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RlloIution No. 1774'
Pege 7
Planning. The City re..rv.s the right to conditional .pproval of ..ch flNl map
with requir.m.nt to provide uid improv.m.nts, f.ciliti.s .nd/or d.diCltions .s
MC....ry to provide .d.qUlt. circulation .nd to me.t the requir.m.nts of
poIic. .nd fir. d.pertm.nts. The City EnglM.r .nd Planning DIrector may .t
their discr.tion, modify the uqUlne. of Improvem.nt conetruction ehould
conditiona chang. to w.rrant .uch . r.visiona.
SPECIAL CONDITIONS OF APPROVAL
Prior to .pprov.1 of the finel map unI... OtherwiH Inclicet.d, the developer ahall:
STREETS. AIGHT!;.OF.WAV AND IMPROVEMENTS
1. D.sign .nd construct .11 str..ts to m.et the City at.nd.rds for r.sidantial
.tr..ts, or .s .pprov.d by the City Engina.r. . Submit Improvem.nt plans for
.pprov.1 by the City Engineer d.tailing the horizontil .nd vertiCil .Iignment of
uid streets.
2.
Guerant.. the construction of .11 Improvem.nu CltrlltS, Hw.rs. Or.ng.
Av.nue Hwer pump at.tion, draineg., utiliti.s, etcl de.m.d MC....ry to
provide UMC' to the subj.ct subdivision In .ccordanc:' with City atandards.
Submit .nd obtain .pproval from the Dir.ctor of P1aMing .nd City Engine.r for
.treet Nmll.
3.
4. Construct .n 8 ft. wid. sid.walk for the Golf Cour.. N.illhborhood Tr.1I II
.hown on the E..tlake Greens Tr.lIs Plan .Iong Hunt. P.rkway from So.
Greensvi.w Drlv. to the south.rly boundary of Unit 27.
5. D.velop the 1I01f cour.. trail acc..s corridor perc.1 (Lot II .nd the 1I01f CourH
vista point in .ccord.ne. with the Golf Cour.. Tr.lI conc.ptuel developm.nt
plan .tt.ched th.r.to .nd m.d. . part ther.on .nd Conltruct .lllmprovem.nta
Indic.t.d ther.on concurr.ntIy with the Improvement of Strllt A.
8. Provid. for the m.int'NncI of the proposed Hw.r pump at.tion on ElSt
Or.ng. Avenue In .ccordanc. with CouncU Policy 1570-03 .dopt.d by
RlloIution 17491 .nd the Allrllm.nt to Provld. Sew.r Pump Station
Mlint.NncI for the E.stl.k. Grllns .nd .mendments thereto.
7. Provld. . peved '.ce... rOld, '4' minimum width, to the Hwer pump station
.ndllr.nt to the City lI.nara~ utility .nd acc... ....m.nu over the Hw.r pump
ltltion alt. .nd .ce... rOld.
8.
Provld. to the City . Iett.r from Olay Municipel Wat.r DIstrict Indicating that
the ......m.ntalbond.d ind.bt.dness for .11 perc.l. d.dic.t.d to the City have
be.n peld or that no ......ment. .xi.t on the percell.l.
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Resolution No. 17749
Pdge 8
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t. Present written verification to the City Engineer from Olay Water District that
the subdivision will be provided adequate wlter sarvlce and long term weter
storage facllitie..
CRADINt;
10. Provide an updated soils report or an addendum to the original document
prepered by a registered engineer. as rllquired by the City engineer.
". Submit and obtlin approval by the City Engineer for an erosion and
sedimentation control plan together with grlding plans.
12. Submit a list of proposed lots indicating whether the structure will be located .
on fill. cut. or a transition between the two situations.
13. Post bonds or other security acceptlble to the City to guarantee completion of
the grading of Orange Avenue from Hunte ParkwlY to the westerly boundery
of tha San Diego GIS and Electric elsement.
The bonds or security required Ibove shill be In an amount equal to 150" of
the grading costs of the llignment of the perticular streets for which the bond
or security Is being posted. or es approved by the City Engineer. as well as the
adjlcent slopes at I 2: 1 slope and any Ippurtenant drainlge structures required
for proper drlinage of the graded area. The bond. or sacurity mlY provide for
a reduction In the amount thereof to 110" of the originllamount thereof upon
approval by the City of the plans for such grlding work end to 25" of the
originl' Imount thereof upon substlntill completion of auch lIr1ding work .s
determined by the City Engineer.
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AGREEMENTS
14. Enter into an agreement with the City whereby:
a. The developer agree. the City may withhold building permits for any
units in the subject aubdivlsion If anyone of the following occur:
(1) Regional development threshold limits Nt by the East ChuIa Viata
Transportation Phasing Plan hive been reached.
121 Traffic volume.. level. of sarvlce. public utllitie. and/or _rvlce.
excaed the adopted City thrashold IbIndard..
The developer agree. tnat the City may withhold building permits for
any of the proposed development If the required public facllitie.. a.
identified In the PFFP or II amended or otherwlsa conditioned hive not
been completed or constructed to uti.faction of the City. The
developer may propose changes in the timing and uQUlneing of
b.
""""
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....oIution No. 17749
'.g. .
.
developm.nt.nd the construction of improvem.nts .ff.ct.d. In .uch
caS'. the PFFP m.y be .m.nd.d .. approved by the Planning Dir.ctor
Ind City Engin..r.
16.
AgrH to d.f.nd. Ind.mnlty Ind hold hlrm.... the City ancIltalg.nts. offic.rs
Ind .mploYH.. from Iny cllim. Ictlon or proc.eding Igllnst the City. or Ita
Igent.. offic.r. or Imployee. to IUlck. ..t lsid.. void or InnuI Iny approval
by the City. Including approvll by Ita P1aMing Commission. City Councilor Iny
Ipproval by Ita ag.nt.. offlc.r.. or .mploYH' with r.gard to this subdivision
pur.uant to Section 66491.37 of the Map Act provld.d the City promptly
notifi.. the subdivld.r of any claim. Ictlon or proc..ding Ind on the further
condition thet the City fully cooperlt.. In the def.nse.
AgrH to hold the City h.rmless from any liability for arosion. silt.tion or
Incr.ase flow of dr.inag. r..ulting from thi. proj.ct.
17. Agrea to Insur. thet III franchilld cabl. tel.vlsion companla. (-Cabl.
Company-' are permitted .qual opportunity to plac. conduit Ind provld. cabl.
television ..rvice to .Ich lot within the .ubdivl.ion. ....trict ace... to the
conduit to only those. franchis.d cabl. t.l.vlsion compani.. who Ira. Ind
remlin in compliance with. all of the t.rm. and conditions of the franchill and
which Ira in further complilnc. with III other ruI... regulations. ordinanca. and
procedur.s r.gullting Ind Iff.cting the oper.tion of c.b1. t.l.vlsion companl..
a. lime mlY have been. or m.y from tlm. to tlm. be Issued by the City of
Chull Vistl.
115.
.
OPEN SPACE/ASSESSMENTS
18. Off.r to grlnt in feuo the City on the Final Map open apac. Lot -A- Ind -C-.
The minimum width of Lot -A- and Lot -C- ahall be 10 fHt.
.
19. Offlr to grlnt in fel to the Homeowners' Aaaociatlon corridor lot -8-.
20. Submit I list of III flcilitie.locat.d on open .paca loti to be maintained by the
axisting Ea.tl.k. Open Spac. Di.trict No.1. TN. list lhall lncIud. a
d.acription, QU.ntity Ind unit prlc. per v-ar for the perpetUal malnt.nanc. of
III flcilltl.. loclt.d on open .pae. loti to lncIud. but not be limited to: w.II.,
fanc... w.t.r fountaine, Ughting strUCtur.., peths, acca.. road.. dr.lnag.
atructure. 'nd "ndac.plng. Only those ltama on an open .pacalot ar. .liglbl.
for open .pae. m.int.nanc.. Each open apaca lot ahall al.o be brok.n down
by the number of .er.. of turf, Irriglt.d. Ind nor....lrrig.t.d open apae. to .Id
the atImatlon of I m.lnt.nanc. budg.t thereof.
21. Includ. open .pae.lot -A- and -C-In the E.stLek. Open Spaca District No.1.
Corridor lot -8- ahall be priv.t.ly maintained.
22. Agre. to gr.nt In f.. to the City public Ice... ....m.nt. over paved walkwaY'
~
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Lit-
""olution No. 17749
Plge 10
~
to Golf Cour.. Trlil viltl polntl II Ipprov.d by the City Englne.r Ind the
. .
Director of Plrks . "ecr..tion D.p.rtment.
23. Comply with the term. Ind condition. of the ACQullitlonlFinencing Agrllment
for Alseument Di.trlct 14-1, CO 14.064, Ipproved by Council ....oIution
..17483 I' lIid t.rm..nd conditions m.y be Ipplicebll to tN. d.velopmlnt It
euch time .. lIid ......m.nt district II form.d.
. 24. M.ke payment to reduce the debt on the .ubj.ct property II the relUlt of lower
d.n.ity than I..um.d for the I..essm.nt districu It the time of District
form.tion. The Imount of paym.nt II determined by multiplying the differ.nc.
between the .ctuII and ...um.d number of uniU multipli.d by the altimetad
I..e..m.nt per unit.
25. P.y. ail COltS Issoci.t.d with apportionm.nt of .....sm.ntl for III City
Issessm.nt districts .1 I result of .ubdivision of Ilnds within the boundlry.
".quest apportionm.nt Ind provide . d.po.it to the City ..timlt.d .t
.40/unitJdistrict to cov.r cosu.
26. ".p.r. I dilClosur. form to be lign.d by the home buyer Icknowl.dging thlt
Idditionll f... have be.n p.id Into the AIII..m.nt Diatrict or the
Trlnsportltion DIF Fund, Ind th.t these Idditional fl.1 Irl refl.ct.d In the
purchase prlc. of the home for those unit. which have I d.nlity ch.nge from
that Indic.t.d in the .ssessment district', Engineer', Report. Submit dilClOIure
form for the approv.' of the City Engineer.
-""""'I
MISC:~lLANEOUS
27. Make the nec....ry lot line Idjuatm.ntl to bring lot '18,11,27,31,32,38
Ind 39 in compli.nc. with the RS.7 diltrict lot d.pth relid.nti., property
d.velopm.nt .t.nd.rd.
28. Conduct .n .coustical .nalysis to determine lit. lpeciflc noi.. impacu Ind
mitigation me..urll prior to I..u.nc. of gr.ding permita or conatruct I noila
.ttenu.tion wall along thel.ngth of the project.' frontage with Hunt. PerkwlY.
The dllign Ind loc.tion of lIid nolll m.nuetlon Will lllUbject to review Ind
.pprovII by the Dir.ctor of P1enning.
21. Submit I compr.henlive Will .nd f.nc. progrlmC.) for review .nd .pprovel by
the Dir.ctor of P1enn/ng prior to Ipprovel of the gr.ding plen .nd/or Finel Map.
30. Submit. compr.henlive IendlC.pe plln for Lot A, . and C to the CIty
Lend.upe Archlt.ct for revl.w .nd approvel prior to approvel of the grlding
pI.n. Submit d.uU.d IrrIg.tion pI.ne Ind wlt.r m.negern.nt guld.line. for .11
. Iend.clping In .ccordlnc. with the Chul. Vlatl Delign Manuel. The
Iend.c.ping form.t for the project shall be In lubatlntil' conformenc. with
Section 1.4 (G.nerll Llnd.cape Conclptl of the Ea.tIIkl Gr"ne SPA.
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Resolution No. 17749
Page 11
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31. Tit the boundary of the .ubdiviaion to the California System -Zone VI (1983).
32. Submit cople. of "mel Mapa In . digital format auch e. CDXF) graphic file prior
to approvel of aach Finel Map. Provida computer aided Dellgn (CAD) copy of
the Finel Map ba.ad on accurata coordinate geometry calculations and eubmlt
the Information In accordance with the City Guidallne. for Digital Submittal in
duplicate on 5-1/2 HD floppy diak prior to the approvel of uch Final Map.
X. CODE REQUIREMENT REMINDERS
1. Comply with all applicabla ..ctions of the Chula VIItI MunIcipal Coda.
Preparation of the Final Map and all plana ahall be In accordance with the
provisions of the Subdivision Map Act and the City of Chula Vi.ta Subdivision
Ordinance and Subdivi.ion Manual.
2. Underground all utilitie. within the lubdivision In accordance with Municipal
Code requirement..
3. Pay the following filS in accordance with the City Code end Council Policy:
e
a.
The Transportation and Public Facllitia. Development Impact Fae..
b. Signal Participation Fees.
c. All applicebla ..wer fe... Including but not limited to ..war connection
fll..
d. Interim Pre-SR.125 Impact fee (effective January " 1995).
e. Talagraph Canyon Sewer Pumped Flowl Developmant Impect Feel
f. Salt Creek Sewar Basin Devalopmant Impact Fee
Pay the amount of said fea.ln effect at the tlma of iaauence of building permit..
4. Install required fira hydrants prior to delivary of any combustlbla construction
materials.
I. Install ra.idential fire Iprinkler IYltem., I. claemed nacalllry by the Fire
Marahal.
XI.
CONSEQUENCE OF FAILURE OF CONDITIONS
If any of the foregoing conditions fail to occur, or If they ara, by their term.. to be
Implemanted and maintained ovar time, If any of luch conditions fall to be 10
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1/7
. "esoh.1ion No. 17749
"Igl 1'2
..........,
Implemented Ind mlintlined Iccording to their terms, the City shill hive the right to
revoke or modify III Ipprovlls herein grlnted, deny or further condition laauance of III
future building permiu, deny, revoke or further condition ell certificates of occupancy'
lelued under the euthority of Ipprovals herein grented, Institutl end prosecute
Iligetion to compel their complilnce with uid conditions or ...k demeges for their
vloIltion. No vested righu ere glined by Developer or I IUCCIllor In Interest by the
City'a epprovel of thla Resolution.
XII. NOTICE OF DETERMINATION
The City Council dlrecu the Envlronmentll Review Coordinator to post e Notice of
Determination Ind file the ..me with thl County Clerk.
XIII. INVALIOITY; AUTO~ATIC REVOCATION
It Is the Intention of the City Council thlt its edoption of this Resolution II dependent
upon the enforcelbility of elch Ind every term, provision end condition herein atated;
Ind that In the event that eny one or more terms, prOvisions or conditions Ire
determined by I Court of competent jurisdiction to be invalid, lIIegll or unenforceable,
this resolution shill be deemed to be lutomatically revoked Ind of no further force end
effect Ib initio.
..........
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.J)
Presentld by
Robert A. Lliter
Director of Plenning
........
.A--tZ
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Resolution No. 17749
Pege 13
PASSED. APPROVED Ind ADOPTED by the City Council of the City of ChuI. Vllta.
Californil. this 6th dlY of o.cember. 1994. by the following vote:
YES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmemberl:
ATTEST:
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO ) ...
CITY OF CHULA VISTA )
Fox. Padilll. Aindone. Horton
None
None
None
~~h~Iht;"l1
Shirle'V orton. Meyor
I. Beverly A. Authelet. City Clerk of the City of Chull Vllta. Californll. do hereby certify that
the foregoing Resolution No. 17741 WIS duly pallid. Ipproved. and adopted by the City
Council It I regullr muting of the Chutl Vllte City Council held on the l(h day of December
1194.
Executed thislth dey of December. 1884.
. Authllet. City Clerk
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("visec1 7/25/89
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RESOWrION 00. 1~
mOWTIoN or '1'BE c:rrr CDONc:n. OF 't'HE CI'1Y OF amu. VISTA
APPROVING '1'ENTATI\IE MAP FCR EAS'rLAKE GREENS, CBIJIA VISTA
~ 88-3
The City COuncil of the City of O1ula Vata does hereby' resolve as
follows: .
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wm:RE1.S" the ptoposed aubcUv1sion for the IastLake Greens area
enctlIl;lasses 830 acres of land located in the eastern portion of the City of
Chula Vista east of I-80S and aouth of Otay Lakes Jt)ad, and
WHEREAs, the 8I1bdivision includes atreets, open apece, church aites,
CClIIIIII!rc1al lots, park aites, achool sites, condollliniUlll Iota and a1ngle-fam11y
lots, and. . .
wm:RE1.S, the Environmental III;lact Report Em-86-4 was considered
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previously, and
WHEREAs, on June 21, 1989, the Planning Conrnission, by a vote of
6-0, reCOTmlenaed that the Council approve the EastLake Greens. Tentative Map
SUbject to the following:
On an interim basis, Parcels R-24, R-25, R-26, R-27, and R-28 shall
be zoned at the target density of 4.5 dwelling units per acres. A maximum oC
4,034 units will be approved for, EastLake II until such time as the
e.- guidelines for exceeding the target density for the General Plan Update are
. resolVed. 'The follOWing procedure will occur to determine additional
density, if any, for the EastLake project. .
a. Specific guidelines for exceeding the target General Plan
aensity will be adopted; .
b. The aaopted General Plan policies will be applied to determine
t.he incremental units to be added to EastLake II.
c. The units from the new calculation will be distributed to these
five parcels or other unsubcliviclea portion of EastLake Greens
Tentative Map.
d. The SPA Plan and Tentative Map will be returned to the Planning
Commission and City Council for adoption of the increased
density, if any.
NC7t1, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby approve the tentative map for EastLake Greens, O1ula
Vista Tract 88-3, basea on the findings set forth herein and subject to the
fOllOWing conditions:
!nolneerino Deoertment Conditions:
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Public improvements required in this resolution ahall lncluae,'but not
be limited to: A.C. pavement ana base, concrete curb, gutter and
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'aidewalk,traffic ai9hals",-'street 11.,9hts, traffic aigns, at,reet trees,
fire~:!:!~.~ .~~~.~ra.., water and dr~ge fa~1it1e~.
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All !liiPPoVeNn5:'7ahil11 5e,' dUigried and. Cl:liwtructed in aa:ordanc:e With
CitY'standards.
'1'he &rvel~r 8han,be-respona1ble for: ,", to
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a. !be construction of pub1i~ street h1provementa of all atreets shown
~tentati~1Iap_lthtn::the"-aubdiVialon."!.. ~":...6"" . ,_. ....
e:::......ur... :~': I.:=-er ~: :e.::: ~:::!:..:: ~,.~. ;:-: _::...... . _
. . . ..;:b::: ~ ~cia '!lOt =PUbUc ~ atreet.. b;lrovementa for all off-aite
,porUons of Otay Lakes Road, BUnte Parkway, PalClllar Street and
O'ritig&: Awnee$~~lt!le. fU1:1;.a~gth:ot-~";.aubjec:t.'~property. ~:.J'u11
.~I!:C:!.wlC1t~E ,ilap:ov~ ~1. tJe'~"nqail'elt '1n11...=- the' . dev.l~r'" can
-.. r-' demonstrate to the saUsfactionof the City Engineer that' PArUal
inprovementa will meet the Cit@' standards for traffic, bicycles,
pedeSt:rians aner'parking.' "transitions to eXisting h1provlllllenta ahall
.. '..be prOvided as required by the City Engineer.
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3. a. '1'hfi:aeveloper;.:aha1l c;uarantee' theconatruct10l1; of the -follOlting
'- =...J"'l-'lOVements: prior .to .the approval of the final IIIp .for any. .of the
' : -;>. :phases....of - development identified in the IastLake Greens phaSing
plan. !be developer may aubmit an alternate prOPOSal to prOVide
aceess to any individual or group of phues identified herein. Said
'" ~:''!; proposal.~~lIhell :.Tbe'; llubmi tteCl ~oz:.-reviev.:and'. apprOVal by the City
: ' . :., ~':.Engineer. ~ L,::'':''''i .' . :':':.: ' _. '., ,
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:;:s.~...i.:.PhaSei =:'Jaei.ltr;ie~~d' '-:. *(See table I,'-.for' descdption'.;of
:~1.E':~'. ~: f.~". ~~: -;... :..e$;..!-"& -~--"--.. each facility.)
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a<\Y':'''~ .." _:~. .to . _ . .
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..11. ";'='~-l~ 2"......':1::__::,,_ :...
~ 18 -...: ..1, 3~"4; 'a~ 'IS '
"\ Ie 1, 2~~ 5, 7, a, ~13, 15 ,
10 ,: ""-1, 2, 6 7,," af 9f lUU 13, 15 .
2 ,,,. '-1":2,' , 7, a, 9, 10, 15
3 1, 2, 2a, 6, 7, a, 9, 10, 11, 12, 14, 15
· ,Facilities that shall be c;uaranteed'prior to apprOVal of final
. map for the corresponding Phase and completed prior to permits
being issued for the aubsequent phase U.e., facUities for 1A
through D completed before permits for Phue 2 are issued).
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b. The developer shall guarantee the construction of all interior public
improvements required for development of any unit of development
Prior to approval of the Final Subdivision Hap for hid unit.
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'4. Right turn lanes and dual left turn lanes .hall be prOVided at the
intersection of any of the following street claSsifications: major-major,
major-prime arterial, prime arterial-prime arterial.
5. Palomar. Street from the westerly subdivision boundary 'to EastLlke Parkway
shall be constructed as a 4-lane collector (74 feet from curb-to-c:urb).
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. ". 6. NQ direct: .ccess. for. r~.iden~~aJ...4ri_~~ys wglbe allowed to Street" -1.-,
. '( EastLake P.rkway, Hunt. Parkway, .street. -E-, -D- Street, street _,_, Otay
l.akes Road, Orang. Av.nu. and Palomar street. 1'he location of street.
~i."~:..:,!'I4~joc ~~.i.a.foJ1.~~1t1-iamily..ptojec:ts to th. -abov..streets
e ahall be .pproved by the City Engineer. .
( p~. !r.on,t;a~. on . C!.1l-c!.....Cl8..an..d knucklea shall not be lea. than 35 feet
unless .pproved by the City Engineer.
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8. a... &t.!."P...~~"q. ~.t4~t,mpiiW_.1t:a: fa. required on Otay l.ak.s Road
. east of HlZllt. Parkway. Said transition ahall be approved by the City
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b. ~;int.~ion':.of..Bun~~.J).t:I!waY. and Orang. Avenue' 8ha1l require
8peeial.l:reetlllent to transitripri .~.t;he pr1me arterial statue of HlZllte
pac~~Y;PPUt~er1y..Ofl"~d:inter.ection. .
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~:T :~o~~~.9! O~ITE 'mANSPORTATION FACILITIES
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':'''~:":'U~t~:~ ;:=:.e= ':r; ::.i ~'.:":'
...Jt:'.ot " ':"VE"'~~"-'
Facility NO',' -- ~.:. . t . Street'
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Portion
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( 62'-"';-~'
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.I:llstLake Parkwai ',. .: ~~
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EllstLake Parkway
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...,. '. ..Ot:ay l.aku Road to Street. _0_
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Street -0- to the Interim
. .., ~rminus. South of.. tbt. .SIlG&E
..-. Easement
:'l.::'_~ :.:.es .~!;;.t.:
2a
~astLake Parkway
Palomar .Street to the Interim
Terminus South of the SDG&E
Easement .
Street .0
EllstLake Parkway to North
Street -A"
North Street "A"
Street -D" to Hunte Parkway
North Street -A-
South Street -A-
Stre.t -D- to Street -E"
Str.eet _-0- to Hunte Parkway,
EastLake Parkway to street -A-
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Otay Lakes Road to $Outh
Boundary of Phase 18
Street -E".
Hunte Parkway
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Hunte Parkw.y
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Street -E" to North Boundary
of Phase le .
10
Hunte Parkway
Street -E". to South Street -A.
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Bunt.e Parkway
SOUth Street. -A- to Orange
Avenue
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Orange Avenue
13
14
Street -I-
Bunt.e Parkway to ' West.
Boundary of ~vlaion
Street -,,- to ~t.e ?arkway
atstLake Parkway to West.
Iloun&ry of the Subl5lv~lion
LIne Avenue to Bunte Parkway
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PalClllllr Street.
15
Otay l.akes Itoal!
· In conjunc:t;ion with developnent. at. Phase 1>>, developer illY ClOnItruc:t;
either t.hat. portion of South street. A to connect; street. go to Street. -D-
or that portion to Bunt.e Parkway. .
9. Undergroune! t.raffic lignal equipment anI! t.raffic signal It.anc!ards shall be
inst.allee! at. the following int.eraeet.icns:
East.Lake Parkway ani! Otay Lakes Itoae!
EastLake Parkway anc! -D- street.
EastLake Parkway ane! -B-, street.
East.Lake Parkway ane! Palomar St.reet.
Bunt.e Parkway ane! Otay Lakes !load
Hunt.e Parkway ane! north street. -Ii-
Hunt.e Parkway ane! -E- street.
Bunt.e Parkway ane! louth street. -A-
Bunt.e Parkway and Orange Avenue
-E- street. anc! Street. -A-
-D- street. ane! north street. -A-.
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Mast. arms, lignal heads ane! associat.ee! equipment. shall not. be 1nst.allec!
unless approvec! by the Ci t.y!ngineer .
10. IntercoMect; conc!uit., pull boxes ane! pullrope shall be inst.allec! to
connect; fOllowing int.ersec:t;ion lignal syst.....
Otay Lakes JlDac!/Route 125 to Otay Lak.1 JlDac!/tastLak. Parkway,
Otay Lakes ItOlld/!a8tLake Parkway to Otay Lakes ItOlld,1!unt.e Parkway
Otay Lakes JlDac!/!astLake Parkway to .stLake ParkwayrD- Street.
EastLake ParkwayrD- Street. to North Street. -A-/-D- street.
BastLake Parkwayrl)- street. to BastLake Parkwayrl- Street.
IastLake Parkwayrl- street. to IastLake Parkwayl'PalOlllar 8t:reet
Bunt.e Parkwayl\)tay Lakes JlDad to Bunte Parkwayhlorth Street -A-
Bunt.e Parkway/street -A- to Bunte Parkwayrl- Street
IastLake Parkwayrl- 8t:reet to 8t:reet -A rl- Street
8t:reet. -A- rE- 8t:reet to Bunte ParkwayrB- 8t:reet.
Bunt.e Parkwayrl- 8t:reet. to Bunte Parkway/North 8t:reet -A-
Bunt.e Parkway/SOUth street. -A- to Bunt.e Parkway/Orange Avenue
Orange Avenue east. of Bunte Parkway to subdivlaion boundary.
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b.
A conditional use permit ahall be filed With the City for the golf
Cl)urse, clUbhouse, and related 8Wimn1ng and tennis facility prior to
i88uance of building permits for purposes of regulating operations,
uses, and site design.
tocations Where VOlf CI:lUrse crossings of atreets are PrOVided ahall
be clearly signed. and IlIlU'ked. Where streets being crossed are
classified to affic at ar speed grea~e," Ulan "l> IIpn, aucn
ross onl be at n erse=.ons 0 OIIg USe OJ: vrade
eparat10n~ur~__.. :r:o- .... :..r....;... ._ .~.
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c. nte developer or Other subsequent owner of the VOlf Cl)urse ahall
agree to be responsible for the payment to the City of cngoing repair
and llIilintenance Cl)sts of any vrade separation atructuru 'thich _y be
HqUired for the ~fit of the golf Cl)urse. .' .
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d. 'Golf Course safety features ahall be reviewed by the' City Engineer in
~.CI)njunction with :c:onstruction of.the golf Cl)urse.
12. All.. streets . ~ich .intersect . otber streets at or near hodzonl:4l or
vertical 'curves "IIlllSt. meet intersection design sight distance requirements
in accordance with City standards.
13. ;:;:~; :;;p~:wi~~';'cO~ciet~ 'benches shall be provided along both sides of \
. Street "A" adjacent to the intersections with the fOllOWing streets: I
~:.~.St:teet.: .~~~ ,Street :;."G", . .street "D", street "QQ" and street. .FFF". !
'~;'..~'BIHt~turnouts shaU be. provided to the satisfaction of the City
:':' ..Engineer..... :,~:_ ~~"
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~":~.:;BU$~ ~~it!):"CQflctete~benches shall be provided along both sides of
:. :: ..Runte Parkway adjacent. to the intersections with Street "E" and south ,
.~. 'Street "A"; ."Bus $helters as approved by the City Engineer shall be i
provided along both sides of EastLake Parkway adjacent to the{
intersection with Street "E" or appropriate alternative locations. .
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Right turn lanes shall be provided on Street "A" at the intersections of
Street "A" with Street "D" and south Street "A" with Hunte Parkway. A
. right turn lane shall be provided on EastLake Parkway at its intersectio
with Street "Eo.
b.
All streetJ.w1!:hin fo~e R\1I;i-f8lllUy Mvel~nts ~~_t:I\e .........-Z9&d
tFUTilf . 29 shall be tlriva!:e. Detailed horizonl:4l and vertical I
alignment or the centerline of .aid streets shall be reflected on the I
improvement plans for ..id developments. Design of said streets
shall meet the City standards for private streets.
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Private streets in Units 1 and 2 (single family detached units) shall
meet City standards for public streets or standards acceptable to the
City Engineer.
All subdivisions proposing private streets with COntrolled access
devices, such as gates, shall contain the fOllOWing features~
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(1) Gates shall be apprOVed by the City Engineer. Gates shall be '_
.. .... located. to provide ,aufficient rOQll to queue up Without ,
...... interruPting- traffic on Public streets. , , ~
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;:0)' ,;!he border between public ~reet and private street ahall be
~~;:~:ldel1naeect"~h the use of distinctive pavement.
:(4) Provisions:ahall be "de for -rgency Vehicle acceas.
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16. All the aueells :ahown, en, the aubject. tentative -.sp within the aubdivision
bounday'::ezc:ePt as. described above, shall be dedicated for public use.
Iletailed horizontal and vertical ali9l1lllent for aaid ~reets' shall be
reflected on the 1n;lrovements plans for the aubject aubcUVision or any
unit ::thereof..' Des1gn:OL':.aaid; streets shall IIleet all City standards for
PUblic streets, .
(2) "turn around shall .be provided at the location of the vate,
-= ,.....1'be size and ,location o~ said turn around shall be approved. by
-.. ::.the City Engineer, '.:: . ..-:.
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17. '2!l1t ~owner, shall' grant..:to .the City street tree Plantinv and lIlIintenance
.eaSements along.all publ1C"streets within the aubdivision as shown on the
tentative IMp. Said easement shall extend 10 feet frQll the baclc of the
sidewalk ;:exeept: 'on "Hunte . Parkway and portions of EastLalce Parkway as
provided :bel'ow. ':Along Hunte' Parkway, Aid eaSement ahall extend 10 feet
from :tbe.',propertY;:Une and ahall contain no Slope steeper .than ~_
(hOd-zontal,:to' 'Verttcal ratia); '1'he entire area of said tree Plantlng},
" easement: along Hunte Parkway shall .be Offered for dedication on the
~ ,""',"'".. .... fo,.~.ti;;Cr,r.!iot~.~ ... .... plant'ng _,
I along::t:hose" portions 'l>f:-~t~ . Parkway c:ontl1riing llleandering' sidewalks
/ Shall COincide. with ,the proposed aidewalk easement as shown on the
i Tental:ive:1lap~, ::.:.. " ...::...: = J.." !'~"_ . .... .......',
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18.
The owner shall grant to the City a 10 .foot sidewalk easement adjacent to
the prope:ty line for the installation of a meandering sidewalk at the
following locations: . .. : .
a,' otay Lakes Road along the full length of the frontage of Uni t 17.
b. EastLake ParkwdY - along the frontJge of Units 29, 34 and 32 (north
of the intersection of "E" Street).
c. Street E
- Between EastLake Parkway and Street - along the frontaqe of Unit
25.
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Between Street " and Hunte Parkway - along the frontage of Units
28, 29, 37 and 39. .
19. Prior to the approv~l 'of any final map for subject SUbdiViSion or any unit
thereof, the subdivider shall obtain all off-site right-Of-way necessary
for the installation of required improvements for that ~nit,
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If the developer requests the City to use ita powers to acquire said
off-site right...of-way, the developer. ahall pay all costa, both dirllCt and
indirect incurred' in aid acquisi tion.
20. ~ developer ahall grant. to the City l' control lots adjacent to the
follOWing at.reets:. .':':r:_'. . z... .. . .' .
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b.
c.
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e.
f.
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South end of EastLake Parkway.
SOuth. end .and east aide of Bunte Parkway.'
loth ends of street A. .
loth ends of Orange Avenue.
West end and SOUtherly side'of Palomar Street.
loth sides of Orange Avenue.
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21. striping plans ahall be provided for the fOllOWing .treeta: street -A-,
Streat -D-, Street -E-, EastLake Parkway, Hunte Parkway, Orange Avenue,
Otay Lakes Road and Palomar street. striping plana ahall be approved in
conjunction with iJIIprovement plana for aid streets.
(i';) Prior to 'the approval of any f1n~ aubdivision map Which includes a
V portion .of:.the streets 'Usted .below, the developer ahall 8Ubm1t. plans
derrDnstrating the.feasibllity:of .the extension of the ai~ streets:
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a.' -. EastLa~ Parkway.- from Palomar Street to Orange AVenue.
b.' Hunte Parkway. -"from Otay Lakes Road to East -B- Street.
c,;:: PAlomar :.Street ~from the- SUbject 8ubdivision '.a 1Il1n111U11l dietance of
...~ '.1',000 ft; westerly. .
d.,' Oranga AVenue:~:a IIlinillUlll distance of 1,000 ft. westerly.
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23. ~~;;n;'-;~"';~.;sbaii;.ubmit 'celeuiat'ions .to' ~nstrate c:oinPl!ance
:': :: With all drainage requirements of the Subdivision Manual to inClUde,
but not be limited to, dry lane requirements. Calculations shall
also be prOVided to demonstrate the adequacy of doWnstream drainage
'. structures, pipes and inlets. . . . "
b.
specific methods of handling storm drainage are subject to detailed
approval by tne' City Engineer at the time of Submission of
i~rovement and grading plans. Design shall be aCCOmplished on the
basis of the requirements of the SlIbdivision Manual and the Grading
Ordinance (11797 as amended)..
Graded access 'shall be provided to all storm drain structures
inClUding inlet and outlet structures as required by the Ci ty
Engineer. Paved access ahall be provided to drainage structures
located in the rear yard of any residential lot. .
~ developer shall obtain notarized letters of permiSSion for all
off-site g:ading work prior. to 1s~uance of grading permit for WOrk
reqUiring said off-site gradlng.
Lots shall be so graded as to drain to the street or to an approved
drainage system. Drainage shall not be permitted to flow over slopes.
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.. ,25. Sewez: manho1es:sballdle-;PlOVided .at all changes. of aU!lnlllent and.. grade.
Sewers serVing 10. or less equivalent dwelling units sball have a IIiniDum
vrade of 1\. . .
26. 22le developer shall COIlply with all relevant Federal, atate and local
~ationS',~"inc1uding the Clean Water Act. 1'he developer abaU be
. responsible for providing all required testing and documentation to
dem:lll~trate said CCIIq)liance as required by the City Engineer.
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,/27. A: paVed .access road~ with a IIliniliUinWidth of 12 feet shall be provided to
all sanitary aewer lIlIZlholes. 1'he roadway shall be deSigned for an 8-20
~heel' load or other loading as apprOVed by the City Engineer.
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/28. 1'he developer shall vrant easements for all Off-site pubUc atom drains
' . and :aewer . facilities Pdor:1:o. 'apprOVal of any final .p requiring those
i fI"~'H:ties. Easements 'shall be a IIlinilllllll Width of aix feet Vr..ter than
\. ~ ~iz.e, but in .~~.~,_.:...s ~ 10 feet. .
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29. An erosion and sedimentation control tllan shall be included as part of the
.. . vrading plans. . .
C9 ::~~i:.i ::;~~~\~;i "'=' f":':; ::""';'::'':=
: subdivision if traffic onOtay Lakes Road, Telegraph Canyon Read, EutLake
. Parkway, or East "H". Street exceed ,the levels of service identified in the
; C:l.tY.S.1edcpted:thresholda..... .... . ::?":--:
(-.vii- L_ ~"',;;.",; -..;,;;, -_, .".. to ... P<<>teo, to"""on of . ",",,'et
,.r.. \.:/ for the maintenance of the drainage channel in Telegraph Canyon.
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). The property.. owner shall: agtee to not protest formation of . district
for. tbe; maintenance of..lan~caped medians . and parkwaY~.along streets
within and. adjacent:to'iJ:he:.1lubject pro~rty.
~ The pr~Pe~ty '~~r shall ent~r into an agreement wherein he agrees to
~~ not protest formation of an assessment district for the construction
of street improvements to connect Orange Avenue and Palomar Street to
existing improvements to the west of the subject property and to not
protest inclus!on of the subject improvements as projects in the
Eastern Territories Development ~ct Fee 8Ystem.
All sanitary sewer facilities required for development of .any lot,
unit or phase shall. be guaranteed Prior to recordation of a
subdivision map for said lot, unit or phase.
'I'he developer shall provide for the costs aSSOCiated with lIIIlintenance
of the sewer pump stations Prior to approval of any Subdivision IIIlpS
whiCh shall require said pump stations to prOVide sanitary Sewer
service.
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The developer shall obtain permiSSion from the City to deposit sewage
in a foreign basin prior to approval of any subdiVision map which
Shall require any sewage to be tranSferred fr01Jl an existing basin
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t' . into anothl!r-.bas1n.--b permission"shall be in'the form of. ~
'f"; agreement whereby.the City ahall agree to auch . transfer, and the
~. - '-developer shall agree to the cOnstruc:tion of. certain !a;lrovements in
the system that will ac:c:ept Aid eewage and to the drc:umst.anc:es
... under which Aid permission ..y be revoked. . .
.~'~_':-......~':' ...:. :..::,,~:-::- ":"~' ~_.!':: '.-:. -. -.
33. Prior..to the approval of any. final ..p for any lot or unit, the owner
shall' 9Uarantee the.. c:onstrllC:tion of all !a;lrovement (etreets, sewers,
. drainage, utilities, etc.) deemed neceasary to provide ..rvice to auch lot
. . or: lttt1:t.~ ib:tQ:oriJaRce'w1th 'CitY..atandarda. ;:.&.... ., ::.-r-.': '_~'
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34. Prior to aPProval of. any' eubcUv1aion .p for singla family residential
. use. '!'he developer ehall 8t.Ibmit a list Of propuaed lots indicating
whether the structure' 'will" be located on fill, CUt, _ or a .transition
between tile. bolo- a1 tllati0n8.
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35. SOlreh ~Street. --A- and 'Streei:',- (between Street eA- and Bunte Parkway)
shall be 52 feet Wide (c:urb-to-c:urb) Within 72 feet of right-of-way to
provide for on-street parking on one aide of each street. .
~;-::;~e ~lative transportation ilnpac:ts ahall be mtigated to
inSignificant levels by partic:ipating in the Eaa~ Olula Vista
~ansPOrtation . Phasing_ . Plan ..on. a . fair ahare bas18 With Other area
developers. .: ;;: ;;~,. .
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37. rastLake::(;teens:'~'li.'.:be:''Subjec:t to any new City resolution or ordinanc:e
regarding c:able television.
it ,iannino ;';~;;;e~~~CD~~~~t~on~~ ''':.~ _.:..:....... .. ...
. /38X\.; Applic:ant shall request the formation of an open apac:e diatric:t.
c...;;;; ~;' Maintenanc:e; of.-specific: areas may be required to be performed by the
NSter horneo~er's' assoc:iation. ~n apac:e slopes shown adjac:ent to
pUblic: and private neighborhood parks ehall be inc:luded in the
established maintenance program. _
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Park dedic:ation'and imorovement credit for private parks (up to 50\'
lMY be considered subject to approval of 1!rprovements, park ac:reage
and ~ctivity areas provided. .
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Develo!:lllent of all public and private perk areas receiving. park
c:redit' designated on the subaivis10n lIllIp shall be Subject to the
approval of the City's Director of Parks and Rec:reation. Said
.~roval shall c:omply with the standards Usted in Sec:tion 17.10.050
of the 11Unicipal Code.
~~int__nance and c:redit for the proposed open spac:e trail eystem shall
be suo;eC:t to approval of the nirec:tor of Parks anc:I Reereation. 'l'he
trail shall consist of an approved n.G. base.
e. Par!: dedic:ation c:redit for the conrnun1ty perk ehall not inc:lude the
slope area adjac:ent .to proposed '125; however, c:redit shall bP g4u.n
wh n oark vemen s in excess of the 11unic:ipal Code requirements
are provided.
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Any ~fees to be waived shall be done 80 upon completion of Plrks
or bOnded guarantees of Plrk COrrpletion. BoncJs prQVicSed to the
IlIpartment" of . Real' Estate IIIIY. be 8Uffieient 9Uarantee for private
llark .illprovements. .... - 0.'" .. u....
9. No waiVer of Residential Conatruetion 1'ax is IIIcSe or ilplied by
. :.:-:-~ apprOVlll Of"this IIIIp. ' .. e'_
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39. Park acreage. Of.24 acres shall be prOVicSed 8Ub:leet to the approval Of park
1IDp:tlVtmeht-Plans-'br the~ Director Of. Parks and Recreation.
.
40. 1'he open apace corridor ~CQlpassin9 the SDQn: "sement and the san Diego
1fa1;er line shall- be incorporated into adjacent land use plans as USable
open apace andlor. parking. The adjacent land use Iota shall be 9racSed to
aCCOllpli~ an accePtable interface. .
.
i 41. 1'he 5:1' 'grading' s"own on EastLake Parkway (reference sheet '2) 8ha11 be
. eliminated and. shown as 3:10'..
.42,. A IIlinillUlll 15 ft. wide lancJseaped area shall be provicSed between the
sidewalk and wall areas' created along single-family areas an Street eA"..
N:ITE: Down slopes shall eonmence at a Illinimwn distance of 10 ft. Iran the
public .sidewalk.- Alternate tree plantings in approved concrete cone root
COntainers will be considered for limited areas.
.
. :C3. CDPia.Of:'proposed .cc&j/.'s.shall be Uled with the City.
A.. .
44.' A low and moderate income hOUSing program with an established 9011 of 5t
:./.. . low. and 5'. Ift:)derate .shall be implemented Subject to the approval of the
'-" city I S-housi'ngcoore:iinator. tOrE: A U change reSUlting in 4' low and n
Ift:)derate . is deemed an acceptable tolerance. This condition shall be
deferred and. .further....A!Uated. as. a-'factor: in .the analysis of .the General
Plan denSity POliCies as they relate to parcels R-24, R-25, R-26, R-27,
and R-2B.
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45. All paVed access to aewet: and drainage outlets shall .be Subject to
/ approval by the Director Of'Planning.
~..."'...., "'.. eh"eh .,... ...."..7 &e<ea sh", to ...,...... ..,.,
to recordation of the final map.
, .
'47. ~n apace eaSements shown at. the rear of various lots baClc!ng onto the
\ golf COUrse shall be included in the golf COl:'rse lIlIintenance program.
4B. All Iota adjacent to intersections subject to road Widening requirements
shall require further review by the PlaMing Director to deterllline
acceptability.
~Seh'" '"""'-'" "'11 to ...... to .."",.. ',omu.. Wf'h ......"
capacities to serve residential OCCUpancy. flello-Roos Community
Facilities District has been formed by the respective SChOOl districts.
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. SO. Provide street. MIIles en the tentative _P. '
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.: 51. A conceptual landscape' plan,' together with a water -nagement Plan, Shall
. be provided" prior' to City Council approval of the tentative IIlap and
-. - Subject to the approval of City'. Landscape Arc:hitect. .
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52. Development of' all' parcels shall be in accordance With EastLaJce Greens SPA
Plan, Public Facilities Financing Plan and Design Manual.
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53. ~~,:,deY.aoper~-ehaU -enne,c."ell- areas' within . the-'aabdiviaion .bouncJaries
prior to recordation of any final .p. ,
54. '!'be. Phasing plan shall-be designed.to COMect interior lIUbdivisiona Within
Phase I to the Atisfaction of the City Engineer. . : .
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55. All lots Without approVed private or public access shall be aliown as a
.ingle lot.
I 56. .;.;~. ~'" ...... odj_t to .....tly "de Of _ 125 COtd"" "'11
I be dedicated to the City across its entirety for future transfer to the
State. of California as pert. . of _ :tutUl:e:~' freer.-ay. right-:of-way.... . School
District has option of Plltting in retaining wall across the high SchOOl
Sit,. '::". . .... ;";' '. .: _
fS;:\i.~i~",. .;"...~" tot On" " oball .. _._ "ill . _.. pI..
\:;(' :detailing :the. -design of the.. project 18 reviewed by the DeSign Review
Conmittee. Thereafter, the lotting of Unit 14 Will be considered by the
e.... Ci~y ~unell 'f.or .tentative subclivision IIlap approval..
· 58. "'.... ..ve.... CO"'dot de..go shall be ""'lo" to --.. of the .'n"",
of Planning regarding grading, slope grading, landscaping and fenCing.
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59. Ail"ioes 'iii.units'4~ 7,-~ci'8 ahali '~"a III1ninum of SO feet wide and 20'
of lots in Units 11 and 13 shall be a minillUlll of SO feet Wide.
A minimum of twenty (20) percent of all lots within Units 4, 7, and 8, 11,
and 13 are intenclecl to acco......,(!ate one-story units or units With a
one-story plateline along the street frontage. Said one-story units shall
be plaeecl on lots with a m1n111U11l width of SO feet. .
.
Any units disPlacecl as a result of reviaion to the 8ubdiViaion Illy be
considered for transfer to another unit within EastLake Greens.
60. Mlljor entry points to the EastLake Greens development shall require
approval of the Director of Planning with J'espect to grading, slope
gradient ancl landscaping.
61. All of the open apace lots shall be dimensioned fa.. Loop Street "A"
acljacent to Units 14, 39 and 13). .
62. Q:len spec. lots acljacent to private perks shall be inclUded in the private
parks to be maintainecl by the Homeowners' AsSOCiation.
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(. ',,: :;~a9.=:. -:nd wat~:. -::lY ahall be required prior to apprOVal of the final '
64. A pedestnan bridge or an alternative acceptable to the City Engineer
. ahall be constructed OVer Otay Lakes Road to connect the COIIiIunity trail
. ftOm EUtLake I'to EastLake II. .
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ITR HitiO~tion Heasuris - Planni~
eo. .:" ".,......". ,- ~"z .:-.:"; ~_.' ~~'''!~ ._.... ~.A .:.:-.....~..~ _.,._...
65. Residential land USes planned adjacent to or near CIOIIInerc1al and
industrial USes shall be adequately buffered. Necessary -..ures Will
1nc1ude . a - wall or. fence to decrease' noiae and increase privacy, a
phYSical, vertiCal or horizontal 8eparation between land uses, i.e., a
road, slopes or a landscaped open 8PlIce buffer, or some type of vegetative
screen. IlIlpIlcts OCCUrring as a result of. site-specific deSigns Will be
liitigated on a site-8pecif1c basis. (pg. 4-15)
66. Iii order to mitigate the site spee1fic illlpllcts, the fOllOWing IIIlISt be
~leted in accordance With the thresholds POlicy and the East Clula
Ylsta Transportation Phasing Plan: .
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a. - Improve Telegraph Canyon load between State Route 125 and the
EastLake Greensll'rails boundary to SiX-lane prime arterial standards.
8t:t<,Qmstruct P.8nte Parkway. aitl'. EutLake Parkway.. ..jor roads between
':-.' Telegraph Canyon Road and Orange Avenue.
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c. Construction of a southbound State Route 125 to esstbound Telegraph
.... Canyon Road loop ramp at the State Route 1251l'elegraph Canyon Road
intersection or extend State Route 125 South to East Palamar Street
(which would COMect to the EastLake II street
-.. '-.. 'system). ',' .... .-.-., . (pg. '4-37)'
67. The on-site water storage tank ahall, receive additional landscaping. This
ahall include the use of additional vegetation Within the site compound to
obScure the tank itself, as well as exterior landscaping of the perimeter
fence to provide a more aesthetic screen.
68. Residential units in the vicinity of the SIlG'E transmission 11ne shall be
spaced and oriented to IIlinilllize views of those faCilities. '!'he 50-foot
buffer along both sides of the roadway traversing the northern site
boundary shall receive sufficient landscaping to effectively screen
development associated with EastLake I. Additionally, residential units
in the' northern project: site shall be 8PlIced and oriented to IIlinimize
views to the nort.h Where appropriate.
69. A preliminary geot.echnical report has been prepared for the EaatLake
Greens property by San Diego Soils Engineering, Inc. (1986). This report,
contains various reco...II:ndations to provide adequate 8Urface and
8Ilbsurface drainage and erosion control that shall be incorporated int.o
the project desi9n. ReCOllDllended measures inClUde, but are not. l1mited to,
the follO'...ing:
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. '," Surface and Subsurface Drainaae: SUrface runoff into downslope
" . na,turaJ. areas and graded areas Mould be IIlinim1zed. lllere SlOasible,
drainage should be directed to SUitable disposal areas via nonerosive
devices U.e., paVed Alales and storm drains).
,:.;. .. Pad drainage .ahoul~ be ~~gned to . collect eld direct surface _ters
-.. away from proposed atruc:tures to approved drainage facUities. lor
earth areas, a IIlinilll.llll vradient of two percent 8hould be -intained
..... aJ'!d drainag'~, should ~ directed toward approved awalu or drainage
- J:enUieli. urAlna~tterns approved at the time of fine grading
should be lIIllintained throughout the life of proposed structures..
.70. SlII?drains shall be placed under all fill located in eXisting drainage
49U1!'~,. at -4~ntified o~"pQtential""'page areas. Specific locations.
aha11 be. evaluated in the field during grading with veneral 8\lbdrain
1000l;ions . indicated on the approved vrading plan. 1'be . subdrain
installation shall be reviewed by the engineering geologist prior to fill
placement.
71. Drainage devices are required behind stabilization fills to IIlinimize the
build-up... of.. hydrostatic. and/or seepage forces. (See Preliminary
Geotechnical Investigations, san Diego SOils Engineering, .Inc. (1986) for
details and reCOlllllended ,locations of these backdrains.) Depending on
slope height, at least one tier of drains would he required for
approximately every 30 feet of slope height. Drains may also be needed at
contacts between permeable and non-permeable forllllltions.
72. Slopes shall be planted with appropriate drought-resistant vegetation as
rec;",,,,,..llde~ by a landscape architect ilrInediately fOllOWing grading.
Erosion control and drainage ,devices shall be .installed in campliance with
the requirements of the City of Chula Vista.
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' 73. Water. shail not be' allowed "to , run oVer the top of or flow down graded or
natural slopes.
74. Devices constructed to drain and protect slOpes, inclUding brow ditches,
berms, retention baSins, terrace drains Uf utilized) and down drains
,shall be maintained regularly, and in particular, should not be allowed to
clog ';0 that water can flow unchecked over slope faces. SUbdrain OUtlets
shall be maintained to prevent burial or. other blockage.
75. '1'0 ensure that significant and potentially unique f08SUS and
paleontOlogical resources are not destroyed without examination and
analysis, it shall be required that a qualified paleontOlogist monitor the
initial grading activities during development of the EastLake Greens site.
76. a. Walls and/or berms shall be installed to the satisfaction of the
Director of Planning to reduce noise exposure. to ac:c:eptable levels
onsite. -
The applicant has proposed an optional 5-foot fence enclosing the
perimeter of the residential boundary (Figure 2-10), and the 5-foot
wall height was factored into the model to analyze the effectiveness
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C?Lsuch, a..wa,ll ~. thl!_~!.9!l.if!cant noise impacts projected OMite. In
some cues, a 5-foot walli :height was determined IIOt to be required ~
and a lower wall height was evaluated.
',.
It was determined that a 5-foot barrier along the top of slope on
: FOrt~.of.the .ustem aide 'of EastLake Parkway and portions of the
tn~ernaJ:' loop, road, and contiVUClUa to the IIOrthern and SOUthern entry
roads, ~uld reduce projected onsite neis. levals below 6SdB(A) CNEL
. (.'igure -4-17):, A 3-foot barrier, MlUId alao be required along *the
centta1': golf =urae'~ .to" further'attenuate onsite nota. levels.
Noise, leVels at the park could be reduced through the incorporation
of barriers of 1ll1n1.ma1 height C1. .e., 1 to 2 feet). Walls are not
. . rec......,ended because of aesthetic considerations and because the
'attenuation required is only big decibels. Attenuation at the park
could be achieVed by raiSing the pad elevations near the contributing
roadways by. 2 feet instead of incorporating a barrier. b barriers
along residential portions of the site shOUld consist of walla, earth
berms, or a combination of walla and bems. Noise levela above 65
~(Al and below 75 ~(Al QqEI, "are considered compatible with the
." proposed COIIInercial area in the northwest comer of the Project area
,.' 'and no barriers are required to attenuate the noise leVels in this
. area of the site. ,
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'Based :OD the. current grading plan, the identified noise walla would
. mitigate the projected exterior noise levels below the required 65
':-jr';~L'stalldard,'and~.to=..;leve1:"Of insignificance with the exception of
the park Where slight exceedances ~uld OCCUr. If the pad elevation
. ., is raised, as' ,rec'::'..o,,,,nded, no ,adverse noise 1q:lacts ~U1d OCCUr
:;.. onsi te. _ :..: ...::: . . 00. . '. '..
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. b. For, those portions of the .site exposed to 60 QqEz. or greater
(identified in Figure 4-17), an interior acoustical analYsis will be
: required once building plans and site plans are 'lIIllde available to
..ensure the use of appropriate construction materials to attenuate the
interior noise levels below a level of Significance.
77. On an interim basis; Parcels R-24,"'R-25, Jt-26, R-27, and R-2B shall be
"zoned at the tarqet density of 4.5 dwelling units per acres. A IIIllxinum 'of
4,034 units will be approved for EastLake II until SUch time as the
vuidelines for exceeding the target density for the General Plan Update
are reSolved. The following procedure will occur to determine additional
density, if any, for the EastLake project.
a. Specific guidelines for exceeding the target General Plan
density will be adopted;
b. 'lbe ac!opted General Plan POlicies will be applied to determine
the incremental units to be added to EastLake II.
C. The units from the new calculation will be distributed to these
five pareels or other unsubdivided portion of EastLake Greens
Tentative f".ap.
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d. '!'he SPA Plan and '1'entative Map will be returned to the Planning
Camlissionand City Council for adoption of the increased
density, if any. .
Prior to the recordation of the final map, the EastLake I private park
agree/l'.e-r.t:- shall-.be approved;by .the CitY.Council. ...
:-.~_.~: .... ,... ......
'!'he EastLake Greens Development A;reement ahall contain a prOVision
lllking the EastLake Graens proj.:t aubject; to the 'l'ransportation
Phasing' Plan 'and the:-,(kOlt'th-Manageme,lt;'Element of 'the:- Seneral Plan..... ..
, -
Prior to recordation of the final map, the applicant ahaU allbm1t an
agreement to. the City regarding public Wle of the VOlf course.,. '!'his
illY'. tle "addressed in the conditional Wle pennit required for the VOlf
c>>urse.
81. '!'he Planning CoIlm1ssion rec.:lo.....ndation regarding the reduction of
C1welling units contained in Condition 13 of the EastLake II General
Development Plan is incorporated into this resolution (EastLake Greens
reduc:ecl from 3609 dwelling units to 2774 dwelling units).
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FINDINGS:
Pursuant to section 66473.5 of the SUbdivision Map Act, Tentative
Subdivision Map for EastLake Greens Tract 88-3 is found to be consistent
with. the .Chula Vista General Plan as aaopted by the Chula Vista City
Council based on the following findings:
1. Land Ose Element
The General Plan deSignates the EastLake Greens areas for Low-Medium
ReSidential as well as conmercial, public, quasi-public (schools,
parks, churches) and some open space. '!'he reconvnended 2,774
resieential units is within the density (between target and maxillUlll)
range of the General Plan resieential designation of low/medium
resieentilll (3-6. du/gr. ac.), inclueing density transfers from the
park, school, and golf course to the residential area (327 du).
2. CirCUlation Element
All of the on-site and off-aite public streets required to serve the
subdivision will be constructed or DIF fees paid by the developer in
accordance with the EastLake Greens Public Facilities Financing Plan
and Development Agreement.
3. HoUSing Element
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'1'he proposed project will provide a lllininum of 10'
hoUSing including a mix of housing types and lot
single-family, townhouses, condominium. ane various
densities that will proviee a wide spectrum of housing
Jlersons of various incomes.
affordable
aizes for
apartment
prices for
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4. Parks and Recreaticn Element
The subdivision will Provide approximately 40 acres of Uproved
COJmlunity and neighborhOOd parks in accordance with loeations and
. . . standards of the General Plan. !he required park acreage for
.:::'~~~~e .Greena'-is~ acres. _
5.. Public Facilities Element
~
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r-!~i'tle 'Project: .'u "fCbligated"'1fl the 'COnditions of approval to
participate in prOViding the water facilities, wastewater facilities
and drainage facilities required by the POlicies of the General
":'Plan. These include emergency water storage reservoir, COnstruction
of · .50 IIlillion Vallon facility by 0lWD, prOViSions for additiOnal
wastewater facilities by parallel sewer Pipelines and conatruct1ng
on-site. detention basins to reduce peak storm flows. '
6. . Open Space and Conservaticn El~nt
The proposed SubdiVision is in conformsnce with th. goals and
POliCies of the element. Ther. ar. no land resources, water
resources, plant or animal r,sources or open apace areas identified
for preservation in the General Plan for this sit..
7. Safety El'ment
". '!'he project site is considered a .eismically activ. ares, although
there are no known active faults on or adjacent to th. property.
.The fire. protection facilities and services needed to .erve the
project have been reviewed by the Fire Department. Other emerg.ncy
service acencies hav. reviewed th. proposed Subdivision for
conformance with safety POlicy. The project will increas. th. need
for aooitional. police and fire personn.l, however, the City is
.planning to meet the neeo with aooitional revenues provided by the
project. .
Pursuant to Section' 66412.3 of the Subdivision Map Act, the eff.cts of
the tentative ~ap for EastLake Greens Tract 88-3 on the hOUSing needs of
the region has been consioereo in that the Subdivision will provide a
variety of hOUSing types that will serve aU aspec::ts of the COlIInunity.
The Council has further balanced the need for housing against public
service needs of its residents and available fiscal and enVironmental
r.sources in that the City has weighed the fiscal effects of the project
and finds that it will not deplete current resources and has further
balanced the environmental effects by incorporatinglllitigation .asures.
Pursuant to Section 66473.1 of the Subdivision ""P Act, the EastLake
Greens Tract 88-3 has provided to the extent feasible for future paSSive
or natural heating or COOling opportunities in that the proposed deSign
has a predominant north-south orientation of long, narrow parcels
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encouraging east-west orientation of buildings and ereating SoUthern
exposure for pitched longit:ucl1nal roof. to facilitate solar energy.
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Presented by
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Plannng .
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Approved as to fo1'lll by
ttorney
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;3-4 9-']7
EXH 'B\T C
e
RESOLUTION NO. 17618
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING AND IMPOSING AMENDMENTS AND
CONDITIONS ON THE EASTLAKE II (EASTLAKE I EXPANSION)
GENERAL DEVELOPMENT PLAN, EAST LAKE GREENS
SECTIONAL PLANNING AREA (SPA) PLAN. EASTLAKE GREENS
AIR QUALITY IMPROVEMENT PLAN, EASTLAKE GREENS
WATER CONSERVATION PLAN AND EASTLAKE GREENS
MASTER TENTATIVE SUBDIVISION MAP (PCS-88-3) AND
ADOPTING MITIGATED NEGATIVE DECLARATION ON 15-94-19
AND MITIGATION MONITORING AND REPORTING PROGRAM
I. RECITALS
A. Project Site
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WHEREAS. the properties which are the subject matter of this resolution are
diagrammatically represented in Exhibit 1 and 2 attached hereto end
incorporated by this reference. identified es the EastLake General Development
Plan Area and EastLake Greens SPA Plan Area. and located in part in the City
of Chula Vista ("Project Site") and.
B.
Project; Application for Discretionary Approval
WHEREAS. on March 21. 1994. the EastLake Development Company
("Developer") filed applications for an amendment to: 1) the EastLake II
(EastLake I Expansion) General Development Plan, known as document number
C094.183. a copy of which is on file in the office of the City Clerk. 2) the
EastLake Greens Sectional Planning Area Plan. known as document number
C094-184. a copy of which is on file in the office of the City Clerk. 3) the
EastLake Greens Air Quality Improvement Plan, known as document number
C094-185. a copy of which is on file in the office of the City Clerk. 4) the
EastLake Greens Water Conservation Plan. known as document number C094.
186. a copy of which is on file in the office of the City Clerk, and 51 the
EastLake Greens Master Tentative Map. known as document number C094-
187, a copy of which is on file in the office of the City Clerk. ("Project"); and.
C.
Prior Discretionary Approvals
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WHEREAS. the development of the Project Site has been the subject matter of
1) a General Development Plan. EastLake II (EastLake I Expansion) General
Development Plan previously approved by City Council Resolution No. 15198
("GDP"); 2) the EastLake Greens Sectional Planning Area Plan. previously
adopted by City Council Resolution No. 15199; (SPA) and 3) a Tentative
Subdivision Map previously approved by City Council Resolution No. 15200
(TSM) Chula Vista Tract 88-3. all approved on July 18. 1989; and. 41 an Air
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Resolution No. 17618
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Quality Improvement Plan (Eastlake Greens Air Quality Improvement Plan) and
5) a Water Conservation Plan (EastLake Greens and Water Conservation Plan).
both previously approved by the City Council on November 24. 1992. by
Resolution No. 16898; and
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D. Planning Commission Record on Application
WHEREAS. the Planning Commission held an advertised public hearing on said
project on July 27. 1994. and voted to recommend that the City Council
approve the Project. based upon the findings and subject to the conditions
. listed below.
E. City Council Record of Applications
WHEREAS. a duly called and noticed public hearing was held before the City
Council of the City of Chula Vista on August 16. 1994. on the Discretionary
Approval Applications. and to receive the recommendations of the Planning
Commission. and to hear public testimony with regard to same; and.
F. Discretionary Approvals Ordinances
WHEREAS. at the same City Council meeting at which this Resolution was
approved (August 16. 19941. the City Council of the City of Chula Vista
approved for first reading Ordinance No. 2600 prezoning 22.7 acres of
unincorporated land to P.C (Planned Community) and Ordinance No. 2601
amending the Eastlake II (Eastlake I Expansion) Planned Community District
Regulations Land Use District Map.
-.
NOW. THEREFORE. BE IT RESOLVED that the City Council does hereby find. determine
and resolve as follows;
II. PLANNING COMMISSION RECORD
The proceedings and all evidence introduced before the Planning Commission at their
public hearing on this project held on July 27.1994. and the minutes IInd resolutions
resulting therefrom. are hereby incorporated into the record of this proceeding.
III. MITIGATED NEGATIVE DECLARATION REVIEWED AND CONSIDERED; MITIGATION
MONITORING AND REPORTING PROGRAM; FINDINGS; APPROVALS
A. Mitigated Negative Declaration
The City Council of the City of Chula Vista has reviewed. analyzed and
considered Mitigated Negative Declaration on IS.94.19. known liS document
number C094-180. II copy of which is on file in the office of the City Clerk.
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Resolution No. 17618
Page 3
and comments thereon, the environmental impacts therein identified for this
project and the Mitigation Monitoring and Reporting Program ("Program"l.
known as document number C094-181. a copy of which is on file in the office
of the City Clerk, thereon prior to approving the Project. Based on the Initial
Study and comments thereon, the Council finds that there is no substantial
evidence that the Project will have a significant effect on the environment and
thereby approves the Mitigated Negative Declaration.
B.
Mitigation Monitoring and Reporting Program
The City Council of the City of Chule Vista finds that the significant
environmental effect(s) identified in the Mitigation Negative Declaration will be
reduced to below a level of significance if the mitigation measures in the
Mitigation Monitoring and Reporting Program are implemented. The Mitigation
Monitoring and Reporting Program is hereby approved to ensure that its
provisions are complied with.
IV.
CERTIFICATION OF COMPLIANCE WITH CEOA
The City Council does hereby find that the Mitigated Negative Declaration on IS.94-19
and Mitigation Monitoring and Reporting Program have been prepared in accordance
with requirements of the California Environmental Ouality Act, the State EIR
Guidelines, and the Environmental Review Procedures of the City of Chula Vista.
V.
INDEPENDENT JUDGMENT OF CITY COUNCIL
The City Council finds that Mitigated Negative Declaration IS.94.19 reflects the
independent judgment of the City of Chula Vista City Council.
VI. GDP FINDINGS
A. THE PROPOSED DEVELOPMENT AS DESCRIBED BY THE GENERAL
DEVELOPMENT PLAN IS IN CONFORMITY WITH THE PROVISIONS OF THE
CHULA VISTA GENERAL PLAN.
The amended EastLake II (EastLake I Expansionl General Development Plan
reflects land use densities and circulation system design that are consistent
with the Chula Vista General Plan Land Use and Circulation Elements.
B. A PLANNED COMMUNITY DEVELOPMENT CAN BE INITIATED BY
ESTABLISHMENT OF SPECIFIC USES OR SECTIONAL PLANNING AREA PLANS
WITHIN TWO YEARS OF THE ESTABLISHMENT OF THE PLANNED
COMMUNITY ZONE.
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A SPA Plan has already been approved for the development of the planned
community and amendments thereto conforming to 'the amended GDP are
included in the Project.
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C. IN THE CASE OF PROPOSED RESIDENTIAL DEVELOPMENT. THAT SUCH
OEVELOPMENT WILL CONSTITUTE A RESIDENTIAL ENVIRONMENT OF
SUSTAINED DESIRABILITY AND STABILITY; AND THAT IT WILL BE IN
HARMONY WITH OR PROVIDE COMPATIBLE VARIETY TO THE CHARACTER
OFTHE SURROUNDING AREA. AND THAT THE SITES PROPOSED FOR PUBLIC
FACILITIES. SUCH AS SCHOOLS. PLAYGROUNDS AND PARKS. ARE
ADEQUATE TO SERVE THE ANTICIPATED POPULATION AND APPEAR
ACCEPTABLE TO THE PUBLIC AUTHORITIES HAVING JURISDICTION
THEREOF.
The residential densities and transfers reflected on the amended GDP are
compatible with the pattern and character of development approved with the
original GDP. and can be adequately served by the public facilities incorporated
therein.
D.
IN THE CASE OF PROPOSED INDUSTRIAL AND RESEARCH USES. THAT SUCH
DEVELOPMENT WILL BE APPROPRIATE IN AREA. LOCATION. AND OVER-ALL
DESIGN TO THE PURPOSE INTENDED; THAT THE DESIGN AND
DEVELOPMENT STANDARDS ARE SUCH AS TO CREATE A RESEARCH OR
INDUSTRIAL ENVIRONMENT OF SUSTAINED DESIRABILITY AND STABILITY;
AND. THAT SUCH DEVELOPMENT WILL MEET PERFORMANCE STANDARDS
ESTABLISHED BY THIS TITLE.
'""'\
The amendments do not involve areas planned for industrial or research uses.
E. IN THE CASE OF INSTITUTIONAL. RECREATIONAL. AND OTHER SIMILAR
NONRESIDENTIAL USES. THAT SUCH DEVELOPMENT WILL BE APPROPRIATE
IN AREA. LOCATION AND OVER.ALL PLANNING TO THE PURPOSE
PROPOSED. AND THAT SURROUNDING AREAS ARE PROTECTED FROM ANY
ADVERSE EFFECTS FROM SUCH DEVELOPMENT.
The amendments to the trails program' will contribute to a less hazardous and
thus improved recreational amenity which will have less potential to conflict
with surrounding development.
F. THE STREETS AND THOROUGHFARES PROPOSED ARE SUITABLE AND
ADEQUATE TO CARRY THE ANTICIPATED TRAFFIC THEREON.
The revised alignment of E. Orange Avenue reflected on the amended GDP is
consistent with the alignment approved with the recent General Plan
Amendment for the area.
G. ANY PROPOSED COMMERCIAL DEVELOPMENT CAN BE JUSTIFIED
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ECONOMICALLY AT THE LOCATION(S) PROPOSED AND WILL PROVIDE
ADEQUATE COMMERCIAL FACILITIES OF THE TYPES NEEDED AT SUCH
PROPOSED LOCATION(S).
The amendments do not involve areas planned for commercial uses.
H. THE AREA SURROUNDING SAID DEVELOPMENT CAN BE PLANNED AND
ZONED IN COORDINATION AND SUBSTANTIAL COMPATIBILITY WITH SAID
DEVELOPMENT.
The amendments are consistent with the previously approved plans and
regulations applicable to surrounding areas.
VII. SPA FINDINGS
A.
THE SECTIONAL PLANNING AREA PLAN AS AMENDED IS IN CONFORMITY
WITH THE EASTLAKE II (EASTLAKE I EXPANSION) GENERAL DEVELOPMENT
PLAN AND THE CHULA VISTA GENERAL PLAN.
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The amended EastLake Greens Sectional Planning Area Plan reflects land use,
circulation system, and public facilities that are consistent with the EastLake
II (EastLake I Expansion) General Development Plan and the Chula Vista General
Plan.
B.
THE EASTLAKE GREENS SECTIONAL PLANNING AREA PLAN, AS AMENDED
WILL PROMOTE THE ORDERLY SEQUENTIALIZED DEVELOPMENT OF THE
INVOLVED SECTIONAL PLANNING AREA.
The SPA Plan, as amended allows, in the context of market demand a more
logical transition of construction within the EastLake Greens Planned
Community, consistent With the phasing of internalllnd external infrastructure,
and the amendments have been found to be consistent with the EastLake II
(EastLake I Expansion) Public Facilities Financing Plan. Air Quality Improvement
Plan, and Water Conservation Plan.
C. THE OTC SECTIONAL PLANNING AREA PLAN AS AMENDED WILL NOT
ADVERSELY AFFECT ADJACENT LAND USE, RESIDENTIAL ENJOYMENT.
CIRCULATION, OR ENVIRONMENTAL QUALITY.
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The land uses within the EastLake Greens SPA area represent the same uses
approved by the EastLake II (EastLllke I Expansion) General Development Plan.
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VIII.
TENTATIVE SUBDIVISION MAP FINDINGS
A. Pursuant to Government Code Section 66473.5 of the Subdivision Map Act,
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Resolution No. 17618
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the City Council finds that the Tentative Subdivision Map as conditioned herein
for EastLake Greens, Chula Vista Tract No. PCS-88-3 is in conformance with
the elements of the City's General Plan, based on the following:
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a. Land Use Element
The General Plan designates the EastLake Greens residential areas for
Low-Medium (3-6 du/ac) density development. The proposed addition
of 22.7 acres at the mid-point of the Low-Medium density range (4.5
du/ac) is consistent with the previously approved land use intensity.
The project, as conditioned, provides a wide landscape buffer along the
north side of E. Orange Avenue, in conformance with landform grading
and scenic highway principles of the General Plan.
b. Circulation Element
All of the on-site and off-site public streets required to serve the
subdivision will be constructed or DIF fees paid by the developer in
accordance with the EastLake Greens Public Facilities Financing Plan and
Development Agreement.
Bicycle paths have been incorporated within the EastLake Greens
community area and will be constructed as part of the project.
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c. Housing Element
The proposed project will provide a minimum of 10% affordable housing
including a mix of housing types and lot sizes for single-family,
townhouses, condominium and various apartment densities that will
provide a wide spectrum of housing prices for persons of various
incomes.
d. Parks and Recreation Element
The subdivision will provide approximately 37.4 acres of improved
community and neighborhood parks in accordance with locations and
standards of the General Plan. The required park acreage for EastLake
Greens is 26.6 acres.
e. Public Facilities Element
The project is obligated in the conditions of approval to participate in
providing the water facilities, wastewater facilities and drainage facilities
required by the policies of the General Plan.
Public building sites are included within the subdivision; however, these
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Resolution No. 17618
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sites will not be affected by the proposed amendment.
f. Open Space and Conservation Element
The proposed subdivision is in conformance with the goals and pOlicies
of the General Plan element for this site.
g. Safety Element
The project site is considered a seismically active area. although there
are no known active faults on or adjacent to the property. The fire
protection facilities and services needed to serve the project have been
reviewed by the Fire Department. Other emergency service agencies
have reviewed the proposed subdivision for conformance with safety
policy. The Project. as amended. will not increase the need for
. additional police and fire personnel.
h.
Noise Element
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Noise mitigation measures included in the Environmental Impact Report
SEIR-86-04 and Mitigated Negative Declaration 15-94-19 adequately
address the noise policy in the General Plan. All dwelling units within
the project will be required to be designed so as to not exceed the
interior noise level of 45 dBA. Additionally. all exterior private open
space will be shielded by a combination of earth. berm. wall. and/or
buildings to achieve a 65 dBA noise level for outside private areas.
B. Pursuant to Section 66412.3 of the Subdivision Map Act. the Council certifies
that it has considered the effect of this approval on the housing needs of the
region and has balanced those needs against the public service needs of the
residents of the City and the available fiscal and environmental resources.
C. The configuration. orientation and topography of the site partially allows for the
optimum siting of lots for passive or natural heating and cooling opportunities
as required by Government Code Section 66473.1.
D. The site is physically suitable for residential development and the proposal
conforms to all standards established by the City for such projects.
X. GENERAL CONDITIONS OF APPROVAL
The approval of the foregoing Discretionary Approvals Amendments which are stated
to be conditioned on "General Conditions" are hereby conditioned as follows:
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A.
Project Site is Improved with Project
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Resolution No. 17618
Page 8
Developer, or their successors in interest. shall improve the Project Site with
the Project as described in the Mitigated Negative Declaration, except as
modified by this Resolution.
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B. Implement Mitigation Measures
Developer shall diligently implement. or cause the implementation of, all
mitigation measures pertaining to the Project identified in the Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program.
C. Implement the Mitigation Monitoring and Reporting Program
Developer shall implement, or cause the implementation of. all portions of the
Mitigation Monitoring and Reporting Program pertaining to the Project and
Mitigated Negative Declaration 15.94.19 .
D. Update Documents
Twenty-five (25) copies of replacement pages, exhibits. maps and plans
reflecting the amendments approved herein shall be submitted to the Planning
Department within two weeks of approval of this resolution.
XI.
SPECIAL CONDITIONS OF APPROVAL
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A. Sectional Planning Area (SPA) Plan
1. Final assessment and determination of parkland requirements for single
family detached condominium developments shall be conducted during
the Design Review and/or Tentative Map processing stage of each
individual project. Updated cumulative parkland data shall be submitted
with each development proposal to the Director of Parks and Recreation
for review and approval.
2. Final Golf Course Trail and Golf Course Vista Point design shall be
subject to review and approval by the Director of Parks and Recreation
and the Director of Planning. Detailed design information for the .Vista
Points. shall be submitted for review in conjunction with the associated
parcels within which they are located. Said .Vista Points. shall be
improved prior to or concurrently with each development proposal.
B. Tentative Subdivision Map Conditions
Prior to approval of the associated/applicable final map, unless otherwise
indicated, the developer shall:
GENERAL/PRELIMINARY
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Comply with all unfulfilled condition of approval of the Eastlake Greens
Tentative Map, Chula Vista Tract 88-3 established by Resolution No.
15200 approved by Council on July 18, 1989.
2. If phasing is proposed within an individual map or through multiple final
maps, submit and obtain approval for a development phasing plan by the
City Engineer and Director of Planning prior to approval of any final map
which includes phasing. Improvaments, facilities and dedications to be
provided with each phase or unit of devalopmant shall be as determined
by the City Engineer and Director of Planning. The City reserves the
right to conditionally approve each final map with the requirement to
provide improvements, facilities and/or dedications as necessary to
provide adequate circulation and to meet the requirements of police and
fire departments. The City Engineer and Planning Director may, at their
discretion, modify the sequence of improvement construction should
conditions change to warrant such revision.
STREETS. RIGHTS-OF-WAY AND IMPROVEMENTS
3. Dedicate on-site and off-site street right-of-way for the construction of
East Orange Avenue from its intersection with Hunte Parkway to the
westerly subdivision boundary.
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4.
Design southerly knuckle on Street PP to conform to City design
standards.
5. Provide to the City a letter from Otay Municipal Water District indicating
that the assessments/bonded indebtedness for all parcels dedicated to
the City have been paid or that no assessments exist on the parcells).
6. Present written verification to the City Engineer from Otay Water District
that the subdivision will be provided adequate water service and long
term water storage facilities.
7. Grant to the City a 10-foot wide utility easement adjacent to the street
right-of-way within the open space lots in Units 4, 10,12, 15, 18,21-
23.26.27,30.31, or as approved by the City Engineer.
8. Construct an 8' wide sidewalk for the Golf Course Neighborhood Trail
as shown on the EastLake Greens Trails Plan along the following streets:
a. South Greensview Drive . from Clubhouse Drive to Hunte
Parkway.
b. Hunte Parkway - from So. Greensview Drive to the southerly
boundary of Unit 27.
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Resolution No. 17618
Page 10
c.
Clubhouse Drive - along the northerly boundary of Clubhouse
Drive.
""""\
Provide additional right-of-way and/or easements as required by the City
Engineer for installation of utilities, street lights, and fire hydrants.
9. Provide for the maintenance of the proposed sewer pump station on
East Orange Avenue in accordance with Council Policy # 570-03
adopted by Resolution 17491, and the Agreement to Provide Sewer
Pump Station Maintenance for the Eastlake Greens and amendments
thereto.
10. Construct South Greensview Drive from the southeasterly limits of Unit
20 to the easterly limits of Unit 38 as shown on the approved revised
tentative map when the Average Daily Trips measured on Sitverado
immediately south of Clubhouse Drive exceeds 1200.
11.
Prior to the approval of each final map for the subject development
acquire all off-site right-of-way necessary for the installation of the
required improvements for that subdivision. Notify the City at least 60
days prior to consideration of a Final Map by City if off-site right-of-way
cannot be obtained for the improvements. (Only off-site right-of-way or
easements affected by Section 66462.5 of the Subdivision Map Act are
covered by this condition).
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After said notification the developer shall:
a. Have all easements and/or right-of-way documents and plats
prepared and appraisals complete which are necessary to
commence condemnation proceedings.
b. Deposit with the City the estimated cost of acquiring said right-
of-way or easements, said estilnate to be approved by the City
Engineer.
c. Pay the full cost, both direct and indirect, of acquiring off-site
right-of-way or easements required. .
The requirements of a,b and c above shall be satisfied prior to approval
of the final map for which the off-site right-of-way or easements are
required.
All off-site requirements which fall under the purview of Section
66462.5 of the State Subdivision Map Act will be waived if the City
does not comply with the 120 day time limitation specified in the
section of the Act.
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Resolution No. 17618
Page 1 1
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(This condition supersedes Condition of Approval No. 19 for the
Eastlake Greens Tentative Map approved by City Council Resolution No.
15200).
12.
Street sections shall be revised to reflect current street design
standards. Street design standards shall be applicable to future streets.
GRADING/DRAINAGE
13. Obtain easements in favor of City for off-site detention basin and storm
basin near East Orange/Hunte Parkway intersection as required by City
Engineer.
14. Grade 20 foot wide landscape buffer along East Orange Avenue at 5:1
ratio.
15. Relocate detention basin storm drain outlet beyond toe of southerly
slope of East Orange Avenue grading.
16. Provide energy dissipators at all storm drain outlets as required by the
City Engineer to maintain non-erosive flow velocities.
17.
Design and line desilting basins with concrete to the satisfaction of the
City Engineer.
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18. Provide an updated soils report or an addendum to the original document
prepared by a registered engineer, as required by the City Engineer.
OPEN SPACE/ASSESSMENTS
19. Agree to grant in fee to the City public access easements over paved
walkways to Golf Course Trail vista points as approved by the City
Engineer and the Director of Parks & Recreation Department.
20. Request annexation into Eastlake Maintenance District #1 of all areas
within the tentative map boundary not currently included in the district
prior to approval of the first final map which includes said areas.
Deposit $3,000 to initiate annexation proceedings. Pay all costs of
proceedings.
21. Grant in fee to the City all open space lots shown on the approved
tentative map to be granted to the City and execute and record a deed
for each lot.
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22.
Submit a list of all facilities located on open space lots proposed to be
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Resolution No. 17618
Page 12
maintained by the existing Eastlake Maintenance District NO.1. This list
shall include a description, quantity and unit price per year for the
perpetual maintenance of all facilities located on open space lots to
include but not be limited to: walls, fences, water fountains, lighting
structures, paths, access roads, drainage structures and landscaping.
Only those items on an open space lot are eligible for open space
maintenance. Each open space lot shall also be broken down by the
number of acres of turf, irrigated, and non-irrigated open space to aid
the estimation of a maintenance budget thereof.
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23. Design landscape buffer for erosion control adjacent to the right-of-way
of East Orange Avenue with plant species requiring no permanent
irrigation and maintain/replace plantings as necessary for an
establishment period of one year or as extended by the City Landscape
Architect. City Engineer and Director of Parks & Recreation. Prior to
approval of the preliminary landscaping plans, which include portions of
or the entire landscape buffer, provide to the City a bond in an amount
approved by the City Landscape Architect to guarantee installation
maintenance of said landscaping.
24. Pay additional fees on a fair-share basis into the Assessment District
Numbers 90-3, 91.1 or other applicable assessment districts due to
additional units approved subsequent to District formation.
25. Make payment to reduce the debt on any parcels whose density is lower
than assumed for the assessment districts at the time of District
formation.
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26. Pay all costs associated with apportionment of assessments for all City
assessment districts as a result of subdivision of lands within the project
boundary. Request apportionment and provide a deposit to the City
estimated at $40/unit/district to cover costs prior to approval of a final
map for the unit being finaled.
27. Prepare a disclosure form to be signed by the home buyer
acknowledging that additional fees have been paid into the Assessment
District or the Transportation DIF Fund, and that these additional fees
are reflected in the purchase price of the home for those units which
have a density change from that indicated in the assessment district's
Engineer's Report.
28. Submit all disclosure forms for the approval of the City Engineer.
29. The configuration of open space lot "ODD" shall be maintained as
originally approved.
30. The Tentative Subdivision Map shall be revised to incorporate a 75'
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Resolution No. 17618
Page 13
wide (average) landscape buffer along the north side of East Orange
Avenue.
The 7S' wide landscape buffer along East Orange Avenue shall be
graded in accordance with City landform grading principles and shall be
subject to review and approval by the City Landscape Architect. A
landscape plan(s) for the subject scenic highway buffer shall be
submitted to the City Landscape Architect prior to or concurrently with
the first Tentative Subdivision Map or other site plan review application
submitted for Parcel R-10 or R-12.
AGREEMENTS
Enter into an agreement with the City whereby the developer agrees to:
32. 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 Commission,
City Council or any approval by its agents, officers, or employees with
regard to this subdivision provided the City promptly notifies the
subdivider of any claim, action or proceeding and on the further
condition that the City fully cooperates in the defense.
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33. Hold the City harmless from any liability for erosion. siltation or increase
flow of drainage resulting from this project.
34.
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Insure that all franchised ceble television companies ("Cable Company")
are permitted equal opportunity to place conduit and provide cable
television service to each lot within the subdivision. Restrict access to
the conduit to only those franchised cable television companies who are.
and remain in compliance with, all of the terms and conditions of the
franchise and which are in further 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 of Chula Vista.
Comply with the terms and conditions of the AcquisitionlFinancing
Agreement for Assessment district 94-1, CO 94-064, approved by
Council Resolution R17483 as said terms and conditions may be
applicable to this development.
MISCEllANEOUS
36. Tie the boundary of the subdivision to the California System -Zone VI
(1983).
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Resolution No. 17618
Page 14
37. Submit copies of Final Maps in a digital format such as (DXF) graphic file
prior to approval of each Final Map. Provide computer aided Design
(CAD) copy of the Final Map based on accurate coordinate geometry
calculations and submit the information in accordance with the City
Guidelines for Digital Submittal in duplicate on 5-1/2 HD floppy disk prior
to the approval of each Final Map.
"""'\
38. Update the Eastlake Greens Public Facilities financing Plan as required
by Chapter V of said approved document.
39. Fire hydrants shall be installed and operable and fire access roads shall
be usable prior to delivery of any combustible construction materials.
40. A wildland fuel modification program may be required on interface areas
between residences and open space.
XII. CODE REQUIREMENT REMINDERS
1. Comply with all applicable sections of the Chura Vista Municipal Code.
Preparation of the Final Map and all plans shall be in accordance with the
provisions of the Subdivision Map Act and the City of Chula Vista current
standards, Subdivision Ordinance and Subdivision Manual.
2. Fire flow of 1,000 gpm shall be maintained within the Project area.
""""
3. Fire Department access roads shall be a minimum of 20' wide and constructed
with an all-weather driving surface.
XIII. CONSEQUENCE OF FAILURE OF CONDITIONS
If any of the foregoing conditions 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, deny or further condition issuance of all
future building permits, deny, revoke or further condition all certificates of occupancy
issued under the authority of approvals herein granted, institute and prosecute
litigation to compel their compliance with said conditions or seek damages for their
violation. No vested rights are gained by Developer or a successor in interest by the
City's approval of this Resolution.
XIV. NOTICE OF DETERMINATION
The City Council directs the Environmental Review Coordinator to post a Notice of
Determination and file the same with the County Clerk.
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XV. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Resolution is dependent
upon the enforceability of each and every term, provision and condition herein stated;
and that in the event that anyone or more terms. provisions or conditions are
determined by a Court of competent jurisdiction to be invalid. illegal or unenforceable,
this resolution shall be deemed to be automatically revoked and of no further force and
effect ab initio.
Presented by
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City Attorney
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Robert A. Leiter
Director of Planning
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Resolution No. 17618
Page 16
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Resolution No. 17618
Page 17
Project
Components
(neighborhoods)
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A PLANNED COMMUNITY IN THE CITY OF CHULA VISTA
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Exhibit 2
0'~
Resolution No. 17618
Page 18
PASSED. APPROVED and ADOPTED by the City Council of the City of Chura Vista,
California, this 16th day of August, 1994, by the following vote:
-...
YES: Councilmembers:
Fox, Horton. Moore, Rindone, Nader
NOES: Councilmembers:
None
ABSENT: Councilmembers:
None
ABSTAIN: councilmembers:
None
~ -/7 /...
~ ~ /~.:r~,
Tim Nader. Mayor
ATTEST:
~u~t (l;ffchi:
Beverly . Authelet. City Clerk .
---.
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA)
I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do hereby certify that
the foregoing Resolution No. 17618 was duly passed, approved. and adopted by the City
Council at a regular meeting of the Chula Vista City Council held on the 16th day of August.
1994.
Executed this 16th day of August. 1994.
~/f.. r2. flJR:~
Beverly A Authelet, City Clerk
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EX 1-4 , 15 ",... D
Ie
RESOLUTION NO. 17765
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AMENDING CONDITION NO. 38 OF RESOLUTION NO;
17618 APPROVING THE TENTATIVE SUBDIVISION MAP FOR
CHULA VISTA TRACT 88-3A, EASTLAKE SOUTH GREENS
WHEREAS. on July 18, 1989, by Resolution 15200, the City Council approved the
Tentativa Subdivision Map for Chula Vista Tract 88-03, EastLake Greens; and,
WHEREAS, on August 16. 1994. by Resolution 17618;the City Council approved the
amended tentative map for EestLake Greens, Tentative Map 88-3A. and imposed additional
conditions of approval on the area south of Clubhouse Drive which is designated es EastLake
South Greens; and.
WHEREAS. Condition of Approval No. 38 of Resolution No. 17618 requires the
developer to update the Eastlake Greens Public Facilities Financing Plan IPFFPI as required by
Chapter V of the PFFP prior to approval of the first final map for the South Greens; and.
WHEREAS. the developer has submitted a draft revision of the PFFP to the Director of
Planning for review; and,
e
WHEREAS. however. since the developer has guaranteed construction of public
improvements required for Phase I of the South Greens as determined by the City Engineer
and Director of Planning and the map now before Council does not create any residential lots.
staff recommends that Condition No. 38 be amended to read as follows:
.Update the Eastlake Greens Public Facilities Financing Plan as
required by Chapter V of said approved document to the
satisfaction of the City Engineer and the Director of Planning
prior to approval of the first final map creating residential lots. .
WHEREAS. this lImendment will allow time for review and approval of the PFFP update
prior to approval of any map creating the need for additional public improvements.
NOW. THEREFORE. BE IT RESOLVED the City Council of the City of Chula Vista does
hereby amend Condition No. 38 of Resolution No. 17618 approving the Tentative Subdivision
Map for Chula Vista Tract 88-3A. Eastlake South Greens as set forth hereinabove.
,e
J
ed as to
Presented by
J n P. Lippitt
irector of Public Works
Bruce M. Boogaa
City Attorney
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Resolution No. 17765
hge 2
PASSED, APPROVED and ADOPTED by the City Council of the City of Chula Vista,
California. this 20th day of December. 1994. by the following vote:
-..
YES: Councilmembers:
Fox, Moot. Padilla. Rindone, Horton
NOES: Councilmembers:
None
ABSENT: Councilmembers:
None
ABSTAIN: Councilmembers:
None
ATTEST:
\
,
~
STATE OF CALIFORNIA I
COUNTY OF SAN DIEGO I 5S.
CITY OF CHULA VISTA I
t, Beverly A. Authelet, City Clerk of the City of Chula Vista. California. do hereby certify that
the foregoing Resolution No. 17765 was duly passed. approved, and adopted by the City
Council at a regular meeting of the Chula Vista City Council held on the 20th day of December
1994.
Executed this 20th day of December. 1994.
..,
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Ex\-t'B', E
RESOLUTION NO. I?Y.:J.5"
RESOLUTION OF. THE CITY COUNCIL OF THE CITY OF
CHtlLA VISTA. AMJ:Nt)ING CONDITION NO. 38 OF
RESOLUTION 17U8 APPROVING !'HE TENTATIVE
SUBDIVISION MAP FOR CHtJI.A VISTA TRACT 11-3A,
BAS'1't.AKJ: SOtJ'l'H GREENS
WHEREAS, ConcUUon of Approva1 110. 31 of .e.olution No.
17'18 require. the developer to update the Z..tlake Greena Public
Facilitie. Financin9 Plan (PFFP) a. required by Chapter V of the
PFFP prior to approval of the fir.t final up for the South Green.;
and
WHEREAS, .e.olution No. 177'5 .ub.equently ..ended
CondiUon 38 to require approval of the update to the PFFP prior to
approval of the fir.t final up ereatug nddenUal lot.; and
WHEREAS, however, the developer ha. obtained approval for
improvement plan. and 9Qaranteed con.truction of all public
improvement. required for the unit. within Pha.e 1 of the South
Green.; and
WHEREAS, therefore, any chan;e. to the improvement.
required by the PFFP due to chan;e. in development phaain; will not
affect requir..ent. for Pha.e 1; and
WHEREAS, .taft recOllllend. that Condition No. 38 be
..ended to read a. follow.:
.Update the Z..tlake Green. Public Facilitie.
Financin; Plan a. required by Chapter V of .dd
approved document to the .ati.faction of the City
En;inur and the Director of Plannin; prior to
approval of the fir.t final aap ~or Ph... 2 oL
.ra.tlak. South Green.. If, in the cour.e of the
update, it 1a deterained that addiUonal work 1a
required a. a re.ult of the con.truction of Pha.e
1, the developer will in.ure that the work i.
completed accordin9 to the updated PFFP .chedule.
WHEREAS, thia ..endment will allow time for review and
approval of the PFFP update prior to approval of any aap creaUn;
.. the need for addiUonal improvement..
.
IIOW, 'l'HDEFORE, BZ 1'1' RESOLVED the City Council of the
City of Chul. V1ata doe. hereby ..end CondiUon No. 31 of
R..olution 17'18 approvin; the Tentative Subdivi.ion Nap for Chula
Vi.ta Tract "-3A, z..tlake South Green. .. .et forth h einabove.
Pre.ented by A~ed a. t~
i~ IJ~
Bruce N. Boo;a
Attorney
John P. Lippitt,
Public Work.
CI\~.\..ft~&D...l.
Director of
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- This Page Blank-
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EXHI8tT
CHULA VIST A TRACT NO. 95-01
EASTLAXE SOUTH GREENS, UNIT 27
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EAST LAKE GREENS PHASE ID
MAP NO. 12831
LOT 2
E..OI\~
VICINITY MAP
NO SCALE
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PARCEL MAP
NO. 17476
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09/11/1995 17:21
6196915171
CITY CF a-LLA VISTA
PAGE 02
EX\-\\B\T G
THE em OF CHULA nSTA P.4RTY DISCLOSURE STATEMENT
....tatc:ment of disclosure of cenaln ownership Interests. payments, or campaign contributions, on all matten
.hich will require discretionary action on the pan of the City Councll. Planning Commission. and all other
f official bodies. The following information must be disclosed:
(tp
1. Ust the names of all persons havinS a financial Interest In the contract, i.e.. contractor,
subcontractor, material supplier.
EastLake Development ~ompany
2. If any person identified pursuant to (1) above Is a corporation or pannership, list the names of all
individuals owning more than 109& of the shares In the corporation or ownlng any pannershlp
interest in the partners~.
Tulago Company
Hoswell Yropertles, !nc..
3. If any person Identified pursuant to (1) above is non-profit organization or a trust, Ust the names'
of any person serving as director of the non-profit organization or as trustee or beneficiary or
trustor of the trust.
N/A
s.
Have you had morC than $250 wonh of busincsatransacted with any member of the City staff,
Boards, Commissions, Committees and Council within the past twelve months? Yes_
No ~ If yes, please indicate person(s):
Please identify each and every person, Including any agentl, employees, consultants or Independent
contractors who you have alJigned to represent you before the City In this matter.
. Bill Ostrem - EastLake Develonment Co. Dennis Otsuii - DNA Inr.
Gail Crocenzi - EastLake Dev. Co. Jack Nakawatasae - DNA. INC.
Rogr Bhatia - Rick Engineering Co.
6.
Have you and/or your officers or asents, In the aagregate, contributed more than '$1,000 to a
Councllmember In the current or preceding election period? Yes _ No ~ If yes, state which
Councllmembcr(a): .
hwm Is dellnld IS: "Any iltdlvidunl, /I",,, to-pn"Mnhlp,joI"t _III,., _Wat""" IfIdnl dub, f/wIftMl tNftIlllztltirm, UIl'pOmtlOlt,
rlmlt, ttun, ~lvIr, I)"d;t(lt~ thU arut DIIY Dlhtr tDIIII/)'. dty llrut coulltl)l dry, "lIlllidpnNry, t1btrit:t Dr odarr poIltlCltI mbdMllolI,
Dr /III)' OIhrr group or UNI,bilttIJlOII ,,"in, tll If utili:
{_Ie:
-,,,
-"
(NOTE: Alllch addllloDlI pall. U lleteSSllry)
q-t":? .ers-
.
"";:~.~~,'
. -~--~_:_"-'-'--~
/J ~
Sisnatre of contr~ctor/ap
Gail Crocenzi - Assistant Project Manager
Print or type name of contractor/appllCllnt .
~ ~ _~.?- '1('-, 1:::~~1
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nA
/u
1.\.III.\;DISCLOSE.Th.',
,......"
- This Page Blank-
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RESOLUTION NO. I~o 53
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING CONDITION NO. 38 OF
RESOLUTION 17618 APPROVING THE TENTATIVE
SUBDIVISION MAP FOR CHULA VISTA TRACT 88-3A,
EASTLAKE SOUTH GREENS
WHEREAS, Condition No. 38 of Resolution No. 17618 and
amended by Resolutions 17765 and 17835 for Chula vista Tract 88-3A,
East1ake South Greens, requires the developer to update the
Eastlake Greens Public Financing Plan (PFFP) prior to approval of
the first final map for Phase 2 of the Eastlake South Greens; and
WHEREAS, the PFFP is scheduled to be submitted for review
by the Planning commission on 9/27/95 and for Council consideration
on 10/10/95; and
WHEREAS, the map before Council, unit 27, is within Phase
2 of the Eastlake South Greens; and
WHEREAS, however, since all infrastructure required for
this subdivision has either been constructed or has approved plans
and bonding in place, staff recommends that Council waive the
Condition No. 38 and consider the unit 27 final map for approval as
all other conditions of approval have been satisfied.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
city of Chula vista does hereby waiving Condition No. 38 of
Resolution 17618 approving the Tentative Subdivision Map for Chula
vista Tract 88-3A, Eastlake South Greens.
Presented by
Approved as to form by
John P. Lippitt, Director of
Public Works
Bruce M. Boogaard, city
Attorney
qA -{
'71
Revised Item 9
RESOLUTION NO. 18053
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING CONDITION NO. 38 OF
RESOLUTION 17618 APPROVING THE TENTATIVE
SUBDIVISION MAP FOR CHULA VISTA TRACT 88-3A,
EASTLAKE SOUTH GREENS
WHEREAS, Condition No. 38 of Resolution No. 17618 and
amended by Resolutions 17765 and 17835 for Chula vista Tract 88-3A,
Eastlake South Greens, requires the developer to update the
Eastlake Greens Public Financing Plan (PFFP) prior to approval of
the first final map for Phase 2 of the Eastlake South Greens; and
WHEREAS, the PFFP is scheduled to be submitted for review
by the Planning commission on 9/27/95 and for Council consideration
on 10/10/95; and
WHEREAS, the map before Council, Unit 27, is within Phase
2 of the Eastlake South Greens; and
WHEREAS, however, since all infrastructure required for
this subdivision has either been constructed or has approved plans
and bonding in place, staff recommends that Council waive the
Condition No. 38 with respect to Unit 27 only, and consider the
Unit 27 final map for approval as all other conditions of approval
have been satisfied.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby waive Condition No. 38 with respect
to Unit 27 only, of Resolution 17618 approving the Tentative
Subdivision Map for Chula vista Tract 88-3A, Eastlake South Greens.
BE IT FURTHER RESOLVED that the waiver of Condition No.
38 applies only to Unit 27 and does not constitute a waiver of this
condition for any subsequent final maps for Phase 2 of EastLake
South Greens.
Presented by
Approved as to form by
~~~
Bruce M. Boogaard, ~__
Attorney
John P. Lippitt, Director of
Public Works
pc;- f9~~ 911-1 q
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RESOLUTION NO .1r bS if
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING FINAL MAP OF CHULA VISTA
TRACT 95-01 EASTLAKE SOUTH GREENS UNIT 27
(FIELDSTONE CREST), ACCEPTING ON BEHALF OF THE
PUBLIC THE PUBLIC STREETS DEDICATED ON SAID
MAP, REJECTING ON BEHALF OF THE CITY OF CHULA
VISTA THE OPEN SPACE LOTS GRANTED ON SAID MAP,
ACCEPTING THE EASEMENTS GRANTED ON SAID MAP
WITHIN SAID SUBDIVISION
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 95-01, EASTLAKE SOUTH GREENS UNIT 27
(FIELDSTONE CREST), and more particularly described as follows:
Chula vista Tract No. 95-01, Eastlake Greens, Unit 27,
being a subdivision of a portion of Rancho Janal,
according to Map thereof recorded in Book 1, Page 89 of
Patents, in the City of Chula Vista, County of San Diego,
State of California.
Area: 9.221 acres
Numbered Lots: 40
No. of Lots: 43
Lettered Lots: 3
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.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the public the public streets, to-wit: Indian Creek
Drive and Arrowhead Court, and said streets are hereby declared to
be public streets and dedicated to the public use.
BE IT FURTHER RESOLVED that Lots A and C are hereby
rejected for Open Space.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the city of Chula vista the easements with the right
of ingress and egress for street tree planting and maintenance ,
the easements for general utility and sidewalks and the easement
for utilities, as granted and shown on said map within said
subdivision, subject to the conditions set forth thereon.
BE IT FURTHER RESOLVED that the city Clerk of the city of
Chula vista be, and is hereby authorized and directed to endorse
upon said map the action of said Council; that said Council has
approved said subdivision map, and that said public streets are
accepted on behalf of the public as heretofore stated and that said
lots are dedicated for Open Space and other public uses and are
rejected on behalf of the city of Chula vista and that certain
98 -/
1-f3
easements with the right of ingress and egress for the construction
and maintenance of street tree planting, the easements for general
utility and sidewalks and the easement for utilities, as granted
thereon and shown on said map within said subdivision is accepted
on behalf of the city of Chula vista as hereinabove stated.
BE IT FURTHER RESOLVED that the city Clerk be, and 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
Improvement Agreement dated
completion of improvements in said subdivision, a copy
on file in the office of the City Clerk as Document No.
completed by the City Clerk in the final document).
that certain Subdivision
for the
of which is
(to be
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to execute said
Agreement for and on behalf of the city of Chula vista.
Presented by
Approved as to form by
John P. Lippitt, Director of
Public Works
Bruce M. Boogaard, City
Attorney
q~.d-
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RESOLUTION NO. 18054
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING FINAL MAP OF CHULA VISTA
TRACT 95-01 EASTLAKE SOUTH GREENS UNIT 27
(FIELDSTONE CREST), ACCEPTING ON BEHALF OF THE
PUBLIC THE PUBLIC STREETS DEDICATED ON SAID
MAP, REJECTING ON BEHALF OF THE CITY OF CHULA
VISTA THE OPEN SPACE LOTS GRANTED ON SAID MAP,
ACCEPTING THE EASEMENTS GRANTED ON SAID MAP
WITHIN SAID SUBDIVISION
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 95-01, EASTLAKE SOUTH GREENS UNIT 27
(FIELDSTONE CREST), and more particularly described as follows:
Chula vista Tract No. 95-01, Eastlake Greens, Unit 27,
being a subdivision of a portion of Rancho Janal,
according to Map thereof recorded in Book 1, Page 89 of
Patents, in the City of Chula vista, County of San Diego,
State of California.
Area: 9.221 acres
Numbered Lots: 40
No. of Lots: 43
Lettered Lots: 3
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.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the public the public streets, to-wit: Indian Creek
Drive and Arrowhead Court, and said streets are hereby declared to
be public streets and dedicated to the public use.
BE IT FURTHER RESOLVED that Lots A and C are hereby
rejected for Open Space.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the City of Chula vista the easements with the right
of ingress and egress for street tree planting and maintenance ,
the easements for general utility and sidewalks and the easement
for utilities, as granted and shown on said map within said
SUbdivision, subject to the conditions set forth thereon.
BE IT FURTHER RESOLVED that the City Clerk of the City of
Chula vista be, and is hereby authorized and directed to endorse
upon said map the action of said council; that said Council has
approved said subdivision map, and that said public streets are
accepted on behalf of the public as heretofore stated and that said
lots are dedicated for Open Space and other public uses and are
rejected on behalf of the city of Chula vista and that certain
~ j>g-3
~.
easements with the right of ingress and egress for the construction
and maintenance of street tree planting, the easements for general
utility and sidewalks and the easement for utilities, as granted
thereon and shown on said map within said subdivision is accepted
on behalf of the City of Chula vista as hereinabove stated.
BE IT FURTHER RESOLVED that the City Clerk be, and 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
Improvement Agreement dated
completion of improvements in said subdivision, a copy of
on file in the office of the City Clerk as Document No.
be, and the same is hereby approved.
that certain Subdivision
for the
which is
C095-198
BE IT FURTHER RESOLVED that the approval of this
Agreement and of this Final Map does not constitute a waiver by the
City of any of the Developer's obligations with respect to park
improvements, as set forth in Condition No. 39 of Resolution 15200,
the EastLake Park Agreement, EastLake Greens Development Agreement,
EastLake Greens Three Development Agreement and such other
Agreements that Developer has entered into with the City.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to execute said
Agreement for and on behalf of the City of Chula vista.
Presented by
Approved as to form by
~~~
Bruce M. Boogaard, city
Attorney
John P. Lippitt, Director of
Public Works
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RESOLUTION NO. fir t>c;<"
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING SUPPLEMENTAL SUBDIVISION
IMPROVEMENT AGREEMENT REQUIRING DEVELOPER TO
COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF
RESOLUTIONS NO. 17749 AND 15200 APPROVING A
TENTATIVE MAP FOR PARCEL R-27, KNOWN AS
FIELDSTONE CREST, AND AUTHORIZING MAYOR TO
EXECUTE SAME
WHEREAS, the developer of Fieldstone Crest has executed
a Supplemental Subdivision Improvement Agreement to satisfy various
conditions.
.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
city of Chula vista does hereby approve a Supplemental Subdivision
Improvement Agreement requiring Developer to comply with certain
unfulfilled conditions of Resolutions No. 17749 and 15200,
approving a Tentative Map for Parcel R-27, known as Fieldstone
Crest, in a final form to be approved by the City Attorney, a copy
of which is on file in the office of the City Clerk as Document No.
___ (to be completed by the Clerk in the final document).
BE IT FURTHER RESOLVED that the Mayor of the city of
Chula vista is hereby authorized and directed to execute said
Supplemental Subdivision Improvement Agreement on behalf of the
city of Chula vista.
Presented by
Approved as to form by
John P. Lippitt, Director of
Public Works
Bruce M. Boogaard, City
Attorney
C:\rs\Parce127.f.
qc.-I /Yc- ~
~h
RESOLUTION NO. 18055
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING SUPPLEMENTAL SUBDIVISION
IMPROVEMENT AGREEMENT REQUIRING DEVELOPER TO
COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF
RESOLUTIONS NO. 17749 AND 15200 APPROVING A
TENTATIVE MAP FOR PARCEL R-27, KNOWN AS
FIELDSTONE CREST, AND AUTHORIZING MAYOR TO
EXECUTE SAME
WHEREAS, the developer of Fieldstone Crest has executed
a Supplemental Subdivision Improvement Agreement to satisfy various
conditions.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
city of Chula vista does hereby approve a Supplemental Subdivision
Improvement Agreement requiring Developer to comply with certain
unfulfilled conditions of Resolutions No. 17749 and 15200,
approving a Tentative Map for Parcel R-27, known as Fieldstone
Crest, in a final form to be approved by the City Attorney, a copy
of which is on file in the office of the City Clerk as Document No.
___ (to be completed by the Clerk in the final document).
BE IT FURTHER RESOLVED that the approval of this
Agreement and of this Final Map does not constitute a waiver by the
City of any of the Developer's obligations with respect to park
improvements, as set forth in Condition No. 39 of Resolution 15200,
the EastLake Park Agreement, EastLake Greens Development Agreement,
EastLake Greens Three Development Agreement and such other
Agreements that Developer has entered into with the City.
BE IT FURTHER RESOLVED that the Mayor of the city of
Chula Vista is hereby authorized and directed to execute said
Supplemental Subdivision Improvement Agreement on behalf of the
city of Chula vista.
Presented by
Approved as to form by
John P. Lippitt, Director of
Public Works
Ov-- ~ )~
Bruce M. Boogaard, City
Attorney
C:\rs\Parce127.fm
fC-J
11;
COUNCIL AGENDA STATEMENT
Item / tJ
Meeting Date 10/3/95
ITEM TITLE: Resolution /8"'tl,f';, Approving Agreement Among the County
of San Diego, Southwestern Community College District and City of
Chula Vista for Construction, Maintenance and Operation of the
Southwestern College Bus Stop Improvement Project
SUBMITTED BY: Director of Public wor~
REVIEWED BY: City ManagejG\ ~~ (4/5ths Vote: Yes_No..X.)
At its meeting on February 20, 1990, Council approved an agreement among the County of San
Diego, Southwestern College and City of Chula Vista for a Southwestern College Transit
Center Feasibility Study. This study determined that a transit center at Southwestern College
would be both feasible and warranted to provide more convenience and accessible public
transportation service to the College and to eastern Chula Vista. The study recommended a
facility adjacent to Otay Lakes Road on the College campus between the Gotham and Elmhurst
Streets entrances to the campus. The Southwestern College Board of Directors approved this
site in Spring 1992. On May 5, 1992 this site was considered and rejected by Council due to
opposition from area residents and impacts on the landscaping in front of the College.
Since May 1992 the College, City and County have been working together to fmd an alternate
mutually agreeable site. The staffs of the three parties have agreed to expand the existing bus
stop area on the College campus that Chula Vista Transit (CVT) has been using for many
years. This location and conceptual expansion is shown in Attachment 1 to the proposed
agreement. In addition, as indicated in the attached letter (Exhibit 1) from Southwestern
College President, Joseph Conte to Mayor Horton, the College Board approved the conceptual
site plan for the project at its meeting on August 9, 1995. Since this proposal essentially is an
expansion and enhancement of the existing bus stop area, all three parties have suggested that
this project be referred hereafter to as the Southwestern College Bus Stop Improvement Project.
The estimated cost of the project is $500,000, including contingencies. The total design and
construction cost of this project would be paid for by County of San Diego Transportation
Development Act (TDA) funds.
RECOMMENDATION: That Council approve agreement among County of San Diego,
Southwestern Community College District and City of Chula Vista for the construction,
maintenance, and operation of the Southwestern College Bus Stop Improvement Project.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
Ie? '" /
~
Page 2, Item / tJ
Meeting Date 10/3/95
DISCUSSION: The bus stop improvement project at Southwestern College would serve
two main purposes: improve current and future CVT service to the College; and function as
a transfer point for CVT routes operating in the area east of Southwestern College. The
proposed project expands the current bus loading area that accommodates 3 buses to an area
for 6 buses. Also included are landscaping, passenger amenities (such as shelters and benches),
and accessibility improvements consistent with the Americans with Disabilities Act (ADA).
The agreement authorizes the County to proceed with final design and construction of the
project and defmes maintenance and operation responsibilities between the College and the City
once the project is completed. Because of anticipated disruption to traffic circulation on
campus during project construction, the College has requested that construction take place
during Summer 1996. In order to meet this schedule, it is necessary that this agreement be
approved by all three parties in October 1995. If Council approves this agreement, the
Southwestern College Board of Directors will consider the agreement at its meeting on
Wednesday, October 11, 1995, and the Board of Supervisors will consider the agreement later
in October.
The major components of the agreement are:
Countv will:
contribute up to $900,000 in TDA funds for project development
act as lead agency for design and construction.
College will:
be responsible for daily routine maintenance and cleaning of the site, including trash
pickup, landscape maintenance and removal of stains, spills and graffiti from structure
surfaces.
pay for utilities (electric/water) after project completion.
Citv will:
be responsible for major maintenance and repair of the facility, including damage to
structures.
In addition, under Section IIC (page 4), the College grants the City a license for access to the
site for bus operations, major maintenance and repair of project structures as long as it is
mutually agreeable to both parties. City staff requested the College either grant an "irrevocable
license" or a license for access to the site for a specific time period of ten years in order to
ensure transit access to the facility and to assure an adequate time in which to amortise the
County's investment. The College declined this change. The County, which will be funding
the project construction, will accept the agreement as currently written, without the change
requested by the City. Although City staff would have preferred this additional language
regarding the license, it is not an essential component of the agreement. As also indicated in
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Page 3, Item / tJ
Meeting Date 10/3/95
Section lIC, this project is mutually beneficial both to the College and to Chula Vista Transit
(CVT). Since the College requested the expansion of the current bus stop area for this project,
it is unlikely that a situation would arise in which the College would deny the City or CVT
access to the site for transit service.
In summary, the County will construct the project, the College will be responsible for on-going
maintenance, and the City will be responsible for major maintenance and repair if needed. The
project will be designed to provide improved bus service to the College and eastern Chula
Vista with low on-going maintenance costs. The project will provide 6 bus bays, 3 shelters,
approximately 16 benches, and landscaping. Shelters will be large covered structures without
side panels to minimize frequent maintenance and to discourage graffiti. The physical concept
and function are similar to the bus stop facilities at the "E" and "H" Street Trolley Stations.
FISCAL IMPACT:
1) The total estimated cost of the Southwestern College Bus Stop Improvement Project is
$500,000, which includes design and construction. The County of San Diego has
programmed $900,000 for this project. Approximately $250,000 has been spent on this
project since its inception; therefore, approximately $650,000 remains for
implementation.
2) Costs associated with major maintenance and repair at the completed facility will be
funded by City of Chula Vista TDA Article 4.0 funds. It is difficult to estimate an
annual cost for repairs, since repairs may be needed only infrequently. For example,
during the 14 years that the "H" Street station has been in operation, the bus shelters
at the Transit Center area have been repaired 4 times. Based on the projected TDA
allocation projected for the City of Chula Vista during the next five years, there will
be sufficient funds to pay for repair costs that might occur.
File No. DS030/037
Exhibit 1:
Exhibit 2:
Letter Dated August 15, 1995 from Joseph Conte to Mayor Horton
Site Plan
(M:\home\engineer\agenda\ds030.wmg)
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Southwestern
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COUNCllOFfICE.S
(HUI A VISTA, C'A
Governing Board
Augie Sareno
G. Gordon Browning. D.MoO
Jerry J. Griffith
Maria Neves-Perman
Judy Schulenberg
Joseph M. Conte
SUperintendent /Presldent
August 15, 1995
The Honorable Shirley Horton, Mayor
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 9j012 ,
Dear Mayor Ho;!o'n: q~
In the evenJ~u have not yet been made aware, the Governing Board of
Southwesf'ern College, upon my recommendation, has approved the last jointly
developed plan for an on-campus Transit Center.
County, city, and college representatives appear to be in agreement with the
proposed plan. I assume the City Council will follow a similar action to the
College Board's.
/
Sincerely,
"-.
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oseph M. Conte
uperintendentlPresident
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900 Otay Lakes Road. Chula Vista. CA 91910 . (619) 421.6700 FAX (619) 482.6413 . Southwestern Community College DlstrIC5':.
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Southwestern College Bus Stop Improvement Project Site Plan
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RESOLUTION NO. / !'~.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AGREEMENT AMONG THE
COUNTY OF SAN DIEGO, SOUTHWESTERN COMMUNITY
COLLEGE DISTRICT AND CITY OF CHULA VISTA FOR
CONSTRUCTION, MAINTENANCE AND OPERATION OF THE
SOUTHWESTERN COLLEGE BUS STOP IMPROVEMENT
PROJECT
WHEREAS, at its meeting on February 20, 1990, Council
approved an agreement among the County of San Diego, Southwestern
College and City of Chula vista for a Southwestern College Transit
Center Feasibility Study which study determined that a transit
center at Southwestern College would be both feasible and warranted
to provide more convenience and accessible public transportation
service to the College and to eastern Chula Vista; and
WHEREAS, the study recommended a facility adjacent to
Otay Lakes Road on the College campus between the Gotham and
Elmhurst Streets entrances to the campus and the Southwestern
College Board of Directors approved this site in Spring 1992; and
WHEREAS, on May 5, 1992 this site was considered and
rejected by Council due to opposition from area residents and
impacts on the landscaping in front of the College; and
WHEREAS, since May 1992 the College, City and County have
been working together to find an alternate mutually agreeable site;
and
WHEREAS, the staffs of the three parties have agreed to
expand the existing bus stop area on the College campus that Chula
vista Transit (CVT) has been using for many years which location
and conceptual expansion is shown in Attachment 1 to the proposed
agreement; and .
WHEREAS, the College Board approved the conceptual site
plan for the project at its meeting on August 9, 1995; and
WHEREAS, since this proposal essentially is an expansion
and enhancement of the existing bus stop area, all three parties
have suggested that this project be referred hereafter to as the
Southwestern College Bus stop Improvement Project; and
WHEREAS, the estimated cost of the project is $500,000,
including contingencies and the total design and construction cost
of this project would be paid for by county of San Diego
Transportation Development Act (TDA) funds.
1
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NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby approve the Agreement among the
County of San Diego, Southwestern Community College District and
City of Chula vista for construction, maintenance and operation of
the Southwestern College Bus stop Improvement Project, a copy of
which is on file in the office of the City Clerk as Document No.
(to be completed by the Clerk in the final document).
BE IT FURTHER RESOLVED that the Mayor of the city of
Chula vista is hereby authorized and directed to execute said
Agreement for and on behalf of the City vista
Presented by
ed{
, City
John P. Lippitt, Director of
Public Works
Bruce M.
Attorney
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AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO, SOUTHWESTERN COMMUNITY
COLLEGE PI STRICT AND T~E CITY or CHULA VISTA FOR THE
CONSTRUCTION, MAINTENANCE AND OPERATION OF THE SOUTHWESTERN
COLLEGE BUS STOP IMPROVEMENT PROJECT
THIS AGREEMENT is hereby made and entered into this
day
of
, 1995, by and between the COUNTY OF SAN
DIEGO, a political subdivision of the State of California, 1600
Pacific Highway, San Diego, California 92101, hereinafter referred
to as "County"; the SOUTHWESTERN COMMUNITY COLLEGE DISTRICT, a
community college district of the State of California, 900 Otay
Lakes Road, Chula Vista, California 91910, hereinafter referred to
as "College", and CITY OF CHULA VISTA, a municipal corporation of
the State of California, 276 Fourth Avenue, Chula Vista, California
91910 hereinafter referred to as "city".
WITNESSETH
WHEREAS, under section 99400.5 of the California Public
utilities Code, the County has the authority to finance the
construction of multimodal transportation terminals anywhere in the
County; and
WHEREAS, the County, at the request of the College and city,
has completed a feasibility and site location study for a transit
facility at Southwestern College; and
WHEREAS, the study concluded that the Southwestern College Bus
stop Improvement Project, hereinafter J;:eferred to as the "Project",
is necessary and feasible, and the Project should be constructed;
and
WHEREAS, the Project will benefit the College by providing
more convenient and accessible public transportation for students
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and College employees; and
WHEREAS, the Project will benefit the City by facilitating -
Chula Vista Transit operations; and
WHEREAS, the study and its recommendations have been reviewed
and accepted by the College, the City and the county; and
WHEREAS, the County desires to reach agreement with the
College and the City in carrying out the responsibilities of all
parties for the financing, construction, maintenance and operation
of the Southwestern College Bus stop Improvement Project; and
WHEREAS, the Southwestern College Bus stop Improvement Project
is included for design and construction in the county's Capital
Outlay Fund and the FY 1995-FY 2001 Short Range Transit Plan; and
NOW THEREFORE, in consideration of the foregoing, the parties
agree as follows:
I. COUNTY AGREES:
A. County shall contribute Transportation Development
Act (TDA) funds in an amount not to exceed $900,000
for development and construction of the Project.
The College shall in no way be responsible for any
capital costs in conjuction with the project.
B. County shall act as lead agency for construction
and shall use its best efforts to construct or have
constructed a Bus stop Improvement at the site
depicted in Attachment i, "Southwestern College Bus
stop Improvement Project site Plan".
C. County shall be responsible for all preliminary
2
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engineering, design, preparation of environmental
documents and construction management, including .
construction engineering, inspection, and final
acceptance all of which shall be subject to final
approval by the City and the College. The
necessary work shall be performed in accordance
with the City of Chula Vista, College and County
standards. The design shall be subject to the
approval of the College Board of Trustees and the
Chula Vista City Council. The design shall include
landscaping of the site and a six-bus bay facility
with shelters, benches and information displays.
D. The County shall be responsible for costs directly
resulting from any changes to utilities required
for the installation of the Project.
E. County agrees to submit design plans to the
Department of the state Architect for approval.
II. COLLEGE AGREES:
A. Following acceptance of construction by the county
and final approval by the City and College,
utilities (electrical and water) for the Project
operation will be paid for by the College for the
duration of bus stop operation. Water for the bus
stop operation will be connected to the College
water.
B. Following acceptance of construction by the county
3
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and final approval by the city and the College,
College will be responsible for daily routine -
maintenance and cleaning of the Project, which
shall include but not be limited to trash pickup,
landscape maintenance (including tree trimming),
removal of stains/spills from pavement or structure
surfaces and graffiti removal.
C. The College hereby grants the City a license for
access to the site for bus operations, major
maintenance and repair of Project structures as.
long as it is mutually agreeable to both parties.
III. CITY AGREES:
A. Upon execution of this Agreement, the city shall be
responsible for the major maintenance and repair of
the Project, including damage to the structures.
B. The City shall maintain insurance or self-insured
responsibility for negligent major maintenance and
operation of the completed facility, which names
the College and County as additional insureds.
C. The College, its agents, officers and employees
shall not be held liable for any claims,
liabilities, penalties, fines or for damage to any
goods, properties or effects of any person
whatsoever, nor for personal injuries or deaths of
them, or to any of them, caused by or resulting
from negligent major maintenance, repair and
4
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operation of the completed facility by the City,
its agents, employees or representative; the City -
further agrees to defend and indemnify and save
free and hold harmless the College and its
authorized agents, officers, and employees against
any and all foregoing liabilities and any costs and
expenses, including reasonable attorneys fees,
incurred by the College on account of any claim
therefore, including claims involving the major
maintenance, repair and operation of the Project;
and in the event that a Court of Competent
Jurisdiction should determine that the city has no
authority to ~rovide by agreement the performance
of the services set forth above, the city
nevertheless agrees to assume the forgoing
obligations and liabilities by which assumption it
is intended by all parties that the City agrees to
indemnify and hold the College harmless from all
claims arising by reason of the work done by, or
any act or omission of, the City, its agents,
employees or representatives, in connection with or
in performance of the agreed upon services of work
provided for in this Agreement.
IV. 1:T 1:8 MUTUALLY AGREED:
A. The County shall. furnish to the College and the
city, within three months of the execution of this
5
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Agreement,
30
percent
conceptual
design,
preliminary plans and specifications for the
college and City review and comment. The College
and the City will have thirty days to respond with
their comments. The County shall furnish to the
College and the City, within seven months of
execution of this Agreement, 70 percent conceptual
design, preliminary plans and specifications for
the College and City review and comment. The
College and City will have thirty days to respond
with their comments.
The final working drawings
and specifications for the Project shall be
submitted to the College and the City for their
approval within ten months of the execution this
Agreement.
The county shall, in good faith,
respond to all College and City comments.
B. The college, the City and the County anticipate
that this Agreement may, from time to time, be
modified.
All such modifications, including any
change in the responsibilities of the parties,
shall be incorporated in writing into this
Agreement by appropriate amendment(s).
C. The superintendent/President of the College shall
.
be the contract administr~tor representing the
College in all matters pertaining to this
Agreement.
The Director of Public Works of the
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County shall be contract administrator for the
County in all matters pertaining to this Agreement. .
The Director of Public Works of the city of Chula
vista shall be the contract administrator
representing the City in all matters pertaining to
this Agreement. All are hereby authorized to make
administrative decisions to carry out the full
intent of this Agreement.
D. This Agreement shall terminate as to the County
upon city and College final approval of
construction on the Project. This Agreement shall
terminate between College and City upon mutual
agreement of both parties, or tel~ination of use by
the facility as a bus stop, which ever first
occurs.
E. The County, its agents, officers and employees
shall not be held liable for any claims,
liabilities, penalties, fines or for damage to any
goods, properties or effects of any person
whatsoever, nor for personal injuries to or deaths
of them or any of them, caused by or resulting from
any acts omissions of the College or the City,
their agents, employees or representatives; the
College and the city separately and not jointly
further agree to defend and indemnify and save free
and harmless the county and its authorized agents,
7
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officers and employees against any of the foregoing
liabilities and any cost and expense incurred by .
the county on account of any claim therefore,
including improvement services, or any other work
or services done or provided to the County by the
College or the City pursuant to this Agreement; and
in the event that a court of competent jurisdiction
should determine that the College or the city has
no authority to provide by agreement the
performance of the hereinabove set forth services,
the College or the City separately, not jointly,
nevertheless agree to assume the foregoing
obligations and liabilities by wtiich assumption it
is intended by all parties that the College or the
City agree to indemnify and to hold the County
harmless from all claims arising by reason of the
work done by, or any act or omission of, the
College or the City respectively or its agents,
employees or representatives, in connection with or
in performance of the agreed upon services of work
provide for in this Agreement. It is agreed that
the liability hereunder of the college or the city
shall not be joint and several, but shall be
-
separate unto each agent for its own actions and
the actions of its agents and employees only.
F. The College or the City, their agents, officers and
8
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employees shall not be held liable for any claims,
liabilities, penalties, fines or for damage to any'
goods, properties or effects of any person
whatsoever, nor for personal injuries to or deaths
of them, or any of them, caused by or resulting
from any acts or omissions of the County, its
agents, employees or representatives; the County
further agrees to defend and indemnify and save
free and harmless the College and the City and
their authorized agents, officers and employees
against any of the foregoing liabilities and any
cost and expense, including reasonable attorneys
fees, incurred by the College or the city on
account of any claim therefore, including claims by
reason of alleged defects in engineering services,
or any other work or services done or provided to
the College or the City by the County pursuant to
this Agreement; and in the event that a court of
competent jurisdiction should determine that the
County has no authority to provide by agreement the
performance of the hereinabove set forth services,
the County nevertheless agrees to assume the
foregoing obligations and liabilities by which
assumption it is intended by all parties that the
County agrees to indemnify and to hold the college
or the City harmless from all claims arising by
9
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reason of the work done by, or any act or omission
of,
the County,
its
agents,
employees or
representatives,
in
connection with
or
in
performance of the agreed upon services of work
provided for in this Agreement.
G.
Contractor,
Contractor's
subcontractors
and
suppliers,
if any,
shall comply with the
Affirmative Action Program for Vendors as set forth
in Article IIIk (commencing at section 84) of the
San Diego County Administrative Code, which Program
. '.
J.S J.ncorporated herein by reference, unless
specifically exempted in accordance with the
Articles' rules and regulations.
H. Contractor will comply with the provisions of Title
VII of the civil Rights Act of 1964 (42 USC 2000,
et seq., as amended by the Equal Employment
opportunity Act of 1972), the Age Discrimination in
Employment Act of 1976, the California Fair
Employment & Housing Act, and Board of Supervisor's
Policy C-17, in that it will not discriminate
against any individual with respect to his or her
compensations, terms, conditions, or privileges of
employment; or discriminate in any way which would
deprive any individual of employment opportunities
or otherwise adversely affect his or her status as
an employee because of such individual's race,
10
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color, religion, sex, national origin, age,
handicap, medical condition or marital status.
I. Contractor shall ensure that services and benefits
are provided without regard to race, sex, age or
national origin in accordance with Title VI of the
civil Rights Act of 1964 (as amended). Contractor
shall comply with section 504 of the Rehabilitation
Act of 1973, as amended (29 USC 794), pertaining to
the prohibition of discrimination in employment or
provision of services against qualified handicapped
persons under any program or activity which
receives or benefits from Federal financial
assistance.
J. Any notice required or permitted under this
Agreement may be personally served on the other
parties, by the party giving notice, or may be
served by certified mail, return receipt requested,
to the following addresses:
County:
Director, Department of Public Works
County of San Diego
5555 Overland Avenue, Building 2 (MS 0333)
San Diego, CA 92123
College: Superintendent/President
Southwestern Community College District
900 otay Lakes Road
Chula Vista, CA 91910
City:
Director of Public Works
city of Chula vista
276 Fourth Avenue
Chula vista, CA 91910
11
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be entered into the month, day and year above-written. -
SOUTHWESTERN COMMUNITY
COLLEGE DISTRICT
COUNTY OF SAN DIEGO
By
By
Joseph M. Conte
Superintendent/President
Clerk, Board of Supervisors
CITY OF CHULA VISTA
APPROVED TO FORM AND
LEGALITY BY COUNTY COUNSEL
By
By
Deputy
By
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BY CIT
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Southwestern College Bus Stop Improvement Project Site Plan
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COUNCIL AGENDA STATEMENT
Item~
Meeting Date 10/3/95
ITEM TITLE: Resolution J &1> "3 Authorizing a deferral of trips for future City facilities
in Rancho Del Rey and assigning those trips to the proposed phase I YMCA
facility on Paseo Ranchero.
REVIEWED BY:
City Manage~
(4/5 Vote: Yes_NoX)
SUBMITTED BY: Director of Public Wor
Director of Planning
The YMCA is proposing to construct a ne facility on Paseo Ranchero to serve residents of Chula
Vista. In the process of preparing the initial study of environmental impact, it was determined that
this facility had not been given any trip assignments in previous studies and an environmental impact
may result from the additional trips. Because of the potential delays, the YMCA is requesting that
the City consider offsetting on a temporary basis the traffic generated from this new facility against
future traffic from the City fire station and library site which is located within the same traffic
analysis zone. Such an assignment of trips by the City would allow the YMCA to prepare a
mitigated negative declaration and to proceed with the design review of the new building.
RECOMMENDATION: That the Council approve the resolution authorizing a deferral of trips for
future City facilities in Rancho Del Rey and assigning those trips to thefirst phase of the proposed
YMCA facility on Paseo Ranchero.
BOARDS/COMMISSIONS RECOMMENDATION: None.
DISCUSSION:
The South Bay Family YMCA is in the process of building a new facility in the Rancho Del Rey
Development on Paseo Ranchero. During the design review process the YMCA prepared an initial
study of the environmental effects of the project. Under the traffic analysis section it was determined
that the full development of the YMCA facility, which is ultimately proposed to be 64,944 square
feet, would result in 2,598 vehicle trips. City staff determined that none of the previous traffic
studies prepared either for Rancho Del Rey or other projects included trips set aside for this facility.
All of the SPA studies showed this site proposed for a community facility and specifically indicated
trips for a library and fire station.
SANDAG's current traffic models indicate that 2801 person-trips have been assigned to this traffic
area zone for the City's fire and library uses, but no other trips for the YMCA. Without a previous
assignment of trips for this purpose, the YMCA would need to prepare a traffic study and EIR
showing the impact and necessary mitigation measures before they could proceed with the design
review process. Because all trips on East 'H' Street have been assigned under the current Growth
Management Ordinance procedures, it would be impossible to create mitigation measures that would
//)./ -I
61
Page 2, Item _
Meeting Date 10/3/95
allow the YMCA to proceed, let alone proceed with their phase 1 within the time frame proposed.
Staff discussed possible methods of keeping the YMCA building project on track and concluded that
the only real possibility was to temporarily assign some of the trips for the library and fire station
to the YMCA and approving a mitigated negative declaration based on the trip deferral. Attached
is a letter from Tina Williams, Executive Director of the YMCA requesting the City to offset the
traffic generated by the YMCA against future traffic from the City library and fire sites.
In further discussions with the YMCA, it was determined that the project would actually be
constructed in two phases. The phase 1 development plan includes a 30,000 square feet building plus
the pool. This first phase building would generate 1200 trips per day and the City would only need
to defer that number of trips from the City's proposed use in that traffic analysis zone. In analyzing
the 2801 person-trips assigned by SANDAG, it was determined that 2083 vehicle trips would be
generated by using their conversion factor of 200 person-trips equaling 148.8 vehicle-trips per acre
for police and fire station uses. Therefore, the City has sufficient trips to defer in favor of the
YMCA's first phase development.
The Planning Department, in coordination with the Engineering Division and City Manager's Office,
is currently in the process of finalizing a policy and procedures to bring to Council to better manage
available street capacity before SR-125 is constructed as either a freeway or toll facility. This policy
is expected to be brought to the Council in November. Under the proposed policy (a draft of which
was presented to the City Council in July as part of the GMOC Annual Report), trips will be
managed on a first come, first served basis considering approved final maps, development
agreements and TransDIF fees paid. If the policy is adopted trips which are now assigned to inactive
tentative map projects will be released and capacity on the street system will be reassigned as
indicated. As a practical matter of implementing this policy, staff will be considering an enhanced
form of traffic monitoring to be conducted at the time of final map filing. Thus, under the proposed
policy the trips being deferred for the City's parcel will be available for the Library and Fire Station
relocation.
The Fire station is scheduled to be relocated from its current location on Elmhurst Ave. at Otay
Lakes Road in 1998. If the proposed policy is not adopted, the fire station relocation will not be
affected since it is a relocation and not a new use and the trips are currently on the system. The
library facility could be delayed if the policy is not adopted; however, there is no current schedule
for its construction and staff believes that needed facilities would be in place in the SR-125 corridor
to relieve the traffic issues.
FISCAL IMPACT: The assignment of trips currently assigned to a future City facility to the
YMCA would have no immediate fiscal impact on the City. However, if the proposed policy were
not adopted and the City would have to transfer the trips assigned to the current fire station to the
relocated station, the City would be unable to sell the current fire station site and would lose future
revenue until such time as the needed transportation facilities are built in the eastern area to release
the deferral. The amount of this possible temporary loss cannot be calculated.
Attachments: Exhibit A: Letter from YMCA
File:
M:\HOME\ENGINEER\AGENDA\ Y'IRIPS.CLS
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South Ila.y Family YMCA
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CITY OF CH~U 'ViISU
ENGINEER/NGDE"
95 SEt'5 .. , ..
50 Fourth Avenue
Chula Vista, California 91910
Telephone (619) 422-8354
FAX (619) 422-4412
September 13, 1995
Mr. aiff Swanson, City Engineer
City of Chula Vista
276 Fourth A venue
Chula Vista, CA 91910
Re: YMCA BUILDING ON PASEO RANCHERO
Dear Mr. Swanson:
We have received your comments on our application for the YMCA building that is currently
"on hold" before proceeding to the Design Review Committee for their review. A traffic
study was required by staff as a condition of proceeding with this building project. As a
. result of the discussion with you, Ken Baumgartner and Craig Fukuyama of the McMillin
Companies, the YMCA is requesting that the City consider offsetting on a temporary basis the
traffic generated from the YMCA againsf future traffic from the City fire station and library
sites which are located across the street from the YMCA site.
It is also our understanding that within the next few months, the Council will comprehensively
review traffic issues in the East Chula Vista area, and re-examine road system capacity.
Also, we are updating our application to indicate that our expected generation for our Phase I
building will be a maximum of 30,000 square feet, not the 64,944 shown on the application
submitted. The 'building plan submitted for design review is the entire proposed building. The
anticipated Phase I construction is between 25,000 and 30,000 square feet, so the initial traffic
generation from the building will be less. With a trip generation of 40 trips for 1,000 square
feet, we believe the initial phase will generate 1200 trips per day, not 2600.
We appreciate your efforts in this matter and hope that this information can assist you in
allowing us to proceed with the YMCA building project.
Sincerely Yours,
JwdW~
Tina Williams
Executive Director, YMCA
TW:lb
cc: Sid Morris, Assistant City Manager
John Goss, City Manager
Ken Baumgartner, McMillin Companies
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Anqded .....
MISSION Sl'ATEMENTi "The South Bay Family YMCA 18 dedicated to improving the quality of human life and to helping /" /), / "..3
aU people reall&e thelr rullest potential.. children of God through development of the spirlt. mind and body:' V,
QI
RESOLUTION NO. I~D(,.3
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING A DEFERRAL OF TRIPS
FOR FUTURE CITY FACILITIES IN RANCHO DEL REY
AND ASSIGNING THOSE TRIPS TO THE PROPOSED
PHASE I YMCA FACILITY ON PASEO RANCHERO
BE IT RESOLVED the City Council of the City of Chula
vista hereby allocates 1200 trips in the city's Eastern Chula vista
Transportation Plan to Phase I of the YMCA facility on Paseo
Ranchero.
Presented by
John P. Lippitt, Director of
Public Works
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COUNCIL AGENDA STATEMENT
Item_
Meeting Date 10/3/95
SUBMITTED BY:
Public Hearing; Regarding the vacation of a Portion of Orange Avenue along
the frontage of Don Luis Mobile Estates at 121 Orange Avenue
Director of Public Work~1
City Managerj~ , ~\ (4/5ths Vote: Yes_NoX)
ITEM TITLE:
REVIEWED BY:
Council, at its meeting held September 12, 1995, adopted Resolution No. 18031 declaring its
intention to vacate an excess portion of Orange Avenue right-of-way along the frontage of the Don
Luis Mobile Estates mobile home park (see Exhibit" A") and setting October 3, 1995, as the date
for the associated public hearing. Staff is continuing to finalize the report and plans on returning
to Council on October 10, 1995.
RECOMMENDATION: That Council continue the public hearing to October 10, 1995.
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COUNCIL AGENDA STATEMENT
Page 1, Item ~
Meeting Date 10/3/95
ITEM TITLE: Public Hearing: 1) To consider Conditional Use Permit PCC-95-47, to establish
a 20,000 seat outdoor amphitheater and an open air market located at the
southwest quadrant of Otay Valley Road and Otay Rio Road - Bitterlin-Brice
Development Partners for MCA Concerts, Inc. and Kobey's Chula Vista Market
Place, LLC; and 2) To consider the vacation of various streets in Otay Rio
Business Park
Resolution -1cro57 Certifying Final Environmental Impact Report EIR-
95-03, MCA Chula Vista Amphitheater
Resolution -1~58 Approving 1) Tri-Party Agreement by and among
Los Alisos Company, MCA Concerts, Inc., and the City of Chula Vista, 2) A
Ground Lease by and between Los Alisos Company and MCA Concerts, Inc.,
and 3) A Sublease by and between the City of Chula Vista and MCA Concerts,
Inc.
Resolution ~ Granting a Conditional Use Permit, PCC-95-47, to
Bitterlin-Brice Development Partners for MCA Concerts, Inc. to construct a
20,000 seat capacity amphitheater at the southwest quadrant of Otay Valley
Road and Otay Rio Road
Resolution J8ot:, {) Granting a Conditional Use Permit, PCC-95-47, to
Kobey's Chula Vista Marketplace, LLC, to operate an open air market at the
southwest quadrant of Otay Valley Road and Otay Rio Road
Resolution } 80 ~ I Ordering the vacation of various streets in Otay
Rio Business Park
SUBMITTED BY: Director of Community Development&-<<;'
Director of Planning ~
Director of Public Work .
REVIEWED BY: City Manage~ ~ (4/5ths Vote: Yes_No.KJ
BACKGROUND: As Council is aware,~e C:y has been chosen as the location for two
competing amphitheater projects. One is proposed by MCA to be located on Otay Valley Road
and is being processed through the City. The other proposal, by the Nederlander group, is
proposed to be located on the Bayfront and is being processed by the Port District as the
governing jurisdiction. The staff position concerning these competing projects has been to
process both equally, assisting whenever possible with any information requested.
The MeA proposal has reached the final stage in processing and is ready for a public hearing
on the EIR and associated issues. Although it would be preferable for the City to be able to
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Meeting Date 09/26/95
evaluate both proposals at the same time. the Nederlander project is still in the initial
environmental review stage and not anticipated to be ready for public hearing until June of
next year.
Bitterlin-Brice Development Partners as representatives of MCA Concerts, Inc. is proposing
to construct a 20,000 seat capacity amphitheater in the Otay Rio Business Park located at the
southwest quadrant of Otay Valley Road and Otay Rio Road. Also. Kobey's Marketplace
proposes to operate an open air market on the site on certain days of the week when the
amphitheater is not in use.
Amphitheaters and open air markets are considered "Unclassified Uses" which can be
considered for location in any zoning district subject to approval by the Planning Commission
and City Council through the conditional use permit process. The two proposed land uses are
being recommended for approval under separate resolutions.
The applicant proposes to vacate four streets within the Otay Rio Business Park Subdivision
in order to construct the amphitheater. In accordance with Part 3. Chapter 3. of the California
Streets and Highways Code, Council must adopt a resolution ordering the vacation of any
public street after holding a public hearing and considering all input for or against the matter.
The Council adopted Resolution No. 17975 at its meeting on July 25, 1995, setting the date
of August 22, 1995 as the date for the public hearing. At its meeting of August 22, Council
continued the Public Hearing, as the approval process for the amphitheater project was still
underway.
In addition to the Conditional Use Permits and street vacations, it is being recommended that
the City enter into a tri-party agreement, and a sub-lease with the Otay Rio Business Park
Subdivision landowner and MCA Concerts, Inc., and to approve a ground lease between
landowner and MCA. These documents include provisions for necessary public
improvements, development fees, and ticket assessment revenues to the City.
The Environmental Review Coordinator (ERC) determined that an Environmental Impact Report
was required for the project. Pursuant to the ERC's decision, EIR-95-03 was prepared and
the public review process was conducted.
RECOMMENDATION: That the City Council:
1. Open a public hearing, take testimony regarding Conditional Use Permit PCC-95-47 and
the proposed street vacations, and close the public hearing; and,
2. Adopt the attached Resolution certifying EIR-95-03 and certifying that the City Council
has given its independent review and analysis of the project in accordance with the
findings and conditions contained therein; and,
3. Adopt the attached Resolution approving: 1) a Tri-party agreement by and among Los
Alisos Company, MCA Concerts, Inc., and the City of Chula Vista; 2) a Ground lease by
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and between Los Alisos Company and MCA Concerts, Inc.; and 3) a Sublease by and
between the City of Chula Vista and MCA Concerts, Inc.
4. Adopt the attached Resolution approving the Conditional Use Permit allowing
construction and operation of the MCA Amphitheater; and
5. Adopt the attached Resolution approving the Conditional Use Permit allowing Kobey's
Open Air Market; and
6. Adopt the attached Resolution ordering the vacation of various streets within Otay Rio
Business Park and directing the City Clerk to file the resolution with the County
Recorder's office.
7. Direct staff to work with Applicant and any interested party to determine the feasibility
of incorporating soccer fields in the northern parking area as part of a modification to
Conditional Use Permit PCC-95-47.
BOARDS/COMMISSIONS RECOMMENDATION:
1. On July 10, 1995, the Resource Conservation Commission considered EIR-95-03 and
voted 4-1 to accept its adequacy. The minutes from that meeting are attached.
2. On July 19, 1995, the Planning Commission conducted a public hearing on EIR-95-03 in
order to close the public review period. The Planning Commission voted 6-0-1 to direct
staff to prepare the Final EIR. The minutes from that meeting are attached.
3. On July 24, 1995, the Design Review Committee voted 4-0-1 to approve the
amphitheater design. The minutes from that meeting are attached.
4. On September 6, 1995, the Planning Commission voted 6-0-1 recommending that the
City Council approve both land uses conditioned upon completion of an additional noise
study for the purposes of confirming data presented in the original study by measuring
sound at additional monitoring locations including: seven additional locations in the Otay
Ranch, seven locations in the Oleander Drive/Brandywine residential areas, and two
additional locations within the proposed Robinhood Ridge (City of San Diegol. The
results of that study did confirm the data presented in the original report and in the Final
EIR. The minutes from that meeting are attached.
DISCUSSION:
ENVIRONMENTAL IMPACT REPORT EIR-95-03
The City has prepared an Environmental Impact Report for the project, Final EIR-95-03. The
Final EIR includes an analysis of impacts in the areas of: Land Use, Traffic and Circulation,
Noise, Air Quality, Biological Resources, Hydrology, Hazardous Waste, Public Services and
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Meeting Date 10/03/95
Visual Quality. Additionally the EIR examined cumulative and growth inducing impacts and
studied various project alternatives.
The conclusions of the study were that the project would result in a number of significant
impacts, all of which could be mitigated to less than significant levels with the exception of
Air Quality impacts. Those impacts are regional in nature and no project-level mitigation is
available.
The Draft EIR was circulated for public review from June 19, 1995 to July 19, 1995. The
public hearing before the Planning Commission on July 19, 1995 on the Draft EIR concluded
this public review period. Eleven comments were received as a result of this public review,
with most of the comments relating to the issues of traffic, air quality, noise, and lighting.
The comments and responses are now included in the Final EIR document, with corresponding
appropriate text changes.
The California Environmental Quality Act (CEQA) requires that a Final EIR contain:
. The Draft EIR or a revision of it;
. Comments and recommendations received on the Draft EIR; and
. Responses of lead agency to significant environmental points raised in the review,
and any other information added by the lead agency.
The FEIR contains the above listed information.
The purpose of the FEIR is to provide the decision-makers with information they may use in
considering the Project, but the FEIR is not intended, in itself, to be the sole document on
which the decision to approve or disapprove the Project is based.
CONDITIONAL USE PERMIT PCC-95-47
1 . Site Characteristics
The site is 72.5 acres in an IL-P (Limited Industrial - Precise Plan) Zone located at the
southwest quadrant of Otay Valley Road and Otay Rio Road (Exhibits 1 a & 1 b). The property
is a portion of the subdivision originally created in 1987 as Otay Rio Business Park. The
property has been graded, and streets, curb, gutter, water and sewer lines and electrical
utilities have all been installed on the otherwise vacant site.
The land slopes sharply upward to the south immediately off-site to Otay Mesa and portions
of the City of San Diego. To the north, the land drops into the Otay River Valley, while to the
east and west intermediate level bluffs parallel the valley, at approximately the same elevation
as Otay Rio Business Park. Topography of the Project Site and surrounding area can be seen
in Exhibit 2.
At the public hearing on September 6, 1995, the issue of incorporating soccer fields into the
northern parking lot (Parking Area B) was brought up by Mr. Norm Ross, District
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Meeting Date 10/03/95
Commissioner for the California Youth Soccer Association. Mr. Ross mentioned that there
are at least five times as many children playing soccer today as four years ago, but that there
were no new soccer fields on which they could play.
As follow up to Mr. Ross' recommendation, William Tuchscher, Planning Commission
Chairman, in a memorandum dated September 13, 1995 (Exhibit 12a) stated that the Planning
Commission is "hopeful that all issues concerning this matter will be satisfactorily resolved
and the City Council can move forward with this element of the project..." Mr. Tuchscher's
memo was forwarded to the Parks and Recreation Department for comment.
In response, the attached memo dated September 19, 1995 (Exhibit 12b) was received from
the Parks and Recreation Department which lists several issues and raises several questions:
1 . The design of the overflow lot and the layout of the parking lot lighting would need
to be reviewed and analyzed to determine what site planning would be required to
make this proposal feasible.
2. The inclusion of soccer fields would preclude the installation of trees in the area that
were required to buffer the amphitheater from the proposed Otay Valley Regional
Park.
3. The installation and maintenance of the lawn area to the level of athletic field quality
is not what is being proposed by the project applicant. This would entail much
higher levels of mowing, fertilizing, striping, equipment being supplied and stored,
etc.
4. Who would be responsible for the actual maintenance and funding of this facility?
The Parks and Recreation Department does not have the funding to entertain this
scope of project. Would MCA be required to provide the maintenance?
5. Who would schedule and run the facility? Who would assume the liability and
responsibility for this installation?
In summary, then, although it may be physically possible to incorporate soccer fields into the
northern parking lot, this area, as currently proposed, is to be landscaped with non-linear
landscaping as a natural, transitional buffer between the Otay River and the amphitheater.
In addition, in order to provide adequate lighting for a parking lot and a soccer field would
require creative site design, plus the overall questions of installation, maintenance, scheduling,
responsibility, liability and funding are paramount, unresolved questions. To address these
issues would require delays in the project time line and would hold up the schedule in order
to redesign and renegotiate the soccer fields.
If the Applicant desires to pursue this issue without delay to the project time line, they may
request, after approval of the Conditional Use Permit a modification to the Conditional Use
Permit and business agreement. This would allow time for the Applicant to appropriately
study Mr. Ross' recommendation with no delay in project processing through the City and,
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if a modification were requested, enough time for staff review before the modification were
brought back to the Planning Commission and Council.
Also, the Council could choose to make a further investigation of this issue a condition of the
Conditional Use Permit, whereby the Applicant would be required to work with the City and
the Youth Soccer Association to determine the feasibility of the proposal and return with a
report to Council. The implementation of any soccer field proposal resulting from the report
would have to be with the cooperation of MCA Concerts, Inc., but this would appear to be
a reasonable way to investigate the issues without delay to the project.
Staff is recommending that Council direct staff to work with the Applicant and any other
interested party to determine the feasibility of incorporating soccer fields into the proposal.
If it is determined to feasible, a modification to the approved Conditional Use Permit would
then have to be processed.
Desion
1) The amphitheater will consist of a main stage, a stage house structure, seating for
10,000 in fixed seats and another 10,000 on a sloped lawn area. The complex also
includes staging areas, permanent concessions, first aid medical stations, rest
rooms, and parking for approximately 6,100 automobiles.
2) Two video wall towers will flank the main stage on either side. A third video wall will
be constructed on the southeasterly facing wall of the stage.
3) The main stage will be approximately 125 feet high from the lowest point inside the
amphitheater and approximately 100 feet high from the finished grade surrounding
the amphitheater. The stage house, which is a metal structure has a relatively small
mass when viewed in the context of the overall complex.
2. Zoninq, land Use and Develooment Status
SURROUNDING ZONING, lAND USES & DEVELOPMENT STATUS
Compass
Direction
Site
North
South
East
West
Current
ZoninQ
Il-P (Limited Industrial)
F1 (Floodway)
A8 (Agricultural)
5-80 (Open Space)( County)
A8 (Agricultural)
land Use/
Develooment Status
Vacant, but w/street improvements
Undeveloped Otay River Valley
Vacant previous agricultural use
Vacant & recreational (shooting range)
Vacant previous agricultural use
The site is surrounded by undeveloped land on all sides with the exception that there is a
shooting range to the east across OtayValley Road in the County. To the west is undeveloped
abandoned agricultural land, while to the north is the Otay River. The nearest developed land
within Chula Vista is about 1,500 feet to the north/northwest along Energy Way across Otay
River where heavy industrial uses are located, such as auto dismantling and storage. A
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recycling facility is located about 1 ,000 feet to the northeast in the County just east of the
point where Otay Valley Road turns southeast to cross over Otay River.
The City of San Diego corporate limits are about 750 feet and 1,500 feet to the south and
west, respectively. The City of San Diego has authorized residential land uses to the south
and west on Otay Mesa about y., to ]I, mile from the project boundaries. To date, these
residential areas are undeveloped. Surrounding land uses can be seen in Exhibit 3.
For a number of years the Chula Vista Corporation Yard has been planned to be relocated from
its current location on "F" Street and Woodlawn to an area directly to the west of the
amphitheater on approximately 30 acres of land that is part of the Otay Rio Business Park.
More recently, in working with the Sweetwater School District on the Veterans Home building
project, there has been consideration given to a joint Corporation Yard which would be
advantageous from both an efficiency perspective and from the point of view of very
reasonable land costs. The status of the Corporation Yard is at this location is still being
evaluated.
Issues of compatibility between the Corporation Yard and the amphitheater as land uses have
been evaluated and addressed through conditions of approval. Initially, there was concern
over the ability for Public Works personnel to access the Corporation Yard during amphitheater
events. However, as a condition of approval, Condition 0.4, a gated, all-weather access is
required to be placed at a mutually convenient location that would allow Public Works
personnel to by-pass congested areas and directly access the Corporation Yard.
EIR-95-03 also discusses land uses in Chapter 3.0, Environmental Analysis, beginning on page
3.1-1 and ending on page 3.1-21.
4. Proposal
Amphitheater: The applicant is proposing to construct an amphitheater with a 20,000
spectator capacity. As can be seen from Exhibit 4a, the MCA Theater Site Plan, the stage
is oriented toward the northeast with permanent seating for 10,000 patrons in the lower
seating portion and for an additional 10,000 patrons on the lawn above and to the northeast
of the permanent seating. Entrances to the facility will be located at the southeast and
northwest corners of the amphitheater with parking areas surrounding the entire facility. The
top of the lawn seating area will be landscaped along the north and east. Public vehicular
access to the amphitheater will be via Otay Rio Road (ORR) from Otay Valley Road (OVR).
Private access will be off the former Spyglass Hill Road further to the south. Exhibits 4b to
4f show the floor plans, elevations, cross sections and concept grading plans. Also enclosed
is a full-size set of plans.
Open Air Market: When the amphitheater is not in operation, an option is for Kobey's
Marketplace to operate an open air market on Saturdays and Sundays (Exhibit 5). The open
air market would be set up in the westerly most parking area (Parking Area A) with
Marketplace parking in the southern one-third of the same lot and in the southern-most
parking lot. The operators will utilize an approximately one acre screened and landscaped
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storage area along the southern boundary in Parking Area D. This one acre storage area is
shown at the southeast corner of the complex, but through the design review process, will
be relocated, screened and landscaped.
Once the Marketplace is well established and the demand greater, Kobey's may request from
the Zoning Administrator implementation of Phase II, which is the expansion of the market to
sales on Thursdays and Fridays and using the entire western parking lot. Phase II parking will
go into the southern parking lot, Area D. Access to the open air market will be via the private
road from Otay Valley Road for customers and via Otay Rio Road from Otay Valley Road for
vendors. Vendor parking will be located at the southeast portion of the amphitheater
complex.
Phase I of the open air market will accommodate 150 to 300 vendor spaces, while Phase II
would expand to a total of 750 to 1,000 spaces. Vendors may arrive as early as 5:00 a.m.
in order to set up, but customer hours are limited to 7:00 a.m. to 4:00 p.m. when the entire
market must vacate the site, especially on days when there will be a concert in the
amphitheater.
For the convenience of the open air market customers, the amphitheater restrooms and
concessions at the northwest portion of the facility will be constructed with east and west
facing service windows/doors in order to accommodate both land uses. During concerts, the
east windows/doors will be open, and during open air markets the west windows/doors will
be open. This avoids the need to use temporary structures or construct any permanent
structures specifically for the open air market. Along the western edge of Parking Area A,
there is also indicated a "future food and beverage location" which will be utilized by the open
air market operator.
4. Similar Facilities
In a letter to the Planning Commission dated September 6, 1995, Sheriff Patrick J. Sullivan,
Jr. of the Arapahoe County Sheriff's Office wrote about the 18,000 seat capacity Fiddler's
Green Amphitheater, located in Littleton, Colorado. Included in the letter is a table titled
"Fiddler's Green Amphitheater - Activity Summary - 1995 Concert Season" which lists such
information as who performed, the date of the performance, attendance, arrests, noise
complaints, etc. He concluded "Fiddler's Green Amphitheater is now regarded as an asset to
the community and a healthy entertainment venue for young and old alike" (see Exhibit 11).
5. Public Forum
On June 22, 1995, a public forum was held at Valle Lindo Elementary School. Approximately
1,500 notices were mailed out inviting area residents to attend. About 25 area residents
attended the forum and brought up a range of issues, which are listed in Attachment 5.
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6. Analvsis
MeA Amphitheater: As discussed in the EIR, analysis of the proposed amphitheater has
shown that this land use will function as presented with no negative environmental effects
on surrounding land uses. There is adequate parking on site (:t 6, 1 00 spaces). ingress and
egress from the site will be adequately controlled through an operations plan (Exhibit 6). off-
site traffic controls provide adequate measures for traffic impacts (Oleander Avenue will be
blocked off during concerts/events, for instance) and noise and special effects will be
monitored and mitigation measures implemented if necessary to ensure that they do not
negatively impact other future land uses as they may be established closer to the
amphitheater.
In staff's opinion, an amphitheater at this location at this time is appropriate for several
reasons:
1. The amphitheater site is remote enough from existing incompatible land uses, in
particular residential, given the conditions of approval, that there will be no adverse
effects due to noise, special effects, traffic or parking.
2. The site is easily accessible from all parts of San Diego County.
3. The proposed project conforms to the Chula Vista General Plan by conforming to and
implementing the elements of the General Plan.
4. The site design and operational controls are such as to make ingress and egress,
even for the largest events, flow smoothly and efficiently.
Kobey's Marketplace: Kobey's would be located in the northern two thirds of the western-
most parking lot, with customer parking located in the southern third of the same lot and in
the southern-most parking lot. Parking is adequate for the proposed market and the hours and
days of operation are appropriate.
If and when Kobey's desires to implement Phase II, they must first submit an application to
the Zoning Administrator to modify the Conditional Use Permit. This will give the Zoning
Administrator the opportunity to review the operational plan and ensure that the open air
market is operating as described. In addition, as a condition of the design review approval for
the MCA Amphitheater, Kobey's must still obtain design review approval for all signage,
structures and fencing.
For similar reasons as listed above, staff has concluded that an open air market is an
appropriate land use:
1 . The open air market site is remote enough from incompatible land uses, in particular
existing and planned residential, that there will be no adverse effects due to noise,
traffic or parking.
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2. The site is easily accessible from all parts of the City of Chula Vista.
3. The proposed project conforms to the Chula Vista General Plan by conforming to and
implementing the elements of the General Plan.
4. The site design and operational controls are such as to make ingress and egress flow
smoothly and efficiently.
It should be noted that inclusion of the Kobey's Swapmeet is optional and will not materially
impact the overall viability of the amphitheater.
7. General Plan Conformance and ImDlementation
Land Use Element
Land Use Element implementation is discussed in the Draft Environmental Impact Report, EIR-
95-03, on pages 3.1-16 to 3.1-20, and, therefore, will not be discussed in detail here other
than to state that the project conforms with and implements the Land Use Element, based on
the analysis found in the EIR. Other elements of the General Plan are discussed below.
Circulation Element
Otay Valley Road is classified as a Six Lane Major Street from 1-805 to the point where OVR
turns south and crosses the Otay River. This road type has a 1 28 foot right-of-way with 20
foot landscaped buffer areas on either side. After turning south it will be a Six Lane Prime
Arterial until it exits Chula Vista at the southern corporate limits. This road type also has a
1 28 foot right-of-way with 20 foot landscaped buffer areas on either side.
The applicant has submitted a detailed operational plan (Exhibit 6) which includes a description
of how patron traffic will be managed during amphitheater events. Exhibits 7a to 7e show
patron ingress, egress and parking patterns for amphitheater events. These have been
reviewed by the Public Works Department, Police Department and Fire Department and
specific mitigation measures are included in the Environmental Impact Report addressing
emergency access, and access to the Corporation Yard.
Through on-going monitoring of the amphitheater operations through a yearly report and the
establishment of an Events Planning and Coordination Task Force, in cooperation with the
Chula Vista Police Department, Fire Department, Public Works Department, Planning
Department and Community Development Department, any traffic-related impacts can be
identified and addressed. The Events Planning and Coordination Task Force will especially be
in a position to react quickly to any unanticipated problems which develop as a result of
amphitheater operations.
The MCA project implements the Circulation Element in that the amphitheater and open air
market are designed to handle significant ingress and egress peak periods through adequate
roadway infrastructure improvements, striping, and event traffic control.
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Public Facilities Element
Public facilities will be improved as a result of the construction of the amphitheater. The
applicant is required to install appropriate off-site improvements because of their planned
activities in the public right-of-way in order to mitigate traffic impacts (e.g., traffic control,
reversing in-bound and out-bound coming before and after concerts, etc.), and to ensure
adequate and appropriate erosion control measures. These are listed in the City Council
resolution-of-approval. By requiring the listed improvements, the project implements the
Public Facilities Element.
Noise Element
As part of the EIR, an acoustical analysis was conducted and potential impacts listed. On
May 14, 1995, a concert noise simulation test was carried out. This is discussed in Chapter
3.3 of EIR-95-03 and Appendix C of the Technical Appendices. Buffering/mitigation
techniques have been identified in order to reduce noise impacts emanating from events at
the amphitheater through construction of a noise attenuation wall at the top of the landscaped
berm above the upper lawn seating area.
As can be ascertained from Exhibit 8, the greatest noise impacts will be to the northeast
because of the orientation of the amphitheater in general and the stage and speakers in
particular. It was found that noise drops off substantially to the south and has very little
impact due to the proximity of the bluffs. To the west and northwest the noise drops off very
quickly as well, but not as quickly as it does to the south. However, it should be noted from
Exhibit 8 that to the northeast, several villages on Otay Ranch, once developed, may be
impacted.
This is supported by Exhibit 9a and 9b. Exhibit 9a shows the places where noise monitoring
devices were stationed during the simulation and Exhibit 9b is the tabular results of the
simulation. As can be deduced from these two exhibits, the nearest residential area at Point
Robinhood off of Brandywine Avenue will not be impacted. In fact, the next nearest
monitoring location to Point Robinhood was the Animal Shelter located on Otay Valley Road.
It achieved the same results. The conclusions of the technical study were:
. . "Noise levels measured at existing Chula Vista residential areas meet the City of
Chula Vista noise standards, as imposed by the Noise Ordinance."
. "Impacts in presently undeveloped areas that are planned for future residential
development exceed the Chula Vista Noise Ordinance standard, for noise sensitive
uses."
Based on these conclusions, a sound mitigation monitoring program has been developed which
will indicate if and when noise standards are exceeded because of future development. If this
occurs, additional noise attenuation techniques will be required as listed in the EIR. The
attenuation techniques include, but are not limited to, construction of an additional noise
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attenuation wall, reducing the noise volume from the control room, and redirecting and/or
relocating speakers.
The sound monitoring program requires monitoring of those concerts expected to reach worst
case noise levels as defined in the EIR once development is imminent within the potentially
impacted future residential areas. The monitoring program would be conducted by the City
at the project applicant's expense and would require field measurements at the closest
residential development area within the area of potential impact. Field measurements would
occur for those concert events expected to reach the highest levels of sound (i.e., it would
not be necessary to field measure for acts that are known to be "quiet").
If the monitoring program indicates that impacts to future residents would occur, the applicant
is required to post a bond in an amount equal to 125% of the estimated cost of constructing
a permanent noise mitigation solution (the current cost estimate for a sound wall is
$1,000,000). Applicant's failure to post such a bond would trigger one or more of the
following enforcement options for the City:
A. The Conditional Use Permit for the facility could be revoked or modified to ensure
permanent mitigation of noise impacts; or
B. Applicant's access rights under its sublease with the City could be suspended
without offsetting the Applicant's rent payment obligation; or
C. City could pursue an injunction to order the placement of bonds.
Applicant would be liable for any costs (including attorney's fees) incurred by the City for
pursuing such remedies.
After certificates of occupancy are issued for housing within the identified impact areas
(which is when an impact will occur regardless of complaints). the City shall have the right
to impose operational mitigation: noise volumes to be reduced, reorientation of speakers, etc.;
all at the applicant's expense, including continued monitoring.
If operational controls are not successful, as evidenced by the monitoring program, a hearing
will be held where the applicant will be given an opportunity to present evidence that the
noise threshold standards have not been exceeded. If it is determined nonetheless that the
thresholds have been exceeded, the City will impose permanent noise controls as set forth
in the EIR.
The reader is referred to the City Council resolution for the MCA Amphitheater where similar
wording is shown as a condition of project approval. For these reasons, the proposal has
been found to comply with the Noise Element and the EIR, and addresses concerns listed in
the letters dated June 20, 1995 from Mrs. D. Saunders and July 22, 1995 from Mr. Raymond
Estrada, both of which expressed concerns related to noise (Exhibit 10a, 1 Ob).
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As a result of concerns raised at the Planning Commission hearing on September 6, 1995 by
the Baldwin Company and residents in the vicinity of Oleander Avenue and Brandywine
Avenue, MCA has conducted an additional noise test which has reconfirmed the noise
contours indicated in the EIR. The test was conducted on Monday, September 18, 1995.
The test results were not available at the time of the writing of this report, but a verbal report
will be given to Council at the Public Hearing.
Eastern Territories Area Plan
With the development of the Otay Rio Business Park as an amphitheater, about 300
permanent and temporary jobs will be created. Kobey's would employ another 20 to 25
employees. This implements the Eastern Territories Area Plan, which calls for the creation,
for the planning area as a whole, of a balanced community of residential, commercial, and
industrial uses, and, to the extent that employment uses may be more difficult to establish,
provides for additional designations of commercial and industrial land and encourages
retention of vacant land for commercial and industrial uses.
The amphitheater and open air market would ultimately employ approximately 320 to 325
permanent and temporary workers, many of them from the City of Chula Vista. The
amphitheater and open air market will result in the realization of employment potential on a
site which is, at present, unutilized as industrial land.
Parks and Recreation Element
The amphitheater is proposed to be constructed at a location adjacent to the Otay Valley
Regional Park, part of Chula Vista's greenbelt system of trails and parks that will eventually
encircle the entire City. It is located adjacent to the Chula Vista Greenbelt and is considered
to be a form of commercial recreation compatible with the adjoining regional park and other
surrounding properties. This presents the opportunity to maximize the land as a commercial
entertainment facility in proximity to a major park feature in Chula Vista. To that extent, the
construction of the amphitheater complex implements the Parks and Recreation Element.
In addition, commercial parks and recreation activities should be sited to be accessible to
residents, but adequately screened or separated from residential areas or other sensitive areas.
The amphitheater and open air market will have good, relatively close freeway and secondary
roadway access, as well as adequate separation from existing and future residential
developments. The topography of the project site also aids in buffering noise impacts to
sensitive receptors in the area. The non-linear landscaping in the northern-most parking lot
will act as a transition between the Otay Valley Regional Park and the amphitheater complex.
8. Zoning Ordinance Conformance
Since amphitheaters and open air markets are considered "Unclassified Uses," they can be
located in any zoning district in the City with approval from the Planning Commission and the
City Council. Having obtained approval of the Conditional Use Permit, the use is considered
to conform to the Zoning Ordinance.
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A number of conditional use permit-related issues came up at the public forum on June 22,
1995. These issues are discussed in more detail as follows:
Auto-Related
Amohitheater Access
. Widening of Heritage Road in the City of San Diego to the south is not needed for
amphitheater to function properly. Minimal traffic is expected to use Heritage Road
for concert events, and that which does can be handled by the existing roads going
south from the amphitheater site.
. Oleander will be blocked off except for area residents.
. Brandywine is a Circulation Element Street, a four lane collector, and is expected to
handle about 4% of the amphitheater traffic.
Parkinq
. The amphitheater complex will provide parking for about 6,100 vehicles, which
exceeds the Zoning Ordinance requirement of one space per 3.5 seats of maximum
capacity. The Zoning Ordinance normally requires 5,714 parking spaces
(20,000/3.5=5,714). Approximately 250 to 300 of the overall number of stalls
will be for compact parking. In addition to exceeding the requirements by the Zoning
Ordinance, the applicant has stated that their experience has shown that a ratio of
1 parking space per 3.5 seats is adequate.
Street Imorovements
. Otay Valley Road is currently being widened to meet General Plan specifications for
a Four Lane Major Road. Once all improvements are in, this will accommodate the
amount of anticipated traffic to and from the amphitheater.
. In addition to the widening, CalTrans will eventually install signals at both the OVR
and Orange Avenue interchanges with 1-805. The signal at OVR is scheduled to be
in operation by November 1, 1995, while the signal at Orange Avenue is scheduled
to be in operation in the Spring of 1996.
. Improvements will also be made from the bridge over the Otay River to the project
entry at the expense of MCA.
Traffic
. There has been concern over traffic flow to and from the amphitheater, how this
would be handled, and its impact on surrounding neighborhoods in Chula Vista. At
the public forum it was explained that there will be a number of steps taken to
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ensure that traffic going to and coming from the amphitheater is accommodated in
as efficient and timely manner as possible, resulting in very little impact on
residential areas.
The applicant submitted a detailed operational plan indicating ingress and egress,
coordination of incoming and exiting traffic, and details about security.
The traffic study shows that most patrons will come to the amphitheater by driving
south on 1-805, exiting at OVR and driving east to the site. Some traffic will exit at
Orange and come south down Brandywine, some will come by way of 1-5/Main
Street, and some will drive north on 1-805 and exit at OVR. Minimal traffic will
come north on Heritage Road from 1-905. All traffic must eventually use OVR to get
to the amphitheater.
Inbound Traffic: To ensure a constant, non-stop traffic flow to the amphitheater
from the south bound off ramp at OVR and 1-805, improvements will be made to the
off ramp by striping for three lanes: 1) exclusive left turn lane, 2) left
turn/through/right turn lane, and 3) exclusive right turn lane. During amphitheater
events, the exclusive lanes 1) and 2) will be used for left turn only and lane 3) for
right turns only. In addition, the traffic signals on either side of 1-805 will be
manually controlled to give preference to inbound traffic so that there is no back up
onto 1-805.
Some traffic will exit at Orange Avenue from southbound 1-805. All traffic using this
route will be directed to Brandywine Avenue. Since Brandywine is a Circulation
Element street, it was constructed to General Plan standards as a Class I Collector.
It is anticipated that approximately 4% of the total traffic going to the amphitheater
will use Brandywine Avenue.
To ensure minimal disruption to the residential area fronting on Oleander Avenue,
this street will be blocked off during amphitheater events. Only residents of the
area, their guests or those having legitimate business in the area, such as delivery
businesses, will be allowed to enter Oleander Avenue during events.
Traffic personnel will be situated at strategic locations along OVR from the 1-805
interchange to the parking area. All along the way, amphitheater patrons will be
directed by amphitheater personnel or law enforcement personnel. Once OVR turns
south to cross the bridge, the four lane bridge will be marked so that three lanes go
into the amphitheater complex and one lane out. Details of the in-flow at OVR and
ORR are attached as Exhibits 7a to 7d in the staff report.
Outbound Traffic: After an event, the three inbound lanes will be reversed so that
traffic will exit in three outbound lanes toward 1-805. The same precautions will be
taken so far as traffic control personnel being available to direct traffic and keep it
flowing as smoothly as possible and at appropriate speeds. Exhibit 7e in the staff
report shows the pattern for outbound traffic.
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Much of the foregoing is discussed in the EIR and the Traffic Study. Please refer to
the Mitigation Measures and Event Monitoring Program (EMPl on pages 3.2-23 to
3.2-27 for details in the EIR.
Accessibilitv
. In response to why the site was chosen, the project proponents made the point that
over the past several years they have undertaken a lengthy study of San Diego
County for an appropriate location of an amphitheater. This site, they found, is
highly accessible, being 45 minutes from the farthest extent of City of San Diego,
has relatively few environmental impacts, and is not surrounded by or in close
proximity to incompatible land uses.
Otav Vallev Reaional Park
. The Otay Valley Regional Park immediately abuts the project's northern property line. To
ensure that the project naturally blends with the Regional Park to the extent possible, the
landscaping and placement of trees in Parking Area B has been designed with nonlinear
angles so that when viewed from the north side of the Otay River, this edge of the
project tends to blend with the river valley.
. As part of the Regional Park, the trail system also passes along the project's northern
property line. This may eventually allow pedestrian and bike access to the amphitheater.
This may necessitate an access point in the northern fence line. These issues will be
addressed in more detail when the Regional Park is established.
Amohitheater Ooerations
. The amphitheater will be staffed full time and operate during regular working hours for
the purpose of scheduling events, selling tickets and doing general office-type work. On
event days, about 300 temporary employees will be hired to do traffic control, security,
retail sales, etc. These personnel will be on-site earlier in the day and assigned their
tasks.
. The types of events which can occur at the amphitheater, besides the concerts scheduled
by MCA, include concert and theater events held by local promoters, City and community
events such as high school graduations and symphonies by various orchestras.
. Beer is intended to be sold at MCA-sponsored events.
. The maximum number of MCA events per year is listed as 60 in both the EIR and the
CUP application. It is expected that anywhere from four to six MCA-sponsored events
per year will be 20,000 patron sell-outs. The average attendance is expected to be
9,000 patrons for all 60 events. Most events will be during the evening and will begin
between 7:30 p.m. and 8:00 p.m.. The events can happen any day of the week, but will
mostly occur on weekends.
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Securitv/Emeraencv Response
. Emergency access will be provided through an emergency lane and appropriate traffic
control methods. Emergency vehicles will be given preference if going to an emergency
on Otay Valley Road during an event at the amphitheater.
. MCA will hire either hire off-duty police or contract with the City for police services to
help with security at no additional cost to the City.
. MCA will provide security in the parking lots during concerts.
Transit
. The City may provide transit from the trolley stations and other areas of Chula Vista. This
is to be negotiated at a later date and is a condition of project approval and
implementation.
9. Land Use Compatibility
As mentioned earlier in this report, the surrounding land is undeveloped with the exception
that there is a shooting range to the southeast in the County. Because of the generally
undeveloped character of the area, the amphitheater and open air market are considered to
be precedent setting land uses around which other compatible uses will be established over
time.
10. Conclusion
It has been concluded that the MCA Amphitheater and Kobey's Marketplace in Chula Vista
are appropriate land uses given the circumstances of the site and surrounding areas, the
conditions of approval, and the implementation and operational plans. The proposed land uses
conform to the General Plan and, as conditioned, will not conflict with surrounding or nearby
land uses. Therefore, staff and the Planning Commission are recommending conditional
approval of both the amphitheater and open air market. The open air market will be reviewed
by the Zoning Administrator each year for two years after it opens to ensure that it is
operating as proposed.
STREET VACATION
Recently, MCA Concerts, Inc., submitted a proposal to the City to build an amphitheater in
the area of Otay Rio Business Park, Unit No.1, in the southeasterly corner of the City.
Originally, the location of the amphitheater was planned to be immediately west of the
business park. It is now proposed to replace most of the business park.
The existence of most of the dedicated streets within the subdivision conflict with MCA's
plans. Only one street, Otay Rio Road, will remain as a public street, which is to provide
access to the property to the west of the project. (Refer to Exhibit "B".) Glen Eagles Drive
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and Turnberry Drive will be demolished to make way for the stage, seating and associated
buildings. Spyglass Hill Road and Castle Pines Avenue will become part of the private parking
areas. The total area of the streets requested to be vacated is 4.92 acres.
As part of the legal description of the streets being vacated, easements will be retained for
the existing utilities belonging to the City of Chula Vista, plus retaining an easement for the
City of San Diego to access its facilities on the west side of the project. Otay Water District,
San Diego Gas and Electric Company and Pacific Telephone also have requested that
easements be retained for their facilities that are to be kept in place or needed for servicing
surrounding properties. New easements will have to be granted in areas where utilities must
be relocated. In some cases, sewer and other utilities may be abandoned, since they are no
longer required to serve the lots that existed prior to consolidation.
The public hearing notice for the vacations has been published in the Star News and notices
posted in the field in accordance with the aforementioned section of the Streets and Highways
Code. The owners of properties within a 1000-foot radius of the project have also been
notified by mail, as well as all the utility companies owning facilities in the area.
The public hearing is proposed to coincide with the Council's consideration and its possible
certification of the Environmental Impact Report, plus its consideration of the Conditional Use
Permit for the amphitheater. The vacation of the streets, if 9ranted, should occur after
Council's final approval of the amphitheater project. Prior to closing the public hearing and
making a determination on the vacation, Council will receive the project Environmental Impact
Report as well as Planning Commission recommendations regarding the Conditional Use
Permit.
FISCAL IMPACT:
NEGOTIATED DEAL POINTS
Staff has researched financial arrangements other cities have made with amphitheater
operators. In addition, KMA was retained to undertake a financial analysis of the revenue
projections provided by MCA and Kobey's as well as the deal points negotiated with MCA.
The deal points presented below and resulting benefits to the City are considered by staff and
KMA to be very favorable to the City.
The deal points presented below are as negotiated by staff with MCA. However, staff has
not yet received final approval from MCA. However, staff anticipates MCA's concurrence,
with only minor revisions, prior to the public hearing.
1. 3% Share of Gross Ticket Receipts
MCA has agreed to pay the City 3% of gross ticket sales which, by their estimate, will
provide approximately $309,788 annually by the fourth year of operation. (The revenue is
projected to increase annually up to $497,119 by the 20th year of operation.) The 3%
amount was originally envisioned as a ticket tax. However, the concept of a ticket tax was
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investigated by staff and rejected since it would require an equal tax to be placed on all similar
group entertainment venues in the City (movie theaters, skating rinks, etc.) which would need
further evaluation.
As an alternative, the 3% can be paid vis-a-vis a Tri-Party Agreement between the City, MCA,
and property owner (Attachment I) and a sublease between the City and MCA (Attachment
II). Under the Agreement, the City will lease the amphitheater property from the owners and
will sublease the property to MCA. MCA will pay all rent charges owed to the property owner
directly to the property owner plus 3% of gross ticket sales to the City. The rent will be
passed on to the property owners. The underlying Ground Lease is attached as Attachment
II.
The initial term of the leases is ten years with three separate ten year options. MCA may
terminate the lease upon written notice one year in advance of the termination date. Since
MCA will be responsible for all financial obligations under the sublease agreement, there shall
be no net costs for the City under this "sandwich lease" structure.
It is requested that the City Council adopt resolutions approving the Tri-Party Agreement, the
Ground Lease, and the Sublease. Initial drafts of these documents have been reviewed by the
City Attorney's office. Revised versions including the formalized business terms and
responses to the City Attorney's comments have not yet been received.
2. Cap on Proiect Fees
MCA has requested that the City assist them in recovering project fees which exceed
$505,000. Project fees are currently estimated at just under $2 Million. Major fees include
the City of San Diego's Benefit assessment totaling $750,000,' Chula Vista's DIF, totaling
$720,250: and estimated building and permit fees for $674,000.
In order for MCA to recapture project fees over $505,000, MCA has proposed an additional
2% surcharge on tickets for the period of years necessary to recuperate the fees. Based on
the current estimate of project fees and MCA's projected revenue figures, approximately 11
years will be necessary to amortize the $1,635,200 in fee charges over the cap. If the DIF
and San Diego benefit assessment fees are reduced, the number of years necessary to
amortize fees will be less. The surcharge is passed on, in part, to the performing artists vis-a
vis their share of the gate revenues. In order to be competitive in attracting top entertainment
acts, it would not be desirable to extend this surcharge beyond the period necessary to cover
excess permit fee costs.
1 Based upon Chula Vista staff estimates, the City of San Diego, has been requested to
confirm this figure and consider a reduction in fee based upon the traffic generation from the
project and road improvements already completed by the City of Chula Vista.
'Staff is reviewing City DIF charges for this project which may result in a reduction based
upon the intensity of use of the site and number of employees.
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3. Citv Use of the Amphitheater
The City will have use of the amphitheater for a minimum of 1,8 days per year (6 during the
"season" and 12 "off-season") including some staff assistance. The City will pay operation
costs for use of the facility which may include presentations by the school districts, colleges
and non-profits. These costs are estimated at $2,000 per event.
4. Citv Box
The City will have use of a box comprising twelve seats for all concerts at no cost.
5. Citv to Provide Otav Vallev Road Improvements
The City will widen Otay Valley Road to five lanes from Nirvana to the Otay River crossing
and improve the bridge approaches. This work, currently estimated to cost $388,000, has
been previously authorized by the Council on the basis that it will save considerable future
dollars, and will proceed shortly.
6. Environmental Indemnification
MCA agrees to indemnify the City against any CEQA litigation. MCA will be responsible for
any future mitigation costs.
7. Operatina Covenant
Staff originally requested MCA to provide a ten year operating covenant for the Amphitheater.
This covenant will provide a level of comfort to the City that it will recoup its investment on
improvement of Otay Valley Road. MCA will operate the facility as long as it is financially
practical to do so. MCA has rejected this proposal but has agreed, alternatively to do two
things. First, if MeA stopped operating the amphitheater, they have agreed to reimburse the
City of the City's up front road improvement costs if the City has not otherwise recovered
them pursuant to its 3 % share of gross ticket receipts. The City is proposing that this figure
be a total of $500,000, plus interest. Second, MCA has agreed to give the City some form
of approval of any proposed sale/assignment by MCA of the amphitheater business. City staff
is not yet receive MCA's detailed proposal on these points.
In addition to the deal points above, staff discussed the payment of a 25 cent/ticket fine arts
fee to subsidize Citywide cultural activities. Although MCA rejected this proposal because the
tickets already have been surcharged a total of 5 % to cover the City's 3 % rent proceeds and
development impact fees exceeding MCA's $505,000 budget. MCA suggested that the City
use a portion of its revenue from the 3 % ticket assessment to subsidize the presentation of
cultural arts events at the Amphitheater.
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Kobev's Swaomeet
MCA is negotiating with Kobey's Swapmeet to allow Kobey's to sublease a portion of the
amphitheater parking lot site for weekend swapmeet operations. Kobey's will provide lease
revenue to MCA and sales tax revenue to the City, estimated by Keyser Marston Associates
to total $870,000 in the first ten years of operation. In addition, the Keyser Marston study
estimated business license tax to the City to total $240,000 over ten years of the swapmeet
operation.
Kevser Marston Studv
The primary purpose of the KMA analysis was to verify MCA and Kobey's revenue projections
and net financial benefits of the project to the City. The KMA study is provided as
Enclosure 2.
Based on the negotiated deal points discussed above and a comparison of the proposed
project with similar theaters and surveys across the country, the consultant evaluated the
revenue projections by MCA for the amphitheater and projections prepared by Kobey's for the
proposed swapmeet operation. Alternative revenue projections were prepared by Keyser
Marston for comparison purposes including:
. 3 % of gross ticket receipts
. sales tax revenues (food and beverage, merchandise, swapmeet sales)
. property tax
. business license fees
In order to assess City costs and financial returns the following was analyzed:
City pays for off-site road improvements (Otay Valley Road) - $388,000.
Proiected Citv Revenue
According to the Keyser Marston Financial Analysis, the City will realize estimated revenue
between $13,248,991 (based on MCA/Kobey projections) and $10,154,049 (based on Keyser
Marston projections) over a 20 year project I,ife and respectively between $5,290,214 and
$3,967,941 over a 10 year project life. These estimates, described in the chart below, are
based on the sum of projected revenues from: ticket assessment; amphitheater food,
beverage, and merchandise sales tax; swapmeet sales tax; business license fees; and property
taxes. The incremental revenue streams for the 20 year period appear in Tables 9 and 10 of
the KMA Financial Analysis. (Copies of tables 9 & 10 are attached to the back of the staff
report.)
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Meeting Date 10/03/95
Projected City Revenue
Over 1 0 Years
Projected City Revenues
Over 20 Years
MCA/Kobey Keyser Marston MCA/Kobey MCA/Kobey
Revenue Sources Proiections Proiections Projection Projections
3 % Ticket Assessment $3,250,009 $2,405,632 $7,617.751 $5,776,311
Amphitheater: 361,112 191,187 846,417 459,070
Food, Beverage Sales Tax
Amphitheater: 232.145 140,875 544,124 338.262
Merchandise Sales Tax
Amphitheater Subtotal $3,843,267 $2,737,694 $9,008,293 $6,573,643
Swapmeet Sales Tax 1,087,500 870,000 3,301,462 2,641,169
Swapmeet: 239.800 239.800 671 .695 671.965
Business License Fees
Swapmeet Subtotal $1,326,500 $1,109,800 $3,973.157 $3,313,134
Property Tax 120.447 120.447 267 .271 267.271
(Amphitheater + Swapmeet
+ Property Tax):
Total Revenue Projected $5,290,214 $3,967 .941 $13.248.721 $10,154,049
Amortization of Citv Costs
Keyser Marston calculated how long it would take the City to recover its costs for the project.
City costs. as recommended by staff and agreed to by the Developer. are estimated to be
$388,000 to widen a portion of Otay Valley Road to accommodate the amphitheater project.
Keyser Marston used a 7 % interest rate to amortize the cost which reflects the City's
assumed investment rate on available money. 8ased on Keyser Marston's revenue projections
which are lower than MCA/Kobey revenue projections, the City's costs for Otay Valley Road
widening will be amortized three years following the start of construction with a one year
construction period.
MCA/Kobey
Projections
Keyser Marston
Proiections
Otay Valley Road Widening
Interest
$388,000
60.139
$448,139
$388,000
70,695
$458,695
Total Cost
Cost Recovery Time
3 Years
3 Years
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Table 11 and 12 of the KMA Financial Analysis contain the amortization charts for the
recovery of City costs. The charts amortizing costs $2,027,000 are for comparison purposes
only. The Developer and staff have agreed on terms that would include the City's
contribution of the Otay Valley Road widening only. The Developer has agreed to pay for the
development fees listed in the $2 million assumption, and has proposed the additional 2%
ticket assessment to recoup their cost.
Environmental ImDact ReDort/Conditional Use Permit Costs
All costs associated with the processing of EIR-95-03 and PCC-95-47 will be absorbed by the
applicant.
Street Vacation
Full Cost Recovery to the City for staff time in processing the street vacation is to be provided
by a deposit remitted by the applicant. The applicant has been notified that a $2,000 deposit
is required immediately.
Although the City has charged property owners in the past for the benefits associated with
the vacation of public streets, there is no specific compensation proposed for this project.
However, as indicated above, the City will receive a 3% ticket assessment from operation of
the theater.
Vacation of the streets will result in reduced City street maintenance costs due to reduced
surface of streets.
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ATTACHMENTS
Page 24. Item
Meeting Date 9/26/95
Aareement/Leases (CD = Community DeveloDment)
Attachment I
Attachment II
Attachment III
Tri-party Agreement
Ground Lease
Sublease
Conditional Use Permits fP = Plannina DeDartment)
Exhibit 1 a:
Exhibit 1 b:
Exhibit 2:
Exhibit 3:
Exhibit 4a:
Exhibit 4b:
Exhibit 4c:
Exhibit 4d:
Exhibit 4e:
Exhibit 4f:
Exhibit 5:
Exhibit 6:
Exhibit 7a to 7e
Exhibit 8
Exhibit 9a
Exhibit 9b
Exhibit 10a
Exhibit 10b
Exhibit 11
Exhibit 12
Exhibit 13
Exhibit 14
Exhibit 15
Exhibit 16
Exhibit 17
Exhibit 18
Exhibit 19
Exhibit 20
Exhibit 21a
Exhibit 21 b
Exhibit 22
Exhibit 23
Exhibit 24
Exhibit 25
Vicinity Map
Locator Map
Topographic Map Showing Site in Relation to Surrounding Topographic Conditions
Surrounding land Uses
MCA Amphitheater Site Plan
Floor Plan Indicating Elevation & Cross Section Locations
Cross Section A
MeA Amphitheater Elevations A & B
Additional MeA Amphitheater Elevations
Concept Grading Plan
Kobey's Marketplace in Chura Vista Site Plan and Operating Plan
Operations Analysis for Parking and Circulation
Ingress/Egress Plans for the MCA Amphitheater
Noise Contour Map
MCA Amphitheater Noise Monitoring Locations
MCA Amphitheater Tabular Results of Noise Test by Monitoring Location
Letter dated June 20, 1995 from Mrs. D. Saunders
Letter dated July 22, 1995 from Mr. Estrada
Letter dated September 6,1995 from Sheriff Patrick J. Sullivan, Jr. of Arapahoe County, CO.
Planning Commission Memorandum - Soccer Fields
Letter dated September 18, 1995 from Gale and Robert Moriarity and attachments
Letters dated July 1995: multi signatures re: MCA Amphitheater
RCC, PC, ORC and EOC minutes
Disclosure Statement
Public Forum Subject Outline
EIR-95-03 Findings of Fact
EIR-95-03 Mitigation Monitoring and Reporting Program
EIR-95-03 Statement of Overriding Considerations
Letter dated September 25, 1995 from Curtis & Janice Corn owners Phase II Otay Rio Business
Park
Staff Response to Issues Raised in Curtis and Janice Corn's Letter
Letter dated September 22, 1995 from Rosalinda Nava . Member Otay Valley Project Area
Committee
MCA Amphitheater Sound Test Verification - September 18, 1995
Letter dated September 5, 1995 from Martha S. Petty
Letter dated September 28, 1995 from Curtis and Janice Corn regarding hazardous materials
Street Vacation (E = Enaineerina Department)
Exhibit" A"
Exhibit "B"
Exhi bit "C"
Enclosures
Enclosure 1
Enclosure 2
Enclosure 3
Plat of Subdivision Showing Streets to be Vacated
Plat Showing Part of Proposed Development
Legal Description for Street Vacations
Project Bluelines
Financial Analysis - Keyser Marston Associates, Inc.
EIR-95-03 Attachments
September 28, 1995 (4:14 pm)
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TABLE 11
CHULA VISTA AMPHITHEATER
AMORTIZATION OF CITY COSTS - MCA/KOBEY REVENUE PROJECTIONS
CHULA VISTA, CA
ASSUMPTIONS
COSTS $2,027,000 (1)
INTEREST RATE 7%
REVENUES MCAlKOBEY PROJECTION (2)
BEGINNING ENDING
BALANCE INTEREST REVENUES BALANCE
YEAR 1 (UNDER CONST.) $2,027,000 $141,890 $0 $2,168,890
YEAR 2 2,168,890 151,822 388,250 1,932,462
YEAR 3 1,932,462 135,272 405,528 1,882,207
YEAR 4 1,882,207 116,355 443,111 1,335,451
YEAR 5 1,335,451 93,482 476,010 952,922
YEAR 6 952,922 88,705 503,234 516,393
YEAR 7 516,393 36,148 530,792 21,749
YEAR 8 21,749 1,522 23,271 0
ASSUMPTIONS
COSTS $388,000 (1)
INTEREST RATE 7%
REVENUES MCAlKOBEY PROJECTION (2)
BEGINNING
BALANCE INTEREST
REVENUES
ENDING
BALANCE
YEAR 1 (UNDER CONST.)
YEAR 2
$388,000
$27,160
$0 $415,160
415,160
29,061
388,250 55,971
YEAR 3
55,971
3,918
59,889 (3) 0
(1) CITY COSTS, FROM TA8LE 8.
(2) BASED ON MCA AND KOBEY'S PROJECTED REVENUE STREAM, W/O RAMP UP PERIOD, FROM TABLE 9.
(3) REVENUES NEEDED TO AMORTIZE LOAN.
PREPARED BY: KEYSER MARSTON ASSOCIATES,INC.
FILENAME:AMPHll.J<LS; 9125195; JER
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TABLE 12
CHULA VISTA AMPHITHEATER
AMORTIZATION OF CITY COSTS - ALTERNATE REVENUE PROJECTIONS
CHULA VISTA, CA
ASSUMPTIONS
COSTS $2,027,000 (1)
INTEREST RATE 7%
REVENUES ALTERNATE PROJECTED REVENUES (2)
BEGINNING ENDING
BALANCE INTEREST REVENUES BALANCE
YEAR 1 (UNDER CONST.) $2,027,000 $141,890 $0 $2,168,890
YEAR 2 2,168,890 151,822 237,449 2,083,263
YEAR 3 2,083,263 145,828 270,876 1,958,216
YEAR 4 1,958,216 137,075 320,307 1,774,983
YEAR 5 1,774,983 124,249 366,543 1,532,689
YEAR 6 1,532,689 107,288 387,739 1,252,238
YEAR 7 1,252,238 87,657 409,184 930,711
YEAR 8 930,711 65,150 430,886 564,975
YEAR 9 564,975 39,548 495,453 109,070
YEAR 10 109,070 7,635 116,705 (3) 0
ASSUMPTIONS
COSTS $388,000 (1)
INTEREST RATE 7%
REVENUES ALTERNATE PROJECTED REVENUES (2)
BEGINNING ENDING
BALANCE INTEREST REVENUES BALANCE
YEAR 1 (UNDER CaNST.) $388,000 $27,160 $0 $415,160
YEAR 2 415,160 29,061 237,449 206,772
YEAR 3 206,772 14,474 221,246 (3) 0
(1) CITY COSTS, FROM TABLE 8.
(2) BASED ON AVG. PERFORMANCE SELECT THEATERS AND DISCOUNTED SWAP MEET REVENUE, TABLE 1
(3) REVENUES NEEDED TO AMORTIZE LOAN.
PREPARED BY: KEYSER MARSTON ASSOCIATES, INC.
FILENAME:AMPHI1.xLS; 9125195; JER
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ATTACHMENT .1;
Tri-Party Agreement
TRI-PARTY AGREEMENT
THIS TRI-PARTY AGREEMENT ("Agreement") is made and
entered into as of this day of , 1995 by
and among Los Alisos Company, a California general partnership
("Los Alisos"), MCA Concerts, Inc., a California corporation
("MCA"), and the City of Chula Vista ("City").
RECITALS
A. Los Alisos, as landlord, and MCA, as tenant, have
entered into that certain Ground Lease dated of even date
herewith (the "Master Lease"), for the lease by Los Alisos to MCA
of certain real property located in Chula Vista, California and
more particularly described in the Master Lease (the "Leased
Premises") .
B. MCA desires to assign to City and City desires to
accept and assume, all of MCA's rights and obligations as tenant
under the Master Lease.
C. Concurrent herewith, City and MCA have entered
into that certain Sublease dated of even date herewith (the
"Sublease"), pursuant to which City, as sublandlord, has
subleased the Leased Premises to MCA, as subtenant.
D. Los Alisos desires to consent to the assignment of
MCA's leasehold interest under the Master Lease to the City and
the sublease by the City to MCA of the Leased Premises pursuant
to the Sublease.
E. Los Alisos, MCA and the City desire to set forth
certain agreements among the parties hereto with respect to the
administration of the Master Lease and the Sublease, and each
applicable party's rights and obligations thereunder.
NOW, THEREFORE, in consideration of the terms,
covenants and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Los Alisos, MCA and the City agree as
follows:
1. Assiqnment and Assumption. MCA hereby assigns to
the City all of its right, title and interest in, to and under
the Master Lease and the Leased Premises, and City hereby accepts
such assignment and assumes all of MCA's obligations and duties
under the Master Lease. The foregoing assignment and assumption
is made upon, and is subject to, all of the terms, conditions and
provisions of this Agreement. City acknowledges and agrees that
as between City and MCA, MCA's interest in the Leased Premises
has been assigned to City in the current "as-is" condition, and
MCA has made, and is making, no representations or warranties to
the City of any kind or nature, whether express or implied, as to
the condition of the Leased Premises.
(L220034.2]
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2. Consent to Assiqnment. Los Alisos hereby consents
to the assignment and assumption to and by City of MCA's rights
and obligations under the Master Lease. MCA acknowledges and
agrees that such assignment shall not relieve MCA of its
obligations and liabilities under the Master Lease; provided,
however, MCA shall be fully released and relieved of all further
obligations and liabilities under the Master Lease upon an
assignment of its rights and obligations as subtenant under the
Sublease to an assignee described in clause (i) or (ii) of
Article 17 of the Master Lease. If MCA desires to be released
from its obligations and liabilities under the Master Lease based
upon an assignment of its rights under the Sublease to an entity
described in clause (i) of Article 17 of the Master Lease, MCA
shall submit the identity of such assignee to Los Alisos for its
approval, which approval shall not be unreasonably conditioned,
withheld or delayed. Los Alisos' approval of an assignee
described in clause (i) of Article 17 of the Master Lease shall
be based upon whether such assignee has a financial condition
commensurate with the liability to be assumed under the Sublease
by such assignee. If Los Alisos reasonably denies its approval
of a proposed sublease assignee described in clause (i) of
Article 17 of the Master Lease MCA shall nonetheless have the
right to consummate the proposed assignment, but MCA shall not
thereby be released from its obligations and liabilities under
the Master Lease. MCA shall also be fully released and relieved
of all further obligations and liabilities under the Master Lease
upon a termination of the Sublease (a) at the end of the term
thereof, (b) by MCA pursuant to the provisions of Sections 2.2,
2.3 or 18.3 or Articles 16 or 28 of the Master Lease, as
incorporated into the Sublease pursuant to Article 4 of the
Sublease, or (c) otherwise as a result of a breach or default by
the sublandlord under the Sublease.
3. Consent to Sublease. Los Alisos hereby consents
to the sublease of the Leased Premises by the City to MCA
pursuant to the Sublease. Los Alisos acknowledges and agrees
that the sublease by the City to MCA of the Leased Premises
includes the exclusive right of MCA, as subtenant, to use and
enjoy the benefit of, and enforce, all easements and restrictive
covenants which are appurtenant to, run in favor of, or otherwise
benefit the Leased Premises, or any part thereof, and Los Alisos
shall not modify, amend, cancel or terminate any such easements
or restrictive covenants without MCA's prior written consent,
which consent may be withheld in MCA's sole and absolute
discretion.
4. Aoorovals and Consents. So long as the Sublease
remains in effect, whenever in the Master Lease the approval or
consent of Los Alisos, as landlord, is required to be obtained by
the City, as tenant, City hereby informs Los Alisos that Los
Alisos shall be entitled to rely on MCA's requests for such
approval or consent, as if MCA was acting on the City's behalf,
and Los Alisos shall disregard conflicting approval or consent
requests received from the City. The timeliness of any response
to any request made by the City and/or MCA shall be determined
{L220034 .2]
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based on the date such request was made by MCA. So long as the
Sublease remains in effect, whenever in the Master Lease the
consent or approval of the City, as tenant, is required to be
obtained by Los Alisos, as landlord, Los Alisos agrees to serve
such request on both the City and MCA, and MCA shall have the
sole right to grant or deny such consent or approval on behalf of
the City.
5. Acceptance of Performance bv MCA. Los Alisos
agrees to accept the performance of any and all obligations and
duties of the City, as tenant, under the Master Lease, including,
without limitation, the payment of any and all rent or other
amounts which may be payable under the Master Lease, directly
from MCA on behalf of the City. In addition, Los Alisos agrees
to accept the cure by MCA of any and all breaches or defaults by
City under the Master Lease.
6. Notices. Los Alisos agrees that so long as the
Sublease remains in effect, all notices, statements and other
communications to be given or made by Los Alisos under the Master
Lease shall be made to both City and MCA, and no such notice,
statement or other communication to be given or made by Los
Alisos under the Master Lease shall be effective until such time
as such notice, statement or other communication shall be made or
given to both City and MCA. Wherever in this Agreement it shall
be required or permitted that notice be given, such notice shall
be in writing and shall be deemed to have been duly given if sent
by certified mail, return receipt requested, personal delivery or
recognized overnight courier service to the address set forth
below, or to such other address as may be provided in writing
from time to time:
If to Los Alisos:
Los Alisos Company
19800 MacArthur Boulevard
Suite 820
Irvine, CA 92715
Attention: Neville Pearson
If to City:
Attention:
If to MCA:
MCA Concerts, Inc.
100 Universal City Plaza
Universal City, CA 91608
Attention: Jay Marciano
With a copy to:
MCA Concerts, Inc.
100 Universal City Plaza
universal City, CA 91608
Attention: Adam Friedman, Esq.
[L220034.2)
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Notices shall be effective on the date of receipt or the date
that receipt is refused.
7. No Amendments. Los Alisos and the City agree that
so long as the Sublease remains in effect no amendments or
modifications shall be made to the Master Lease without the prior
written consent of MCA, which consent may be withheld in MCA's
sole and absolute discretion.
8. Exercise of Options to Extend. So long as MCA has
previously exercised or concurrently exercises its right to
extend the term of the Sublease, MCA shall have the right to
exercise on behalf of the City the City's corresponding option to
extend the term of the Master Lease under Master Lease Section
2.4, and Los Alisos shall rely upon and honor such exercise by
MCA notwithstanding any inconsistent or contrary communication or
notice from City.
9. Purchase Option/Riqht of First Refusal. Los
Alisos hereby acknowledges and consents to the assignment by the
City of all of its rights under Articles 44 and 45 of the Master
Lease during the term of the Sublease, and agrees and
acknowledges that so long as the Sublease remains in effect each
and all of such rights shall be exercisable only by MCA, or its
successors or assigns.
10. Termination: Recoqnition Aqreement. As long as
the Sublease remains in effect, no termination by the City of the
Master Lease (including, without limitation, any termination
pursuant to the provisions of Sections 2.2, 2.3 or 18.3, or
Articles 16 or 28 of the Master Lease) shall be effective unless
MCA shall have first terminated the Sublease. No surrender or
cancellation of the Master Lease shall constitute a surrender or
cancellation of the Sublease. Notwithstanding the foregoing, in
the event that the Master Lease or any material term or provision
thereof shall be declared invalid or unenforceable, or the Master
Lease shall be terminated, and immediately preceding such
declaration or termination the Sublease shall have been in
effect, then upon the request of MCA, Los Alisos shall enter into
a direct lease with MCA for the Leased Premises on the same terms
and conditions as provided in, and for the remaining unexpired
lease term of, the Master Lease.
11. Citv Defaults. Los Alisos agrees that the City
shall not be liable for any breach or default of the City's
obligations and duties under the Master Lease to the extent that
any such breach or default is caused by a corresponding breach or
default by Subtenant under the Sublease, and Los Alisos agrees
that it shall look solely to MCA for the cure of such breach or
default.
12. Insurance. Los Alisos agrees that the insurance
coverage carried by MCA under the Sublease shall satisfy the
insurance coverage requirements of the City, as tenant, under
Article 9 of the Master Lease.
[L220034.2]
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13. Third Partv Beneficiarv. Los Alisos and City
acknowledge and agree that as long as the Sublease remains in
effect, MCA, as subtenant under the Sublease, and its successors
and assigns, shall be deemed to be a third party beneficiary of
all covenants, agreements, representations and warranties made by
Los Alisos under the Master Lease, and shall have the right to
enforce directly against Los Alisos all obligations, duties and
liabilities of Los Alisos under the Master Lease. Without
limiting the foregoing, Los Alisos and the City agree and
acknowledge that MCA shall have the right to enforce on behalf of
the City any and all rights of City to abate Rent under the
Master Lease, and to enjoy the benefit of any corresponding right
under the Sublease to abate Rent otherwise payable by MCA under
the Sublease. The foregoing rights shall include, without
limitation, the right of MCA to deliver to Los Alisos on behalf
of the City any Rent abatement notice which the City may have the
right to deliver to Los Alisos under Article 38 of the Master
Lease or otherwise.
14.
assignment set
Agreement, the
shall bind and
successors and
Bindinq Effect. Subject to any restrictions on
forth in the Master Lease, the Sublease or this
rights and obligations of Los Alisos, City and MCA
inure to the benefit of their respective
assigns.
15. Further Assurances. Los Alisos, the City and MCA
hereby covenant that each will, at any time and from time to time
upon request by another party hereto execute and deliver such
further documents and do such further acts as may be reasonably
requested to fully effectuate the purpose of this Agreement.
16. Attorneys' Fees. In the event of any breach or
default by any party hereunder of any term, covenant, condition,
restriction or other provision of this Agreement, then any or all
non-defaulting parties shall have the right to recover from the
defaulting party any and all costs and expenses incurred by such
non-defaulting parties in connection with the enforcement of this
Agreement, including, without limitation, reasonable attorneys'
fees.
17. Severabilitv. In the event any term or provision
of this Agreement shall be held to be invalid or unenforceable by
any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other term or provision of
this Agreement.
18. Governinq Law. This Agreement shall be construed
and interpreted in accordance with, and shall be governed and
enforced in all respects according to, the laws of the State of
California. Each of the parties hereto consents to the personal
jurisdiction of the State of California.
19. Counteroarts. This Agreement may be executed in
counterparts, each of which shall be an original, and all of
which when taken together shall constitute one agreement.
(L220034.2J
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20. Waiver of Default. No waiver of default of this
Agreement shall be implied from any omission or delay by any
other party to take action in respect of such default.
21. ARBITRATION. THE PARTIES TO THIS AGREEMENT AGREE
THAT ALL CLAIMS, DISPUTES OR DISAGREEMENTS ARISING UNDER THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY MATTER RELATING TO
A DEFAULT OR BREACH HEREUNDER SHALL BE RESOLVED BY ARBITRATION IN
ACCORDANCE WITH THE PROVISIONS OF ARTICLE 40 OF THE MASTER LEASE,
WHICH ARTICLE 40 IS INCORPORATED INTO AND MADE A PART OF THIS
AGREEMENT, AS IF FULLY SET FORTH HEREIN. NOTWITHSTANDING THE
FOREGOING, THE ARBITRATION PROCEDURE SET FORTH IN ARTICLE 40 OF
THE MASTER LEASE SHALL NOT BE APPLICABLE TO (I) CLAIMS WHICH ARE
PRIMARILY FOUNDED UPON MATTERS OF FRAUD, WILFUL MISCONDUCT, BAD
FAITH OR ANY OTHER ALLEGATIONS OF TORTIOUS ACTION, AND SEEK THE
AWARD OF PUNITIVE OR EXEMPLARY DAMAGES, OR (II) CLAIMS FOR
RESTRAINING ORDERS OR OTHER INJUNCTIVE RELIEF.
[L220034.2)
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IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the date first s~t forth above.
LOS ALISOS COMPANY,
a California general partnership
By: Los Alisos Development Company,
a California corporation
. Its: General Partner
By
Its
By
Its
By: American Kukdong, Inc.,
a California corporation
Its: General Partner
By
Its
By
Its
MCA CONCERTS, INC.,
a California corporation
By:
Jay Marciano, President
CITY OF CHULA VISTA
By:
Its:
APPROVED AS TO FORM:
[L220034.2]
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ATTACHMENT :tL
Ground Lease
Ground Lease
by and between
Los Alisos Company,
a California general partnership
and
MCA Concerts, Inc.,
a California corporation
Dated:
[L21SS94.41
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ARTICLE 1.
1.1
1.2
ARTICLE 2.
2.1
2.2
2.3
2.4
ARTICLE 3.
3.1
3.2
3.3
3.4
ARTICLE 4.
ARTICLE 5.
ARTICLE 6.
ARTICLE 7.
ARTICLE 8.
8.1
8.2
ARTICLE 9.
9.1
9.2
9.3
9.4
[L215594.4)
TABLE OF CONTENTS
LEASED PREMISES
Demise of Leased Premises
Possession
TERM
Initial Term
Termination Right
Termination Prior to Rent Commencement
Date ......
Extension Options
RENTAL
Rent Commencement Date
Minimum Rent . . . . .
Participation Rent . .
3.3.1 Definitions
3.3.2 Payment of Participation Rent
Net Lease
USE. . . . .
IMPROVEMENTS
REAL ESTATE TAXES
UTILITIES .
REPRESENTATIONS AND WARRANTIES
Landlord's Representations and Warranties
8.1.1 Authority
8.1.2 Enforceability
8.1.3 No Conflict
8.1.4 Consents...
Tenant's Representations and Warranties
8.2.1 Authority
8.2.2 Enforceability
8.2.3 No Conflict
8.2.4 Consents
TENANT'S INSURANCE
Tenant's coverage During Construction
of Improvements . . . . . . . . .
Tenant's Coverage After Completion of
Construction of Improvements
Terms of Policies . . . . . . . .
Tenant's Acknowledgment ....
(i)
~;2-0
Paqe
1.
1
1
.2
2
2
2
3
4
4
4
4
4
7
7
7
8
8
9
9
9
10
10
10
10
10
10
10
10
11
11
11
11
12
12
Itb
9.5
9.6
ARTICLE 10.
ARTICLE 11.
11.1
11.2
11.3
11.4
11.5
11.6
ARTICLE 12.
ARTICLE 13.
ARTICLE 14.
ARTICLE 15.
ARTICLE 16.
16.1
16.2
16.3
ARTICLE 17.
ARTICLE 18.
18.1
18.2
18.3
18.4
ARTICLE 19.
Subrogation
Indemnity
LANDLORD'S INSURANCE
HAZARDOUS MATERIALS
Restrictions. .
Indemnification
Removal Of Contaminants
Definition . . . . . .
Right To Test . . . .
Landlord's Obligations
MAINTENANCE AND REPAIR
COMPLIANCE WITH LAWS
COOPERATION
ENTRY AND INSPECTION
DAMAGE AND DESTRUCTION
Restoration of Damage
Effect on Lease .
Abatement of Rent
ASSIGNMENT AND SUBLETTING
DEFAULTS; REMEDIES . . .
Defaults . . . . . . .
Remedies Upon Tenant's
Landlord's Default
Waiver of Default
Default
ATTORNEYS' FEES
"
ARTICLE 20. HOLDING OVER
ARTICLE 21. NOTICES
ARTICLE 22. SUCCESSORS IN INTEREST
ARTICLE 23. FORCE MAJEURE
ARTICLE 24. PARTIAL INVALIDITY
ARTICLE 26.
ARTICLE 25. MARGINAL CAPTIONS
TIME. .
ARTICLE 27.
IL215594.4J
ESTOPPEL CERTIFICATE
(ii)
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13
13
14
15
15
15
15
15
16
16
17
17
17
17
18
18
18
18
19
19
19
20
20
20
20
20
21
21
21
21
22
22
22
I ~{
ARTICLE 28. CONDEMNATION. .. .
ARTICLE 29. LANDLORD/TENANT RELATIONSHIP
ARTICLE 30. OBLIGATIONS AS COVENANTS
ARTICLE 31. ADDITIONAL DOCUMENTS
ARTICLE 32. RECORDATION
ARTICLE 33. AUTHORITY
ARTICLE 34. BROKERS
ARTICLE 35. APPLICABLE LAW
ARTICLE 36. QUIET ENJOYMENT
ARTICLE 37. ENTIRE AGREEMENT
ARTICLE 38. ABATEMENT OF RENT
ARTICLE 39. SURRENDER OF LEASED PREMISES
ARTICLE 40. ARBITRATION
40.1
40.2
40.3
GENERAL SUBMITTALS TO ARBITRATION
RETIRED JUDGES . . . . . . . .
ARBITRATION PROCEDURE . . . .
40.3.1 PRE-DECISION ACTIONS
40.3.2 THE DECISION
ARTICLE 41. CURE RIGHTS
ARTICLE 42. COVENANT AGAINST LIENS
ARTICLE 43. MORTGAGEE PROTECTIONS
43.1
43.2
43.3
43.4
43.5
43.6
43.7
43.8
43.9
43.10
43.11
43.12
43.13
(L21S594.4]
No Termination . .. .
provisions of Leasehold Mortgage
Notices . . . . . . . .
Performance of Covenants
Delegation to Mortgagee
Default by Tenant
Bankruptcy Events . . .
New Lease .. ....
Further Amendments. .
Personal Liability of Mortgagee
More Than One Mortgagee . . . . .
Miscellaneous Additional Mortgagee
Protections . ........
Modifications, Consents and Waivers
(Hi)
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22
23
23
23
23
23
23
24
24
24
24
25
25
25
26
26
26
26
27
27
27
28
28
29
29
30
30
31
31
31
32
32
32
33
I if;;.
ARTICLE 44.
44.1
44.2
44.3
44.4
44.5
ARTICLE 45.
ARTICLE 46.
ARTICLE 47.
PURCHASE OPTION
Option Notice
Escrow
Purchase Price
Title
Cost and Expenses
RIGHT OF FIRST REFUSAL
NONCOMPETITION
PARKING PARCEL
EXHIBITS
EXHIBIT A LEGAL DESCRIPTION OF SITE
EXHIBIT B PERMITTED EXCEPTIONS
EXHIBIT C PARKING PARCEL
(L215594.41
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33
33
33
34
35
35
36
36
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(43
GROUND LEASE
THIS GROUND LEASE is made as of this ____ day of
, 1995 ("Effective Date") by and between Los Alisos
Company, a California general partnership ("Landlord"), and MCA
Concerts, Inc., a California corporation ("Tenant").
RECITALS
A. Landlord is the owner of fee simple title to
certain real property located in the City of Chula Vista,
California and more particularly described on Exhibit A attached
hereto (the "Site").
B. Tenant desires to lease the Site, together with
all rights and interests, if any, of Landlord in and to the land
lying in the streets and roads adjoining the Site, and in and to
any easements, rights-of-way, and restrictive covenants in favor
of, and all other rights appurtenant to, the Site (collectively,
the "Leased Premises"), for the purpose of the development and
operation of an amphitheater and associated facilities for the
conduct of live concerts, sporting events, swap meets and/or
other legal uses.
C. Landlord desires to lease the Leased Premises to
Tenant on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the terms,
covenants and conditions set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant agree as follows:
ARTICLE 1. LEASED PREMISES
~
1.1 Demise of Leased Premises. Landlord hereby leases
to Tenant, and Tenant hereby accepts the lease from Landlord, of
the Leased Premises, upon the terms and conditions set forth in
this Lease.
1.2 Possession. Landlord shall deliver exclusive
possession and leasehold title to the Leased Premises on the
Effective Date, subject only to such title matters as set forth
on Exhibit B attached to this Lease (the "Permitted Exceptions") .
Landlord hereby represents and warrants to Tenant that on the
Effective Date, subject only to the Permitted Exceptions,
Landlord owns fee simple marketable title to the Leased Premises,
free of any liens, encumbrances, deeds of trust, mortgages,
contracts, leases, tenancies, possessory rights, agreements,
restrictions, violations, encumbrances or other title defects or
matters. Landlord expressly acknowledges and agrees that the
Leased Premises include the Tenant's exclusive right to use,
enjoy the benefit of, and enforce all easements and restrictive
covenants which are appurtenant to, run in favor of, or otherwise
benefit the Site, or any part thereof, and Landlord shall not
[L21SS94.4J
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modify, amend, cancel or terminate any such easements and
restrictive covenants without Tenant's prio~ written consent,
which consent may be withheld in Tenant's sole and absolute
discretion.
ARTICLE 2. TERM
2.1 Initial Term. The initial term of the Lease (the
"Initial Term") shall commence on the Effective Date and shall
expire on that date (the "Expiration Date") which is the first
December 31 following the tenth (10th) anniversary of the Rent
Commencement Date (as defined in Article 3 below), unless earlier
terminated or extended in accordance with the provisions of this
Lease; provided, however, if the Rent Commencement Date shall
occur on January 1, then the Expiration Date shall be the
December 31 immediately preceding the tenth (10th) anniversary of
.the Rent Commencement Date. For purposes of this Lease, the
"Term" of this Lease shall mean the Initial Term, as extended by
any and all Extension Terms (as defined in Section 2.3 below).
2.2 Termination Riaht. Tenant shall have the right to
terminate this Lease upon written notice to Landlord, which
termination shall be effective on the effective date for such
termination designated by Tenant in its termination notice, which
effective date shall not, except as otherwise expressly provided
in Section 2.3, be prior to one (1) year after the date of the
delivery by Tenant of Tenant's termination notice. The date on
which Tenant delivers the foregoing termination notice is
referred to herein as the "Termination Notice Date" and the
effective date set forth in Tenant's termination notice for the
termination of the Lease is referred to herein as the "Effective
Termination Date." In the event that Tenant elects to terminate
the Lease pursuant to the provisions of this Section 2.2, then
the Term shall expire on the Effective Termination Date and
except to the extent of any terms and provisions which expressly
survive the termination of this Lease, and except for defaults
existing as of the Effective Termination Date, the parties'
rights and obligations hereunder shall terminate on the Effective
Termination Date as if the Effective Termination Date had been
the scheduled Expiration Date. The existence of any breach or
default by Tenant under this Lease at the date of Tenant's
delivery of a termination notice shall have no affect on Tenant's
right to terminate the Lease as provided herein.
2.3 Termination Prior to Rent Commencement Date.
Notwithstanding any provision of this Lease to the contrary, in
the event that the Termination Notice Date is prior to the Rent
Commencement Date, then the following provisions shall be
applicable:
2.3.1 the Rent Commencement Date shall never
occur and Tenant's obligation to pay Minimum Rent shall never
commence;
(L21SS94.4)
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2.3.2 Tenant's obligation to pay the "Net
Charges" (as defined in Section 3.4 below) shall terminate on the
date Tenant restores the Leased Premises to the condition
required under Subsection 2.3.5 below and surrenders possession
of the Leased Premises to Landlord;
2.3.3 Tenant shall be responsible for the
reimbursement to Landlord of the Applicable Percentage (as
defined below) of the Net Charges attributable to the period from
the Effective Date through December 31, 1995; provided, however,
Tenant's obligation to pay Net Charges for periods prior to
January 1, 1996 pursuant to this Subsection 2.3.3 shall be
limited to an aggregate obligation not in excess of the
Applicable Percentage of Twenty Thousand Dollars ($20,000.00) per
month during the period from the Effective Date through December
31, 1995, prorated on a per diem basis for any partial month;
2.3.4 for purposes hereof, the "Applicable
Percentage" shall mean one hundred percent (100%) if the
Termination Notice Date is prior to the date of the commencement
by Tenant of the grading of the Site, or fifty percent (50%) if
the Termination Notice Date is after the date of the commencement
by Tenant of the grading of the Site;
2.3.5 if Tenant has commenced grading, but has
not commenced construction of the Improvements (as defined in
Article 5), Tenant shall, to the extent possible, restore the
Site to substantially the same condition as it existed as of the
Effective Date; provided that if at the Termination Notice Date
Tenant has completed its grading work on the Site and has
commenced construction of the other Improvements to be developed
on the Site, then if Landlord requests Tenant to do so in writing
delivered to Tenant within ten (10) days following the
Termination Notice Date, Tenant shall either (a) leave the Site
in the same condition as existed on the Termination Notice Date
or (b) restore the Site to approximately the grade which existed
at the Effective Date; and
2.3.6
the date which Tenant has
as required in Subsection
of the Leased Premises to
the Effective Termination Date shall be
compJeted the restoration of the Site
2.3.5 above and surrendered possession
Landlord.
2.4 Extension Options. Landlord hereby grants Tenant
three (3) separate options to extend the Term of the Lease for a
period of ten (10) years each (each, an "Extension Term" and
collectively, the "Extension Terms"). Each option to extend the
Term for an Extension Term shall be exercisable by Tenant by
written notice delivered by Tenant to Landlord of such exercise
on or before six (6) months prior to the Expiration Date, as
previously extended by an Extension Term; provided, however, in
no event shall the date for Tenant's exercise of an extension
option expire earlier than thirty (30) days after receipt by
Tenant of written notice from Landlord setting forth the last
date for Tenant's exercise of. an extension option, which notice
(L215594.41
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shall be delivered by Landlord not earlier than twelve (12)
months and not later than six (6) months prior to the scheduled
Expiration Date, as previously extended hereunder. In the event
that Tenant shall extend the Term as provided in this Section
2.4, then the Term (and the Expiration Date) shall be extended by
each applicable Extension Term on the same terms and conditions
as applicable during the Initial Term, including, without
limitation, those relating to Rent.
ARTICLE 3. RENTAL
3.1 Rent Commencement Date. For purposes of this
Lease, the "Rent Commencement Date" shall mean the earlier of
(i) the first anniversary of the Effective Date, or (ii) the date
on which Tenant opens the Improvements for business to the
public. Notwithstanding the foregoing, in the event that Tenant
shall be delayed in the completion of the construction of the
Improvements beyond the first anniversary of the Effective Date
as a result of any of the force majeure delays described in
Article 23 (a "Force Majeure Delay"), then the date set forth in
clause (i) in the immediately preceding sentence shall be
extended by the period of such Force Majeure Delays.
3.2 Minimum Rent. Commencing on the Rent Commencement
Date and continuing during the Term of this Lease, Tenant agrees
to pay Landlord, minimum base rent ("Minimum Rent") in an amount
equal to Three Hundred Fifty Thousand Dollars ($350,000.00) per
year. The Minimum Rent shall be payable quarterly in arrears in
equal installments of Eighty Seven Thousand Five Hundred Dollars
($87,500.00). The first quarterly installment of Minimum Rent
shall be payable on or before the first March 31, June 30,
September 30 or December 31 to occur following the Rent
Commencement Date, and each subsequent installment of Minimum
Rent shall be paid on or before the last day of each succeeding
calendar quarter thereafter. In the event that the Rent
Commencement Date shall occur other than on the first day of a
calendar quarter (i.e., other than January 1, April 1, July 1 or
October 1) then the first Minimum Rent installment due hereunder
shall be prorated for such partial calendar .quarter based on the
number of days in such partial calendar quarter as compared to
the number of days in the full calendar quarter during which the
Rent Commencement Date occurs.
3.3 particioation Rent. In addition to the Minimum
Rent payable pursuant to Section 3.2 above, each Lease Year
Tenant shall pay Landlord "Participation Rent" in an amount equal
to the amount, if any, by which (i) the sum of (I) Ticket Rent
for such Lease Year, plus (II) Percentage Rent for such Lease
Year, exceeds (ii) the Break Even Point for such Lease Year.
3.3.1 Definitions. For purposes hereof, the
following terms shall be defined as follows:
(i) "Lease Year" shall mean each
calendar year during the Term, except that the first Lease Year
[L215594.4]
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shall commence on the Rent Commencement Date and end on the
December 31 first following the Rent Commencement Date.
(ii) "Break Even Point" shall mean
$350,000.00, except that in the case of any Lease Year which is
less than a full calendar year, the Break Even Point for such
Lease Year shall be the product of $350,000.00 multiplied by a
fraction the numerator of which is the number of days in such
partial calendar Lease Year and the denominator of which is 365.
(iii) "Paid Admissions" shall mean the
number of tickets actually sold during each Lease Year to concert
events presented by Tenant at the Leased Premises, other than
admissions to Rental Engagements.
(iv) "Rental Engagements" shall mean
transactions in which a licensee of Tenant essentially pays
Tenant a fee for a license or other right to use the Leased
Premises. [What about Symphony? What about free City nights?]
(v) "Ticket Rent" shall mean the
following amounts payable with respect to each Paid Admission
during a Lease Year:
Paid Admissions
Durinq Lease Year
Ticket Rent Per
Paid Admission
100,000 or Under
100,001-200,000
200,001-300,000
Over 300,000
$.40; plus
$.45; plus
$.50; plus
$.55
Each of the Ticket Rent per Paid Admission amounts set forth in
the right-hand column of the table above shall be subject to
increase every five (5) years following the end of the first
Lease Year based upon the percentage increase, if any, in the CPI
Index for the month of such adjustment as compared to the CPI
Index for the month in which such Ticket Rent per Paid Admission
amounts were most recently adjusted (or in the case of the first
adjustment, as compared to the CPI Index for the month in which
the Rent Commencement Date occurs); provided that in no event
shall any increase in the CPI Index during any Lease Year be
applicable to the extent such increase is greater than five
percent (5%); and further provided, in no event shall the
increase in such Ticket Rent per Paid Admission amounts be
increased less than ten percent (10%) nor more than twenty
percent (20%) at each such five year adjustment.
amount equal to the
Revenue during each
(vi) "Percentage
following percentages
Lease Year:
Rent" shall mean an
of Tenant's Gross
[L21SS94.41
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fqg
Gross Revenue During
Each Lease Year
Percentaqe Rent
$0-$5,000,000
From $5,000,000-$8,000,000
From $8,000,000-$12,000,000
Over $12,000,000
5.0%; plus
4.5%; plus
4.0%; plus
3.5%
(vii) "Gross Revenues" shall mean cash receipts'
actually received by Tenant from the sale of food and beverages,
merchandise and all other goods (except programs) and services
sold at the Leased Premises. Gross Revenues shall also include
parking fees and Rental Engagement Net Revenues (as defined
below) actually received by Tenant with respect to the Leased
Premises. Gross Revenues shall expressly exclude: (I) Ticket
Rent and any admission, entry or similar fees to the Leased
Premises and any other revenues derived from the sale of tickets,
including fees or charges thereon; (II) revenues received by
persons or entities to which Tenant has granted a license or
other right to use the Leased Premises in connection with a
Rental Engagement; (III) revenues received by any person or
entity permitted by Tenant to use the Leased Premises for
charitable, community or nonprofit purposes to whom or to which,
as the case may be, the Tenant makes the Leased Premises
available without charge (other than a charge reflecting
reimbursement by such person or entity of the Tenant's costs in
operating the Leased Premises for use by such person or entity);
(IV) the value of tickets or other non-cash consideration
exchanged for services provided by others (e.g., sponsors or
vendors) for the benefit of the Leased Premises and other non-
cash benefits (e.g., advertising); (V) advertising and promotion
fees received by Tenant in connection with operating the Leased
Premises; (VI) insurance proceeds; (VII) revenue to the extent
that payment of Participation Rent based on the same is
prohibited by applicable laws, codes, regulations or ordinances;
and (VIII) revenues from the sale, trade or other disposition of
all or a portion of Tenant's leasehold interest in the Leased
Premises and capital improvements, equipment, furniture, personal
property or fixtures. In addition, Gross Revenues shall be net
of all returns, commissions on sales, credit charges on sales and
chargebacks, discounts, rebates and federal, state or local
excise, sales, gross revenue or other similar taxes (not
including corporate income tax). Gross Revenues shall also
exclude any revenues received from parking on property not
included as part of the Leased Premises.
(viii) "Rental Engagement Net Revenues"
means all receipts actually received by Tenant from the licensing
of the Leased Premises for Rental Engagements, less all
unreimbursed out-of-pocket expenses (including, but not limited
to, supplies, utilities, insurance and personnel costs) incurred
by Tenant in connection with such Rental Engagements.
(L21SS94.4]
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(ix) "CPI Index" shall mean the Consumer
Price Index-Urban Wage Earners and Clerical Workers (Los Angeles-
Anaheim-Riverside, CA All Items Base 1982-1984 = 100) as
published by the United States Department of Labor, Bureau of
Labor Statistics (the "Bureau"). Should the Bureau discontinue
the publication of the CPI Index, or publish the same less
frequently or on a different schedule, or alter the same in some
other manner, including, but not limited to, changing the name of
the CPI Index or the geographic area covered thereby, Landlord
and Tenant shall mutually adopt a substitute index or procedure
which reasonably reflects and monitors consumer prices.
During any periods of the Term during which one or more subleases
or sub-subleases of the Leased Premises shall be in effect, the
term "Tenant" in clauses (i) through (ix) above shall mean the
subtenant (or sub-subtenant, if applicable) which is in actual
possession of the Leased Premises.
3.3.2 PaYment of Participation Rent. On or
before thirty (3D) days following the end of each Lease Year,
Tenant shall deliver to Landlord a statement which sets forth the
number of Paid Admissions and the Gross Revenues for the
preceding Lease Year, along with a calculation of the Ticket Rent
and Percentage Rent for such Lease Year. Such statement shall be
accompanied by the payment by Tenant to Landlord of the total
Participation Rent.
3.4 Net Lease. All taxes, insurance premiums and
other costs and expenses, other than Minimum Rent and
Participation Rent, which Tenant is required to pay under this
Lease (collectively, the "Net Charges") shall be net to Landlord,
so that this Lease shall yield to Landlord the Minimum Rent and
Participation Rent set forth in Sections 3.2 and 3.3 above net of
such Net Charges. All Net Charges payable by Tenant under this
Lease shall be prorated, if necessary, as of the date of the
commencement or termination, as applicable, of the Tenant's
responsibility for such Net Charges. If at the end of the Term
Tenant shall have paid any Net Charges attributable to periods
after the expiration of the Term, then such overpayments by
Tenant shall be offset against any other Rent payable under this
Lease by Tenant, with any overpayment which is not so applied to
be reimbursed by Landlord within thirty (3D) days following the
Expiration Date. In the event of Tenant's nonpayment of Net
Charges, Landlord shall have all the same rights and remedies as
Landlord has for the nonpayment of Minimum Rent and Participation
Rent. The terms "Rental" and "Rent" as used in this Lease shall
mean Minimum Rent, Participation Rent and Net Charges. Except
for those Net Charges payable directly by Tenant to third
parties, all Rent shall be paid to Landlord at Landlord's address
set forth in Article 21 of this Lease.
ARTICLE 4. USE
Tenant shall use the Leased Premises for the operation
of an amphitheater for live concerts, sporting events, swap
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meets, the sale of food, beverages (including, without
limitation, alcoholic beverages), merchandise, and other related
or incidental purposes, or for any other legally permitted use.
Tenant shall use and occupy the Leased Premises in accordance and
shall comply with all applicable local, state and federal
governmental laws, statutes, codes, rules and regulations as may
be in force and effect from time to time during the Term
("Laws"). Tenant shall be permitted to contest any governmental
authority or action affecting its use or occupancy of the Leased
Premises, and so long as it is acting in good faith in connection
with such contest, the act or failure to act which is the subject
of such contest shall not be the basis of any default under this
Lease.
ARTICLE 5. IMPROVEMENTS
Tenant shall have the right to construct all such
improvements to the Site as Tenant desires to accommodate
Tenant's use of the Site in accordance with the terms and
provisions of this Lease, including without limitation, all
buildings, facilities, structures, driveways, parking areas,
pathways, fences, landscaping, irrigation and utility facilities
(the "Improvements"). Landlord acknowledges that Tenant's
initial Improvements shall accommodate the development by Tenant
of an amphitheater facility with seating for approximately 20,000
patrons. Tenant shall prepare and deliver to Landlord
preliminary schematic and final construction drawings for the
Improvements to be initially constructed by Tenant. In addition,
upon completion by Tenant of such initial Improvements, Tenant
shall deliver to Landlord as-built plans for such Improvements.
Tenant shall have the right from time to time during the Term to
make such alterations, modifications, additions or changes to the
Improvements as Tenant deems appropriate. Upon request, Tenant
shall deliver to Landlord as-built plans for any and all material
alterations, additions, modifications or other changes to the
Improvements. During the Term, all Improvements shall be owned
by Tenant. All Improvements existing on the Site at the end of
the Term shall be surrendered by Tenant to Landlord at the end of
the Term in accordance with the provisions of Article 39 below,
and upon the expiration of the Term shall become the property of
Landlord.
ARTICLE 6. REAL ESTATE TAXES
As long as Landlord is not delinquent in the payment of
real estate taxes, Tenant shall be responsible for the payment
prior to delinquency of all real estate taxes assessed against or
applicable or attributable to the Site and the Improvements for
periods commencing on and after January 1, 1996, and continuing
during the remaining Term of this Lease. Except as is provided in
Section 2.3, Landlord shall be responsible for the payment of
real estate taxes assessed for periods prior to January 1, 1996.
The phrase "real estate taxes" as used herein shall be deemed to
mean all taxes imposed upon the Site and the Improvements, and
all assessments levied against said property, including any and
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all excise, privilege and other taxes, other than net income and.
estate taxes levied or assessed by any federal, state or local
authority upon the rent received by Landlord hereunder; provided,
however, that no such tax shall be treated for purposes of this
Lease as a real estate tax unless the revenues generated by such
tax are used for city, county or other local purposes and such
tax is assessed with respect to the address of the Leased
Premises (and all other properties similarly situated) and not to
Landlord generally without regard to its ownership of the Leased
Premises. Notwithstanding the foregoing, real estate taxes shall
not include personal income taxes, personal property taxes,
inheritance taxes, or franchise taxes levied against the
Landlord, but not directly against said property, even though
such taxes may become a lien against said property. Any such tax
for the year in which Tenant's obligations under this Article 6
commence or end shall be appropriately apportioned and adjusted.
Tenant shall have the right to contest the amount of any
assessment of real estate taxes imposed against the Site and
Improvements. Landlord shall, at Tenant's request, join in and
support any such contest. The entire expense of any such contest
(including interest and penalties which may accrue in respect of
such taxes) shall be the responsibility of Tenant.
Notwithstanding any contrary provision of this Article 6, in the
event that at any time during the Term (as the Term may be
extended hereunder), any change in ownership (as defined in
Division 1, Part 0.5, Chapter 2 of the California Revenue &
Taxation Code) of the Leased Premises, or any part thereof, is
consummated, and as a result thereof the Leased Premises is
reassessed for real estate tax purposes by the applicable
governmental authority, then Tenant shall have no obligation to
reimburse Landlord for any portion of the real estate taxes
otherwise payable hereunder attributable to such reassessment and
Landlord shall pay all such taxes prior to delinquency.
ARTICLE 7. UTILITIES
As long as Landlord is not delinquent in the payment of
any charges for utilities or services provided to the Leased
Premises, commencing on and after January 1, 1996 and continuing
during the remaining Term of this Lease Tenant shall pay before
delinquency all charges for water, sewer, trash removal, gas,
heat, electricity, power, telephone service, cable and all other
services or utilities used in, upon, or about the Site and
Improvements by Tenant or any of its subtenants, licensees, or
concessionaires during the foregoing period. Except as provided
in Section 2.3, Landlord shall be responsible for the payment of
the foregoing amounts attributable to the period prior to
January 1, 1996.
ARTICLE 8. REPRESENTATIONS AND WARRANTIES
8.1 Landlord's Reoresentations and Warranties.
Landlord represents and warrants to Tenant as follows:
[L215594.4)
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8.1.1 Authority. Landlord is a general
partnership duly formed and existing in good standing under the
laws of the State of California, and has the power and authority
to own the Leased Premises and to consummate the transaction
contemplated by this Lease. By executing this Lease, each of
Landlord's general partners represents and warrants that they are
corporations duly formed and existing in good standing under the
laws of the State of California, haye the power and authority to
act on behalf of the Landlord, and that each of their execution
of this Lease on behalf of Landlord has been authorized by
appropriate corporate action.
8.1.2 Enforceability. This Lease and all
documents executed and delivered in connection herewith are and
shall be valid, legally binding obligations of and enforceable
against Landlord in accordance with their terms, subject only to
applicable bankruptcy, insolvency, reorganization, moratorium
laws or similar laws or equitable principles affecting or
limiting the rights of contracting parties generally.
8.1.3 No Conflict. Neither the execution and
delivery of this Lease nor the incurrence by the Landlord of its
obligations hereunder, conflict with or result in a breach of any
terms, covenants or provisions of, or constitute a default under,
any contract, mortgage, deed of trust, loan, partnership
agreement or other agreement or instrument to which Landlord is a
party.
8.1.4 Consents. Landlord has obtained all
consents and approvals required for Landlord to enter into this
Lease and perform its obligations hereunder.
8.2 Tenant's Reoresentations and Warranties. Tenant
represents and warrants to Landlord as follows:
8.2.1 Authority. Tenant is a corporation duly
formed and existing in good standing under the laws of the State
of California, has the power and authority to consummate the
transaction contemplated by this Lease, and that its execution of
this Lease has been authorized by appropriate corporate action.
8.2.2 Enforceability. This Lease and all
documents executed and delivered in connection herewith are and
shall be valid, legally binding obligations of and enforceable
against Tenant in accordance with their terms, subject only to
applicable bankruptcy, insolvency, reorganization, moratorium
laws or similar laws or equitable principles affecting or
limiting the rights of contracting parties generally.
8.2.3 No Conflict. Neither the execution and
delivery of this Lease nor the incurrence by the Tenant of its
obligations hereunder, conflict with or result in a breach of any.
terms, covenants or provisions of, or constitute a default under,
any contract, mortgage, deed of trust, loan, or other agreement
or instrument to which Tenant is a party.
[L215594,4)
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8.2.4 Consents. Tenant has obtained all
consents and approvals required for Tenant to enter into this
Lease.
ARTICLE 9. TENANT'S INSURANCE
9.1 Tenant's Coveraqe Durinq Construction of
Imorovements. Commencing on and after the date which Tenant
shall enter onto the Site for the purpose of the commencement of
construction of the initial Improvements, and continuing until
Tenant shall complete the construction of the initial
Improvements, Tenant shall provide or require its general
contractor to provide (with Landlord and any mortgagee of
Landlord, if any, identified in writing to Tenant, named as
additional insureds) the following insurance coverage, in a form
reasonably satisfactory to Landlord and maintained with insurers/
underwriters reasonably acceptable to Landlord:
9.1.1 commercial general liability insurance
against claims for bodily injury, including death, and property
damage or loss directly attributable to the use or occupation of
the Leased Premises; such insurance shall provide coverage for
liabilities assumed by contract, shall contain a "cross
liability" or "severability of interest" clause and shall be
written on an occurrence basis in an amount of not less than
$5,000,000.00 combined single limit primary coverage;
9.1.2 builder's risk insurance upon the
Improvements in an amount equal to the full replacement cost
(excluding excavations and foundations) thereof, without
deduction for depreciation; provided, however, that Tenant shall
have the right to self-insure the coverage described in this
Subsection 9.1.2, which self-insurance shall be deemed to include
the same coverage as if Tenant had obtained the coverage
described in this Subsection 9.1.2 from a third-party carrier;
and
9.1.3 workers' compensation and employer's
liability insurance, in such amounts and in such sums as required
by law with respect to workers' compensation insurance and in an
amount of $1,000,000.00 with respect to employer's liability
coverage.
9.2 Tenant's Coveraqe After Comoletion of Construction
of Imorovements. Commencing on and after the date on which
Tenant completes construction of the initial Improvements, Tenant
shall maintain in the name of Tenant (with Landlord and any
mortgagee of Landlord, if any, identified in writing to Tenant,
named as additional insureds) the following insurance coverage,
in a form reasonably satisfactory to Landlord and maintained with
insurers/underwriters reasonably acceptable to Landlord:
(and/or
injury,
9.2.1
excess liability
including death,
commercial general liability insurance
coverage) against claims for bodily
and property damage or loss directly
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attributable to the use or occupation of the Leased Premises;
such insurance shall provide coverage for liabilities assumed by
contract, shall contain a "cross liability" or "severability of
interest" clause and shall be written on an occurrence basis in
an amount of not less than $5,000,000.00 combined single limit
primary coverage;
9.2.2 all-risk property insurance upon the
Improvements in an amount equal to the full replacement cost
(excluding excavations and foundations) thereof, without
deduction for depreciation; provided, however, that Tenant shall
have the right to self-insure the coverage described in this
Subsection 9.2.2, which self-insurance shall be deemed to include
the same coverage as if Tenant had obtained the coverage
described in this Subsection 9.2.2 from a third-party; and
9.2.3 workers' compensation and employer's
liability insurance, in such amounts and in such sums as required
by law with respect to workers' compensation insurance and in an
amount of $1,000,000.00 with respect to employer's liability
coverage.
9.3
referred to in
following:
Terms of Policies. Tenant's policies of insurance
Sections 9.1 and 9.2 above shall contain the
9.3.1 provisions that such policies and the
coverage evidenced thereby shall be primary and noncontributing
with respect to any policies carried by Landlord;
9.3.2 provisions that the coverage under such
policies of insurance shall not be cancelled without the insurer
providing Landlord thirty (30) days' written notice stating when
such change or cancellation shall be effective; and
9.3.3 the deductibles for such insurance shall
not exceed deductibles typically carried by other comparable
prudent tenants of similar properties in Southern California.
All policies of insurance provided for in this Article 9 shall be
effected under valid and enforceable policies, in such forms and
amounts as specified herein, issued by insurers of recognized
responsibility which are authorized to issue the subject
insurance in the State of California. Upon written request a
certificate of insurance reasonably satisfactory to Landlord
shall be delivered by Tenant to Landlord. Notwithstanding any
contrary provision of this Article 9, Tenant shall be permitted
to maintain all or any portion of the insurance coverage
described in this Article 9 pursuant to blanket policies covering
other properties and/or operations of Tenant and/or its
affiliates, provided that such blanket coverage otherwise
satisfies the requirements of this Article 9.
9.4 Tenant's Acknowledament. Tenant agrees that
subject to and except as otherwise provided in Sections 9.6 or
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11.6, below, and except to the extent relating to or resulting
from a breach of this Lease by Landlord, including, without
limitation, a breach of any representation or warranty made by
Landlord hereunder, Landlord shall not be liable for:
9.4.1 any bodily injury to or death of, or
loss or damage to any property belonging to Tenant or its
employees, invitees or licensees, or any other person in or about
the Leased Premises; or
9.4.2 any injury or damage of any nature
whatsoever to any persons or property caused by the failure by
reason of the interruption of any public utility or other
service, or caused by gas, steam, water, rain, snow, ice or other
substances leaking into the Improvements;
9.4.3 loss or damage, however caused, to
money, securities, negotiable instruments, papers or other
valuables of Tenant, including any consequential loss or damage
resulting therefrom; or
9.4.4 loss or damage to any automobiles or
their contents or for the unauthorized use by other persons or
strangers upon any parking areas.
9.5 Subroaation. Landlord and Tenant agree that all
fire, casualty and other property insurance policies carried by
either of them on the Leased Premises, Site or Improvements will
contain a full waiver of subrogation by the insurer against the
other and its assigns. Landlord and Tenant, as a material part
of the consideration to be rendered to the other, hereby waive
all claims against the other for damages to property arising from
any cause at any time, unless caused by gross negligence or
willful misconduct, to the extent of any recovery by the injured
party under any policy of insurance.
9.6 Indemnitv. Except as otherwise provided in
Section 9.5 above or this Section 9.6, Tenant agrees to and does
hereby indemnify, defend and save harmless Landlord in respect of
all claims, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) incurred by or brought against
Landlord to the extent (i) attributable to the use or occupation
of the Leased Premises or from the conduct of any work by or any
negligent or willful act or omission of Tenant or any assignee,
subtenant, agent, employee, or contractor of Tenant in, upon or
at the Leased Premises, except to the extent the same shall be
caused by (I) the willful or negligent act or omission of
Landlord and/or its agents, employees, or contractors or (II) any
breach or nonperformance by Landlord of any of its covenants,
obligations, representations or warranties under this Lease, or
(ii) caused by any breach or nonperformance by Tenant of any of
its covenants, obligations, representations or warranties under
this Lease, except in each of case (i) and (.ii) above to the
extent covered by any insurance carried or required to be carried
by Landlord on or respecting the Leased Premises. Subject to the
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provisions of Section 9.5 above, Landlord agrees to and does
hereby indemnify, defend and save harmless Tenant from and
against all claims, damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by or brought
against Tenant in connection with (a) any injury to or death of,
or loss or damage to any property belonging to, Landlord, its
agents, employees, assignees or contractors, (b) any willful or
negligent act or omission of Landlord and/or its agents,
employees, assignees or contractors or (c) any breach or
nonperformance by Landlord of any of its covenants, obligations,
representations or warranties under this Lease, unless covered by
the insurance carried or required to be carried by Tenant
hereunder. The provisions of this Section 9.6 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 10. LANDLORD'S INSURANCE
During the Term of this Lease, Landlord shall maintain
and pay all premium cost for a policy of commercial general
liability insurance against claims for bodily injury, including
death and property damage or loss arising out of the ownership or
operation of the Leased Premises; such insurance shall provide
coverage for liabilities assumed by contract, shall contain a
"cross-liability" or "severability of interest" clause and shall
be written on an occurrence basis in the amount of not less than
$5,000,000.00 combined single limit primary coverage. Tenant,
any subtenant of Tenant, MCA Inc., and their respective
affiliates shall be named as additional insureds. In addition,
Landlord shall maintain workers' compensation and employer's
liability insurance, in such amounts and in such sums as required
by law with respect to workers' compensation insurance and in an
amount of $1,000,000.00 with respect to employer's liability
coverage. Landlord's insurance shall be written on a primary and
noncontributory coverage basis with respect to any policies
carried by Tenant and/or any subtenant. Such insurance shall
also provide that the coverage thereunder shall not be cancelled
without the insurer providing all parties required hereunder to
be named as additional insureds thirty (30) days written notice
stating when such change or cancellation shall be effective. The
deductibles for such insurance shall not exceed deductibles
typically carried by other comparable prudent landlords of
similar properties in Southern California. Landlord's insurance
shall be effected under valid and enforceable policies, in such
forms and amounts as specified herein, issued by A.M. Best rated
carriers reasonably satisfactory to Tenant. Upon written request
a certificate of insurance reasonably satisfactory to Tenant
shall be delivered by Landlord to Tenant. The stipulated limit
of coverage set forth above shall not be construed as a
limitation of any potential liability to Tenant, and failure to
deliver said insurance certificate or Tenant's failure to request
delivery thereof shall in no way be construed as a waiver of
Landlord's obligation to provide the insurance coverage specified
herein.
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ARTICLE 11. HAZARDOUS MATERIALS
11.1 Restrictions. All Hazardous Material (as defined
in Section 11.4 below) brought upon, kept, used, generated,
produced or released on, under or about the Leased Premises by
Tenant, its agents, employees, contractors or subtenants, which
is necessary to Tenant's business will be used, kept, stored and
disposed in a manner that complies with all Environmental Laws
(as defined in Section 11.4 below) .
11.2 Indemnification. If Tenant breaches the
obligations set forth in Section 11.1 above, or if the presence
of Hazardous Material on the Leased Premises caused by Tenant,
its agents, employees, contractors or subtenants results in
contamination of the Leased Premises, then Tenant shall
indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities
or losses (including reasonable attorneys' fees) which arise as a
result of such contamination. This indemnification of Landlord
by Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions or any
cleanup, remediation, removal or restoration work required by any
federal, state or local governmental agency with respect to
matters for which Tenant's indemnification is applicable. The
terms of this Section 11.2 shall survive the expiration or
earlier termination of this Lease.
11.3 Removal Of Contaminants. Without limiting the
foregoing, if the presence of any Hazardous Material on the
Leased Premises caused by Tenant, its agents, employees,
contractors or subtenants results in any contamination of the
Leased Premises, Tenant shall, at its sole cost and expense,
promptly commence all actions necessary to remedy such
contamination as required under applicable Environmental Laws;
provided that Landlord's approval of such actions shall first be
obtained, which approval shall not be unreasonably withheld.
11.4 Definition. As used herein, the term "Hazardous
Material" means any hazardous or toxic substance, material or
waste which is or becomes regulated by any local governmental
authority, the State of California or the United States
Government pursuant to any applicable law, code, rule, regulation.
or ordinance (collectively, "Environmental Laws"). The term
"Hazardous Material" includes, without limitation, any material
or substance which is (i) defined as a "hazardous waste,"
"extremely hazardous waste" or "restricted hazardous waste" under
Sections 25115, 25117 or 25122.7 or listed pursuant to Section
25140 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 6.95 (Hazardous
Materials Release Response Plans and Inventory), (iii) 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), (iv) petroleum, (v) asbestos,
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(vi) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article 11 of Title 22 of the
California Administrative Code, Division 4, Chapter 20, (vii)
designated as a "hazardous substance" pursuant to Section 311 of
the Federal Water Pollution Control Act (33 V.S.C. ~ 1317),
(viii) defined as a "hazardous waste" pursuant to Section 1004 of
the Federal Resources Conservation and Recovery Act, 42 V.S.C.
~ 6902 et seq. (42 V.S.C. ~ 6903), (ix) defined as a "hazardous
substance" pursuant to Section 101 of the Compensation and
Liability Act, 42 V.S.C. ~ 9601 et seq. (42 V.S.C. ~ 9601), or
(x) all rules adopted and guidelines promulgated pursuant to the
foregoing.
11.5 Riqht To Test. Tenant shall fully cooperate in
allowing, from time to time, such examinations, tests,
inspections and reviews of the Leased Premises as Landlord shall
reasonably determine to be advisable in order to evaluate any
potential environmental problems, provided that Landlord shall
first provide Tenant with reasonable prior notice of such
activities, and further provided that Landlord and Tenant shall
agree upon a mutually acceptable schedule, scope and procedure
for such activities so as to minimize interference with Tenant's
business in the Leased Premises. Landlord shall indemnify,
defend and save harmless Tenant from and against all claims,
damages, liabilities, losses, costs and expenses (including
reasonable attorneys' fees) incurred by or brought against Tenant
in connection with or arising out of any examinations, tests,
inspections and reviews of the Leased Premises conducted by
Landlord under this Section 11.5.
11.6 Landlord's Obliqations. Landlord hereby
represents, warrants and covenants to Tenant that as of the
Effective Date, there has been no release, leak, discharge,
spill, storage or emission of Hazardous Material in, on, under or
about the Leased Premises and the soil and groundwater
thereunder, and that the Leased Premises and the groundwater
thereunder shall be free of Hazardous Material. Landlord, its
agents, employees, contractors and representatives shall not
cause or permit any Hazardous Material to be used, stored,
generated, produced or released on, in, under or about the Leased
Premises or on, in, under or about any other property owned by
Landlord, including without limitation [Phase II], which may
migrate or otherwise be released into or onto the Leased Premises
or the groundwater or soil thereunder. If Landlord, its agents,
employees, contractors or representatives breach any
representation, warranty or obligation set forth in this
Section 11.6, or if the presence of Hazardous Material in, on,
under or about the Leased Premises caused or permitted by
Landlord, its agents, predecessors in interest, employees,
contractors or representatives results in contamination of the
Leased Premises or adjacent property or groundwater, then
Landlord shall indemnify, defend and hold Tenant harmless from
any and all claims, judgments, damages, penalties, fines, costs,
liabilities and losses (including, without limitation, any
interference with, damage to, or loss of Tenant's business in or
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on the Leased Premises, any diminution in value of its leasehold
interest in the Leased Premises and/or its interest in the
Improvements and sums paid in settlement of claims, attorneys'
fees, consultant fees and expert fees) which arise as a result of
such contamination. This indemnification of Tenant by Landlord
includes, without limitation, costs incurred in connection with
any investigation of site conditions, or any cleanup,
remediation, removal or restoration work required by any federal,
state or local governmental agency because of Hazardous Material
present in the soil or groundwater on or under the Leased
Premises or adjacent property. The terms of this Section 11.6
shall survive the expiration or earlier termination of this
Lease,
ARTICLE 12. MAINTENANCE AND REPAIR
Tenant shall maintain and repair the Leased Premises in
reasonably good order and condition, free of unreasonable
accumulation of dirt and rubbish.
ARTICLE 13. COMPLIANCE WITH LAWS
Tenant shall, at its sole cost and expense, comply with
the requirements of all Laws now in force or which may hereafter
be in force pertaining to the Leased Premises or Tenant's use
thereof (other than defects or noncompliance relating to or
resulting from any breach by Landlord of its covenants,
obligations, representations or warranties hereunder, in which
case Landlord shall be responsible for immediate cure of such
breach and the cost of such compliance). Tenant shall not
commit, or suffer to be committed, any waste upon the Leased
Premises, or any nuisance.
ARTICLE 14. COOPERATION
Landlord shall take all acts necessary to preserve
Tenant's ability to conduct its operations on the Leased
Premises. Landlord's obligation under the preceding sentence
shall include executing all approvals, applications, permits,
licenses or the like which are necessary and/or, in the Tenant's
opinion, helpful for the conduct of Tenant's business on the
Leased Premises. Further, and in addition to the foregoing,
Landlord shall testify at all public hearings in connection with
Tenant's lawful conduct of its activities on the Leased Premises.
Further, Landlord shall exercise its best efforts to obtain the
support and consent of all property owners whose property is
located within one mile of the Leased Premises to the conduct of
Tenant's business on the Leased Premises.
"
ARTICLE 15. ENTRY AND INSPECTION
Upon prior written reasonable notice to, and scheduling
with, Tenant (except in the case of an emergency), Tenant shall
permit Landlord and its agents to enter into and upon the Leased
Premises at all reasonable times for the purpose of inspecting
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[L21SS94.4)
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the same. Landlord shall take no action which shall interfere
with Tenant's use of or business at the Leased Premises. Tenant
shall permit Landlord or its agents, at any time within one
hundred eighty (180) days prior to the expiration of this Lease,
during normal business hours, and upon prior notice to and
scheduling with Tenant, to enter upon the Leased Premises and
exhibit same to prospective tenants.
ARTICLE 16. DAMAGE AND DESTRUCTION
16.1 Restoration of Damaae. In case of damage to or
destruction of the Improvements, Tenant shall promptly give
written notice thereof to Landlord, and Tenant shall, at Tenant's
sole cost and expense, restore, repair, replace, rebuild or alter
the same as nearly as possible to their condition and character
immediately prior to such damage or destruction. Such
restoration, repairs, replacements, rebuilding or alterations
shall be commenced within one hundred twenty (120) days from the
date of the occurrence of such damage or destruction, which time
shall be extended by a time commensurate with any delays due to
adjustment of insurance, preparation of plans and specifications
and applications for zoning variances and rezoning, and shall
thereafter be prosecuted with reasonable diligence, unavoidable
delays excepted. Notwithstanding any contrary provision hereof,
if the cost of the restoration of the Improvements shall exceed
the insurance proceeds available to Tenant to perform such
restoration, or if Tenant is not otherwise permitted to rebuild
or restore the Improvements, then upon written notice to Landlord
within one hundred twenty (120) days following the date of such
casualty (as extended by any delays in adjustment of insurance)
Tenant shall have the right to terminate this Lease. In the
event of such termination the Lease shall be terminated effective
thirty (30) days following the date of Tenant's termination
notice.
16.2 Effect on Lease. Anything herein to the contrary
notwithstanding, if during the last three (3) years of the Term
(as such Term may have been extended by an Extension Term), the
Improvements shall be so damaged by fire or otherwise that the
cost of replacement or restoration thereof shall exceed ten
percent (lOt) of the then replacement value of the Improvements
so damaged, then Tenant may elect to cancel this Lease on at
least thirty (30) days' notice, given within one hundred twenty
(120) days after such damage (as extended by any delays in
adjustment of insurance), and this Lease shall come to an end on
the date specified in such notice.
16.3 Abatement of Rent. On and after the date of any
casualty or damage to the Improvements, Tenant shall be entitled
to an abatement of Minimum Rent continuing during the period and
in the proportion that such casualty or damage interferes with
Tenant's ability to carry on its business in and on the Leased
Premises.
/:F~ (
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[L21SS94.41
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ARTICLE 17. ASSIGNMENT AND SUBLETTING
Tenant may assign, conveyor encumber its interest in
this Lease and the Improvements, or sublease the Leased Premises
or a part thereof, upon written notice to Landlord. Any assignee
or sublessee hereunder shall agree to perform all of the terms,
covenants and conditions to be performed by Tenant under this
Lease, so far as applicable to the portion of the Leased Premises
which is the subject of such transaction. All subleases shall
provide that they shall be subject and subordinate to the
provisions of this Lease. Tenant shall not be released from
liability for the continued performance of the terms and
provisions of this Lease to be performed on the part of Tenant;
provided that Landlord shall release Tenant from any further
liability or obligation under this Lease effective upon an
assignment of the Lease by Tenant to (i) an assignee approved by
Landlord, which approval shall not be unreasonably conditioned,
withheld or delayed, or (ii) an assignee which owns or which is
owned by Tenant, any partnership where Tenant or a corporate
affiliate is a general partner, any entity which is owned by
Tenant's parent company, or any limited liability company of
which Tenant is a member. Landlord's approval of an assignee as
described in clause (i) of the immediately preceding sentence
shall be based upon whether the assignee has a financial
condition commensurate with the liability to be assumed hereunder.
by such assignee. If Landlord reasonably denies its approval of
a proposed assignee described in clause (i) above Tenant shall
nonetheless have the right to consummate the proposed assignment,
but Tenant shall not thereby be released from its obligations and
liabilities hereunder.
ARTICLE 18. DEFAULTS; REMEDIES
18.1 Defaults. The occurrence of anyone or more of
the following events shall constitute a material default and
breach of this Lease by Tenant:
18.1.1 Tenant's failure to make any payment of
Rent or any other sum due under this Lease, as and when due,
where such failure shall continue for a period of ten (10) days
after written notice from Landlord that such amount was not paid
on the date such payment is due; or
18.1.2 Tenant's failure to observe or perform
any of the material covenants, conditions or provisions of this
Lease to be observed or performed by Tenant, other than a
monetary default as described in Subsection 18.1.1 above, where
such failure shall continue for a period of thirty (30) days
after delivery of written notice thereof from Landlord to Tenant;
provided, however, that if the nature of such default reasonably
requires more than thirty (30) days to cure, then Tenant shall
not be in default in the event that Tenant shall commence cure of
such breach within the foregoing thirty (30) day period and
diligently prosecutes such cure to completion.
[1215594.4J
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18.2 Remedies Upon Tenant's Default. Upon the
occurrence of any event of default by Tenant, Landlord shall have
any and all remedies available to Landlord at law or in equity,
provided that Landlord shall have the obligation to mitigate all
damages which may be sustained or incurred by Landlord in
connection with or arising from a default or breach by Tenant
under this Lease.
18.3 Landlord's Default. Landlord shall be in default
under this Lease as a result of a breach by Landlord of any
obligation required to be performed hereunder if Landlord fails
to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying such default;
provided, however, if the nature of Landlord's default is curable
but more than thirty (30) days are reasonably required for its
performance, then Landlord shall not be in default under this
Lease, if it shall commence such performance within such thirty
(30) day period and thereafter diligently pursues the same to
completion. Upon any default by Landlord under this Lease,
Tenant may exercise any or all of its rights and remedies
provided at law and/or in equity, including offset of Tenant's
obligation to pay Rent hereunder and/or the termination of this
Lease.
18.4 Waiver of Default. No waiver by Landlord or
Tenant of any violation or breach of any of the terms, provisions
and covenants herein contained shall be deemed or construed to
constitute a waiver of any other or later violation or breach of
the same or any other of the terms, provisions, and covenants
herein contained. Forbearance by Landlord or Tenant in
enforcement of one or more of the remedies herein provided upon
an event of default shall not be deemed or construed to
constitute a waiver of such default. The acceptance of any
payment hereunder by Landlord or Tenant following the occurrence
of any default, whether or not known to the non-defaulting party,
shall not be deemed a waiver of any such default, except only a
default in the payment of any Rent so accepted.
ARTICLE 19. ATTORNEYS' FEES
If either Landlord or Tenant shall commence any legal
proceedings against the other with respect to any of the terms
and conditions of this Lease, the nonprevailing party shall pay
to the other all expenses of said litigation, including, without
limitation, reasonable attorneys' fees as may be fixed by the
court having jurisdiction over the matter. A party shall be
determined to be the prevailing party if its proposal for the
resolution of any dispute is the closer to that adopted by the
court.
ARTICLE 20. HOLDING OVER
Any holding over after the expiration of the Term of
this Lease, with the consent of the Landlord, shall be construed
to be a tenancy from month to month, cancelable upon thirty (30)
[L215594.4)
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days' written notice upon terms and conditions as existed during
the last year of the term hereof.
ARTICLE 21. NOTICES
Wherever in this Lease it shall be required or
permitted that notice be given, such notice shall be in writing
and shall be deemed to have been duly given if sent by certified
mail, return receipt requested, personal delivery or recognized
overnight courier service to the address set forth below, or to
such other address as may be provided in writing from time to
time:
If to Landlord:
Los Alisos Company
19800 MacArthur Boulevard
Suite 820
Irvine, California 92715
Attn: Neville Pearson
If to Tenant:
MCA Concerts, Inc.
100 Universal City Plaza
Universal City, California 91608
Attn: Jay Marciano
With a copy to:
MCA Concerts, Inc.
100 Universal City Plaza
Universal City, California 91608
Attn: Adam Friedman, Esq.
Notices shall be effective on the date of receipt or the date
that receipt is refused.
ARTICLE 22. SUCCESSORS IN INTEREST
The covenants herein contained shall apply to and bind
the heirs, successors, executors, administrators and assigns of
all the parties hereto.
ARTICLE 23. FORCE MAJEURE
If either party hereto shall be delayed or prevented
from the performance of any act required hereunder by reason of
acts of God, strikes, lockouts, labor troubles, inability to
procure materials, restrictive governmental laws or regulations
or other cause without fault and beyond the reasonable control of
the party obligated, performance of such act shall be excused for
the period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period
of such delay.
ARTICLE 24. PARTIAL INVALIDITY
If any term, covenant, condition or provision of this
Lease is held by a court of competent jurisdiction to be invalid,
[L21SS94.4)
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void or unenforceable, the remainder of the provisions hereof
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, unless same results in
a restriction or prohibition on Tenant's use or enjoyment of the
Leased Premises.
ARTICLE 25. MARGINAL CAPTIONS
The various headings and
grouping of the provisions of this
and paragraphs are for the purpose
not be considered a part hereof.
numbers herein and the
Lease into separate articles
of convenience only and shall
ARTICLE 26.
TIME
Time is of the essence of this Lease.
ARTICLE 27. ESTOPPEL CERTIFICATE
Each party agrees, within ten (10) days following
written request, to deliver an estoppel certificate, addressed to
any proposed mortgagee, purchaser and/or prospective assignee or
sublessee certifying (i) the dates of commencement and
termination of this Lease, (ii) the amounts of Minimum Rent,
(iii) that this Lease is in full force and effect (if such be the
case) and (iv) that there are no differences, offsets or
defaults, or noting such differences, offsets or defaults as they
actually exist. The certifying party shall be liable for any
loss or liability resulting from any incorrect information
certified, and the party to whom such state~ent is addressed
shall have the right to rely on such estoppel certificate and
financial statement.
ARTICLE 28. CONDEMNATION
In the event that the Leased Premises, Site,
Improvements or any essential access to the Leased Premises, or
any portion thereof, is taken by condemnation, eminent domain or
transferred under threat of condemnation or eminent domain, then
Tenant may terminate this Lease on thirty (30) days' written
notice delivered by Tenant to Landlord. Any award or payment for
the taking of all or any part of the Leased Premises shall be the
property of. Landlord, provided that Tenant shall be entitled to
any portion of such award or payment made as compensation for its
leasehold interest or any diminution in value thereof and, if
this Lease is not terminated, Tenant shall be entitled to all
proceeds required for the restoration of the Leased Premises. In
addition, Tenant shall be entitled to the entire amount of any
award made as compensation for taking or damage of the
Improvements, or any portion thereof, Tenant's personal property
(stock, equipment and fixtures), loss of goodwill and relocation
benefits. The value of such items shall be calculated as if
Tenant's leasehold interest had continued for the full originally
scheduled Term of the Lease, and all Extension Terms. Any issue
of fact between Landlord and Tenant respecting this Article 28
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[L21S594.4)
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(other than those that are determined by the condemnation court
or commissioner or other body authorized to make the award) shall
be resolved by arbitration pursuant to the provisions of Article
40, below.
ARTICLE 29. LANDLORD/TENANT RELATIONSHIP
The relationship of the parties hereto is solely that
of landlord and tenant and under no circumstances shall the
parties be considered as partners or joint venturers.
ARTICLE 30. OBLIGATIONS AS COVENANTS
Each obligation of any party hereto expressed in this
Lease, even though not expressed as.a covenant, is to be
considered a covenant for all purposes.
ARTICLE 31. ADDITIONAL DOCUMENTS
The parties hereto agree to execute, acknowledge and
deliver such further documents as may be necessary or proper to
carry out the purpose and intent of this Lease.
ARTICLE 32. RECORDATION
Tenant shall have the right to record a memorandum of
this Lease. Upon the expiration or earlier termination of the
Term of this Lease, Tenant shall execute and deliver in
recordable form a quitclaim deed in and to all of Tenant's
interest in the Leased Premises.
ARTICLE 33. AUTHORITY
Each individual executing this Lease on behalf of
Landlord or Tenant represents and warrants that he or she is duly
authorized to execute and deliver this Lease on behalf of said
party, and that this Lease is binding upon said party in
accordance with its terms. Each party shall, within ten (10)
days following demand by the other party, deliver to the
requesting party appropriate corporate, partnership or other
documentation evidencing such party's authorized execution and
delivery of this Lease.
ARTICLE 34. BROKERS
Other than commissions owed by Landlord to Bitterlin
Companies, Inc., for which Landlord shall be solely responsible
and against which Landlord hereby indemnifies Tenant, each party
hereby represents and warrants that no real estate broker or
agent has represented or will represent it in this transaction
and that no broker's or finder's fees have been earned by a third
party. Each party shall indemnify, defend and hold harmless the
other party from and against all claims, liabilities, damages,
costs and expenses (including attorneys' fees) brought against or
incurred by the indemnified party arising from the indemnifying
(L21SS94.4]
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party's breach of the foregoing representation and warranty or
other failure to disclose the existence of a broker or agent
representing the indemnifying party.
ARTICLE 35. APPLICABLE LAW
This Lease shall be governed by and construed in
accordance with the laws of the State of California. Each of the
parties consents to the personal jurisdiction of the State of
California.
ARTICLE 36. QUIET ENJOYMENT
Tenant, upon paying the rentals and other payments
herein required from Tenant, and upon Tenant's performance of all
of the terms, covenants and conditions of this Lease on its part
to be kept and performed, may quietly have, hold and enjoy the
Leased Premises during the Term of this Lease without any
disturbance from Landlord or from any other person claiming by,
through or under Landlord.
ARTICLE 37. ENTIRE AGREEMENT
This Lease, including the exhibits, contains the entire
agreement between the parties pertaining to the subject matter
hereof and fully supersedes any and all prior representations,
agreements and understandings between the parties pertaining to
such subject matter. There are no oral agreements or implied
covenants between the parties with respect to the Leased Premises
or the subject matter of this Lease. No change in or amendment
to this Lease shall be valid unless set forth in writing and
signed by all of the parties after the execution of this Lease.
ARTICLE 38. ABATEMENT OF RENT
Notwithstanding any contrary provision of this Lease,
in the event that Tenant is prevented from using, and does not
use, the Leased Premises or a portion thereof, as a result of any
breach of this Lease by Landlord (an "Abatement Event"),
including, without limitation, (i) any interruption in Tenant's
quiet enjoyment of the Leased Premises by Landlord or a person or
entity claiming by or through Landlord, or (ii) any Hazardous
Materials located in, on, or about the Leased Premises or
underlying soil or groundwater in violation of Landlord's
covenants, representations and warranties set forth in Section
11.6 of this Lease, then Tenant shall give Landlord notice of
such Abatement Event, and all Rentals payable under this Lease
shall be abated or reduced, as the case may be, for such time
that Tenant continues to be so prevented from using, and does not
use, the Leased Premises or a portion thereof, in the proportion
that Tenant's use of or business on the Leased Premises is
impaired; provided, however, that in the event that Tenant is
prevented from using, and does not use, a portion of the Leased
Premises and the remaining portion of the Leased Premises is not
sufficient to allow Tenant to effectively conduct its business
1..2 - }c:?
[L21S594.4)
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187
therein, then for such time during which Tenant is so prevented
from effectively conducting its business thereon, all Rentals due
under this Lease for the entire Leased Premises shall be abated
for such time as Tenant continues to be so prevented from using,
and does not use, the Leased Premises.
ARTICLE 39. SURRENDER OF LEASED PREMISES
Upon the expiration of the Term, Tenant shall quit and
surrender possession of the Leased Premises to Landlord. The
Site shall be surrendered in a neat and orderly condition, free
of debris. The Improvements existing on the Site as of the
Expiration Date shall be surrendered by Tenant to Landlord in
their then existing as-is condition, without representation or
warranty of any kind or nature.
ARTICLE 40. ARBITRATION
40.1 GENERAL SUBMITTALS TO ARBITRATION. THE SUBMITTAL
OF ALL MATTERS TO ARBITRATION IN ACCORDANCE WITH THE TERMS OF
THIS ARTICLE 40 IS THE SOLE AND EXCLUSIVE METHOD, MEANS AND
PROCEDURE TO RESOLVE ANY AND ALL CLAIMS, DISPUTES OR
DISAGREEMENTS ARISING UNDER THIS LEASE, INCLUDING, BUT NOT
LIMITED TO, ANY MATTER RELATING TO DEFAULTS BY LANDLORD OR
TENANT, EXCEPT FOR (I) ALL CLAIMS BY EITHER PARTY WHICH ARE
PRIMARILY FOUNDED UPON MATTERS OF FRAUD, WILFUL MISCONDUCT, BAD
FAITH OR ANY OTHER ALLEGATIONS OF TORTIOUS ACTION, AND SEEK THE
AWARD OF PUNITIVE OR EXEMPLARY DAMAGES, OR (II) CLAIMS FOR
RESTRAINING ORDERS OR OTHER INJUNCTIVE RELIEF. THE PARTIES
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO THE CONTRARY AND
SHALL AT ALL TIMES CONDUCT THEMSELVES IN STRICT, FULL, COMPLETE
AND TIMELY ACCORDANCE WITH THE TERMS OF THIS ARTICLE 40 AND ALL
ATTEMPTS TO CIRCUMVENT THE TERMS OF THIS ARTICLE 40 SHALL BE
ABSOLUTELY NULL AND VOID AND OF NO FORCE OR EFFECT WHATSOEVER.
AS TO ANY MATTER SUBMITTED TO ARBITRATION (EXCEPT WITH RESPECT TO
THE PAYMENT OF MONEY) TO DETERMINE WHETHER A MATTER WOULD, WITH
THE PASSAGE OF TIME, CONSTITUTE A DEFAULT UNDER THIS LEASE, SUCH
PASSAGE OF TIME SHALL NOT COMMENCE TO RUN UNTIL ANY SUCH
AFFIRMATIVE ARBITRATED DETERMINATION, AS LONG AS IT IS
SIMULTANEOUSLY DETERMINED IN SUCH ARBITRATION THAT THE CHALLENGE
OF SUCH MATTER AS A POTENTIAL DEFAULT BY TENANT OR LANDLORD, AS
THE CASE MAY BE, WAS MADE IN GOOD FAITH. AS TO ANY MATTER
SUBMITTED TO ARBITRATION WITH RESPECT TO THE PAYMENT OF MONEY, TO
DETERMINE WHETHER A MATTER WOULD, WITH THE PASSAGE OF TIME,
CONSTITUTE A DEFAULT UNDER THIS LEASE, SUCH PASSAGE OF TIME SHALL
NOT COMMENCE TO RUN IN THE EVENT THAT THE PARTY WHICH IS
OBLIGATED TO MAKE THE PAYMENT DOES IN FACT MAKE THE PAYMENT TO
THE OTHER PARTY. SUCH PAYMENT CAN BE MADE "UNDER PROTEST," WHICH
SHALL OCCUR WHEN SUCH PAYMENT IS ACCOMPANIED BY A GOOD FAITH
NOTICE STATING THE REASONS THAT THE PARTY HAS ELECTED TO MAKE A
PAYMENT UNDER PROTEST. SUCH PROTEST WILL BE DEEMED WAIVED UNLESS
THE SUBJECT MATTER IDENTIFIED IN THE PROTEST IS SUBMITTED TO
ARBITRATION AS SET FORTH IN THIS ARTICLE 40.
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[L215594. 4]
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40.2 RETIRED JUDGES. ANY DISPUTE TO BE ARBITRATED
PURSUANT TO THE PROVISIONS OF THIS ARTICLE 40 SHALL BE DETERMINED
BY BINDING ARBITRATION BEFORE A RETIRED JUDGE OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA, OR A RETIRED JUDGE FROM THE
CALIFORNIA COURT OF APPEAL (THE "ARBITRATOR"). SUCH ARBITRATION
SHALL BE INITIATED BY THE PARTIES, OR EITHER OF THEM, WITHIN TEN
(10) DAYS AFTER EITHER PARTY SENDS WRITTEN NOTICE (THE
"ARBITRATION NOTICE") OF A DEMAND TO ARBITRATE BY REGISTERED OR
CERTIFIED MAIL TO THE OTHER PARTY. THE ARBITRATION NOTICE SHALL
CONTAIN A DESCRIPTION OF THE SUBJECT MATTER OF THE ARBITRATION,
THE DISPUTE WITH RESPECT THERETO, THE AMOUNT INVOLVED, IF ANY,
AND THE REMEDY OR DETERMINATION SOUGHT. THE PARTIES SHALL
THEREUPON SELECT A RETIRED JUDGE FROM EITHER THE SUPERIOR COURT
OF CALIFORNIA OR THE CALIFORNIA COURT OF APPEAL TO SERVE AS THE
ARBITRATOR. IF THE PARTIES ARE UNABLE TO PROMPTLY AGREE ON THE
IDENTITY OF THE ARBITRATOR, THEN THE RETIRED JUDGE WHICH SHALL
SERVE AS ARBITRATOR SHALL BE SELECTED BY THE PRESIDING JUDGE OF
THE LOS ANGELES COUNTY SUPERIOR COURT. UPON SELECTION OF THE
ARBITRATOR, THE PARTIES' DISPUTE SHALL BE RESOLVED BY BINDING
ARBITRATION UNDER THE COMMERCIAL ARBITRATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT.
40.3 ARBITRATION PROCEDURE.
40.3.1 PRE-DECISION ACTIONS. THE ARBITRATOR
SHALL SCHEDULE A PRE-HEARING CONFERENCE TO RESOLVE PROCEDURAL
MATTERS, ARRANGE FOR THE EXCHANGE OF INFORMATION, OBTAIN
STIPULATIONS, AND NARROW THE ISSUES. THE PARTIES WILL SUBMIT
PROPOSED DISCOVERY SCHEDULES TO THE ARBITRATOR AT THE PRE-HEARING
CONFERENCE. THE SCOPE AND DURATION OF DISCOVERY WILL BE WITHIN
THE SOLE DISCRETION OF THE ARBITRATOR. THE ARBITRATOR SHALL HAVE
THE DISCRETION TO ORDER A PRE-HEARING EXCHANGE OF INFORMATION BY
THE PARTIES, INCLUDING, WITHOUT LIMITATION, PRODUCTION OF
REQUESTED DOCUMENTS, EXCHANGE OF SUMMARIES OF TESTIMONY OF
PROPOSED WITNESSES, AND EXAMINATION BY DEPOSITION OF PARTIES AND
THIRD-PARTY WITNESSES. THIS DISCRETION SHALL BE EXERCISED IN
FAVOR OF DISCOVERY REASONABLE UNDER THE CIRCUMSTANCES.
40.3.2 THE DECISION. THE ARBITRATION SHALL BE
CONDUCTED IN LOS ANGELES, CALIFORNIA. ANY PARTY MAY BE
REPRESENTED BY COUNSEL OR OTHER AUTHORIZED REPRESENTATIVE. IN
RENDERING A DECISION(S), THE ARBITRATOR SHALL DETERMINE THE
RIGHTS AND OBLIGATIONS OF THE PARTIES ACCORDING TO THE
SUBSTANTIVE AND PROCEDURAL LAWS OF CALIFORNIA AND THE TERMS AND
PROVISIONS OF THIS LEASE. THE ARBITRATOR'S DECISION SHALL BE
BASED ON THE EVIDENCE INTRODUCED AT THE HEARING, INCLUDING ALL
LOGICAL AND REASONABLE INFERENCES THEREFROM. THE ARBITRATOR MAY
MAKE ANY DETERMINATION, AND/OR GRANT ANY REMEDY OR RELIEF THAT IS
JUST AND EQUITABLE. THE DECISION MUST BE BASED ON, AND
ACCOMPANIED BY, A WRITTEN STATEMENT OF DECISION EXPLAINING THE
FACTUAL AND LEGAL BASIS FOR THE DECISION AS TO EACH OF THE
PRINCIPAL CONTROVERTED ISSUES. THE DECISION SHALL BE CONCLUSIVE
AND BINDING, AND IT MAY THEREAFTER BE CONFIRMED AS A JUDGMENT BY
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, SUBJECT ONLY TO
CHALLENGE ON THE GROUNDS SET FORTH IN CALIFORNIA CODE OF CIVIL
(L215594.41
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PROCEDURE SECTION 1286.2. THE VALIDITY AND ENFORCEABILITY OF THE
ARBITRATOR'S DECISION IS TO BE DETERMINED EXCLUSIVELY BY THE
CALIFORNIA COURTS PURSUANT TO THE PROVISIONS OF THIS LEASE. THE
ARBITRATOR MAY AWARD COSTS, INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES, AND EXPERT AND WITNESS COSTS, TO THE PREVAILING
PARTY, IF ANY, AS DETERMINED BY THE ARBITRATOR IN THE
ARBITRATOR'S DISCRETION. THE ARBITRATOR'S FEES AND COSTS SHALL
BE PAID BY THE NON-PREVAILING PARTY AS DETERMINED BY THE
ARBITRATOR IN THE ARBITRATOR'S DISCRETION. A PARTY SHALL BE
DETERMINED BY THE ARBITRATOR TO BE THE PREVAILING PARTY IF ITS
PROPOSAL FOR THE RESOLUTION OF DISPUTE IS THE CLOSER TO THAT
ADOPTED BY THE ARBITRATOR.
ARTICLE 41. CURE RIGHTS
All covenants and agreements to be performed by Tenant
or Landlord under this Lease shall be performed by Tenant or
Landlord, as the case may be, at the applicable party's sole cost
and expense. If either party shall fail to perform any of its
obligations under this Lease, within a reasonable time after such
performance is required hereunder, the other party may, but shall
not be obligated to, after reasonable prior notice to the
defaulting party, make any such payment or perform any such act
on the defaulting party's part without waiving any of its other
rights or remedies in connection with such default. All amounts
expended by the non-defaulting party shall be reimbursed to the
non-defaulting party by the defaulting party within ten (10) days
after written demand from the non-defaulting party, with interest
at the then-prevailing prime or reference rate plus three percent
(3%) from the date such amount was incurred by the non-defaulting
party until the date of payment. In the case of a default by
Landlord, if Landlord fails to reimburse Tenant for any such
amounts within such ten (10) day period, then Tenant shall have
the right to offset such unpaid amounts against Rent payable
under this Lease.
ARTICLE 42. COVENANT AGAINST LIENS
Landlord and Tenant covenant and agree not to suffer or
permit any lien of mechanics or materialmen or others to be
placed against the Leased Premises with respect to work or
services claimed to have been performed for or materials claimed .
to have been furnished to the Leased Premises. In case of any
such lien attaching or notice of any such lien, the party
responsible for the creation of such lien covenants and agrees to
cause such lien to be immediately released and removed of record,
by bonding or payment.
ARTICLE 43. MORTGAGEE PROTECTIONS
This Article 43 is for the exclusive benefit of, and
its terms may only be enforced by, a Mortgagee (as defined below)
and its successors, assigns or participants. Mortgagee's rights
under this Article 43 shall supersede, and shall not be modified
or affected by, Landlord's rights under Article 18. Provided
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tL215594.4)
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that Landlord has received notice of the identity and address of
any such Mortgagee, Landlord hereby covenants and agrees to
faithfully perform and comply with the provisions of this Article
43. For purposes hereof, a "Mortgagee" shall mean the holder of
any deed of trust, mortgage and/or other real property lien
document executed by Tenant from time to time which encumbers all.
or any portion of Tenant's leasehold estate and/or its interest
in the Improvements (collectively, a "Mortgage").
43.1 No Termination. Except as expressly set forth in
this Lease, no action by Tenant or Landlord to cancel, surrender,
or modify the terms of this Lease shall be effective for any
purpose or binding on any person without the prior written
consent of each existing Mortgagee, which consent may be withheld
in any such Mortgagee's absolute discretion. Notwithstanding any
contrary provision of this Lease, no restrictions on assignment
of Tenant's interest in this Lease shall be applicable to:
(i) an assignment of this Lease at a foreclosure sale under a
Mortgage or under judicial foreclosure; (ii) an assignment made
to Mortgagee in lieu of foreclosure; or (iii) any subsequent
assignment by a Mortgagee if the applicable assignee is the
assignee under the assignment referred to in clause (i) above,
provided that in either such event such Mortgagee forthwith gives
notice to the Landlord in writing of any such assignment setting
forth the name and address of the assignee, the effective date of
such assignment and includes with such notice a copy of the
document by which such assignment was made and a document under
which such assignee expressly assumes and agrees to perform all
the other obligations of Tenant under this Lease; provided,
however, that the failure by any assignee described in clause (i)
to provide any such notice, assignment document or assumption
document to Landlord shall constitute a default by such assignee
under this Lease but shall not invalidate the transfer of
Tenant's estate to such assignee pursuant to the applicable
foreclosure sale. Any such assignee shall be liable to perform
the obligations of Tenant first arising from and after the date
of such assignment under this Lease (for which purpose a
reimbursement or indemnity obligation arising after such
assignment as the result of an event occurring prior to such
assignment shall be considered an obligation arising prior to
such assignment) only so long as such assignee holds title to
Tenant's estate, provided that upon any conveyance of title such
assignee expressly assumes and agrees to perform all the
obligations of Tenant under this Lease.
43.2 Provisions of Leasehold Mortaaae. Landlord hereby
agrees that a Mortgage, may, at the election of the Mortgagee,
include provisions which provide:
43.2.1 for an assignment of Tenant's share of
the net proceeds from any award or other compensation resulting
from a taking of the Leased Premises by condemnation;
43.2.2 for the entry of such Mortgagee upon the
Leased Premise during business hours, without notice to Landlord
(L21SS94. 4 J
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or Tenant, and for the entry of such Mortgagee upon the Leased
Premises during reasonable non-business hours, with reasonable
notice to Tenant, to view the state of the Leased Premises;
43.2.3 that a default by Tenant under this
Lease shall constitute a default under the Mortgage;
43.2.4 for an assignment of all or any portion
of Tenant's rights under this Lease, including without
limitation, Tenant's right, if any, to terminate, cancel, modify,
change, supplement, alter or amend this Lease;
43.2.5 for the foreclosure of the Mortgage
pursuant to a power of sale, by judicial proceedings or other
lawful means and the subsequent sale of the leasehold estate to
the purchaser at the foreclosure sale and a sale by such
purchaser if the purchaser is the Mortgagee;
43.2.6 for the appointment of a receiver,
irrespective of whether the Mortgagee accelerates the maturity of
all indebtedness secured by the Mortgage;
43.2.7 for the right of the Mortgagee or the
receiver to enter and take possession of the Leased Premises, to
manage and operate the same and to collect the subrentals, issues
and profits therefrom and to cure any default under the Mortgage
or any default by Tenant under this Lease; and
43.2.8 for an assignment of Tenant's right,
title and interest in and to any deposit of cash, securities or
other property which may be held to secure the performance of
covenants, conditions and agreements contained in this Lease, the
premiums for or dividends upon any insurance provided for the
benefit of any Mortgagee or required by the terms of this Lease,
as well as in all refunds or rebates of taxes or assessments upon
or other charges against the Leased Premises, whether paid or to
be paid.
43.3 Notices. If Landlord shall give any notice,
demand, election or other communication required or permitted to
be given hereunder, including, without limitation, a notice of a
Tenant default (hereinafter, collectively "Notices"), to Tenant,
Landlord shall give a copy of each such Notice to the Mortgagee
at the address designated by it and such Notice shall be
effective upon receipt at such address. No Notice given by
Landlord to Tenant shall be binding upon or affect said Mortgagee
unless a copy of said Notice shall be given to it pursuant to
this Section. In the case of an assignment of such Mortgage or
change in address of such Mortgagee, said assignee or Mortgagee
may change the address to which such copies of Notices are to be
sent by delivering written notice thereof to Landlord.
43.4 Performance of Covenants. Mortgagee shall have
the right to perform any term, covenant or condition and to
remedy any default by Tenant hereunder, and Landlord shall accept
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such performance with the same force and effect as if furnished
by Tenant; provided, however, that said Mortgagee shall not
thereby or hereby be subrogated to the rights of Landlord.
43.5 Deleqation to Mortqaqee. Tenant may delegate
irrevocably to Mortgagee the non-exclusive authority to exercise
any Qr all of Tenant's rights hereunder, but no such delegation
shall be binding upon Landlord unless and until either Tenant or
the Mortgagee shall give to Landlord a true copy of a written
instrument effecting such delegation. Such delegation of
authority may be effected by the terms of the Mortgage itself in
which case service upon Landlord of an executed counterpart or
conformed copy of said Mortgage, together with written notice
specifying the provisions therein which delegate such authority
to said Mortgagee, shall be sufficient to give Landlord notice of
such delegation.
43.6 Default bv Tenant. In the event of a default by
Tenant in the payment of any monetary obligation hereunder,
Landlord agrees not to terminate this Lease unless Landlord
provides written notice of such default to any Mortgagee and such
Mortgagee shall have failed to cure such default within fifteen
(15) business days following receipt by such Mortgagee of written
notice from Landlord that such default remained uncured following
the expiration of Tenant's cure period. In the event of a
default by Tenant in the performance or observance of any non-
monetary term, covenant, or condition to be performed by it
hereunder, Landlord agrees not to terminate this Lease unless
Landlord provides written notice of such default to any Mortgagee
and such Mortgagee shall have failed to cure such default within
thirty (30) days following receipt by such Mortgagee of written
notice from Landlord that such default remained uncured following
the expiration of Tenant's cure period; provided that, if such
default is curable by such Mortgagee without possession of the
Leased Premises but cure cannot reasonably be effected within
such 3D-day period, such 3D-day period shall be extended so long
as such Mortgagee promptly commences cure (in any event, within
such initial 3D-day period), and thereafter diligently prosecutes
such cure to completion; provided, however, that if such default
cannot practicably be cured by the Mortgagee without taking
possession of the Leased Premises, or if such default is not
susceptible of being cured by the Mortgagee, then Landlord shall
not terminate this Lease if and as long as the Mortgagee shall
institute foreclosure proceedings and diligently prosecute the
same to completion (or, in its absolute discretion, acquire
Tenant's estate hereunder by deed in lieu of foreclosure on or
before the date on which the foreclosure sale would otherwise
have occurred) and the default shall be deemed waived by Landlord
upon the completion of foreclosure proceedings or acquisition of
Tenant's estate by the Mortgagee; provided that, to the extent
that non-monetary defaults of Tenant exist at the time of such
acquisition which are capable of being cured by such transferee,
such transferee shall be obligated to commence such cure within
30 days following such acquisition and thereafter diligently
prosecute such cure to completion (except that such transferee
[L21S594.41
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shall in no event be obligated to fulfill any indemnity
obligation of Tenant that relates to an event which occurred
prior to such transferee's acquisition of Tenant's estate).
The Mortgagee shall not be required to institute or
diligently continue with foreclosure proceedings as provided
above if and when such default shall be cured. Nothing herein
shall preclude Landlord from exercising any of its rights or
remedies with respect to any other default by Tenant during any
period of such forbearance, but in such event the Mortgagee shall
have all of its rights provided for herein. A Mortgagee shall
not have any obligation to cure any default by Tenant under this
Lease.
43.7 Bankruptcv Events. In no event shall Landlord
have any right to terminate this Lease based on the bankruptcy or
insolvency of Tenant, as long as Rental and other charges are
being paid under this Lease.
43.8 New Lease. In the event of termination of this
Lease for any reason (including without limitation by reason of
any default by Tenant or by reason of the disaffirmance thereof
by a receiver, liquidator or trustee for Tenant or its property),
Landlord, if requested by any Mortgagee, will enter into a new
lease of the Leased Premises with the most senior Mortgagee
requesting a new lease, which new lease shall commence as of the
date of termination of this Lease and shall run for the remainder
of the Term, at the same Rent and upon the same terms,
provisions, covenants and agreements, and subject to the rights,
if any, of any parties then in possession of any part of the
Leased Premises, provided that such Mortgagee makes written
request upon Landlord for the new lease within 120 days after the
date of termination. The tenant under the new lease shall have
the same right, title and interest in and to the Leased Premises
and Improvements as Tenant had under this Lease immediately prior
to its termination. Any new lease made pursuant to this
paragraph shall be prior to any mortgage, deed of trust, or other
lien, charge, or encumbrance on Landlord's estate to which this
Lease was prior before the applicable termination hereof, and
shall be accompanied by a conveyance of title to the Improvements
(free of any mortgage, deed of trust, lien, charge, or
encumbrance .created by Landlord to which this Lease was prior
before the applicable termination hereof) for a term of years
equal to the term of the new lease, subject to the reversion in
favor of Landlord upon expiration or sooner termination of the
new lease. Upon execution and delivery of such new ground lease,
Landlord shall cooperate with the new ground tenant, at the sole
expense of said new ground tenant, in taking such action as may
be necessary to cancel and discharge this Lease and to remove
Tenant from the Leased Premises.
43.9 Further Amendments. Landlord and Tenant hereby
agree to cooperate in including in this Lease by suitable
amendment from time to time any provision which may reasonably be
requested by any proposed Mortgagee for the purpose of
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implementing the Mortgagee protection provisions contained in
this Lease and allowing such Mortgagee reasonable means to
protect or preserve the lien of the Mortgage on the occurrence of
a Tenant default. Landlord and Tenant each agree to execute and
deliver (and to acknowledge, if necessary, for recording
purposes) any agreement necessary to effectuate any such
amendment; provided, however, that any such amendment shall not
in any material respect adversely affect any rights of Landlord
under this Lease.
43.10 Personal Liabilitv of Mortaaaee. No Mortgagee
shall become personally liable for the performance or observance
of any covenants or conditions to be performed by Tenant unless
and until such Mortgagee becomes the owner of Tenant's estate
hereunder upon the exercise of any remedy provided for in its
Mortgage or enters into a new lease with Landlord pursuant to
Section 43.8. Thereafter, such Mortgagee shall be liable for the
performance and observance of such covenants and conditions only
so long as such Mortgagee owns such interest or is the tenant
under such new lease.
43.11 More Than One Mortaaaee. In the event two or
more Mortgagees each exercise their rights hereunder and there is
a conflict which renders it impossible to comply with all such
requests, the Mortgagee whose Mortgage would be senior in
priority if there were a foreclosure shall prevail. In the event
any Mortgagee pays any Rental or other sums due hereunder which
relate to periods other than during its actual ownership of
Tenant's estate, such Mortgagee shall be subrogated to any and
all rights which Tenant may assert against Landlord with respect
to such period.
43.12 Miscellaneous Additional Mortaaaee Protections.
43.12.1 The time available to a Mortgagee to
initiate foreclosure proceedings shall be deemed extended by the
number of days of delay occasioned by judicial restriction
against such initiation or occasioned by other circumstances
beyond the Mortgagee's reasonable control.
43.12.2 Landlord shall not accept a voluntary
surrender of this Lease at any time while any Mortgagee holds a
Mortgage on Tenant's estate.
43.12.3 Landlord and Tenant shall use their best
efforts to obtain an endorsement waiving the insurer's right of
subrogation against any. Mortgagee under policies of hazard
insurance carried pursuant to the terms of this Lease.
43.12.4 Nothing herein shall preclude Landlord
from exercising any of Landlord's rights or remedies with respect
to any other default by Tenant during any period of any such
forbearance, subject to the rights of any Mortgagee as herein
provided.
(L215594.4]
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43.13 Modifications. Consents and Waivers. Without
limiting the generality of Section 43.1, while any Mortgage
remains in effect, neither Landlord nor Tenant shall, without the
applicable Mortgagee's prior written consent, (a) amend,
supplement, terminate or otherwise modify this Lease; or (b)
accept (and/or act in reliance on) the release, relinquishment or
waiver by the other party to this Lease of any right, or the
grant by the other party of any approval or consent, with respect
to this Lease. Any such termination, modification, acceptance or
other action taken without such prior consent shall, at any such
Mortgagee's option, be void.
ARTICLE 44. PURCHASE OPTION
44.1 Ootion Notice. Landlord hereby grants to Tenant
the right and option to purchase the Leased Premises (the
"Option") on the terms and conditions set forth in this Article
44 by delivering written notice to Landlord of such exercise (the
"Option Notice") at any time during the Term of the Lease.
44.2 Escrow. Within thirty (30) days after the date of
the Option Notice, Landlord and Tenant shall proceed to open an
escrow for the purchase and sale of the Leased Premises (the
"Escrow") with an escrow company reasonably acceptable to both
Landlord and Tenant ("Escrow Holder") by delivering a fully
executed copy of a definitive Purchase and Sale Agreement and
Joint Escrow Instructions ("Purchase Agreement") to Escrow
Holder. The Purchase Agreement shall incorporate the terms and
provisions set forth in this Article 44. The close of Escrow
shall occur on the date (the "Closing Date") which is sixty (60)
days after the date of the Option Notice, provided that the
Closing Date shall be extended, if necessary, until thirty (30)
days after the determination of the purchase price pursuant to
the provisions of Section 44.3 below.
44.3 Purchase Price. The purchase price for the Leased
Premises shall be equal to the fair market value of the Leased
Premises as of the date of the Option Notice. Such fair market
value shall equal the lesser of (i) the fair market value of the
Leased Premises taking into consideration the existence of the
remaining leasehold interest evidenced by this Lease, and (ii)
the fair market value of the Leased Premises assuming that this
Lease, including all terms and provisions set forth herein, was
not in existence. In no event shall such fair market value
include any value attributable to the Improvements. Upon
Tenant's exercise of the Option, Landlord and Tenant shall
attempt to agree upon the fair market value of the Leased
Premises using their good-faith efforts. If Landlord and Tenant
fail to reach agreement within thirty (30) days following the
date of Tenant's exercise of the Option (the "Outside Agreement
Date"), then the fair market value shall be determined in
accordance with the following provisions:
44.3.1 Landlord and Tenant shall each appoint
one arbitrator who shall by profession be a real estate broker or
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appraiser who shall have been active over the five (5) year
period ending on the date of such appointment in the sale of
commercial properties in the Southern California area. Each such
arbitrator shall be appointed within thirty (30) days after the
Outside Agreement Date.
44.3.2 The two arbitrators so appointed shall,
within fifteen (IS) days of the day of the appointment of the
last appointed arbitrator, agree upon and appoint a third
arbitrator who shall be qualified under the same criteria set
forth above for qualification of the initial two arbitrators.
44.3.3 The third arbitrator shall, within
thirty (30) days of the appointment of the third arbitrator,
reach a decision as to the fair market value of the Leased
Premises, and shall notify Landlord and Tenant thereof.
44.3.4 If either Landlord or Tenant fails to
appoint an arbitrator within thirty (30) days after the Outside
Agreement Date, the arbitrator appointed by one of them shall
reach a decision, notify Landlord and Tenant thereof, and such
arbitrator's decision shall be binding upon Landlord and Tenant.
If the two arbitrators fail to agree upon and appoint a third
arbitrator, or both parties fail to appoint an arbitrator, then
the appointment of the third arbitrator or any arbitrator shall
be dismissed and the matter to be decided shall be forthwith
submitted to arbitration in accordance with the provisions of
Article 40 of this Lease.
44.3.5 ,Landlord shall be responsible for the
cost of the arbitrator appointed by Landlord, Tenant shall be
responsible for the cost of the arbitrator appointed by Tenant,
and Landlord and Tenant shall equally share the cost of the third
arbitrator and all other costs of the arbitration proceeding.
44.3.6 Notwithstanding any contrary provision
hereof, within ten (IO) days after the final determination of the
purchase price of the Leased Premises pursuant to the arbitration
proceeding set forth in this Section 44.3, Tenant shall have the
right to rescind its Option Notice. In the event of such
rescission, Landlord shall not be obligated to sell the Leased
Premises to Tenant pursuant to this Article 44, nor shall Tenant
be obligated to purchase the Leased Premises from Landlord,
provided that such rescission shall not preclude Tenant's
exercise of the Option at a later date during the Term in
accordance with the provisions of this Article 44.
44.4 Title. Landlord shall convey fee title to the
Leased Premises to Tenant subject only to the Permitted
Exceptions and any other exceptions to title placed upon the
Leased Premises during the Term at the request of Tenant. Title
to the Leased Premises shall be conveyed by Landlord to Tenant by
grant deed, and as a condition precedent to Tenant's obligation
to close Escrow, Tenant shall receive an ALTA Owner's Policy of
Title Insurance (with any endorsements requested by Tenant)
(L215594.4]
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issued by a title company selected by Tenant, insuring Tenant's
title to the Leased Premises in an amount equal to the purchase
price, subject only to the Permitted Exceptions and other title
exceptions placed upon the Leased Premises during the Term at the
request of Tenant.
44.5 Cost and Exoenses. Landlord shall pay the premium
for the issuance of a CLTA Owner's Title Policy, all documentary
transfer and other taxes imposed in connection with the
conveyance of the Leased Premises to Tenant, one-half (1/2) of
all Escrow fees and costs, and any document recording charges
imposed in connection with the sale of the Leased Premises to
Tenant. Tenant shall pay the additional premium imposed in the
event that Tenant desires to obtain an ALTA Owner's Title Policy
(in excess of the premium for a CLTA Title Policy) and title
endorsements, and one-half (1/2) of all Escrow fees and costs.
All other fees and costs to close Escrow shall be apportioned
between Landlord and Tenant in accordance with the customary
practice for comparable real estate transactions in the County in
which the Leased Premises is located.
ARTICLE 45. RIGHT OF FIRST REFUSAL
Landlord hereby grants Tenant a right of first refusal
to purchase the Leased Premises. If at any time during the Term
(including any Extension Term) Landlord desires to sell, convey
or otherwise transfer the Leased Premises or any interest
therein, then prior to entering into any such transaction,
Landlord shall first notify Tenant in writing of the identity of
Landlord's proposed transferee and the terms and conditions of
the proposed transaction ("Landlord's Sale Notice"). Landlord
shall have the right to deliver a Landlord's Sale Notice only if
Landlord shall have received an offer to purchase the Leased
Premises by a ready, willing, and able bona fide third party of
requisite financial capability. Landlord shall accompany
Landlord's Sale Notice with a copy of a signed purchase offer
received from such prospective buyer. Tenant shall have a
twenty (20) day period following the receipt by Tenant of
Landlord's Sale Notice to notify Landlord of its agreement to
purchase the Leased Premises from Landlord on the terms and
provisions set forth in Landlord's Sale Notice. In the event
that Tenant does not accept the terms and provisions set forth in
Landlord's Sale Notice or otherwise fails to respond to
Landlord's Sale Notice within the foregoing twenty (20) day
period, then Landlord shall have the right during the ninety (90)
day period following the date of Landlord's Sale Notice to
consummate a sale of the Leased Premises to the party described
in Landlord's Sale Notice on terms and conditions no more
favorable to such party than those set forth in Landlord's Sale
Notice: In the event that Landlord shall not consummate such
sale within such ninety (90) day period or if Landlord desires to
convey the Leased Premises to another party (regardless of the
terms) and/or to convey the Leased Premises on terms more
favorable to a transferee than those set forth in Landlord's Sale
Notice, then prior to consummating any such transaction Landlord
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shall again present the identity of the proposed transferee and
the terms and provisions of the proposed transaction 'to Tenant in
accordance with the provisions of this Article 45 prior to
consummating any such transaction. Upon Landlord's conveyance of
the Leased Premises to an unaffiliated third party (as affiliate
is defined in Article 46 below) in compliance with the provisions
of this Article 45, Tenant's rights under this Article 45 shall
terminate.
ARTICLE 46. NONCOMPETITION
Landlord agrees that during the Term neither Landlord,
nor any person or entity affiliated with Landlord shall develop,
construct, own, lease, operate, manage, or have any other
interest in, any other amphitheater or live entertainment project
within the geographic market in which the Leased Premises is
located, which geographic market the parties hereby acknowledge
and agree is the area within a 150 mile radius of the Leased
Premises. For purposes hereof, an affiliate of Landlord shall
mean (i) any person or entity which directly or indirectly owns
ten percent (10%) or more of the ownership interest of Landlord,
(ii) any entity in which Landlord directly or indirectly owns a
ten percent (10%) or more ownership interest, or (iii) any entity
a ten percent (10%) or more ownership interest in which is,
directly or indirectly, owned by a person or entity which also
owns, directly or indirectly, a ten percent (10%) or more
ownership interest in Landlord, or a partnership, joint venture
or other entity or business arrangement in which any of such
entities have an interest. Any assignee of Landlord's interest
in the Lease shall automatically be deemed to have agreed to
comply with and be bound by the provisions of this Article 46
upon accepting such assignment of Landlord's interest in this
Lease. Landlord agrees that neither it nor any of its affiliates
shall engage in any business within a one-mile radius of the
Leased Premises which business is competitive with goods and
services provided at the Leased Premises.
ARTICLE 47. PARKING PARCEL
Landlord and Tenant acknowledge that Tenant
contemplates the potential acquisition by Tenant of a leasehold
interest in an approximately five (5) acre parcel of land located
adjacent to the Leased Premises and generally depicted on
Exhibit C attached to this Lease (the "Parking Parcel"). If on
an "Applicable Termination Date" (as defined below) Tenant holds
a leasehold interest in the Parking Parcel, then Landlord shall
have an option to acquire such leasehold interest effective on
such Applicable Termination Date. For purposes hereof,
"Applicable Termination Date" shall mean the effective date of
the termination of the Lease due to the occurrence of one of the
following events: (i) Tenant's termination of the Lease pursuant
to the provisions of Section 2.2, (ii) the expiration of the Term
of the Lease at the end of the Initial Term, first Extension Term
or second Extension Term due to Tenant's failure to exercise one
or more remaining Extension Term options, or (iii) the
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[L215594.41
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termination of the Lease by Landlord due to a Tenant default
pursuant to the provisions of Article 18 hereof. Landlord shall
exercise its option to acquire any such leasehold interest held
by Tenant by delivery to Tenant of written notice of the exercise
of such option (I) not later than thirty (30) days following the
Termination Notice Date, if the Lease shall be terminated
pursuant to Section 2.2, (II) not later than thirty (30) days
following the last date for Tenant to exercise an Extension Term
option, if the Lease terminates due to Tenant's failure to
exercise an Extension Term option, or (III) thirty (30) days
prior to the effective termination date of the Lease if Landlord
terminates the Lease due to a Tenant default pursuant to Article
18. The purchase price for Landlord's acquisition of such
leasehold interest shall be the sum of (i) the fair market value
of such leasehold interest, plus (ii) the unamortized cost of all
improvements constructed by Tenant on the Parking Parcel.
Nothing in this Article 49 shall obligate Tenant to either
acquire or maintain a leasehold interest in the Parking Parcel,
and Tenant makes no representation, warranty or covenant that
Tenant shall own a leasehold interest in the Parking Parcel at an
Applicable Termination Date or any other time.
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(~O
IN WITNESS WHEREOF, the parties have entered into this
Lease as of the day and year first above written.
LANDLORD:
LOS ALISOS COMPANY,
a California general partnership
By: Los Alisos Development Company,
a California corporation
Its: General Partner
By
Its
By
Its
By: American Kukdong, Inc.,
a California corporation
Its: General Partner
By
Its
By
Its
TENANT:
MCA CONCERTS, INC.,
a California corporation
By:
Jay Marciano, President
[L215S94.4)
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I~I
ATTACHMENT I:lJr
Sublease
SUBLEASE
THIS SUBLEASE is made as of this
("Effective Date") by and between the City
( "Sublandlord"), and MCA Concerts, Inc., a
( "Subtenant") .
day of ,1995
of Chula Vista
California corporation
RECITALS
A. Los Alisos Company, a California general partnership
("Master Landlord") and Subtenant have entered into that certain
Ground Lease dated of even date herewith (the "Master Lease"),
for the lease by Master Landlord to Subtenant of certain real
property located in the City of Chula Vista, California and more
particularly described in the Master Lease (the "Leased
Premises") .
B. Pursuant to that certain Tri-party Agreement dated of
even date herewith, by and among Master Landlord, Subtenant and
sublandlord (the "Tri-party Agreement"), Subtenant has assigned
to Sublandlord and Sublandlord has accepted and assumed, all of
Subtenant's rights and obligations as Tenant under the Master
Lease, and Master Landlord has consented to such assignment and
assumption.
C. Sublandlord desires to sublease to Subtenant and
Subtenant desires to sublease from Sublandlord, the Leased
Premises upon and subject to the terms and conditions of this
Sublease.
D. Except as otherwise expressly provided herein, all
capitalized terms used in this Sublease, but not otherwise
defined herein, shall have the same meanings given such terms in
the Master Lease.
NOW, THEREFORE, in consideration of the terms, covenants and
conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Sublandlord and Subtenant agree as follows:
ARTICLE 1
DEMISE OF SUBLEASED PREMISES
Sublandlord hereby subleases to Subtenant, and Subtenant
hereby accepts the sublease from Sublandlord, of the Leased
Premises, upon and subject to the terms and conditions set forth
in this Sublease. Sublandlord expressly acknowledges and agrees
that the Leased Premises include the exclusive right to use and
enjoy the benefit of, and enforce, all easements and restrictive
covenants which are appurtenant to, run in favor of, or otherwise
benefit the Site, or any part thereof, and Sublandlord shall not
modify, amend, cancel or terminate any such easements or
restrictive covenants without Subtenant's prior written consent,
which consent may be withheld in subtenant's sole and absolute
[L217083.31
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discretion. Sublandlord shall take all actions necessary to
preserve the Master Lease, and Sublandlord shall take no action
which interferes with or adversely affects Subtenant's use and
enjoyment of the Leased Premises or the operation of its business
thereon.
ARTICLE 2
TERM
The initial term of this Sublease ("Sublease Initial Term")
shall commence on the commencement of the Initial Term of the
Master Lease and shall expire one day prior to the expiration of
the Initial Term of the Master Lease. Subtenant shall have three
(3) separate options to extend the Sublease Initial Term for a
period of ten (10) years each (each, a "Sublease Extension Term"
and collectively, the "Sublease Extension Terms") on the same
terms and conditions as provided in Section 2.4 of the Master
Lease, which terms and conditions are hereby incorporated into,
and made a part of, this Sublease in full in accordance with and
subject to the provisions of this Sublease. The "Sublease Term"
shall mean the Sublease Initial Term, as extended by any
applicable Sublease Extension Terms. Notwithstanding any
contrary provision of Section 2.4 of the Master Lease, as
incorporated herein, each Sublease Extension Term shall commence
on the day following the expiration the Sublease Initial Term, as
previously extended, and shall expire one (1) day prior to the
expiration of the corresponding Extension Term under the Master
Lease. In the event that Subtenant elects to exercise an option
to extend the Sublease Term pursuant to Section 2.4 of the Master
Lease, as incorporated herein, then Sublandlord agrees to timely
and properly exercise its corresponding option to extend the Term
of the Master Lease. Sublandlord agrees that Subtenant shall
have the right on behalf of Sublandlord to notify Master Landlord
of Sublandlord's exercise of each such applicable extension
option. Subtenant shall also have the right to terminate the
Sublease Term in accordance with the terms and provisions of
Sections 2.2 and 2.3 of the Master Lease, which Sections are
hereby incorporated into, and made a part of, this Sublease in
full in accordance with and subject to the provisions of the
Sublease. In the event that Subtenant elects to terminate this
Sublease prior to the "Sublease Rent: Commencement Date" (as
defined below) pursuant to the provisions of Section 2.3 of the
Master Lease, as incorporated herein, and in response Sublandlord
terminates the Master Lease pursuant to such Section 2.3, then
Sublandlord shall not require Subtenant to perform any more
extensive Site restoration work under Section 2.3.5 of the Master
Lease, as incorporated herein, than required of Sublandlord by
Master Landlord under the Master Lease.
{L217083.3]
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ARTICLE 3
SUBLEASE RENT
3.1 Sublease Rent Commencement Date. For purposes of this
Lease, the "Sublease Rent Commencement Date" shall have the same
meaning as the "Rent Commencement Date" under Section 3.1 of the
Master Lease, except that each reference to "Tenant" in such
Section 3.1 of the Master Lease shall mean and refer to the
"Subtenant."
3.2 Minimum Rent. Commencing on the Sublease Rent
Commencement Date and continuing during the Sublease Term,
Subtenant agrees to pay sublandlord "Sublease Minimum Rent" in an
amount equal to the "Minimum Rent" described in Section 3.2 of
the Master Lease. Sublandlord and Subtenant agree that the
Sublease Minimum Rent payable by Subtenant under this Sublease
shall be paid by Subtenant directly to Master Landlord and be
applied against Sublandlord's Minimum Rent obligations under
Section 3.2 of the Master Lease. The Sublease Minimum Rent
payable by Subtenant shall otherwise be payable at the same times
and in the same manner as provided in Section 3.2 of the Master
Lease.
3.3 particioation Rent. In addition to the Sublease
Minimum Rent payable by Subtenant pursuant to Section 3.2 above
and the "Sublease Supplemental Rent" payable by Subtenant
pursuant to Section 3.4 below, Subtenant shall pay "Sublease
Participation Rent" in the same amounts and at the same time as
the "Participation Rent" payable by Sublandlord to Master
Landlord under Section 3.3 of the Master Lease. For purposes of
the immediately preceding sentence, all references in Section 3.3
of the Master Lease to "Landlord," "Landlord's," "Tenant," and
"Tenant's" shall mean and refer to "Sublandlord,"
"Sublandlord's," "Subtenant" and "Subtenant's," respectively.
Sublandlord and Subtenant agree that the Sublease Participation
Rent payable by Subtenant hereunder shall be paid by Subtenant
directly to Master Landlord and be applied against the
Sublandlord's Participation Rent obligations under Section 3.3 of
the Master Lease.
3.4 Sublease Suoolemental Rent. [The "Assessment";
language to be provided by Jon Demorest.]
3.5 Net Charaes.
the payment of all "Net
as if all references to
Master Lease pertaining
"Subtenant."
Subtenant shall also be responsible for
Charges" described in the Master Lease,
"Tenant" in those provisions of the
to the payment of Net Charges referred to
ARTICLE 4
MASTER LEASE
4.1 General. Except to the extent of any inconsistency
with any term or provision of this Sublease, the covenants,
agreements, terms, provisions, representations, warranties and
(L211083.31
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conditions of the Master Lease are made a part of and
incorporated into this Sublease as if set forth herein in full;
provided that, for purposes of this Sublease, wherever in the
Master Lease the word "Landlord" or "Landlord's" is used such
references shall herein be deemed to mean "Sublandlord" or
"Sublandlord's," as applicable, and wherever in the Master Lease
the word "Tenant" or "Tenant's" is used, such references shall be
deemed to mean "Subtenant" or "Subtenant's," as applicable; and
provided further, wherever the term "Lease" is used in the Master
Lease, such reference shall be deemed to mean this "Sublease."
As between Sublandlord and Subtenant, in the event of a conflict
among the terms of the Master Lease, the terms of this Sublease,
and/or the terms of the Tri-Party Agreement, the Tri-Party
Agreement shall control over both the Master Lease and this
Sublease, and this Sublease shall control over the Master Lease.
4.2 Variations From Master Lease. In addition to the
general modifications set forth in Section 4.1, above, the
following modifications to the Master Lease shall be made for
purposes of incorporating the terms and provisions of the Master
Lease into this Sublease:
4.2.1 All references in the Master Lease to "Rent
Commencement Date" shall mean and refer to the "Sublease
Rent Commencement Date."
4.2.2 All references in the Master Lease to
"Initial Term" and "Term" shall mean and refer to the
"Sublease Initial Term" and "Sublease Term," respectively.
4.2.3 All references in the Master Lease to the
"Expiration Date" shall mean and refer to the last day of
the Sublease Term.
4.2.4 All references in the Master Lease to the
terms "Rental" or "Rent" shall mean and refer to "Sublease
Minimum Rent," "Sublease Participation Rent," "Sublease
Supplemental Rent" and "Net Charges" payable under this
Sublease.
4.2.5 All references in Sections 9.1 (Tenant's
Coverage During Construction of Improvements), 9.2 (Tenant's
Coverage After Completion of Construction of Improvements)
and 9.3 (Terms of policies) of the Master Lease to
"Landlord" shall mean and refer to both "Master Landlord and
Sublandlord."
4.2.6 Each reference to "Landlord" in each of
clauses (i) (I) and (i) (II) of Section 9.6 (Indemnity) of the
Master Lease shall mean and refer to "Master Landlord or
Sublandlord."
4.3 provisions of Master Lease Not Incorcorated into
sublease. Notwithstanding any contrary provision of this Article
[L2170SJ.3)
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4, the following provisions of the Master Lease shall not be
incorporated into this Sublease:
4.3.1 Section 1.1 (Demise of Leased Premises) and
Section 1.2 (Possession);
4.3.2 The first sentence of Section 11.6
(Landlord's Obligations);
4.3.3 Article 8 (Representations and Warranties);
4.3.4 Article 10 (Landlord's Insurance) ;
4.3.5 Article 14 (Cooperation) ;
4.3.6 Article 21 (Notices) ;
4.3.7 Article 34 (Brokers) ;
4.3.8 Article 44 (Purchase Option) and Article 45
(Right of First Refusal); Sublandlord's rights under such
Articles have been assigned to Subtenant pursuant to the
provisions of Article 10 of this Sublease; and
4.3.9
Article 46 (Noncompetition).
ARTICLE 5
IMPLEMENTATION OF MASTER LEASE AND SUBLEASE
5.1 Amendment of Master Lease. Sublandlord shall not amend
or modify the Master Lease without first obtaining the written
consent of Subtenant, which consent may be withheld by Subtenant
in its sole and absolute discretion.
5.2 Performance bv Sublandlord of its Obliaations Under
Master Lease and Sublease.
5.2.1 Sublandlord hereby covenants and agrees that
Sublandlord shall faithfully perform and discharge its
obligations under the Master Lease, and take all actions
reasonably necessary to preserve the Master Lease.
Sublandlord agrees to indemnify, defend and hold Subtenant
harmless from and against any claim, loss, damage, cost,
liability, charge or expense, which Subtenant may sustain or.
incur, or which may be brought against Subtenant by reason
of any default or breach by Sublandlord of its obligations
under the Master Lease; provided, however, Sublandlord shall
not be liable to Subtenant for any defaults by Sublandlord
under the Master Lease to the extent caused by a default by
Subtenant of its obligations under this sublease.
5.2.2 If sublandlord shall be in breach or default
under the Master Lease, Subtenant may (but shall not be
obligated to) cure the same, at the expense of Sublandlord,
(L217083.31
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in accordance with and subject to the provisions of, Article
41 of the Master Lease as incorporated herein pursuant to
Article 4 of this Sublease. This Subsection 5.2.2 is
subject to Subsection 5.2.1 above and nothing in this
Subsection 5.2.2 shall be construed so as to render
Sublandlord liable to Subtenant for any defaults by
Sublandlord under the Master Lease to the extent caused by a
default by Subtenant under this Sublease.
5.2.3 Notwithstanding any provision of this
Sublease to the contrary, Subtenant agrees that Sublandlord
shall not be liable to Subtenant for any breaches or
defaults in the performance by Sublandlord of its
obligations under this Sublease to the extent that the
performance by Sublandlord of its obligations under this
Sublease (i) is dependent upon the performance by Master
Landlord of Master Landlord's obligations under the Master
Lease, and (ii) Sublandlord's default hereunder is caused by
a default by Master Landlord of its obligations under the
Master Lease. Sublandlord agrees to provide Subtenant with
written notice of any and all breaches or defaults by Master
Landlord of its obligations under the Master Lease and
Sublandlord agrees that Subtenant shall have the sole and
exclusive right on behalf of Sublandlord to enforce any and
all of Sublandlord's rights and remedies against Master
Landlord under the Master Lease in connection with any such
breach or default by Master Landlord.
5.3 Aoorovals and Consents.
5.3.1 Whenever in this Sublease the Subtenant is
required to obtain the consent or approval of Sublandlord,
and Sublandlord is required to obtain the consent or
approval of Master Landlord under the Master Lease with
respect to the same matter, then Sublandlord agrees that
Subtenant shall have the right to submit such matter
directly to the Master Landlord for its consent or approval
and if the Master Landlord consents or gives its approval to
such matter, then Sublandlord shall conclusively be deemed
to have given its consent or approval to the same matter.
5.3.2 Whenever in the Master Lease the Sublandlord,
as tenant, has the right to consent to or approve any
matter, Sublandlord agrees that Subtenant shall have the
right to respond, on behalf of the Sublandlord, directly to
the Master Landlord with respect to such request, and
Subtenant's response to Master Landlord shall be
conclusively deemed to be the response of Sublandlord.
5.4 No Assianment bv sublandlord. Notwithstanding any
contrary provision of the Master Lease or this Sublease,
Sublandlord shall have no right to assign, transfer, hypothecate
or encumber its interest in the Master Lease and this Sublease,
or either of them, without first obtaining the prior written
{L217083.31
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consent of Subtenant, which consent Subtenant may withhold in its
sole and absolute discretion.
5.5 Abatement of Rent. Sublandlord agrees that if
Sublandlord shall be entitled under the Master Lease to abate any
payment of Rent or other payment due under the Master Lease, then
Rent or such other similar payment due under this Sublease shall
likewise be abated during the period and to the extent of such
abatement under the Master Lease. Sublandlord agrees to
preserve, pursue and enforce all of its rights under the Master
Lease to abate Rent.
5.6 Sublandlord's Riqht To Terminate. Sublandlord shall
not enter into any agreement with Master Landlord to terminate
the Master Lease unless Subtenant shall have first terminated
this Sublease. sublandlord shall not have the right to terminate
this Sublease pursuant to any of the provisions of the Master
Lease which are incorporated into this Sublease unless Master
Landlord concurrently exercises its right to terminate the Master
Lease. Moreover, Sublandlord agrees that Sublandlord shall not
exercise any right to terminate the Master Lease pursuant to its
rights as Tenant under such Master Lease (including, without
limitation, the termination rights set forth in Sections 2.2, 2.3
and 18.3 and Articles 16 and 28 of the Master Lease) unless
Subtenant first exercises its right to terminate this Sublease
pursuant to such provisions, as incorporated herein.
5.7 Notices. Sublandlord agrees to immediately give
Subtenant a copy of each and every notice, statement and other
written communication that (i) it may receive from Master
Landlord, or (ii) it may give to Master Landlord, pursuant to any
term or provision of the Master Lease.
ARTICLE 6
IMPROVEMENTS
Sublandlord and Subtenant acknowledge and agree that
Subtenant shall own the Improvements constructed by Subtenant on
the Leased Premises pursuant to the provisions of Article 5 of
the Master Lease, as incorporated herein, and sublandlord and
Subtenant's rights and obligations respecting such Improvements
shall be as set forth in such Article 5 of the Master Lease, as
incorporated pursuant to the provisions of Article 4 of this
Sublease. At the expiration or earlier termination of the
Sublease Term, Subtenant shall surrender the Leased Premises to
Sublandlord in the condition required under Article 39 of the
Master Lease, as modified to the extent applicable by Section 2.3
of the Master Lease, all as incorporated herein pursuant to
Article 4 of this Sublease.
(L21708J.3J
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Sublandlord's Representations And Warranties.
Sublandlord represents and warrants to Tenant as follows:
7.1.1 Sublandlord has the power and authority to
own its leasehold interest in the Leased Premises and to
consummate the transaction contemplated by this sublease.
By executing this Sublease, each person executing this
Sublease on behalf of Sublandlord represents and warrants
that they have the power and authority to act on behalf of
Sublandlord and that their execution of this Sublease on
behalf of Sublandlord has been authorized by appropriate
action.
7.1.2 This Sublease and all documents executed and
delivered in connection herewith are and shall be valid,
legally binding obligations of and enforceable against
Sublandlord in accordance with their terms.
7.1.3 Neither the execution and delivery of this
Sublease nor the incurrence by the Sublandlord of its
obligations hereunder conflict with or result in a breach of.
any termS, covenants or provisions of, or constitute a
default under, any contract, mortgage, deed of trust, loan,
agreement or instrument to which sublandlord may be a party,
or under any statute, ordinance, code, regulation or other
law to which Sublandlord may be subject.
7.1.4 As of the Effective Date Sublandlord has not
assigned, subleased, hypothecated or otherwise encumbered
its leasehold title to the Leased Premises under the Master
Lease.
7.1.5 Sublandlord has obtained all consents and
approvals required for Sublandlord to enter into this
Sublease.
7.2 Subtenant's Representations And Warranties. Subtenant
represents and warrants to sublandlord as follows:
7.2.1 Subtenant is a corporation duly formed and
existing in good standing under the laws of the State of
California, has the power and authority to consummate the
transaction contemplated by this Sublease, and its execution
of this Sublease has been authorized by appropriate
corporate action.
7.2.2 This Sublease and all documents executed and
delivered in connection herewith are and shall be valid,
legally binding obligations of and enforceable against
Subtenant in accordance with their terms.
[L217083.31
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7.2.3 Neither the execution and delivery of this
Sublease nor the incurrence by the Subtenant of its
obligations hereunder, conflict with or result in a breach
of any terms, covenants or provisions of, or constitute a
default under, any contract, mortgage, deed of trust, loan,
or other agreement or instrument to which Subtenant is a
party.
7.2.4 Subtenant has obtained all consents and
approvals required for Subtenant to enter into this
Sublease.
ARTICLE 8
NOTICES
Wherever in this Sublease it shall be required or
permitted that notice be given, such notice shall be in writing
and shall be deemed to have been duly given if sent by certified
mail, return receipt requested, personal delivery or recognized
overnight courier service to the address set forth below, or to
such other address as may be provided in writing from time to
time:
If to Sublandlord:
Attn. :
If to Subtenant:
MCA Concerts, Inc.
100 Universal City Plaza
Universal City, CA 91608
Attn.: Jay Marciano
With a copy to:
MCA Concerts, Inc.
100 Universal City Plaza
Universal City, CA 91608
Attn.: Adam Friedman, Esq.
Notices shall be effective on the date of receipt or the date
that receipt is refused.
{L217083.31
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180
ARTICLE 9
BROKERS
Other than any commission which may be owed to
Bitterlin Companies, Inc., which commission shall be payable by
Master Landlord pursuant to a separate agreement between Master
Landlord and Bitterlin Companies, Inc., each party represents and
warrants that no real estate broker has represented or will
represent it in this transaction and that no broker's or finder's
fees have been earned by a third party. Each party shall
indemnify, defend and hold harmless the other party from and
against all claims, liabilities, damages, costs and expenses
(including attorneys' fees) brought against or incurred by the
indemnified party arising from the indemnifying party's breach of
the foregoing representation and warranty or other failure to
disclose the existence of a broker or agent representing the
indemnifying party.
ARTICLE 10
ASSIGNMENT OF PURCHASE OPTION
AND RIGHT OF FIRST REFUSAL
Sublandlord hereby assigns to Subtenant during the
Sublease Term all of its rights to purchase fee title to the
Leased Premises from Master Landlord pursuant to the provisions
of Articles 44 and 45 of the Master Lease. Sublandlord agrees
that during the term of the Sublease Subtenant shall have the
sole and exclusive right to exercise Sublandlord's rights set
forth in such Articles 44 and 45 of the Master Lease.
ARTICLE 11
ADDITIONAL AGREEMENTS
[Jon Demorest to provide language regarding additional
agreements with City, including without limitation, restrictions
on new fees, taxes and/or impositions; noncompetition.]
ARTICLE 12
MISCELLANEOUS
12.1 Governinq Law. This Sublease shall be governed by
and construed in accordance with the laws of the State of
California. Each of the parties consents to the personal
jurisdiction of the State of California.
12.2 Counterparts. This Sublease may be executed in
counterparts, each of which shall be deemed an original hereof.
12.3 Third-partv Beneficiaries. The provisions of this
Sublease are solely for the benefit of, and are enforceable only
by, Sublandlord and Subtenant. No provision in this Sublease is
[L217083.3J
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181
intended to or may be deemed to create any rights in favor of
third parties.
12.4 Sublease Relationship. Sublandlord and Subtenant
expressly acknowledge and agree that it is their intent and
purpose that this Sublease be construed and interpreted as
creating a sublease arrangement between sublandlord and
Subtenant, and that under no circumstances shall this transaction
be construed as an assignment by Sublandlord to Subtenant of the
Master Lease (other than the assignment during the Sublease Term
of Sublandlord's rights under Articles 44 and 45 of the Master
Lease) nor the creation of a partnership or joint venture.
IN WITNESS WHEREOF, the parties have entered into this
Sublease as of the day and year first above written.
SUB LANDLORD :
CITY OF CHULA VISTA
By:
Its:
APPROVED AS TO FORM:
SUBTENANT:
MCA CONCERTS, INC.,
a California corporation
By:
Jay Marciano, President
[L2170B3.3]
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LOT NUMBERS
DRAWN BY
L.M. G.
DATE 2 -/5 - 90
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FILE NO. PV-OG4
DATE:
EXHIBIT 'liB"
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OWN BY:
LEGAL DESCRIPTION FOR THE V ACA TION OF
CASTLE PINES A VENUE,GLEN EAGLES DRIVE,
TURNBERRY DRIVE, AND SPYGLASS HILL ROAD
WITH UTILITY EASEMENT RESERVATIONS
BEING A PORTION OF Chula Vista Tract No. 87-6, Otay Rio Business Park, Unit No.1, according
to Map thereof No. 12458, on file in the office of the County Recorder of San Diego County, in the
City of Chula Vista, County of San Diego, State of California, more particularly described as follows:
Being all those portions of Cas tie Pines Avenue (1.59 acres, more or less), Glen Eagles Drive
(1.56 acres, more or less), Turnberry Drive (1.73 acres, more or less), and Spyglass Hill Road
(3.33 acres, more or less), as shown on said Map No 12458.
RESERVING AND EXCEPTING from vacation and abandonment, to the City of Chula Vista
easements and right-of-way for, or rights to construct, operate, maintain, replace, enlarge and repair
sewer and storm drain facilities and their related appurtenant structures in, upon, over and across that
certain real property situated in the City of Chula Vista, County of San Diego, State of California,
and more particularly described as all of said Castle Pines Avenue and Spyglass Hill Road, together
with the right to enter upon and to pass and repass over and along said easement and right-of-way
and to deposit tools, implements and other materials thereon by said City of Chula Vista, its officers,
agents and employees, and by any contractor, his agents and employees engaged by said City,
whenever and wherever necessary for the purposes above set forth.
Contains 4.92 acres, more or less.
RESERVING AND EXCEPTING from vacation and abandonment, to the Otay Water District
easements for and right-of-way for, or right to construct, operate, maintain, replace, and repair water
facilities and their related appurtenant structures and the rights of ingress and egress for such
purposes in that certain real property situated in the City of Chula Vista, County of San Diego, State
of California, and more particularly described as all of said Turnberry Drive, Glen Eagles Drive,
Castle Pines Avenue and Spyglass Hill Road.
Contains 8.21 acres, more or less.
Page 1
fi-1f" );2 -/ c/ I
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RESERVING AND EXCEPTING from vacation and abandonment, easements and rights to Pacific
Bell, a corporation, pursuant to any existing franchise or renewals thereof, or otherwise, at any time
or from time to time to construct, maintain, operate, replace and remove aerial and underground
communication structures consisting of conduits, cables, wires, poles and other necessary and
appurtenances, together with the right of ingress and egress to protect the property from all hazards
in, under and upon said Spyglass Hill Road, Castle Pines Avenne, Turnberry Drive and Glen
Eagles Drive
Contains 8.21 acres, more or less.
RESERVING AND EXCEPTING from vacation and abandonment, an easement to City of San
Diego for access purposes upon, over and across that certain real property situated in the City of
Chula Vista, County of San Diego, State of California, and more particularly described as all of said
Spyglass Hill Road, together with the right to enter upon and to pass and repass over and along said
easement and right-of-way and to deposit tools, implements and other materials thereon by said City
San Diego
Contains 3.33 acres, more or less.
RESERVING AND EXCEPTING from vacation and abandonment, easements and rights to San
Diego Gas and Electric Company, a corporation, pursuant to any existing franchise or renewals
thereof, or otherwise, at any time, or from time to time to construct, maintain, operate, replace, renew
remove or enlarge lines of pipe, conduits, cables, wires, poles or other structures, equipment and
fextures for the operation of gas pipe lines, and for the transportation of gas and/or electrical energy
for the incidental purposes thereof, including ingress and egress, to protect the property from all
hazards in, under and upon said Spyglass Hill Road, Castle Pines Avenue, Turnberry Drive and
Glen Eagles Drive
Contains 8.21 acres, more or less.
NO BUILDINGS AND/OR STRUCTURES shall be erected, walls constructed, fences built nor trees
planted upon the easements herein described.
JWH [c:\wp51\pv\leg_desc.064]
Page 2
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MEMORANDUM
October 3, 1995
FROM:
The Honorable Mayor and Council Members
John D. Goss, City Manager ~
Chris Salomone, Community Development Director [_S .
TO:
VIA:
SUBJECT:
Agenda Item #12 - MCA Amphitheater: Results of the Second Sound Test
Wrightson, Johnson, Haddon & Williams, Inc. has submitted the attached material for your
consideration. The Results of the Second Sound Test was prepared on behalf of MCA
Concerts, Inc., and is being added to your packets as Attachment 26 (pages P-261 through
p-2681 for insertion (after page P-2601 with the materials provided for Agenda Item #12.
IBBIC:I WP51 ICOU NCIL IMEMOSIINF09506.MEM]
):2 -/11
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.01
Exhibit 26
WJHW Sound Test Results
Dated September 21, 1995
Submitted by MCA Concert, Inc.
~)t;l /1:;' -IIY.
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Wrightson, Johnson, Haddon & Williams, Inc.
CoR~ulttl1lls in Aroust;c3. ~Voiu Cuntrot. Ildto. Suund and .4udio Visual Sy.'It'ms
J3n4 Gamma ROOJ.d
Suite nn
Dall... Texa. 15m
214 93-1-SillO
FAX 214 934-3720
September 21, 1995
Mr. Bill Bethman
BBA
24462 La Hennasa
Laguna Niguel 92677
Subject:
Chula Vista Amphitheater
Results of Second Sound Test
Dear Bill:
In order to resolve questions COlECrnine the environmental noise impact data contained in the
amphitheater EIR. a second full sound test was conducted on the evening of September 18,
1995. . 'Ibl; primary goal of the mcasumnents conducted during the test was to 'fill in' data
\1!:: in the existing neighborhoods to the west and nonh of the site and the Otay Ranch area.
measurements were expected to confmn or refute the noise contour lines presented in
the ElR.
Test Considerations - The original contours were based on measurements made at the nearest
existing housing and a single point in the Otay Ranch, on axis with !be amphitheater along
with multiple measurements to the west and south of the site. Contours beyond and closer to
the facility than these points were plotted based on calculation, terrain elevation and
measurements at other amphitheaters during concerts.
In addition to the concern over calculated vs. measured points, the question of a potential
atmospheric temJ>Crature inversion increasing noise levels at distances of 4-5 miles from the
site has been rmsed. As has been well documented, when the air temperature at ground is
colder than the air at an elevation of 1000-1500 ft, sound can be refracted and essentially is
"bent" or "channeled" down, rather than "escaping" to atmosphere, resulting in higher sound
levels than would otherwise be expected or calcU1ated at distant locations.. The most notorious
examp,le of this phen~mena.!s Shoreline ~p~eater in the city of Mountain Yie~, on San
FranCISCO Bay. At this facility, the sound IS projected over the bay. The combtnatJ.on of the
cold water induced temperature inversion, and the lack of ground attenuation of sound over
water, result in higher than expected noise levels in Palo Alto.
Fortunately, in Chula Vista the conditions arc quite different than in the San Francisco Bay
area. While inversions arc very common over the water in the south bay, their effect is
lessened inland, in the vicinity of the site. The inversion is also modified. in comparison with
San Francisco, by the differences in air and water temperature between San Diego and San
Francisco. In addition. the site does not project sound over water, as is the case at Shoreline.
In all, the two projects offer significantly different enviromnental conditions and do not
WaJTant close comparison.
Another question that bas been raised is the ability of sound walls to lower noise levels. The
EIR mitigation actions assume that noise levels can be reduced by a minimum of 5 dBA in the
Otay Ranch area. This estimate is conservative and is based on practical experience.
Calculation of a standard barrier loss for the projected sound walls, results in a 10 dB
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Wrightson, Johnson, Haddon & Williams, Inc.
Mr. Bill Bethman - 2 -
September 21, 1995
reduction in the 250 Hz octave band and 15 dB reduction in the 500 Hz octave band. These
frequencies usually detennine the dBA levels of po~ular music, and are more diffICult for the
barrier to attenuate than higher frequencies. As IS clearly demonstrated, the effect of the
mitigation is conservatively underestimated in comparison with standard textbook calculations.
Test Conditions - Pn:liminary weather data from the night of September 18, 1995 indicates
that during the test winds from the west reduced to calm, and their were some winds from the
north east later during the test period. These conditions were also accompanied by what was
forecast to be a temperature inversion. Short of a severe Santa Ana situation, the conditions
forecast during the sound test can be considered to be unfavorable to the amphitheater.
resulting in higher than nonnal sound levels. .
Sound was produced by a concert grade audio system ~ovided by Sound Images. a rental
company who provides services to several popular amphitheater performers. The system can
be cOnsidered to be typical of main speaker systems found at concerts, less stage monitors
employed for performers.
Sound levels were set at 105 dBA and 95 dBA at a typical mixing console location of 100 ft.
from tbe stage, to be consistent with anticipated sound levels for the U1IIll:itigated and mitigated
conditions listed in the EIR. The 10 dBA reduction was employed to be indicative of the
noise reductions anticipated due to the construction of sound walls and administrative
reductions in noise level at the mixing console. "Heavy Metal" rock music from the band
Soundgarten was used as the noise source to be representative of actual concert conditions.
Noise levels at the 100 ft. mixing console location were measured at between 105-107 dBA
during tbe test. The variation is due to the low dynamic range of the song selected.
Measured Sound Levels - At the existing housing north of Otay Valley Road, and bounded
by the 805 and Robin Hood Point, amphitheater noise was inaudible at either the 95 or 105
dBA source sound levels. This was due to the low levels of the music and background noise
created by freeway traffic on 805. Over 10 locations were measured, many at the homes of
concerned citizens. No listeners questioned could hear the music at either level.
Sound was clearly audible at several locations on the Otay Ranch property. This was due to
the music sound levels being louder than the very quiet background noise levels of the Ranch.
The background noise levels were in the 32-37 dBA range, and were dominated by aircraft.
traffic on Telegraph Canyon Road (northern most locations), animal and insect sounds and
occasional music which appeared to be sourced in the vicinity of the Tijuana Airport. All
monitoring locations in the Olay Ranch area were selected by Baldwin Company
representatives.
As can be seen from the accompanying figure and tllble. the measurements at 105 dBA
conf1IDled the contour lines presented in the EIR at the 50 dBA and higher contour. These
contours were based on sound levels of 105 dBA. Between the 50 and 45 dBA contour lines,
measured noise levels were substantially lower, between 38 and 31 dBA, or essentially at
ambient. These lower than predicted sound levels are due to the terrain, blocking line of sight
sound propagation and the fundamentally conservative nature .of the contour plotting process
used. During the test, noise levels were found to fluctuate as a function of wind velocity and
direction. The values presented indicate the range of measurements due to this fluctuation and
the small variability of the source sound 1evels.
Noise levels at the mitigated, 95 dBA mixing positions were, as expected, approximately 10
dBA lower than those measured for the 105 dBA noise level.
Je2 ~//~
+~
Wrighlson, Johnson, Haddon & Williams, Inc.
Mr. Bill Bethman - 3 -
September 21, 1995
This data indicates that the contours shown in the EIR are representative of measured data,
and fairly represent the uumitigated noise levels that can be expected with amphitheater
operations .
I trust that this information bas allowed questions as to the noise impact calculation and
measurement process to be answered. Please do not hesitate to call should you require further
information.
Best Regards,
WRIGHTSON, JOHNSON, HADDON & WILLIAMS, INC.
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MCA Chula Vista Amphitheater
Sound Test Measurement Results
Test Date: 18-Sep-9S
Otay Ranch Measurement Points
Time Location dBA Comments
8:03 P.M. 1 31-38 Inaudible Above Ambient
8:11 P.M. 2 35-37 Barely Audible Above Ambient
8:22 P.M. 3 35 Clearly Audible Above Ambient
8:35 P.M. 4 48-51 Audible Above Ambient
9:25 P.M. 5 47-48 Audible Above Ambient
11:02 P.M. 6 51-54 Audible Above Ambient
11:12 P.M. 7 63-67 Audible Above Ambient
WJHW, Inc.
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INFORMATION MEMORANDUM
~?Y?5
To:
The Honorable Mayor and City Council
\ .
, L"I
From:
\ . /"
Ty Compton, Chairman on behalf of the Economic Development Commission
Subject:
Recent Action Taken By The Commission In Support Of The MCA
Amphitheater Proposal.
On Friday September 29, the Economic Development Commission (EDC) held a special meeting
to review the economic impact of the proposed MCA Amphitheater project. The meeting was
called by EDC Chairman Ty Compton in order for the Commission to provide input to the City
Council at their upcoming October 3 meeting. At the meeting the following motion was made
by member Ed Martijia and seconded by member Chuck Peter:
Strongly recommend to Council that they approve, as quickly as possible, the MCA
Amphitheater proposal due to the positive economic benefit such a project would have
upon the City of Chula Vista.
The motion was subsequently approved by a vote of 5-0-4 (Lebron, Patrick, Read, and Tuchscher
absent)
c:\wp51 \document\edc\mca
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JUPlCIAIW COMMmn
W.tHINGTON OFFICI!:
2a07 RAV'UFlN HOutl OFFICI BUILDING
WMHINGTON.llC 2061HeOl
11021220-.4m
llIfTftICTOl'F1CE'
'111. 17TH AVlNUI
OiNVEfll, CO 10218
13031_1230
~ongrt!! of tbt Itntttb 6tatt!
.oU$eof jlepre.entattbe.
GIldbinlJlon. .~ 205\5-060\
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September 29, 1995
ill m@mU\Vl~ rn
r<',' - 2 lQQ'i
COUNCil OffiCES
CHUlA VISTA CA
Honorable Shirley Horton
Mayor
City of Chula Vista
276 Fourth Ave.
Chula Vista, CA 91910
Dear Mayor Horton,
I understand that you are considerinq the construction ot an
outdoor amphitheatre in your community and that MCA Concerts is a
potential developer and operator. I write to let you know Of the
impact MCA Concerts has had on Our community.
MCA concerts has operated Fiddler'. Green Amphitheatre in suburban
Denver tor the past eight year., ,and has been a responsive
Corporate oitiz.n. The orqanization hu taken a leadenhip role in
anti-drug and anti-viOlence progralllll in the state of colorado.
Over the past two years MeA Conoerts has oontributed more than
$500,000 to Colorado youth throuqh their Sate Summer program.
Best of luck with your
PSl8U
, TNIS n",T1ONIRV PftlImD ON 'AN" MAIlI OF ".CVCLID .......
/;2 -/~;L
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CIuda'lJtsm
:J'ollee Officers .Jtssocialion
October 3, 1995
TO: Honorable Shirley Horton, Mayor
Distinguished Council Members
The men and women of the Chula Vista Police Officers
Association are pleased to announce our support for
the MCA project in the Otay River Valley.
We feel that this project will be another significant
and needed addition to our growing community.
Respectfully,
714
BillyGene Cox Jr.
President
J2 --/2J
P. O. Box 848 . Chula Vista, CA 91912 · Tel: (619) 426-5657
iq",
-10/02195 liON 11: 20 FAX 303 220 7407
10-02-95 08:58 AM
FIDDLER'S GREEN
1tj002 ~
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PATIlICIA SCI1I101DIA
,.............. ............
NAnDNAL ua.wrvCUMMlTTU
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Con;rdJ of tbt I1nftdJ 6t4teJ
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-1 _........ _ 20615-0601
September 39, 1995
Honorable Shirley Hori:on
Mayor
aity of Chu18 Vieta
27. lP_rt:h Ave.
Chula Vista, CA '1910
Dear Mayor Horton,
I understand 1:hat Y01.l are Cloneicloor!"'1 1:he con_truc'tion CI~ an
ou~Clor amphi1:h.ai:re in your cOl\llllUnity anel 1:ha.'t MCA COnc:lert:s ia .
potential developer and operator. I wzoite to let you JUICW Of the
i-.pact: llCA Concert. haa had on our COIIlI'lIlity.
MCA Concert. has Operated Fiddler'_ Green Aalphi'th.atre in auburban
D~ver fClr 'the p_t eight years, ancl 1\&_ !:lean _ re.ponsive
COrporate citizen. The orq_ni..tion has taken a l.allarehip role in
enti-drug and anti-violence programa in tha .tate ot Colorado.
over 1:he put two year. JlCA concert_ baa oont:r:!buted more than
$500,000 to ColoralSo youth 'through their Safe SWlllller program.
...t of luck "i'th
PS:lIIl1III
lHlI &TATIONIIIT M1"" 0Jf MJID MAOI.~"'"
/;2 -I-J!
10/02/95
liON 09: 58 In/RI NO SOGG] fa! 002
;JJ$7
-
MUN 15:35 PAX 303 220 7407
-------_.--.------ -
PlOIJLER'S GREEN Ii!J 002
STATE OF COlORADO
e
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10/02195
t"tCVTlyt CItAM$t1t5
T).6 5'tJtC' ClpilO'
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I'hon" no)) ....2..,1
R"I'Romor
COVlIf'MIt
September 29,1995
The Honorable Sl\irleyHol1on
Mayor
276 Fourth Avenue
Chula VI&ta, CA 91910
Dear Mayor Horton.
I undenitand that the City of Clmla Vista is c:onsidering the seloction of a company to
develop and manage a musical concen facility in its jurisdiction. and that MCA
CC)ncerts is under w:nsidtl alion fot that role.
Since developing the Fiddlc:f' 5 Green outdoor ampI1ithe8ter a DI.lll1ber of yll8r$ ago,
MCA Concerts end its local affiliate F&y Conc;crts has rout.iMl:y demonstrated
leadBfShip in anti-drus effons and comributed to a vllricty of senior citizen and youth
causes. Over the past two years, as Colorado baa taken agressive stePs to' reduce
youth violence, MeA Corn;ert$ ba worked closely with us. By the md of tbis
season. MeA will have donated over balf a million do11ar1 to our "'Safe Summer"
etfurts.
Although .r am not familiar with the issues under c:onsideraUoa by the CbuIa Vista
City Council, I would like you and your ~.~ on the City CouDcil to know that
MCA ConceIts has been an active and pnerOUI> oorporate cit~ in our state.
..-
Roy Roiner
GovCtnor
19/02/95 KON 14:18 ITX/RX NO 80711 ijb002
/;2 -/73
jrJg
10/03/1995 11:18 404&248915
. 10/03/95 10:00 tJ8S87081
LAKEWOOD MARKETING
PAGE 02
Ij!J U02l00%
~
CITY OF ATLANTA
BILL CAM~.C\.\.
....-
.. 1WtIItn ..___ ....
.-ft....,.. GIaIIGM. "..-aGO
1.0.' ~~o...oo
Oc.:tobcr 2. 1995
The Honorable Shirley Horton
Mayor of ('h.~I. ViICa
276 Pourdl Aveaue
ChuIa ViIt&, CA 91910
Dear Mayor Horton;
AI Mayor of the City of A.I........ I am pleased to write lbill letter on
behalf of the MCA ~ ChuJa Vjllf.a projec;t
Since 1989, ourcidzens aad viRton alike have~ the benef'1tS of
havina . venue quite simiI. to that p&uposecl for your city, our own Coca-
Cola Lakewood Ampbitheatre. Thi5 8111pbitbeatre was dcveIoped with
considaable City ~t lIDd pMticipetion. ADd. in the nearly se~ years
8iDce die tint coaa:rt ..... held. we am say with tv....,tete IIISUnIII.(;C that
the Coc:a-Cola Latcwood Ampbidalle .... plOVCd to be lIIl ClUlCIIent
nciBhbor to tile IlhtvuOlli." l"1Vnll1lmi~. IS . well u a sipifictOt
eatmtaiJlmeDl UIet to our city.
I IU'OIIaJy urge you 10 sivc your DIOlIlllClioul aocI fllVotable
conaideJatioa 10 the MCA Coac:erts aDd the CbuIa Vista project now before
you.
BCII&
a ---/cJ-~
~~,
I
1~/~3/1995 11:18 4~45248915
OCT-0~-'~ TU. 10;.. P"
LAKEWOOD MARKETING
PAGE 03
p...e~
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'+' ~,\".
~.~.
CITY
OF
ATLANTA
1I&1._1W-
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216F.-1hA-..
CIIuJa Villi, CaIifi,lnlia 91910
e: ideA CI ll.,I_ ,........... A..........'"
Dear Mayvr Ho$a;
1I11"~ky at' AtIuda ~ gf hna. ".,..Illdl llIlIl ~ Alllirulld MCA bno lIIjoylIci
II (lCllIiti.e- ~~ ,..a..v....hip _ tIw .....l.-! )_. 1JDdcr - ~ ~..pahIo dim:MI
oCDolIy VCJ8l, MeA.. tIMIapId the J -" . -4 A-tib'1Il '-..... -.-Iv popular -
..... ~ lbws ~nn004' fiom.........Al!IIIIa MeIlqlOIifU /uQ.
M\.:A'" .......ilIto.4ly ," ~A>od the ability to baok ~flly __WO'........ ocnalDa .. bnlId
JlDlIC c( ..... _. CoIIQInadly. MCA. bas IbaWJl ill ICIIIilMlY to 1!Ie ~
~ II1II ib ...... ',.._ tR w .. ....I",.-'1a. l1li.... its eftIldS i111IIIlIlc ocatmI.
.-Ill All r' 1IllllI'" b QtIti,aol r4 jobt Ibr ... I ,,,... MIIiI\IlMIIY. MeA ...... UIIS
001........' ..;....WI *' ara ,uua ~~~ itI..-sous .......iI...~ (If ftatd.~ IaKJUlliM and
...ipnenE to Ill'JItIIJ ftIOIIlIIiaD...... ..IN . ill
tlelSllUlUlll'l a.o.......-r -""""'.""IIPO" matru17 eood"""""'" -~ -1"'....
--. MCA CGaaefts.1Ilo
."
{"am. r..._ J'~
of Pub. Lo. .... aa4 eullw" Attain
wo..
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-r-=IIia1 .. ~& ud
/;2.-/;27
~~
-
10-02-1995 05:35PM FROM LRKEWOOD AMPHITHEATRE
. V-I c.- .oJ ~.......... _._ .... . ._- _..
TO
16192394962 P.03
/h.allle...
~,,"/OFSTA'IE
14M) Ii'"
.,
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214 ~ CapiW
J'U"
JIJ334
October 2, 1995
The HClIlOl'8bk Shirky Horton
Mayor ofChuJa Vista
276 Fourth Aveaue
Chllla Vista, Califomia 91910
Dear Mayor HortoD:
It is with gRal pleasure dutt I support the constJuetiOlll1f!Dl Amplrith...dcl in your
IICL
I am a fn:queDt patron of our Lakcwood AmpIritheatr;r haF in AtllIlta, - have
_joyecl COUIltless com;crts 8bd events there. The c;uhural mdl~eaticmal impact OIl1be
~ty bas C<<tIiftly beeIl a poIitive one, and I beIiew die Slime would be true for
you uad your .........u....:li. EDhIIII:iDg tile Jives oflhe ..u.iCall PeoPle is a wriwbile
.~ 011l81li)' levels. ad this l:CItainJy fills the bin.
Thank you for your lime IIId considcIalion. If I c:an be of further assistance,
please do DOt hesitate to call.
MOSl sincacIy,
~)( (t'\~t\~
MllII. CIe1IPcl
MClswm
/.2 -/,;Lr
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10-02-1995 04:58PM
MCR/BLOSSOM BRCKSTRGE
P.03
-
City of Cuyahoga Falls
0If;.. of the ~
2310 S_M S~l
ClI)'llbop p.u.. OH 4+221-2583
October 2, 1995
PI.- (216) 921.f200
PAX (2161 'I'l1..16f
DONL. ROBARI'
M.,."
Mayor Shirley Horton
278 . 4th Street
Chula Vista, CA 91910
Dear Mayor Horton:
I ha....e been advised that the City of Chula Vista is interested in an open air
amphitheatcr similar to OU( Blossom Music Center. I v.vuld like to share my
thoughts.
Blossom Music Centc:r haS operated successfully at its present location for l1VeI
25 years. During that span Blossom Music Cen~r bas been one of the top cultural
attractions in Northeast Ohio. Providing a wide array of entertainment, on any
summer evening one might find the Cleveland Orchesua, the Cincinnati Pops, Elton
John or the play Jesus Christ Supexstar. For the special Holiday performances of
paUiOtlC music and the 1812 overture, it is not uncommon to sell out complete.1ythe
5,200 seats in the pavilion in addition to another 13,000 . 15,000 on the lawn. As a
pe(sonal aside, the highlight of the summer for me and my family is attendirlg an
event at Blossom "under the Stats. W
As you can imagine, any facility drawing that many people into one area at one
time tends to provide some problems. My experience with MCA Concerts Is that yOu
could not find a more responsive and more sensitive organization to manage a
facility. My problems with respett to traffic and/or appeasing the neighbors has been
handled exaemely well by MeA Concerts. Their involvement with Blossom Music
Center has been a huge plus.
. In conclusion, the welcome to the city signs surrounding our Community all
point out the fact that we are the Home of Blossom Music Center. We are very
proud of our facility and should Chula Vista elect to go in the same direction, I am
sure you will be equally pleased. Should )'Ou have and questions do not hesitate to
call me at(216) 971-8200. ;
Sincerely,
:::~-~ -~~ ~~_.
Don L Robart
Mayor
.--
IIms
PRlNl1!D ON R!CYC\.8I] PAPSR
/07- ~/.;2 /
TOTI'lL p.e3
~~
10-02-1995 04:57PM
MCA/BLOSSOM BACKSTAGE
P.02
THE CLEVELAND ORCHESTRA
CHIUSTOPH VON [)OHN~YI. MUSIC DIRECTOR
SEViIlANCE RAIL
CLEVJLUlD.OIDO ....
(216) m-7318
tAX: (2U) man
October 2. 1995
Thomas W. Morri3
~IJY' Ofmt...
De Hoaonble Shirley HoJ1on
Mayor of the Chu.Ia Vista
278 Foarth A~
ChuIa VISta, CA 91910
DeIr Mayor Horum:
,
It gives me great pleasure to write this Iettm" of teenftI...-~ 011 bebaIf of
MCA ~. The Musical Arts MSoclatiOD OWIIS Blossom Music Ceater,
III ~ facility in Northeast Ohio, MCA Co.atca~. whid1 OI*~~
Blossom for tbe Musical Arts Association, bas plt'lSIlIIted a "miety of anlIta lIIId
special. evellts there for the eudrc family, I only have rave n:views for MCA's
operation. MeA bIs provided III exceUent series for tbe eatire com......dty to
cu,joy .
I would hope that the city of ChuJa Vista wiD seize tbe "JIlNl~ of workilla
:wi1h MCA CUJd11$ thus opening a whole IICW world of Illofeair-I\y
operated entertai11meAt to its IIIOSt valuable possessioa tile citIzeDs of Cbula
Vista.
,
"
TWM:rk
n. M""AtCII AI.,1"ndoa...daa
Tlo; CLlYltAlCD ORCHESTRA, lltOSSOM MUSIC CL'qIR'" SE\'UAllICE HALL
/;2-/.30
:p~~
10-02-1'::195 03: 16F'1'1
!
MO:VBLOSSOl1 BACKSTAGE
P.02
-
~
Roy L. Ray
Ohio Senate
SenateBulldll\G
Columbua. OhIo 4$2'6-42'1'8
814/488-482S
"800-282-0253
(ToR Free)
COmmm.u:
Fi_~n
___Inlll"'"
ono_
VIooChlllftllon
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".......--"'..
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October 2. 1995
The Honorable Shirley Horton
City of Chula Vista
276 FOIJrth Avenue
Chula Vista. CA 91910
Deer Mayor Horton:
.
I would like to take this opportunity to write on behalf of the excellent operation. of
MCA Concerts at Blossom Music Center in Cuyahoga Falls. Ohio.
Summit County is very fortunate to have such an excellent facilitY which provides
wonderful family entertaInment. MCA Concerts offers a wide variety of artists and
special events which the entire community can appreciate. The exceptional
cooperation between MeA Concerts and Blossom Music Center make these
successful events possible.
In short, MeA Concerts continues to make a valuable contributiOn to Blossom Music
Center as well as to the citizens of northeastern Ohio. The City of Chula VI8t8 would
similarly benafit from the services of MCA Concerts. I would be happy to answer any
questions that you may have concerning MCA Concerts.
RLR:rnml
.-
TOT~ P.1iI2
/.:z---/31
TOT~ P.02
194
OCT-02-1995 21:59
214 428 8365 P.003/006
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a
CITY OF DALLAS
o_L.UNi.
.,..,.,.....TtM
Septernb8r 28, 1_
_Of ShIr1l1y Horton
278 Fourth Avenu.
CtluIa VI-. CA '1810
DBBr Mayor HOI1On;
,.. thl Deputy Mayor Pro Tem of l/le City of DelIIII, lilt my plll_ to prIMa 1hle
lOr of 1'ICOmII'lIndat. I am tIlCOIleCllO hHr of your _rwt In an emphllhlallr
similar 10 011I.' StarpIex.
The StaIplex, by UCA ConCliW. '- bMn 4Il1 __10 Dd88. Tlle reIallonehlp
t*wsen MOA eon-. IIlClIhe CIty of D8Ilu ilia rteUItIId In many blnellta fin th.
CIty of D.-. _1*llIlIy tor lht community IUn'OUtICIIng ths SIIllp1ex. The opel'llonl
of 1ht Sla_ have btIn llIIPOllIIllIt Illd commlllld. The opt,raIIon of flit venue
/lII 8110 pnlVIdtd IIld I1lIlIal/ltd hIgh-ltMll ~rIIy JnMllCI and cleenlln8lll for the
.... En/lanOIfIllII'lt of the qutIIIy of life In lhec\ty IIld tor thtI!IUrlWftdlng
community " . ccnlIlbutlon llY thIt 1I1lpIllth....
I enGOl/IlIG8thlt you 00I111d11r IhIH hlghllghlll .. you IddFIII the con8lR/Ctklll of In
IIftIlIlllhtatlr In Ohula V\aia. P1_ conIIot my OIftClIf I can IJ8 of ful\lltl'
. 8II/lI1IIlc:e.
Slncttlly.
ek;; ~
Ohrt.LlII\&
Deputy Mayor Pro Tem
DIt1IlCt 2.
AtlIIoh.
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OCT-02-1995 22:00
'MLLl:l"t l). HtJUVLLHM
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214 428 8365 P.006/006
Sep 28:95 9:43 No.DOI P.Ol
'.
it
CITY OF DALlAS
The Honorable Shirley Horton
276 fourth Avenue
Chula Viala. CA 91910
Dear Mayor Horton:
It brings me great plC88UfC to pen this leller of recommendation
on behalf of MCA Concerts and Coca-C~ola Starplell..
The City of Dallas' is fortuDatl' to have :~ community ccntcrw
entertainment facility within walking dislance. MCA Cooo:ns
ha5 provided a variety of artists and special evcnts that the
entire family can appreciate. I only bav.: rave reviewlI for tbe
Amphitheater concept. The patrons bave the option of fCsCrved
or lawn seating for those who wish a more relaxed almOSphcrc:
apin MCA and Coca-Cola Starplell. has somcthins for
everyone.
I would hope that the City of Chula Vista will 5e;".e the
opponunity of working with MeA COJlJ::Crts. thui. upcning a
whole new world of professlonallYJPel311ld ~IS well as
eqjoyable cntcrtaimnent to il$' most valued possession.......Thc
Citizens of Chula Vista.
(fd~ankJ
Carol Brandon. Member
City of Dallas Park & Recreation Board
DlfAtlTMlHfOPf'AllKMOMCMATION. ClTYHAU. DM.I.M. ~"'IOI, TUI'HOfC..4It"'1~
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sep-27-1995 22:S3
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214 824 '7714
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TOTRL P. 006
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QCT-02-133S 22:00
From: RICH 8. ALONZO.P. C.
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PHJNE No. 214 948 2Iil20
214 428 836S P.DDS/006
S~p,2~ 1995 2:04PM F0l
a
CITY OF DALLAS
SeptlJlllber 28, 1995
Mayor Shirley Horton
,. 276 Fourth Avenue
Chula Vista. CA 91910
Dear Hfyor Horton!
IIlIllJ' capa<;lty as Park Board Membet' for the City of Dalln
Park and Recreation Board. I have seen I1UIIeroUS benefits
frOlllllavlng the Starplex ~ithe~ter located not only In
our city but 1 n one uf uur IIOst \Ill1 qua and 5 i gnitl cant
parks. The facility has served to provide a venue for
Ill8ny .nt~.IM1eFlt acts th.lt we'" enjoyed by citizens
throughout the orca.
storplex has alto shown a COIIIllitmCllt to the cltl%ens of
Dallas by being extremely awart' of tht needs of the
regldents near the .fecll1ty,
Sincerely. . .
~~
Aurelio Castillo
Second Vice Pre$ldent
Park and I\ecreatlon Board
cc: John Moor
Scott Alvey
Jerry Rlndone
Steve Padilla
Rod DlIv1 s
Rick Fitch .
OPAI1T1KNl' or.-ARK IMO ~TfON CtTV II.'U. DAU.AQ. ,.C.1ICAD. 7r.ZOt "CL\:J't 10ft\. at../D1(....~~
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OC1-02-1995 21:59
SEI'lT BY:
; 9-28-85 ; 4;"~M ;
214 428 8355 P.004/005
ll,orUOlla- 41~ ..v ~VV~?~ ~
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CITY OF OAI.I.AS
CIWILOnIUYIlI
-
......,
septemlle,2',1,g&
To Whom It ".y Concern:
I would lllce II) expru. my auppott for MCA Coftcerb and the Cot;..eoIa
St.rp#ex. SIn". I. im:epflon In 1"1, StarpIu he.. provided qu.,1ty
pe/'fonNnce. II) the ".".. citizenry whil. ",.,n""nlnll . olean .nd noUN
environment.
I reprennf the .,.. In which rite atnpIIIfhetW ;. tvo.led, ""d , ,.., If ,...
.ervioed the olty 01 Delio /IIId the South Da/IaIFIIIr Par" community welL It
h.. been a 1NIer-frlend1y COfpOf/ltlon IIIId ".. helped to lmp/lOt thla
800no-.lly deprived .,....
I WOW enco&nIJff youI' community 10 conMltrthe Influence MCA Conc"'"
could hlW8 on the proposed.". and th. vicinity .UI1OIItJdInQ it
Ifyou.tlould "".,. /lilY quRfIo"", ,.., he to conflIGf myc'lfIn at 2141&10 fill.
Sincerely,
~~ J t..1ti: ;" ~-..,..,
Charlotte Mayea
City Counc"""""""
omoIDl'THltf"COUNCI. OITYHAU. ~'mrMi7tlO1 TIloIiJIHOI4I~1~"""
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FROM : Ja~ MarcIano
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llil'" '1:lJ.Ill
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TEL: 818 622 0448
OCT. 2.1995 12:48 PM P 3
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a
CITY OF D,l\LLAS
HaaoIIblt Ma)'or Shirley Hortoa
276 'OlIlUIA_
CbuIa VIttI. CA 91910
Dear Mayor:
It illll,f 1JrIIl.....1O write1lil1ll1lr or .~OII for
JIIOt aJNCU.TS.
In Ddu, MeA 1lulIt aTAlIPI&X.....,. 11ft 1ft 1988; it
hu truly beea ..... addition to llIlf CIty,
BtoI",", ofNOI CONCDD, 1M oi1iIIne ofo.u. haw the
opportUllily to _ pat lOtS 1ft COIIIlIlIt In III ~ tbat II
IlOnducMtolM~.
F\In~ MGt c:tJNC.U'I3 _SJ'AUUDChaw bMA
CJIlIf lleIPbcln. NIp Ollllblt opel'IIOI'I. tile tIlclIity II UIef
ftiendly IIIId they haw .... outItInlIiat with their iwoIvement
In 1M ... ill wbIcIt tile.... it 1awtIId: lIMy Ii" Nck to the
commuaily on. .....bIIII. The "'" ~ orSTAUUlX ...
l-..d the qualicyofliftltbrdle 1l...,..6de~ II
well II the city II . wIIDIe.
Finally, to have MC4 c.'Ol\IQ!'IU:9 u. pIItllIr wl1lI YOlI ill your
JI"M city could only be. JlOIlIM fbr you ad,.. olI...y; It
tIuI, .. been . dMig#ttfllllJ._ '.... ill DalIaa.
YOUI5 UllIy,
&\Ia.'ltIeLOJlfG
Vloo PnIideal
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TOTR... P.l1I03
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WILLIAM A. WIE5TER, SHERIFF
GRANT COUNTY SHERIFF'S OFFICE
MAX HEAL V
Undersheriff
P.O. BOX 37
Ephrata. WA 98823
PHONE: (509) 754-2011
(800) 572-0119
LARI DAHL
Chief Civil Deputy
FAX: (509) 754-2058
SEPTEMBER 29. 1995
FILE NO A9431
HONORABLE MAYOR SHIRLEY HORTON
276 FOURTH AVENUE
CHULA VISTA, CALIFORNIA 91910
DEAR MAYOR HORTON:
I WOULD LIKE TO TAKE THIS OPPORTUNITy TO PROVIDE A LETTER OF
RECOMMENDATION BASED ON THE PROFESSIONAL ASSOCIATION GRANT COUNTY
SHERIFF'S OFFICE HAS HAD WITH MCA AND THE GORGE AMPHITHEATER FOR
THE PAST COUPLE OF YEARS. I HAVE FOUND MCA AND THE GORGE
AMPHITHEATER TO BE RESPONSIBLE OPERATORS WHO HAVE ADDED LIGHTING TO
INSURE THE SAFETY OF THEIR PATRONS. I WOULD LIKE TO POINT OUT THAT
THE GORGE AMPHITHEATER OFFERS LAWN SEATING WHICH PROVIDES A RELAXED
ATMOSPHERE WHICH THE ENTIRE FAMILY CAN ENJOY. BILL PARSONS HAS PUT
FORTH A VERY PROFESSIONAL AND WILLING ATTITUDE INTO MAKING THE
P ARTNERSH I P BETWEEN GRANT COUNTY SHER I FF . S OFF I CE. MCA AND THE
GORGE AMPHITHEATER WORK.
I HOPE THAT THE CITY OF CHULA VISTA WILL ENJOY THE SAME PARTNERSHIP
WITH MCA THAT GRANT COUNTY HAS ENJOYED. IF I CAN OFFER ANY FURTHER
INFORMATION. PLEASE DO NOT HESITATE TO CONTACT MY OFFICE.
SINCERELY,
iI~q.l/~
WILLIAM A. WIESTER
GRANT COUNTY SHERIFF
WAW:taj
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FROM :M~lL BOX'S ETC.
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619 239 4'362
1995.10-03
11:48RM #840 P.02
SIAl-I; 1i.I.I1U~SI::\I^II".I;
Lilh l>ISTIUCT
GAilY CIIAN/lI.EH
StClte of
w\lshington
1I011~ of
J~pm.l;('lltatjves
^(UCI(;IIUlJItE &I:(:()I.()(;Y
C'U.,,'MMAN'
1:~F'4CW ~ IJlIIJ.nl,-f.;
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October 2, 1995
Mnyor shirley Horton
~7(' Fourth Avonue
Chula vista, CA 91910
Deal' Mayor Horton:
It is my pleasure to reoommend to you MCA CONCERTS. I am very
p:leased to hoar of your interest in building an amphitheater in
your great. city of Chula vista.
MeA CONCERTS has been a positive asset to our community aincc its
i ncaption. They have provided a well rounded variety of
entertainment and special events the entire family can enjoy.
MCA CONCERTS operator.s have been very responsible and committed to
maintaining the facilities cleanliness, and providing a high-level
of ~ecurity, thus a good family entertainment environment.
I would encourage the city of Chula vista to seize the opportunity
of working with MCA CONCERTS in developing a professionally
operated, family oriented facility. Please contact my of rice if I
can be of further assistance.
Sincerely,
NGTON ~TrT~ [ECESENTATl VE
an~
D strict
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GRANT COUNTY
OFFICE OF
BOARD OF COUNTY COMMISSIONERS
POST OFFICE BOX 37
EPHRATA. WASHINGTON ~8823
15091 754-2011
October 2,1995
Honorable Mayor Shirley Horton
276 Fourth Avenue
Chula Vista, CA 91910
Dear Mayor Horton:
We are pleased to write a letter of recommendation on behalf of MCA Concerts and Bill
Parsons.
Since MCA has taken over the Gorge Amphitheater here in our County we have seen
many improvements. MCA has provided a variety of artists and special events and they
have been very receptive to our concerns and responsive to our suggestions on how
to resolve any problems we have had. We have seen a great benefit to our County from
the tax dollars received from the ever increasing crowds of concert attenders. Bill
Parsons has made himself very available to us and has also made a great effort to
involve the communities surrounding the Amphitheater in opportunities for employment.
He has also exerted a lot of effort in making friends with the close neighbors to the
Gorge which has been appreciated.
We feel that you will find a similar amphitheater to be a great advantage to your area.
Sincerely,
---~ [,
,Chairman
I(~/- tJ -d#:.
TS/pg
TIM SNEAD
DISTRICT 1
2644 RD F NE
MOSES LAKE. WA 98837
PHONE 765-9548
HELEN FANCHER
OISTRICT :3
1020 RD. 5 NW
QUINCY, WA 98848
PHONE 787-4731
/c2 -/.77
LEROY ALLISON
DISTRICT 2
20268 RD. \ SE
WARDEN. WA 98857
PHONE 349-2!i13
*~.:?
10/02/1995 17:34
'Ll:Jbi'L,,445;J
I,;Ml;o
t""~t.;lt. oJ.
COLUMBIA MANAGEMENT GROUP
STRATEGIC RESOURCE & ANANClAL MANAGEMENT
DAVID E. MAUK
P. O. Box 2/70/
Sea/tie. W A 98JJ /
206/722-4541
206/725-4453 Fax
75764.26/ E.Mail
2 Oct 95
HONORABLE SHIRLEY HORTON
276 Fourth Ave.
Chula Vista, CA 91910
RE: Recommendation for MCA Concerts
Dear Mayor Horton:
This letter of recommendation is enthusia.~tically written to you on behalf of MCA
Concerts. .
I am involved in the agricultural and housing industries in Grant County of Washington
State, where MCA Concerts NW operate an 18,000 seat amphitheater. They have made
vasl improvements to the sile which were to the bcnefitlo the concert-goers as well as 10
the communily. Their attention to security, crowd control and the potential impact to !he
surrounding area is especially noteworthy.
Throughoultheir ownership and mll/lagemenl. MCA Concens has proven to be a
responsible and responsive landlord. Over !his period they have had to address traffic,
parking, accommodations (there are virtually none in the area), on-premise alcohol and
arrangements for local farmer's harvesl~. In each case they exhibited a constructive and
professional management style in dealing wi!h these issues.
Mayor Horton, you will have a "good citizen" with MCA Concerts, who brings valuable
consumer spending, laX revenue and family entel'tainmentto your community.
Sincerely yours,
COLUMBIA MANAGEMENT GROUP
'/0 . ( ... L
l'-^"""" ()' ( rv-..,.. It-
DA VID E. MAUl<,
Principal.
/.2 -/ ~&
.~f3
O'ff~II~~n 'if. !)'fP;U
MAYO '(OJ ~ @ ~ a
UIJ ocr - 3 /995
COUNCil OffiCES
CHUlA VISTA CA
October 3, 1995
The Honorable Shirley Horton
Mayor
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Dear Mayor Horton:
'ftj~ cwuI Yi~71 o/(PlJ~%
CITY AND COUNTY BUILDING. DENVER, COLORADO' 80202
AREA CODE 303 640-2721
640-2720 (vrTDD)
I understand that the Chula Vista City Council is considering MCA
Concerts as a potential developer and manager for a concert
facility in your city. I am obviously not familiar with this
matter and do not presume to advise you or City Council on the
merits of this issue. However, I am familiar with MCA Concerts and
I am pleased to provide MCA with an enthusiastic "character
reference" in light of its activities in our community.
MeA Concerts, through its local affiliate, promotes the majority of
shows and concerts for our historic Red Rocks Amphitheater, and we
are very pleased with the job MeA does.
Beyond its promotional role, however, MeA Concerts has demonstrated
tremendous leadership on a number of communi ty ef forts. For
example, MCA has worked closely with us in Denver to reduce youth
violence. By the end of this concert season, MCA will have donated
over $500,000 to the region's anti-drug and anti-violence efforts.
As Mayor, I have very much appreciated MeA's contribution to our
community.
I would appreciate it if you would share this letter with your
colleagues.
Yours truly,
~1fE:~ 6-
Mayor
Post-it' Fax Note
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October 3, 1995
rn
R (j;) R n 'Vi:' ~< W l
IS l'J IS II '_!,! 1\
: i U I
OCT - 3 100" i LJ
i
The Honorable Shirley Horton
Mayor of Chula Vista and
Members of the Chula Vista City Council
276 Fourth Avenue
Chula Vista, CA 91910
COlJlWl 01 f ICtS
CHUlI VIS,A CA
Dear Mayor Horton and Members of the City Council:
The Chula Visa Chamber of Commerce, through a majority vote of its
Board of Directors, recommends the Mayor and Council to support the
MCA Chula Vista Amphitheater on the agenda before you tonight.
The Chamber has voted unanimously to support an amphitheater project in
our city. Representatives from the chamber have also had the opportunity
to visit similar amphitheater sites and to hear presentations from two
amphitheater proposers.
The MCA option is before you because it has been well thought out and
planned. It is a project which is ready to proceed with allocated funds in
the current budget. The business community does not want an
amphitheater to become a lost opportunity to our city.
We urge you to be the council that brought the amphitheater to Chula
Vista.
Sincerely,
Chula Vista Chamber of Commerce
411~I'A/J(':'4< .
/t~ Weaver /f'"
~. President
JW:ce
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,t, .
iii.>
~,.,
bCCPE:,tTLC-
J"C;s
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DONNA L. MALLEN
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ATTORNEY AT LAW
1515 SECOND AVENUE '101
SAN DIEGO. CA i21 01
e 111/234'3!5Z3
nr:T - 3 19as
@'
COUNCil 011 ICE S
CHULA YISTA CA
October 3, 1995
CE..TIFIEO SPECIALIST
FAMILY L.AW
BY FACSIMILE TRANSMISSION
THE ST""E 8"fIt 0' CALI'O.HI..
.0."0 0" LEOA.. SIItlCtAL1ZATION
To: Mayor Horton and
Chula vista City Council
re: Proposed Amphitheater
Honorable Mayor Horton and City Council Members:
I am a resident of Chula vista, and have lived there for the
past ten years. I have served on Chula vista 2000, the
Citizens Interjurisdictional Task Force for the Otay Ranch
Development, and other citizens groups. I aw. a member of
Friends of the Arts and a Lifetime Member of Friends of the
Nature Interpretive Center.
I am concerned about Chula Vista's future and the quality of
life that Chula Vista has to offer its residents.
I reel very strongly that a large amphitheatEr is of great
value to our city, and I have expressed this opinion in the
past on the citizens committees upon which I have served.
My personal opinion and preference is that a site be
selected which will be able to cater to all types of musical
events, not just those which would normally be considered
"cultural," within the narrow sense of that word.
I am an avid Blues fan, and I travel long distances every
year to attend Blues performances in San Diego, Orange
County, Los Angeles, and the San Francisco area. It has
long been my hope that those Blues tours which now perform
at the Pacific Amphitheater, and the bands that play in Los
Angeles and at the Long Beach and San Francisco Blues
Festivals, could have a suitable venue in Chula Vista.
Secondly, I am a Heavy Metal fan.
Concert on Otay Mesa, and althoug
poorly organized, I found that co
enjoyable event that I have ever
I attended the Metallica
h the parking was very
ncert to be the most
attended in Chula Vista.
Ic2 -JY;J
J,<.;.
-------r 'J_
-
. .
.~~~:~:;_:":"_~h ... ......,__
I am opposed to selecting an amphitheater site which will be
restricted as to the types of performances that will be
allowed. The site should be suitable for Classical, Broad-
way, Light opera, Rock and Roll, Latino, Country, Metal and
Blues performances, as well as any other type of event that
could make use of an amphitheater.
In fact, I would like to see a multi-faceted structure,
which would combine a small public garden (which we are
lacking in Chula Vista) and an little art gallery for
rotating displays of local artists' works.
Finally, my family and I attend 30 to 50 musical events aach
year, and we note the control of the the parking lot exits
to allow the traffic to flow smoothly and quickly makes a
major difference in the noise, congestion, and attitude of
the crowd. We hope that, wherever the amphitheater is built
in Chula Vista, a primary concern will be to ensure that
mulitiple exits are available and are kept open at the end
of each performance. The crowd will then disperse rapidly,
minimizing the effect on the surrounding community, and
making the concert experience more enjoyable for attendees ,
as well.
Thank you for your consideration.
yours,
a-llen --
DLM/le
/~~/Jjt(
~~'7
ftECElVEI
'95 OOT -3 P 3 :45
.,y IF CHULA Visfl~tober
all' a.EN<'S OFFICE
1995
Chula Vista City Council
Chula Vista, Ca.
RE: MELROSE VILLAS RESIDENTS AND/OR HOMEOWNERS
VEHEMENTLY OPPOSE THE H.C.A. AMPHITHEATER/SWAP MEET
PROPOSAL
Honorable Council Members:
The Melrose Villas Homeowners' Association Board and the 92
homeowners representing approximately 360 men, women, and children,
ask you to consider the voice of those citizens of Chula Vista who
believed you when you ran for office when you said that you have
the best interest of the citizenry of Chula Vista in mind. It is
absolutely deplorable that you are seriously considering the item
before you on the 20-thousand seat amphitheater and swapmeet.
Our sister cities of poway and Palo Alto, as well as others across
our state have already made it clear that they want nothing to do
with amphitheater projects. The research conducted by these cities
demonstrate that these enterprises continue to add to an already
growing problem of crime, gangs, drugs, noise, traffic congestion,
and air pollution. The M.C.A. proposal poses serious physical and
psychological problems for both children and adults.
Our city already faces problems with violence and crime perpetuated
by many young gang members. How can you even consider voting for
a proposal that studies have already proven to have nothing but a
negative impact on our residential communities throughout our
country. These proj ects bring nothing but problems for quiet
residential areas such as ours and bring in unwanted elements of
society that ultimately result in an increase in violence and
criminal acts. This proposal would seriously impact the quality of
life of our families and have an adverse effect on our environment.
If you are serious about your commitment to improve the quality of
life of the residents of the city of Chula Vista, then you must
vote NO on this proposal. Those of you who are irresponsible and
vote yes on this proposal will have to face the ire of your
constituents who will work diligently to remove you from office.
continued. . .
/; -/&
;p~g
. .
Melrose Villas (Cont'd)
-2-
I/We, the undersigned resident(s) and/or homeowner(s) of the
Melrose Villas Condominiums, wish to go on record as opposing the
amphitheater/swap meet proposal for the City of Chula Vista.
NAME
ADDRESSS
SIGNATURE
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RLLEN &-RBDULLRH
TEL:2f4-824-77l4
Sep 28,95-
9:44 No.002 P.Ol
Parle /f1Id Recreation Board
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COUNCIL OffiCES
CHULA VISTA. CA
CITY OF DALLAS
Via Fax (619) 476-5379
The Honorable ShirJeyH0110n
276 Fourth Avenue
Chula Vista, CA 91910
Dear Mayor Horton:
It brings me great pleasure to pen this letter of recommendation
on behalf of MCA Concerts and Coca-Cola Starplcx.
i The City of DaIJaR iR fortunate to have a community centered
enterlaitunent facility within walking distance. MeA Concert!:
has provided a variety of altists and RpcciaJ events that the
entire family can appreciate, I only have rave reviews for the
Amphitheater concept. The patrons have the option of reserved
or lawn seating for those who wish a more relaxed atmosphere;
again MCA and Coca-Cola Starplex has something for
everyone.
I would hope that the City of Chula Vista will RCIZC the
opportunity of working with MeA Concerts, thus, opening a
whole new world of professionally operated l\R well as
enjoyable entertainment to its' most valued possession,...... The
Citil..enS of Chula Vista,
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Carol Brandon, Member
City of Dallas Park & Recreation Board
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D1iPARTMENl Of PARK AND RECReATION CITY HALL OALLAS. TEXAS 7520'. TELaptl0NE 2141$11).4'00
11& out million w .nrldl"-llvtl oi th. otOOle 01 tJf/1Il$IN(lI.Illh.,. .&NIwatlliflt or our 1'1""11 .
1Uaw'C* and... '..potlsN' provilion 01 Ctu.lity tWlatl6". cuba! and .u:.liQn6It"po,,*nc:o...
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CURTIS J. CORN
JANICE CORN
4429 Lorna Paseo
Bonita. CA 91902
(619) 479-2790
(619) 479-7390
September 28. 1995
City Council
City of Chula Vista
276 Fourth Avenue
Chula Vista. California 91910
Re: Proposed Amphitheater
Otay Mesa Project
Ladies and Gentlemen:
After the City Council meeting of September 26, 1995, I was
approached by certain Council and staff members to provide additional
information concerning my remarks made at that meeting as well as my
letter of September 25. 1995. which was delivered to all members of the
Council.
Neville Pearson, Vice President and Controller of Otay Rio Business
Park II. the record owner of the property. has stated unequivocally that
Otay Rio Business Park II has abandoned Phase II. In addition, Otay Rio
Business Park will, in all likelihood. abandon the Phase I property unless
the amphitheater is built. In reality. I am the owner of Phase II at this
time.
At this time. I have retained an attorney who specializes in the area
of environmental law, and I am in the process of having prepared a
lawsuit which. among others, will include the following:
(1) Katsumi J. Takashima (the prior owner of Phase I, on which
the proposed amphitheater site may be located) and Takeo and Shizuka
Azuma (the prior owners of Phase II. on which I hold my interest), and
each of their heirs. successors or assigns, if any, since the law holds
those who created the toxic waste liable for their actions; and since
Takashima and the Azumas caused the pesticides and hydrocarbons to
be placed on the property as a result of their farming operations;
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City Council
City of Chula Vista
September 28. 1995
Page 2
(2) Otay Rio Business Park and Otay Rio Business Park II. and all
related entities. based upon their causing the toxic waste to be
transported from Phase I to Phase II;
(3) Any and all governmental agencies and/or municipalities,
based upon their participation and/or fallure to take action with respect
to the transportation to and/or the allowance of this waste to remain on
the property; and
(4) Any additional entities and/or individuals who are determined
to have participated in the transportation of the toxic waste to the
property.
The situation with respect to the hazardous waste now situated on
Phase II is very serious. The potential cost for removal of the waste is
staggering. to say the least. and this is the primary reason for my need to
commence the litigation at this time.
Should you require any additional information with respect to the
issues stated above. please do not hesitate to contact me.
~
cc: Mayor Shirley Horton
Deputy Mayor Jerry Rindone
Councilman Scott D. Alevy
Councilman John S. Moot
Councilman Stephen C. Padilla
John D. Goss. City Manager
Bruce M. Boogaard. Esq.. City Attorney
Ms. Beverly A Authelet, City Clerk
Mr. Chris Salamone
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MEMORANDUM
October 3, 1995
TO:
The Honorable Mayor and Council Members
John D. Goss. City Manager fj"
Chris Salomone. Community Development Director L _S .
VIA:
FROM:
SUBJECT:
Agenda Item #12 - MCA Amphitheater: Results of the Second Sound Test
Wrightson. Johnson, Haddon & Williams, Inc. has submitted the attached material for your
consideration. The Results of the Second Sound Test was prepared on behalf of MCA
Concerts, Inc., and is being added to your packets as Attachment 26 (pages P-261 through
p-268) for insertion (after page P-260l with the materials provided for Agenda Item #12.
IBBIC:I WP51 ICOUNCILIMEMOSIINF09506.MEM]
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Exhibit 26
WJHW Sound Test Results
Dated September 21, 1995
Submitted by MCA Concert, Inc.
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Wrightson, Johnson, Haddon & Williams, Inc.
Ct"lJullants in .4roustirs. ~\'O;U Cuntrol. r,dto. SuUIJ4 and .4114;0 l'iJuai S.'".drms
13n4 Gamma Road
Suit.. llfl
nan... T........ 75244
21. 93~3illO
FAX 21. 93f.3720
September 21, 1995
Mr. Bill Bethman
BBA
24462 La Hermosa
Laguna Niguel 92677
Subject:
Chula VISta Amphitheater
Results of Second SOUDd Test
Dear Bill:
In order to resolve questions c:oncemin: the CDvironmental noise ilTlp"'" data contained in the
amphitheater ElR. a second fulllOllDd lCStwas conducted on the evening of September 18,
1995. .1lJc primary goal of the mc:asurements coJVInrt.ed during the test was to "fill in" data
points in the existing neighborhoods to the west and nonh of the site and the Olay Ranch area.
These measurements were expected to confirm or refute the noise contour lines presented in
the ElR.
Test Considerations - The original contours were based on measurements made at die nearest
existing housing and a single point in the Otay Ranch, on axis with die amphitheater along
with multiple measurell1l'l't< to the west and south of the site. Contours beyond and closer to
the facility than these points were plotted based on calculation, terrain elevation and
measurements at other amphitheaters during concerts.
In addition to the concern over calculated vs. measutecI points, the question of a potential
atmospheric temperature inversion increasing noise levels at distances of 4-5 miles from the
site has been msed. As has been well documented, when the air temperature at ground is
colder than the air at an elevation of 1000-1500 ft, lOund can be refracted and essentially is
"bent" or "channeled" down, rather than "escaping" to atmosphere, resulting in higher soUDd
levels than would otherwise be expected or calculated at distant locations. 1lJc most notorious
examl?le of this phenomena is Shoreline Amphitheater in the city of Mountain View, on San
FranCISCO Bay. At this facility, the sound Is projected.over the bay. The combination of the
cold water induced temperature inveISion, and the lack of ground attenuation of sound over
Wrightson, Johnson, Haddon & WilJilulI1s, Inc.
Mr. Bill Bethman - 2 -
September 21. 1995
reduction in the 250 Hz octave band and 15 dB reduction in the 500 Hz octave band. These
frequencies usually determine the dBA levels of pol?ular music, and are more difficult for the
barrier to attenuate than higher frequencies. As IS clearly demonstrated, the effect of the
mitigation is conservatively underestimated in comparison with standard textbook calculations.
Test Conditions - Preliminary weather data from the night of September 18. 1995 indicates
that during the test winds from the west reduced to cahn. and their were some winds from the
north cast later during the test period. These conditions were also accompanied by what was
forecast to be a temperature inversion. Short of a severe SlIIlta ADa situation, the conditions
forecast during the sound test can be considered to be unfavorable to the amphitheater.
resulting in higher than normal sound levels. .
Sound was produced by a concert grade audio system provided by Sound Images. a rental
company who provides services to several popular amphitheater performers. The system can
be considered to be typical of main speaker systems found at concerts, Jess stage monitors
employed for performeIS.
Sound levels were set at 105 dBA and 95 dBA at a typjcal mixing console location of 100 ft.
from ttJe stage, to be consistent with anticipated sound levels for the unmitigated and mitigated
conditions listed in the ErR. The 10 dBA reduction was employed to be indicative of the
noise reductions anticipated due to the construction of sound walls and administrative
reductions in noise level at the mixing console. "Heavy Metal" rock music from the band
Soundgarten was used as the noise source to be representative of actual concert conditioflS.
Noise levels at the 100 ft. mixing console location were measured at between 105.107 dBA
during the test. The variation is due to the low dynamic range of the song selected.
Measured Sound Levds - At the cxistinj: housing north of Qtay Valley Road, and bounded
by the 805 and Robin Hood Point, amphitheater noise was inaudible at either the 95 or 105
dBA sOUJCC sound levels. This was due to the low levels of the music and background noise
created by freeway traffic on 80S. Over 10 locations were measured, many at the homes of
concerned citizens. No listeneIS questioned could bear the music at either level.
Sound was clearly audible at severallocatioflS on the Olay Ranch property. This was due to
the music: sound levels being louder than the very quiet background noise levels of the Ranch.
The background noise levels were in the 32-37 dBA range. and were dominated by aircraft.
traffic an Telegraph Canyon Road (northern most locations). animal and insect sounds and
occasional music which appeared to be sowced in the vicinity of the Tijuana AilpOn. All
monitoring locations in the Olay Ranch area were selected by Baldwin Company
representatives.
As can be seen from the accompanying figure and table, the measurements at 105 dBA
confIrmed the contour lines preseitted in the ErR at the 50 dBA and higher contour. These
CODtOUIS were based on sound levels of 105 dBA. Between the SO and 4S dBA contour lines,
measured noise levels were substantially lower. between 38 and 31 dBA. or essentially at
ambient. These lower than predicted SOIIIId levels an! due to the terrain, blocldng line of sight
sound JK'OI>agation and the '",vl~mento lly conservative nature .of the contOUr ploning process
used. During the test, noise levels were found to fluctuate as a functIon of wind velocity and
direction. Tbe values presented Indicate the range of measurements due to this fluctuation and
the small variability of the source sound levels.
Noise levels at the mitigated, 9S dBA mixing positions were, as expected, approximately 10
dBA lower than those measured for the 105 dBA noise level.
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Wrightson, Johnson, Haddon & Williams, Inc.
Mr. Bill Bethman - 3-
September 21, 1995
This data indicates that the comours shown in the EIR are representative of measured data.
and fairly represent the unmitigated noise levels that can be expected with amphitheater
operations .
I trust that this infOI'lllation bas allowed questions as to the ooise impact c:alculation and
measuremeDt process to be answered. Please do not hesitate to call should you require fI1rther
information.
Best Regards,
WRIGHTSON, JOHNSON, HADDON & Wll.UAMS, INC.
,
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MCA Chula Vista Amphitheater
Sound Test Measurement Results
Test Date: 18-Sep-95
Otay Ranch Measurement Points
Time Location dBA Comments
8:03 P.M. 1 31-38 Inaudible Above Ambient
8:11 P.M. 2 35-37 Barely Audible Above Ambient
8:22 P.M. 3 35 Clearly Audible Above Ambient
8:35 P.M. <4 <48-51 Audible Above Ambient
9:25 P.M. . 5 47-48 Audible Above Ambient
11 :02 ".M 6 51-54 Audible Above Ambient
11:12P.M. 7 63-67 Audible Above Ambient
.
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October 3, 1995
MEMO TO:
The Honorable Mayor & City Council
FROM:
Patricia Salvacion, Receptionist
SUBJECT:
OPPOSITION TO AMPHITHEATER
The office has received calls from the following individuals in opposition of the
amphitheater:
1.
Owen Miller
1605 E. H Street
"I've lived here for 30 years, I am
opposed to having this in Chula
Vista. It would bring in the wrong
element of people."
2.
Adrian Myers
"I'm against the amphitheater
because of the noise and traffic it
would bring into our City."
3.
Lawrence Weaver
1987 Kent Street
"The amphitheater would bring in
noise, traffic, and college kids
camping outside the amphitheater
We want to keep this a residential
area. "
4.
Amelio Fernandez
"I live in the Sundance area and I
am opposed to the amphitheater.
I am concerned about drunk drivers
and drug users as well as drive by
shootings."
5.
Marguerite Perkins
"I oppose the MCA project."
/;2 ~/>/
;;) 40
1~/12/1995 15:31
~~~~~~~~~~
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PAGE ~1
IIDIO
10/1.2/95
TO I CHULA VISTA CITY CLERK
FROM I CHARLBY HERZFElD
PHONE: Z94-4020
FAX: 295-0487
RE: SpEAKER SLIPS
MESSAGE: PLEASE PROVIDE ME WITH COPIES OF THE SPE
THE OCTOBER 3. 1995 CITY COUNCIL MEETING,
THOSIS CONCERNING THE AMPHITHEATER PROPOS
FOR YOUR PROMPT ATTENTION TO THIS MATTER.
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RESOLUTION NO.
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A RESOLUTION OF THE CITY OF CHULA VISTA CITY COUNCIL
CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT (EIR 95-
03) FOR THE MCA CHULA VISTA AMPHITHEATER AND OPEN AIR
MARKET
WHEREAS, the area of the land which is subject of this resolution is diagrammatically
represented on Exhibit A, attached hereto and incorporated herein by reference; consists of 72.5
acres located at the southwest quadrant of Otay Valley Road and Otay Rio Road ("Project Site");
and,
WHEREAS, Bitterlin Brice Development Partners for MCA Concerts, Inc. (" Applicant")
proposed development of a 20,000 seat capacity amphitheater and open air market consisting of
structures, seating and parking facilities ("Project") on the Project Site: and,
WHEREAS, on May 23, 1995 a duly verified application for a Conditional Use Permit
(pCC-95-47) for the Project was filed by Applicant with the City of Chula Vista Planning
Department; and,
WHEREAS, based on a preliminary review of the Project the Staff of the City ("Staff")
has determined that the project may have an adverse impact on the environment; and
WHEREAS, the Staff has determined that the project is not exempt, neither statutorily
or categorically, from compliance with the statutory duty, as set forth in the California
Environmental Quality Act ("CEQA") to prepare an Environmental Impact Report (CEQA
Guidelines Sec. 15061); and
WHEREAS, City retained the services of a Consultant to prepare the EIR on the Project;
and
WHEREAS, a draft Environmental Impact Report dated June 1995, evaluating the
proposed MCA Chula Vista Amphitheater and open air market was prepared and was transmitted
by the City of Chula Vista, as lead agency, to all concerned parties for review and comment; and
WHEREAS, notice of availability of the draft Environmental Impact Report was given
as required by law and by policy of the City of Chula Vista; and
WHEREAS, a public forum on the project was held on June 22, 1995 for area residents
to introduce to them the proposed land use and its impacts which included a presentation on the
draft Environmental Impact Report; and
WHEREAS, written comments from the public on the draft Environmental Impact Report
were accepted from June 19, 1995 to July 19, 1995 and
WHEREAS, on July 10, 1995 the Resource Conservation Commission accepted
Environmental Impact Report, EIR-95-03, by a vote of 4 to 1; and
WHEREAS, the City Planning Commission held a public hearing, accepted public
testimony and closed the public review period on the draft Environmental Impact Report on July
19, 1995; and
1~/1-/
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Resolution No.
Page 2
WHEREAS, the Final Environmental Impact Report for the MCA Chula Vista
Amphitheater dated August, 1995 (FEIR-95-03) includes the draft EIR, all public comments
received, all responses thereto and any and all Addendums thereto; and
WHEREAS, the Planning Commission held an advertised public hearing on the Project
on September 6, 1995 and voted 6-0 to recommend that the City Council approve the Project in
accordance with Planning Commission Resolution EIR-95-03, PCC-95-47A and PCC-95-47B;
and,
WHEREAS, a duly called and noticed public hearing on the Project was held before the
City Council of the City of Chula Vista on September 26, 1995 and October 3, 1995 to receive
the recommendation of the Planning Commission, and to hear public testimony with regard to
same.
WHEREAS, The City Council of the City of Chula Vista has reviewed, analyzed and
considered FEIR 95-03, and the environmental impacts therein identified for this Project; and
WHEREAS, The City Council does finds that FEIR 95-03, has been prepared in
accordance with requirements ofthe California Environmental Quality Act (CEQA), the State EIR
Guidelines, and the Environmental Review Procedures of the City of Chula Vista; and,
WHEREAS, the City Council finds that FElR 95-03 reflects the independent judgement
of the City of Chula Vista City Council.
NOW, THEREFORE, the City of Chula Vista does hereby resolve as follows:
I. FEIR Certification
A. Certification of Final ElR, FElR-95-03
The City Council does hereby certify the final Environmental Impact Report, FEIR-95-03
as being prepared in accordance with the provisions of the California Environmental
Quality Act and its Guidelines.
B. Certain Mitigation Measures Feasible and Adopted.
As more fully identified and set forth in the FEIR for the Project and in the CEQA
Findings the Council hereby finds pursuant to Public Resources Code Section 21081 and
CEQA Guidelines Section 15091 that the mitigation measures described as feasible in the
above referenced documents, are feasible, and will become binding upon the entity (such
as the project proponent or, the City) assigned thereby to implement same.
C. Infeasibility of Alternatives.
As is also noted in the above referenced environmental documents described above, each
of the alternatives to the project which were identified as potentially feasible in the EIR
are found not to be feasible since they could not meet both the o1;)ectives of the Project
J~/1- ,;l.
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Resolution No.
Page 3
and avoid the identified significant environmental effects through implementation of
feasible mitigation measures for the reasons set forth in said CEQA Findings.
D. Independent Judgment
The City Council hereby finds and determines that their certification of FEIR 95-03 is
the product of their independent review and judgement.
II. Notice of Determination.
The Environmental Review Coordinator of the City of Chula Vista is directed after City
Council approval of this project to ensure that a Notice of Determination is filed with the County
Clerk of the County of San Diego.
III. Invalidity; Automatic Revocation.
It is the intention of the City Council that its adoption of this Resolution is dependent
upon the enforceability of each and every term, provision and condition herein stated; and that
in the event that anyone or more terms, provisions or conditions are determined by a Court of
competent jurisdiction to be invalid, illegal or unenforceable, if the City so determines in its sole
discretion, this resolution shall be deemed to be automatically revoked and of no further in force
and effect ab initio.
Presented by
Approved as to form by
~~~
Robert A. Leiter
Director of Planning
(M:\thared\anomey\MCACC.RES)
Jo1/J3
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RESOLUTION NO ./i'OSr
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A TRI-PARTY AGREEMENT BY AND AMONG LOS ALISOS
COMPANY, MCA CONCERTS, INC. AND THE CITY OF CHULA VISTA;
A GROUND LEASE BY AND BETWEEN LOS ALISOS COMPANY AND MCA
CONCERTS, INC. AND A SUBLEASE BY AND BETWEEN THE CITY OF
CHULA VISTA AND MCA CONCERTS, INC.
WHEREAS, the property which is the subject matter of this
resolution is commonly known as Phase 1 of the Otay Rio Business
Park comprised of approximately 72.5 gross acres of land located at
the southwest quadrant of Otay Valley Road and Otay Rio Road
("Project Site"); and
WHEREAS, with respect to the Project Site, concurrently
herewith, the city Council is certifying EIR 95-03 and granting a
Conditional Use Permit for the operation of a 20,000 seat
amphitheater ("Project") proposed by MCA Concerts, Inc. ("MCA");
and
WHEREAS, in consideration of City construction of certain
road improvements for the Project, and other good and valuable
consideration, MCA and the city have agreed that the City shall
receive 3% of its gross ticket sales revenues from the Project and
additional monetary and in-kind benefits, subject to certain terms
and conditions; and
WHEREAS, in order to memorialize this agreement, MCA has
prepared the following documents (a) a Ground Lease between MCA and
the fee owner of the Project Site, Los Alisos Company, a California
general partnership ("Los Alisos") (b) a Tri-Party Agreement
between MCA, Los Alisos and the City, and (c) a Sublease between
MCA and the city (collectively, the "MCA Amphitheater Agreements").
NOW, THEREFORE, BE IT RESOLVED the city Council of the
city of Chula vista does hereby approve the above-described MCA
Amphitheater Agreements in the forms presented, copies of which
shall be kept on file in the Clerk's office as Document Nos.
(to be completed by the Clerk in the final document).
BE IT FURTHER RESOLVED that the Mayor is hereby
authorized and directed to execute the Tri-Party Agreement and the
Sublease for and on behalf of the City of Chula Visa.
Presented by
Approved as to form by
G
ruce M)
y
"
Chris Salomone, Director of
community Development
~
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RESOLUTION NO. /8'05'7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA GRANTING A CONDITIONAL USE PERMIT, PCC-95-47, TO
BITIERLIN-BRICE DEVELOPMENT PARTNERS FOR MCA
CONCERTS, INC. TO CONSTRUCT A 20,000 SEAT CAPACITY
AMPHITHEATER AT THE SOUTHWEST QUADRANT OF OTAY
VALLEY ROAD AND OT A Y RIO ROAD
1. RECITALS
A. Project Site
WHEREAS, the property which is the subject matter of this resolution is
diagrammatically represented in Exhibit A attached hereto and incorporated herein
by this reference, and commonly known as Phase 1 of the Otay Rio Business
Park, and for the purpose of general description herein consists of 72.5 acres of
land located at the southwest quadrant of Otay Valley Road and Otay Rio Road
("Project Site"); and,
B. Project Applicant
WHEREAS, on May 23, 1995 a duly verified application for a conditional use
permit (PCC-95-47) was filed with the City of Chula Vista Planning Department
by Bitterlin-Brice Development Partners for MCA Concerts, Inc.("Applicant");
and,
C. Project Description; Application for Conditional Use Permit
WHEREAS, Applicant requests permission to construct a 20,000 seat capacity
amphitheater consisting of structures to accommodate the seating of a maximum
of 20,000 patrons, plus performers and support personnel, and parking for
approximately 6,100 vehicles ("Project") on the Project Site; and,
WHEREAS, a Environmental Impact Report was determined necessary and
prepared for the Project, a Draft of which was made available for public review
and public comments were received and responded to in accordance with CEQA;
and,
D. Public Forum Record on Application
WHEREAS, a public forum was held on June 22, 1995 for area residents to
introduce to them the proposed land use and its impacts; and,
lo<C!. -I
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Resolution No.
Page #2
E. Resource Conservation Commission Record on Application
WHEREAS, the Resource Conservation Commission considered EIR-95-03 on
July 10, 1995 and voted 4-1 to accept its adequacy; and,
F. Planning Commission Record on Application
WHEREAS, the Planning Commission held an advertised public hearing on the
Project on September 6, 1995 and voted 6-0-1 to recommend certification of EIR-
95-03 for the Project and recommend that the City Council approve the Project
in accordance with Planning Commission Resolution PCC-95-47A; and,
G. City Council Record of Application
WHEREAS, a duly called and noticed public hearing on the Project was held
before the City Council of the City of Chula Vista on September 26, 1995 and
October 3, 1995 to receive the recommendation of the Planning Commission, and
to hear public testimony with regard to same; and,
WHEREAS, at such public hearing the City Council evaluated the Conditional
Use Permit application and public testimony for the project and certified EIR 95-
03.
NOW, THEREFORE BE IT RESOLVED that the City Council does hereby find,
determine and resolve as follows:
II. PLANNING COMMISSION RECORD
The proceedings and all evidence on the Project introduced before the Planning
Commission at their public hearing on this project held on September 6, 1995, and the
minutes and resolution resulting therefrom, are hereby incorporated into the record of
this proceeding.
III. CERTIFICATION OF COMPLIANCE WITH CEQA
The City Council hereby adopts and incorporates herein all findings, determinations and
resolutions set forth in Resolution No._ of the City Council certifying EIR-95-03.
IV. CEQA FINDINGS
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Resolution No.
Page #3
A. Adoption of Environmental Impact Report Findings - After its independent
review, the Council does hereby approve, accept as its own, and incorporate as
if set forth full herein, and make each and every one of the CEQA Findings as
found in Environmental Impact Report, EIR-95-03.
B. Adoption of the Mitigation Monitoring Program - The City Council hereby adopts
and incorporates herein the Mitigation Monitoring and Reporting Program
("Program") set forth in EIR-95-03 and finds that the Program is designed to
ensure that during the project implementation and operation, the Applicant and
other responsible parties implement the project components and comply with the
feasible mitigation measures identified in the CEQA Findings and in the Program.
C. Statement of Overriding Considerations - Even after the adoption of all feasible
mitigation measures and any feasible alternatives, certain significant or potentially
significant environmental effects caused by the Project, or cumulatively, will
remain. Therefore, the City Council hereby issues and adopts, pursuant to CEQA
Guideline Section 15093, the Statement of Overriding Considerations set forth in
EIR-95-03 which identifies the specific economic, social, and other considerations
that render the unavoidable significant adverse environmental effects acceptable.
The City Council further finds that the Statement of Overriding Considerations
has been prepared in accordance with the requirements of the California
Environmental Quality Act, the State EIR Guidelines, and the Environmental
Review Procedures of the City of Chu1a Vista.
V. INCORPORATION OF ALL FEASIBLE MITIGATION MEASURES
The City Council does hereby adopt and incorporate herein as conditions for all
approvals herein granted by this Conditional Use Permit all mitigation measures
identified by EIR-95-03 and in the Mitigation Monitoring and Reporting Program for the
MCA Chu1a Vista Amphitheater determined therein to be feasible.
VI. CONDITIONAL USE PERMIT FINDINGS
The City Council of the City of Chula Vista does hereby make the findings required by
the City's rules and regulations for the issuance of conditional use permits, as
hereinbelow set forth, and sets forth, thereunder, the evidentiary basis that permits the
stated findings to be made.
A. That the proposed use at the location is necessary or desirable to provide a
service or facility which will contribute to the general well being of the
neighborhood or the community.
J~C!..-3
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Resolution No.
Page #4
The proposed amphitheater is desirable in that the proposed facility will provide a venue
for cultural, artistic and community events. The holding of such events will increase the
educational and entertainment opportunities for the residents of Chula Vista.
B. That such use will not under the circumstances of the particular case, be
detrimental to the health, safety or general welfare of persons residing or
working in the vicinity or injurious to property or improvements in the
vicinity.
The operational plan of the proposed amphitheater indicates that traffic going to or
coming from events at the Project Site will not have negative impacts to the health, safety
or general welfare of persons residing or working in the vicinity or be injurious to
property or improvements in the vicinity in that only Circulation Element streets will be
used as avenues of access to the Project Site. At present, lands within the City of Chula
Vista surrounding the Project Site are undeveloped. The land itself is of adequate size
for the proposed Project and isolated from established residential land uses. The
proposed amphitheater will also be appropriately landscaped.
In addition, noise impacts have been assessed and will not, due to required mitigation
measures and a monitoring program, have negative impacts to the health, safety or
general welfare of persons residing or working in the vicinity of the amphitheater in that
a monitoring program has been set up which will alert the City and Applicant of any
potential noise problems.
C. That the proposed use will comply with the regulations and conditions
specified in the code for such use.
Conditional Use Permit PCC-95-47 is conditioned to require the permittee and property
owner to fulfill conditions and to comply with all the applicable regulations and standards
specified in the Municipal Code for such use.
The conditioning of PCC-95-47 is approximately proportional both in nature and extent
to the impact created by the proposed development in that the conditions imposed are
directly related to and are of a nature and scope related to the size and impact of the
project.
D. That the granting of this conditional use permit will not adversely affect the
general plan of the City or the adopted plan of any government agency.
The granting of PCC-95-47 will not adversely affect the Chula Vista General Plan nor
the plans or policies of neighboring jurisdictions in that: 1) Said project will comply
with applicable noise and traffic standards and is proposed to be built on a site already
partially developed and containing public facilities (water, sewer, etc.); 2) surrounding
land uses are compatible with the proposed amphitheater; and 3) said proposed use also
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Resolution No.
Page #5
conforms with the General Plan in that this conditional use permit has been properly
executed and duly adopted.
VII. TERMS OF GRANT OF PERMIT
The City Council hereby grants Conditional Use Permit PCC-95-47 subject to the
following conditions whereby the applicant and/or property owner shall:
A. Construct the Project as submitted to and approved by the City, except as
modified herein and/or as required by the Municipal Code.
B. Provide the number of parking spaces as shown on the approved MCA
Amphitheater site plan, but in no case less than 5,714 spaces per the requirements
of the Municipal Code (20,000/3.5 =5,714).
C. Prior to the submittal of building permit applications, submit a landscape plan to
the Landscape Architect for review and approval which shows landscaping that
will visually enhance aesthetics of the proposed amphitheater through a creative
plant palette and placement of plants at non-angular patterns. The landscape plan
shall avoid rectangular patterns. Said landscaping shall be installed prior to
issuance of any occupancy permit and shall be maintained for the life of the
Project, to the satisfaction of the City.
D. Comply with and implement the following conditions as related to noise:
I. When development of land within the potentially impacted future
residential areas within the 45 dBA noise contour as identified in the EIR
is imminent, as defined by the earlier to occur of building permit issuance
or developer's execution of a subdivision improvement agreement and
posting of subdivision bonds or other security as required thereby, a sound
monitoring program will be implemented for a duration and in a manner
as City deems appropriate. The monitoring program shall be conducted
by the City at the Project Applicant's expense (payable on billing by the
City) and shall include field measurements at the closest residential
development area within the area of potential impact. Field measurements
would occur for those concert events expected to reach the highest levels
of sound (i.e., it would not be necessary to field measure for acts that are
known to be "quiet").
2. Regardless of D.l. above, if the Director of Planning determines at any
time, based on reasonable evidence, that existing residents within the area
are being subjected to noise levels exceeding applicable standards, the
Applicant shall conduct sound monitoring in accordance with a program
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Resolution No.
Page #6
approved by the Director of Planning, to determine if such impacts exist.
The monitoring program would be conducted by the City at the Project
Applicant's expense (payable on billing by the City).
3. If the monitoring program in D.l or D.2 above indicates that impacts to
residents would occur or are occurring, the applicant shall post a bond or
other security acceptable to the City at its sole discretion, in an amount
equal to 125 % of the estimated cost of constructing a permanent noise
mitigation solution deemed appropriate by the City (the current cost
estimate for a sound wall, which is one possible mitigation measure, is
$1,000,000). Applicant's failure to post such a bond would trigger one
or more of the following enforcement options for the City:
a. The Conditional Use Permit for the facility could be revoked or
modified to ensure permanent mitigation of noise impacts; or
b. Applicant's access rights under its sublease with the City could be
suspended without offsetting the Applicant's rent payment
obligation; or
c. City could pursue an injunction to order the placement of bonds.
Applicant would be liable for any costs (including attorney's fees) incurred
by City in pursuing such remedies.
4. If monitoring indicates that the Noise Ordinance is being violated with
respect to existing housing or within the identified impact areas once
certificates of occupancy are issued for houses therein, the City shall
immediately have the right to impose operational mitigation: noise
volumes to be reduced, reorientation of speakers, etc.; all at the
applicant's expense, including continued monitoring until the mitigation
is deemed effective by the City.
5. If operational controls are not successful, as evidenced by the monitoring
program, a hearing will be held where applicant will be given an
opportunity to present evidence that the noise threshold standards have not
been exceeded. If it is determined nonetheless that the thresholds have
been exceeded, the City will impose permanent noise controls, at
Applicant's sole cost, as deemed appropriate by the City including, but not
limited to, the following, applied either individually or in .combination:
a. Construction of additional vertical barriers around the audience
area.
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Resolution No.
Page #7
b.
Modified lawn speaker system designs that better control sound
energy radiating outside of seating areas.
c.
Administrative controls over stage speaker sound levels to be
applied if the reference level at the mixing booth exceeds a
. specified threshold that is correlated to impacts in the community.
Applicant's failure to impose such measures shall trigger City's right to revoke
this Conditional Use Permit.
E. To the satisfaction of the Zoning Administrator, install bicycle parking for a
minimum of 100 bicycles. Said bicycle parking shall be installed at such time as
safe and adequate bicycle access to the amphitheater exists, in the opinion of the
Zoning Administrator. Said bicycle parking areas shall be located in proximity
to each main entrance.
F. For the life of the amphitheater, review the consistency of actual operations with
the operational parameters considered in the Environmental Impact Report and
Conditional Use Permit with the Zoning Administrator, Police Department, Fire
Department and Public Works Department on the anniversary date after the
opening of operations. Said review shall result in a report prepared by the
amphitheater operator to the Zoning Administrator which shall address such issues
as traffic impacts, adequacy of parking, ingress/egress, hours of operation,
coordination with open air market operations, etc. The Zoning Administrator
shall, at his/her sole discretion, determine whether or not the operations are
materially consistent with the nature and intensity of the operational parameters
used to evaluate the project in the Environmental Impact Report and Conditional
Use Permit. If the operational profile is deemed inconsistent and more impactive
than originally expected, the Zoning Administrator may require review and/or
modification of conditions via additional environmental review and/or a formal
modification to the Conditional Use Permit.
G. Prior to opening for operations, Applicant shall submit a plan identifying the type
and frequency of special effects (such as fireworks, laser displays, etc.) to be
conducted as a part of amphitheater operations. The plan shall be reviewed and
approved by the City Council or its designee.
H. Prior to opening for operations, Applicant shall be the lead party in forming an
Events Planning and Coordination Task Force, in cooperation with the Chula
Vista Police Department, Fire Department, Public Works Department, Planning
Department, Building and Housing Department and Community Development
Department. Said Task Force's objective shall be to develop an Events Plan
which addresses traffic control, security, emergency response, and any other
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Resolution No.
Page #8
appropriate operational aspects. Actual operations shall be reviewed annually by
the Task Force to ensure conformity with the Events Plan.
1. Provide all traffic control management and event security (e.g., cones, barricades,
signs, traffic control and security personnel, etc.) to the satisfaction of the Chief
of Police and the City Engineer. All costs associated with implementation of this
condition shall be paid by the Applicant.
J. During concerts/events, provide all necessary steps to assure expeditious
access/preference to City of Chula Vista Public Works Department personnel who
have been called on an emergency basis to the City's Corporation Yard, and
coordinate ingress to and egress from the Corporation Yard with the Police
Department and other affected agencies, to the satisfaction of the Chief of Police
and the City Engineer.
K. For the life of the amphitheater, provide press information to the radio media on
concert/event days to in order to alert drivers on 1-805/1-905/1-5, or any future
freeway which may be used by amphitheater patrons.
L. Prior to obtaining any building permit, comply with the following, to the
satisfaction of the City Engineer:
I. Submit a grading plan prepared by a registered civil engineer to the City
Engineer for review and approval;
2. Obtain a grading permit; and
3. Submit pad certification to the City Engineer with respect to the pad for
which the permit is being obtained.
M. Prior to framing and/or electrical inspection of any structures on the Project Site,
comply with the following, to the satisfaction of the City Engineer:
I. Submit to the City Engineer for review and approval improvement plans
for street widening, curbs, gutters, sidewalks, street lights and raised
medians, all of which shall be prepared by a registered civil engineer;
2. Obtain a construction permit from the City Engineer; and
3. Dedicate adequate right-of-way for the widening of all affected streets in
or around the project.
N. Prior to preforming any work in the City right-of-way, obtain a construction
permit from the City Engineer.
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Resolution No.
Page #9
O. To the satisfaction of the City Engineer as he/she determines necessary or
appropriate to mitigate traffic impacts from the project, implement the following:
1. Install enhanced roadway lighting on those portions of Otay Valley Road,
Otay Rio Road and all internal roadways within the Project that require
special traffic controls (e.g., coning, barricades, reversible lanes, etc.)
During amphitheater events.
2. Install a traffic signal at Otay Rio Road and Otay Valley Road, or the
southerly private road (formerly Spyglass Hill Road), as deemed necessary
by the City Engineer.
3. Apply special striping, delineation and signing to all streets and roadways
affected by Project traffic, including vehicular, bicycle and pedestrian.
4. Provide a gated, all-weather access road to the potential Corporation Yard
to the west complete with a knox box for use by the Public Works
Department for exclusive access to the Corporation Yard. Said gate shall
conform to all specifications detailed by the City Engineer. Additionally,
the developer shall obtain and grant to the City an access easement to
utilize the gate and road. The preferred location of the all-weather, gated
access road is the north side of the complex along Parking Area B, but
another location may be negotiated with the City Engineer.
P. Prior to the first event, schedule a security survey with the Chula Vista Police
Department, Crime Prevention Unit, and implement the suggestions of said
survey in order to enhance the security of the facility, to the satisfaction of the
Chief of Police.
Q. To the satisfaction of the Fire Marshal, provide an adequate entry plan for all
areas with vehicular access and which are gated, roped off or otherwise
impassable. Said plan may include but not be limited to providing knox boxes
at appropriate locations, or a lock and chain capable of being cut with bolt
cu tters.
R. Comply with and implement all requirements of the Fire Marshal as related to
conforming with the Uniform Fire Code and applicable Municipal Code
requirements.
S. To the satisfaction of the Fire Marshall, develop and implement a Pre-fire and
Emergency Medical Plan for emergency services during concerts/events. Said
plan shall require the posting of at least one paramedic unit and standby Fire
Department personnel, or qualified private sector personnel at the discretion of
the Fire Marshall, at the amphitheater during a concert/event and the backfilling
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Resolution No.
Page #11
Z. This conditional use permit shall become void and ineffective if not utilized or
extended within one year from the effective date thereof, in accordance with
Section 19.14.260 of the Municipal Code.
VIII. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL
The property owner and the applicants shall execute this document by signing the lines provided
below, said execution indicating that the property owner and applicant have each read,
understood and agreed to the conditions contained herein. Upon execution, this document shall
be recorded with the County Clerk of the County of San Diego, at the sole expense of the
property owner and/or applicants, and a signed, stamped copy returned to the Planning
Department. Failure to return a signed and stamped copy of this recorded document within
thirty days of recordation to the Planning Department shall indicate the property
owner's/applicants' desire that the project, and the corresponding application for building permits
and/or a business license, be held in abeyance without approval.
Signature of Property Owner
Date
Signature of Representative of
Bitterlin- Brice Development Partners
Date
Signature of Representative of MCA Concerts, Inc.
Date
IX. NOTICE OF DETERMINATION
The City Council directs the Environmental Review Coordinator to post a Notice of
Determination and file the same with the County Clerk.
X. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Resolution is dependent
upon the enforceability of each and every term, provision and condition herein stated;
and that in the event that anyone or more terms, provisions or conditions are determined
by a Court of competent jurisdiction to be invalid, illegal or unenforceable, this
resolution and the permit shall be deemed to be automatically revoked and of no further
force and effect ab initio.
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Resolution No.
Page #8
1. Provide all traffic control management and event security (e.g., cones, barricades,
signs, traffic control and security personnel, etc.) to the satisfaction of the Chief
of Police and the City Engineer. All costs associated with implementation of this
condition shall be paid by the Applicant.
1. During concerts/events, provide all necessary steps to assure expeditious
access/preference to City of Chula Vista Public Works Department personnel who
have been called on an emergency basis to the City's Corporation Yard, and
coordinate ingress to and egress from the Corporation Yard with the Police
Department and other affected agencies, to the satisfaction of the Chief of Police
and the City Engineer.
K. For the life of the amphitheater, provide press information to the radio media on
concert/event days to in order to alert drivers on 1-805/1-905/1-5, or any future
freeway which may be used by amphitheater patrons.
L. Prior to obtaining any building permit, comply with the following, to the
satisfaction of the City Engineer:
1. Submit a grading plan prepared by a registered civil engineer to the City
Engineer for review and approval;
2. Obtain a grading permit; and
3. Submit pad certification to the City Engineer with respect to the pad for
which the permit is being obtained.
M. Prior to framing and/or electrical inspection of any structures on the Project Site,
comply with the following, to the satisfaction of the City Engineer:
1. Submit to the City Engineer for review and approval improvement plans
for street widening, curbs, gutters, sidewalks, street lights and raised
medians, all of which shall be prepared by a registered civil engineer;
2. Obtain a construction permit from the City Engineer; and
3. Dedicate adequate right-of-way for the widening of all affected streets in
or around the project.
N. Prior to preforming any work in the City right-of-way, obtain a construction
permit from the City Engineer.
O. To the satisfaction of the City Engineer as he/she determines necessary or
appropriate to mitigate traffic impacts from the project, implement the following:
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Resolution No.
Page #9
1.
Install enhanced roadway lighting on those portions of Otay Valley Road,
Otay Rio Road and all internal roadways within the Project that require
special traffic controls (e.g., coning, barricades, reversible lanes, etc.)
During amphitheater events.
2.
Install a traffic signal at Otay Rio Road and Otay Valley Road, or the
southerly private road (formerly Spyglass Hill Road), as deemed necessary
by the City Engineer.
3.
Apply special striping, delineation and signing to all streets and roadways
affected by Project traffic, including vehicular, bicycle and pedestrian.
4.
Provide a gated, all-weather access road to the potential Corporation Yard
to the west complete with a knox box for use by the Public Works
Department for exclusive access to the Corporation Yard. Said gate shall
conform to all specifications detailed by the City Engineer. Additionally,
the developer shall obtain and grant to the City an access easement to
utilize the gate and road. The preferred location of the all-weather, gated
access road is the north side of the complex along Parking Area B, but
another location may be negotiated with the City Engineer.
P. Prior to the first event, schedule a security survey with the Chula Vista Police
Department, Crime Prevention Unit, and implement the suggestions of said
survey in order to enhance the security of the facility, to the satisfaction of the
Chief of Police.
Q. To the satisfaction of the Fire Marshal, provide an adequate entry plan for all
areas with vehicular access and which are gated, roped off or otherwise
impassable. Said plan may include but not be limited to providing knox boxes
at appropriate locations, or a lock and chain capable of being cut with bolt
cutters.
R. Comply with and implement all requirements of the Fire Marshal as related to
conforming with the Uniform Fire Code and applicable Municipal Code
requirements.
S. To the satisfaction of the Fire Marshall, develop and implement a Pre-fire and
Emergency Medical Plan for emergency services during concerts/events. Said
plan shall require the posting of at least one paramedic unit and standby Fire
Department personnel, or qualified private sector personnel at the discretion of
the Fire Marshall, at the amphitheater during a concert/event and the backfilling
of said paramedic unit and/or standby Fire Department personnel if called upon
to transport patients during an event or respond to other emergencies. Said plan
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Resolution No.
Page #10
shall also provide for training of amphitheater personnel in basic firefighting and
first aid.
T. Comply with and implement all requirements of the Director of the Building and
Housing Department as related to conforming with the Uniform Building Code.
U. Comply with and implement all provisions related to Title 24 (Part II), Disabled
Access, to the satisfaction of the Director of Building and Housing.
V. Prior to obtaining any building permit, pay all applicable fees to the Chula Vista
Elementary School District and Sweetwater Union High School District, or
participate in alternative financing mechanisms, to the satisfaction of each
respective school district.
W. Subject to the rights granted by this Conditional Use Permit, comply with all City
ordinances, codes, standards, and policies. Any violation of City ordinances,
codes, standards, and policies, or of any condition of approval subject to the
rights granted by this Conditional Use Permit shall be grounds for revocation or
modification of this Conditional Use Permit by the City of Chula Vista.
X. Prior to issuance of a certificate of occupancy, enter into an agreement with the
City, in a form approved by the City Attorney, whereby the Applicant shall agree
to:
1. Indemnify and hold the City harmless from and against any and all
damages, liabilities, claims and costs arising directly or indirectly from
Applicant or third party conduct at or around the facility in connection
with Applicant sponsored events; and
2. Name the City as an additional insured on any policies of insurance
intended to insure Applicant against such damages, liabilities, claims and
costs.
Y. This permit shall be subject to any and all new, modified or deleted conditions
imposed after approval of this permit to advance a legitimate governmental
interest related to health, safety or welfare which the City shall impose after
advance written notice to the Permittee and after the City has given to the
Permittee the right to be heard with regard thereto. However, the City, in
exercising this reserved right/condition, may not impose a substantial expense or
deprive Permittee of a substantial revenue source which the Permittee can not, in
the normal operation of the use permitted, be expected to economically recover.
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Resolution No.
Page #11
Z. This conditional use permit shall become void and ineffective if not utilized or
extended within one year from the effective date thereof, in accordance with
Section 19.14.260 of the Municipal Code.
VIII. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL
The property owner and the applicants shall execute this document by signing the lines provided
below, said execution indicating that the property owner and applicant have each read,
understood and agreed to the conditions contained herein. Upon execution, this document shall
be recorded with the County Clerk of the County of San Diego, at the sole expense of the
property owner and/or applicants, and a signed, stamped copy returned to the Planning
Department. Failure to return a signed and stamped copy of this recorded document within
thirty days of recordation to the Planning Department shall indicate the property
owner's/applicants' desire that the project, and the corresponding application for building permits
and/or a business license, be held in abeyance without approval.
Signature of Property Owner
Date
Signature of Representative of
Bitterlin-Brice Development Partners
Date
Signature of Representative of MCA Concerts, Inc.
Date
IX. NOTICE OF DETERMINATION
The City Council directs the Environmental Review Coordinator to post a Notice of
Determination and file the same with the County Clerk.
X. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Resolution is dependent
upon the enforceability of each and every term, provision and condition herein stated;
and that in the event that anyone or more terms, provisions or conditions are determined
by a Court of competent jurisdiction to be invalid, illegal or unenforceable, this
resolution and the permit shall be deemed to be automatically revoked and of no further
force and effect ab initio.
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Resolution No.
Presented by
Approved as to form by
Page #12
~3~
Robert A. Leiter
Director of Planning
M:\.hared\attomey\9547mca.res
-
I~C-/~
;.l95
RESOLUTION NO. I i"~t?
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA GRANTING A CONDITIONAL USE PERMIT,
PCC-95-47, TO KOBEY'S CHULA VISTA MARKETPLACE,
LLC., TO OPERATE AN OPEN AIR MARKET AT THE
SOUTHWEST QUADRANT OF OTAY VALLEY ROAD AND
OTAY RIO ROAD
1. RECITALS
A. Project Site
WHEREAS, the parcel which is the subject matter of this resolution is
diagrammatically represented in Exhibit A attached hereto and incorporated herein
by this reference, and commonly known as the Otay Rio Business Park, and for
the purpose of general description herein consists of 72.5 acres of land located
at the southwest quadrant of Otay Valley Road and Otay Rio Road and in the
western-most parking lot of the proposed MCA Amphitheater ("Project Site"), the
principal land use; and,
B. Project Applicant
WHEREAS, on May 23, 1995 a duly verified application for a conditional use
permit (PCC-95-47) was filed with the City of Chula Vista Planning Department
by Bitterlin-Brice Development Partners for Kobey's Chula Vista Marketplace,
LLC., ("Applicant"); and,
C. Project Description; Application for Conditional Use Permit
WHEREAS, Applicant requests permission to operate an open air market
("Project") on the Project Site as a secondary use to the principal land use as the
MCA Amphitheater; and,
WHEREAS, an Environmental Impact Report was determined necessary and
prepared for the Project a Draft of which was made available for public review
and public comments were received and responded to in accordance with CEQA;
and,
D. Public Forum Record on Application
WHEREAS, a public forum was held on June 22, 1995 for area residents to
introduce to them the proposed land use and its impacts; and,
E. Resource Conservation Commission Record on Application
WHEREAS, the Resource Conservation Commission considered EIR-95-03 on
July 10, 1995 and voted 4-1 to accept its adequacy; and,
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Resolution No.
Page #2
F. Planning Commission Record on Application
WHEREAS, the Planning Commission held an advertised public hearing on the
Project on September 6, 1995 and voted 6-0-1 to recommend that the City
Council approve the Project in accordance with Planning Commission Resolution
PCC-95-47B; and,
G. City Council Record of Application
WHEREAS, a duly called and noticed public hearing on the Project was held
before the City Council of the City of Chula Vista September 26, 1995 and
October 3, 1995 to receive the recommendation of the Planning Commission, and
to hear public testimony with regard to same.
WHEREAS, at such public hearing the City Council evaluated the Conditional
Use Permit application and public testimony for the project and certified EIR 95-
03.
NOW, THEREFORE BE IT RESOLVED that the City Council does hereby find,
determine and resolve as follows:
II. PLANNING COMMISSION RECORD
The proceedings and all evidence on the Project introduced before the Planning
Commission at their public hearing on this project held on September 6, 1995, and the
minutes and resolution resulting therefrom, are hereby incorporated into the record of
this proceeding.
III. CERTIFICATION OF COMPLIANCE WITH CEQA
The City Council hereby adopts and incorporates herein all findings, determinations and
resolutions set forth in Resolution No._ of the City Council certifying EIR-95-03.
IV. CEQA FINDINGS
A. Adoption of Environmental Impact Report Findings - After its independent
review, the Council does hereby approve, accept as its own, and incorporate as
if set forth full herein, and make each and everyone of the CEQA Findings as
found in Environmental Impact Report, EIR-95-03.
B. Adoption of the Mitigation Monitoring Program - The City Council hereby adopts
and incorporates herein the Mitigation Monitoring and Reporting Program
("Program") set forth in EIR-95-03 and finds that the Program is designed to
ensure that during the project implementation and operation, the Applicant and
other responsible parties implement the project components and comply with the
feasible mitigation measures identified in the CEQA Findings and in the Program.
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Resolution No.
Page #3
C. Statement of Overriding Considerations - Even after the adoption of all feasible
mitigation measures and any feasible alternatives, certain significant or potentially
significant environmental effects caused by the Project, or cumulatively, will
remain. Therefore, the City Council of the City of Chula Vista hereby issues,
pursuant to CEQA Guidelines Section 15093, the Statement of Overriding
considerations in identifying the specific economic, social and other
considerations that render the unavoidable significant adverse environmental
effects acceptable. The City Council further finds that the Statement of
Overriding Considerations has been prepared in accordance with the requirements
of the California Environmental Quality Act, the State EIR Guidelines, and the
Environmental Review Procedures of the City of Chula Vista.
V. INCORPORATION OF ALL FEASIBLE MITIGATION MEASURES
The City Council does hereby adopt and incorporate herein as conditions for all
approvals herein granted by this Conditional Use Permit all mitigation measures
identified by EIR-95-03 for the open air market which it has determined therein to be
feasible.
VI. CONDITIONAL USE PERMIT FINDINGS
The City Council of the City of Chula Vista does hereby make the findings required by
the City's rules and regulations for the issuance of conditional use permits, as
hereinbelow set forth, and sets forth, thereunder, the evidentiary basis that permits the
stated findings to be made.
A. That the proposed use at the location is necessary or desirable to provide a
service or facility which will contribute to the general well being of the
neighborhood or the community.
The proposed open air market is desirable in that it will provide a needed service not
otherwise easily accessible to residents of southern Chula Vista by making available a
place where they can purchase a wide array of new and used needed personal, household
and business items at economical prices.
B. That such use will not under the circumstances of the particular case, be
detrimental to the health, safety or general welfare of persons residing or
working in the vicinity or injurious to property or improvements in the
vicinity.
The operational plan of the proposed open air market indicates that traffic going to or
coming from the market at the Project Site will not have negative impacts to the health,
safety or general welfare of persons residing or working in the vicinity or be injurious
to property or improvements in the vicinity in that the arrival and departure of vendors
and shoppers will be spread throughout the day, thus not causing congested roadways.
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Resolution No.
Page #4
At present, lands within the City of Chula Vista surrounding the Project Site are
undeveloped.
C. That the proposed use will comply with the regulations and conditions
specified in the code for such use.
Conditional Use Permit PCC-95-47 is conditioned to require the permittee and property
owner to fulfill conditions and to comply with all the applicable regulations and standards
specified in the Municipal Code for such use.
The conditioning of PCC-95-47 is approximately proportional both in nature and extent
to the impact created by the proposed development in that the conditions imposed are
directly related to and are of a nature and scope related to the size and impact of the
project.
D. That the granting of this conditional use permit will not adversely affect the
general plan of the City or the adopted plan of any government agency.
The granting of PCC-95-47 will not adversely affect the Chula Vista General Plan in that
said Project is proposed to be operated on a site already partially developed, containing
public facilities (water, sewer, etc.), and which is proposed to be developed as an
amphitheater, said proposed open air market conforming with the General Plan in that
this conditional use permit has been properly executed and duly adopted.
VII. TERMS OF GRANT OF PERMIT
The City Council hereby grants Conditional Use Permit PCC-95-47 subject to the
following conditions whereby the applicant and/or property owner shall:
A. Only after construction and occupancy of the MCA Amphitheater, implement the
Project as submitted to and approved by the City, except as modified herein
and/or as required by the Municipal Code.
B. Not allow the storage of any temporary structures on-site during non-business
hours or the construction of any permanent structure or enclosure for the open air
market, except as otherwise outlined in the following paragraph, or unless a
modification to this conditional use permit and the design review approval is
submitted to and approved by the Zoning Administrator. (Note: It is anticipated
that a permanent storage enclosure or structure will be established on-site
provided all issues regarding location, aesthetics and the maintenance of adequate
parking and circulation can be resolved to the satisfaction of the Zoning
Administrator. )
C.
Consistent with CVMC, Section 19.58.370B, request that the Zoning
Administrator grant, in conjunction with the open air market, up to six (6)
permits per year not to exceed twenty-four (24) days in any calendar year, but not
/ d.-IJ .,JI
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Resolution No.
Page #5
exceeding seven (7) consecutive days, for events which would allow the open air
market to maintain temporary displays and facilities on the site for the duration
of the event. The permit shall be submitted for review at least thirty (30) days
prior to the commencement of the event, and shall include all plans, exhibits, and
operational information deemed necessary by the Zoning Administrator in order
to properly evaluate the request, render a decision, and apply any necessary
conditions.
D. Prior to obtaining a business license from the City of Chula Vista for operating
an open air market, cooperate with the Business License Officer in order to
develop and implement a tax collection/business license issuance plan, to the
satisfaction of the Director of Finance.
E. The public hours of operation of the open air market are limited to hours between
7:00 a.m. and 4:00 p.m. Saturdays and Sundays; but in every instance all
structures, equipment and activities associated with the open air market other than
approved permanent storage facilities or fencing shall be cleared from the site by
7:00 p.m. The applicant may request from the Zoning Administrator extension
of the days to include Thursdays and Fridays after one year of operation from the
opening day of sales. The Zoning Administrator may approve, deny or modify
the extension subject to appeal to the Planning Commission.
F. For the life of the open air market, review the consistency of actual operations
with the operational parameters considered in the Environmental Impact Report
and Conditional Use Permit with the Zoning Administrator, Police Department,
Fire Department and Public Works Department on the anniversary date after the
opening of operations. Said review shall be initiated by a report prepared by the
open air market operator to the Zoning Administrator which shall address such
issues as traffic impacts, adequacy of parking, ingress/egress, hours of operation,
coordination with amphitheater operations, etc. The Zoning Administrator shall,
at his/her sole discretion, determine whether or not the operations are materially
consistent with the nature and intensity of the operational parameters used to
evaluate the project in the Environmental Impact Report and Conditional Use
Permit. If the operational profile is deemed inconsistent and more impactive than
originally expected, the Zoning Administrator may require review and/or
modification of conditions via additional environmental review and/or a formal
modification to the Conditional Use Permit.
G. Prior to opening for operations, schedule a security survey with the Chula Vista
Police Department, Crime Prevention Unit, and implement the suggestions of said
survey in order to enhance security. Notwithstanding the implementation of the
security survey, in the event crime and/or security becomes a problem, as
indicated by increased crime reports filed with the Chula Vista Police Department
related to the open air market, Applicant shall retain, at Applicant's expense, a
company who shall prepare a crime reduction/security provision report for the
operation of the open air market, to the satisfaction of the Chief of Police. Said
/d.IJ';-
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Resolution No.
Page #6
report shall address issues specified by the Chief of Police, and shall include
recommendations to enhance security and reduce crime. Said recommendations
shall be implemented to the satisfaction of the Zoning Administrator and the Chief
of Police.
H. Comply with and implement all requirements of the Fire Marshal as related to
conforming with the Uniform Fire Code and applicable Municipal Code
requirements.
I. In consultation with and to the satisfaction of the Fire Marshall, develop and
implement a Pre-fire and Emergency Medical Plan for emergency services during
business hours. Said plan may require the posting of at least one paramedic unit
at the open air market during operating hours and the backfilling of said unit if
it is called upon to transport patients, or the establishment of a first aid station.
Said plan may also provide for training of market personnel in basic firefighting
and first aid.
1. Comply with and implement all requirements of the Director of the Building and
Housing Department as related to conforming with the Uniform Building Code.
K. Comply with and implement all provisions related to Title 24 (Part II), Disabled
Access, to the satisfaction of the Director of Building and Housing.
L. Prior to opening for operations, pay all applicable fees to the Chula Vista
Elementary School District and Sweetwater Union High School District, or
participate in alternative financing mechanisms, to the satisfaction of each
respective school district.
M. In consultation with the operators of the MCA Amphitheater, vacate the property
early enough before all amphitheater events so as not to cause conflicts in traffic
movements or inadequate parking capacity.
N. Comply with all City ordinances, standards, and policies except as otherwise
provided in this Resolution. Any violation of City ordinances, standards, and
policies, or of any condition of approval of this Conditional Use Permit, or of any
provision of the Municipal Code, as determined by the Director of Planning, shall
be grounds for revocation or modification of this Conditional Use Permit by the
City of Chula Vista.
o. This permit shall be subject to any and all new, modified or deleted conditions
imposed after approval of this permit to advance a legitimate governmental
interest related to health, safety or welfare which the City shall impose after
advance written notice to the Permittee and after the City has given to the
Permittee the right to be heard with regard thereto. However, the City, in
exercising this reserved right/condition, may not impose a substantial expense or
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Resolution No.
Page #7
deprive Permittee of a substantial revenue source which the Permittee can not, in
the normal operation of the use permitted, be expected to economically recover.
P. This conditional use permit shall become void and ineffective if not utilized or
extended within one year from the effective date thereof, in accordance with
Section 19.14.260 of the Municipal Code.
VIII. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL
The property owner and the applicants shall execute this document by signing the lines provided
below, said execution indicating that the property owner and applicant have each read,
understood and agreed to the conditions contained herein. Upon execution, this document shall
be recorded with the County Clerk of the County of San Diego, at the sole expense of the
property owner and/or applicants, and a signed, stamped copy returned to the Planning
Department. Failure to return a signed and stamped copy of this recorded document within
thirty days of recordation to the Planning Department shall indicate the property
owner's/applicants' desire that the project, and the corresponding application for building permits
and/or a business license, be held in abeyance without approval.
Signature of Property Owner
Date
Signature of Representative of
Bitterlin-Brice Development Partners
Date
Signature of Representative of
Kobey's Chula Vista Marketplace, LLC.
Date
IX. NOTICE OF DETERMINATION
The City Council directs the Environmental Review Coordinator to post a Notice of
Determination and file the same with the County Clerk.
X. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Resolution is dependent
upon the enforceability of each and every term, provision and condition herein stated;
and that in the event that anyone or more terms, provisions or conditions are determined
by a Court of competent jurisdiction to be invalid, illegal or unenforceable, this
resolution and the permit shall be deemed to be automatically revoked and of no further
force and effect ab initio.
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Resolution No.
Page #8
Presented by
Approved as to form by
Robert A. Leiter
Director of Planning
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RESOLUTION NO. / rt?~ I
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA ORDERING THE V ACA TION OF A PORTION OF VARIOUS
STREETS IN OTAY RIO BUSINESS PARK
WHEREAS, MCA Concerts, Inc. has submitted plans for the construction of an
amphitheater on Otay Valley Road, south of the Otay River; and
WHEREAS, the plans show the project occupying the property now known as Otay Rio
Business Park, a subdivision project whose public improvements were completed in 1993 although none
of the lots in the subdivision were developed; and
WHEREAS, MCA's plans include the abandonment of four streets within the business
park in order to construct the amphitheater; and
WHEREAS, in accordance with the California Streets and Highways Code, the Council
adopted Resolution No. 17975 at its meeting on July 25,1995, setting the associated public hearing for
August 22, 1995; and
WHEREAS, at its meeting of August 22, 1995, the City Council continued the public
hearing until September 26, 1995 as the approval process for the amphitheater project was still underway;
and
WHEREAS, the Planning Commission considered and approved the EIR for this project
at its meeting of September 6, 1995; and
WHEREAS, at its meeting of September 26, 1995" the City Council continued the public
hearing until October 3, 1995; and
WHEREAS, notices required by Streets and Highways Code ~8323 have been posted;
and
WHEREAS, Tuesday, the 3rd day of October, 1995 at 6:00 p.m. in the Council
Chambers of the City of Chula Vista was fixed as the time and place for hearing any objections to such
vacation, and the Council having heard all interested persons.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby find,
order, determine and resolve as follows:
Section I. That City Council does hereby order the vacation of various streets in Otay
Rio Business Park, more particularly described in Exhibit A, attached hereto and incorporated herein by
reference as if set forth in full, reserving and not vacating such easements and rights therein described.
Section 2. That the City Clerk is hereby directed to record a certified copy of this
resolution with the office of the San Diego County Recorder.
Presented by
Approved as to form by
C:\rs\wcation
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John P. Lippitt, Director of
Public Works
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LEC,ENO:
V / / / /J - ST~cc is io BE VACATED
LOT NUMBERS
DRAWN BY
L.M. G.
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FILE NO. PII.O~4
DATE:
J;~iEXHIBIT 'liB"
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OWN BY:
LEGAL DESCRIPTION FOR THE VACATION OF
CASTLE PINES A VENUE,GLEN EAGLES DRIVE,
TURNBERRY DRIVE, AND SPYGLASS HILL ROAD
WITH UTILITY EASEMENT RESERVATIONS
BEING A PORTION OF Chula Vista Tract No. 87-6, Otay Rio Business Park, Unit No.1, according
to Map thereof No. 12458, on file in the office of the County Recorder of San Diego County, in the
City of Chula Vista, County of San Diego, State of California, more particularly described as follows:
Being all those portions of Castle Pines Avenue (1.59 acres, more or less), Glen Eagles Drive
(1.56 acres, more or less), Turnberry Drive (1.73 acres, more or less), and Spyglass Hill Road
(3.33 acres, more or less), as shown on said Map No 12458.
RESERVING AND EXCEPTING from vacation and abandonment, to the City of Chula Vista
easements and right-of-way for, or rights to construct, operate, maintain, replace, enlarge and repair
sewer and storm drain facilities and their related appurtenant structures in, upon, over and across that
certain real property situated in the City of Chula Vista, County of San Diego, State of California,
and more particularly described as all of said Castle Pines Avenue and Spyglass Hill Road, together
with the right to enter upon and to pass and repass over and along said easement and right-of-way
and to deposit tools, implements and other materials thereon by said City of Chula Vista, its officers,
agents and employees, and by any contractor, his agents and employees engaged by said City,
whenever and wherever necessary for the purposes above set forth.
Contains 4.92 acres, more or less.
RESERVING AND EXCEPTING from vacation and abandonment, to the Otay Water District
easements for and right-of-way for, or right to construct, operate, maintain, replace, and repair water
facilities and their related appurtenant structures and the rights of ingress and egress for such
purposes in that certain real property situated in the City of Chula Vista, County of San Diego, State
of California, and more particularly described as all of said Turnberry Drive, Glen Eagles Drive,
Castle Pines Avenue and Spyglass Hill Road.
Contains 8.21 acres, more or less.
Page 1
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RESERVING AND EXCEPTING from vacation and abandonment, easements and rights to Pacific
BeD, a corporation, pursuant to any existing franchise or renewals thereof, or otherwise, at any time
or from time to time to construct, maintain, operate, replace and remove aerial and underground
communication structures consisting of conduits, cables, wires, poles and other necessary and
appurtenances, together with the right of ingress and egress to protect the property from all hazards
in, under and upon said Spyglass Hill Road, Castle Pines Avenue, Turnberry Drive and Glen
Eagles Drive
Contains 8.21 acres, more or less.
RESERVING AND EXCEPTING from vacation and abandonment, an easement to City of San
Diego for access purposes upon, over and across that certain real property situated in the City of
Chula Vista, County of San Diego, State of California, and more particularly described as all of said
Spyglass Hill Road, together with the right to enter upon and to pass and repass over and along said
easement and right-of-way and to deposit tools, implements and other materials thereon by said City
San Diego
Contains 3.33 acres, more or less.
RESERVING AND EXCEPTING from vacation and abandonment, easements and rights to San
Diego Gas and Electric Company, a corporation, pursuant to any existing franchise or renewals
thereof, or otherwise, at any time, or from time to time to construct, maintain, operate, replace, renew
remove or enlarge lines of pipe, conduits, cables, wires, poles or other structures, equipment and
fextures for the operation of gas pipe lines, and for the transportation of gas and/or electrical energy
for the incidental purposes thereof, including ingress and egress, to protect the property from all
hazards in, under and upon said Spyglass Hill Road, Castle Pines Avenue, Turnberry Drive and
Glen Eagles Drive
Contains 8.21 acres, more or less.
NO BUll.DINGS AND/OR STRUCTURES shall be erected, walls constructed, fences built nor trees
planted upon the easements herein described.
JWH [c:\wp51\pv\leg_desc.064]
Page 2
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COUNCIL AGENDA STATEMENT
Page 1, Item / J
Meeting Date 10/3/95
ITEM TITLE:
Public Hearing: Zoning Text Amendment PCA-96-01; Request to add
wording to Section 19.68.020 T.1 of the Municipal Code which would
clarify that noise associated with the normal operations of any land use
approved by a conditional use permit is considered "environmental" rather
than nuisance noise - Bitterlin Brice Development Partners, Agents for
MCA Concerts, Inc.
Ordinance 02.~ 'I;J- Amending ~19.68.020 T.1, Title 19 of the
Municipal Code to clarify that noise normally associated with a
conditionally permitted land use is to be considered the same as noise
normally associated with a permitted land use
SUBMITTED BY: Director of Planning ~
REVIEWED BY: City Manager j~ ~~ (4/5ths Vote: Yes_No.lO
This amendment would clarify the distinction between "nuisance noise" as opposed to
"environmental noise"as it would relate to conditional uses in general and the operations of the
MCA Amphitheater in particular. The Environmental Review Coordinator has concluded that
this text amendment is exempt from environmental review pursuant to Section 15061(b)(3) of
the California Environmental Quality Act.
RECOMMENDATION: That the Council adopt the Ordinance amending Section 19.68.020
T.1 of the Municipal Code to clarify the distinction between environmental and nuisance noise
as it relates to conditional uses.
BOARDS/COMMISSIONS RECOMMENDATION:
On September 6, 1995, the Planning Commission voted 6-0 recommending that Council approve
the text amendment to Section 19.68.020 T.1 of the Municipal Code. The minutes from that
meeting are attached to the staff report for the MCA Amphitheater.
DISCUSSION:
1. Provosal
In an application and letter dated August 18, 1995, the Applicant has requested that the wording
found in ~19.68.020 T.1 be expanded as follows (additional wording highlighted):
"Noise Disturbance-- Environmental. Those noise distllr~al1~es resllltil1gfr()Illlan~ll~~
activity normally permitted under the land use code, PiJp#.i.M~mpq~~~.
~~tlt!, but which exceed the noise level limits set bytlilScodefortliaipartkiiiaiiand
/3 -/
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Page 2, Item /.3
Meeting Date 10/3/95
use. Environmental noise sources are specified in, but not limited by the list in
Appendix A."
The impact of this wording would be that noise resulting from the normal and expected
operations of a land use approved under authority of a conditional use permit would be
considered the same as the noise resulting from the normal and expected operations of a
permitted use, i.e., "environmental" rather than "nuisance" noise. For example, freeway noise
is considered environmental noise because the noise results from the normal use of the land as
a transportation corridor. Children playing on a school playground during school hours would
also be considered environmental noise. Environmental noise is the expected result of a given
land use. In the case of the amphitheater, any noise resulting from a concert would be
considered normal and expected, and thus environmental noise.
2. Analvsis
The substance of the amendment is that the impact of environmental noise is measured over a
one hour period in order to achieve an average compliance with the standard, and is enforced
through the normal code compliance process. Conversely, nuisance noise, which is not
considered normal and expected, cannot exceed the standard at any time and is enforced by the
Police Department in response to specific complaints, i.e., a loud party in a residential
neighborhood.
The applicant has been assured by staff that noise from the normal, scheduled operations of the
amphitheater would be considered and measured as environmental noise notwithstanding this
amendment. However, MCA prefers to have the language in the Code so as to avoid any
confusion or misunderstandings in the future.
Staff believes the additional language clarifies any ambiguities in the Code and recommends
adoption of the amendment.
FISCAL IMPACT: No fiscal impacts to the City are anticipated because ~19.68.020 T.l, Title
19 of the Municipal Code is already interpreted in the manner requested and, therefore, there
will be no additional staff time or City resources committed to enforcement than already exists.
Applicant is paying all costs associated with the processing of this text amendment request.
Attachments
1. Draft Council Ordinance
2. Planning Commission Minutes from September 6, 1995
3. Application and letter dated August 18, 1995
4. Disclosure Statement
(m:\horne\planning\martin\mca\9601a.113)
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ORDINANCE NO.
ol. t '-/,1-
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF CHULA VISTA AMENDING
~19.68.020 T.l, TITLE 19 OF THE MUNICIPAL
CODE TO CLARIFY THAT NOISE NORMALLY
ASSOCIATED WITH A CONDITIONALLY
PERMITTED LAND USE IS TO BE CONSIDERED
THE SAME AS NOISE NORMALLY
ASSOCIATED WITH A PERMITTED LAND USE
WHEREAS, Bitterlin Brice Development Partners, Agents for MCA
Concerts, Inc., has submitted a request to amend the Municipal Code in order
to clarify that noise normally associated with a conditionally permitted land
use is to be considered the same as noise normally associated with a
permitted land use, i.e., environmental rather than nuisance noise under the
definition of ~ 19 . 68.020 T.l , Noise Disturbance -- Environmental; and
WHEREAS, the Municipal Code could be considered ambiguous as
related to noise produced by conditionally permitted land uses; and
WHEREAS, the Environmental Review Coordinator has concluded that
the amendment is exempt pursuant to Section 15061(b)(3) of the California
Environmental Quality Act; and
WHEREAS, on September 6, 1995 the Planning Commission voted 6-
o to recommend that the City Council adopt the amendment to the Municipal
Code in accordance with Resolution No. PCA-96-01; and
WHEREAS, the City Clerk set the time and place for a hearing on said
amendment and notice of said hearing, together with its purpose, was given
by its publication in a newspaper of general circulation in the city at least ten
days prior to the hearing; and
(m: \home\planning\martin\mca\9601 cc. ord)
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Ordinance No.
Page #2
WHEREAS, the hearing was held at the time and place as advertised,
namely September 26, 1995, at 6:00 p.m. in the Council Chambers, 276
Fourth Avenue, before the City council and said hearing was thereafter
closed.
NOW, THEREFORE, the City Council of the City of Chula Vista does
hereby find, determine and ordain as follows:
SECTION I: That there are no potential significant environmental
impacts associated with the amendment.
SECTION II: That the public necessity, convenience, general
welfare, and good zoning practice justify the amendment, and that the
amendment is consistent with the City of Chula Vista General Plan.
SECTION III: That ~19.68.020 T.l, Title 19 of the Municipal Code is
hereby amended to read as follows:
"Noise Disturbance--Environmental. Those noise disturbances
resulting from land use activity normally permitted under the land
use codeg!.~I!I~.~911~~.!I~~~~~~~I~.lt, but which
exceed the. Iloise levefliriiiissetbytliisc:6def6itliat particular
land use. Environmental noise sources are specified in, but not
limited by the list in Appendix A."
SECTION IV: This Ordinance shall take effect and be in full force and
effect on the thirtieth day from and after its se nd reading adoption.
Presented by pp ved as it
Bruce M. Boogaard
City Attorney
Robert A. Leiter
Director of Planning
(m: \home\planning\martin\mca\960 Ice. ord)
13-1,
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Attachment 2
Planning Commission Minutes
from September 6, 1995
JJ'?
Excerpt from Planning Commission Minutes of 9/6/95
ITEM 3:
PUBLIC HEARING: ZONING TEXT AMENDMENT PCA-96-01: REQUEST
TO ADD WORDING TO SECTION 19.68.020 T.l OF THE MUNICIPAL
CODE WHICH WOULD CLARIFY THAT NOISE ASSOCIATED WITH THE
NORMAL OPERATIONS OF ANY LAND USE APPROVED BY A
CONDITIONAL USE PERMIT IS CONSIDERED "ENVIRONMENTAL"
RATHER THAN NUISANCE NOISE - Bitterlin Brice Development Partners,
Agents for MCA Concerts, Inc.
Associate Planner Miller presented the staff report, noting that the text amendment dealt with
the clarification to the noise ordinance of the Zoning Code, Chapter 19.68. He noted that noise
disturbances resulting from land use activities that are normally permitted are considered
environmental in nature. The wording being proposed is to also insert uses permitted by
conditional use permit. This issue had been brought about at the applicant's request. Staff
supported the request and recommended that the Planning Commission make the change as
outlined in resolution PCA-96-01 and the draft City Council ordinance.
Chair Tuchscher asked for an explanation of the difference in nuisance noise and environmental
noise.
Principal Planner Griffin explained that environmental noise is measured as an average over a
one-hour period and can exceed the standard at various periods as long as the average for a one-
hour period meets or is below the noise standard. Nuisance noise cannot exceed the standard
at any time. Staff's interpretation of the amphitheater noise was that it was clearly
environmental, because it had to do with normal operations of the amphitheater.
Commissioner Salas clarified that a normal noise of a business which would be expected from
that business would be an environmental noise; if it was something out of the ordinary that
wasn't expected to be there, that would be a nuisance noise.
Chair Tuchscher asked how this would affect the applicant; average to 50 decibels would be
different from spikes to 50 decibels. He thought it was probably the spikes that bothered people.
Mr. Wrightson replied that it made it consistent with noise ordinances in other jurisdictions, and
also makes a measurement reliable, predictable, consistent, and repeatable. He explained that
the averaging was not an arithmetic average, but was a logarithmic average. The averaging was
not as big an advantage to the applicant as it may seem on the surface.
This being the time and the place as advertised, the public hearing was opened.
(The following had submitted speaker slips but were not present when called:)
Rose Escalante, 1595-50 Mendocino Dr.; Colleen Seegers, 1672 Oleander Ave.; Neva Bridwell,
1545 Olive Ave.; Don Bridwell, 1545 Olive; Robert Giacobassi, 1648 Ocala Ave.;
/3'1
PC Minutes
-34-
September 6, 1995
Gail Moriarity, Ocala Ave., CV asked that the noise test be done for an hour, and that they
be notified ahead of time. She felt the noise was not environmental; that the Planning
Commission was giving the MCA a special use permit and then they were trying to change the
classification of the noise.
Mr. Griffin stated they were not trying to change their classification. They did not want any
possibility of any confusion in the future.
Kim Kilkenny, 3938 Syne Drive, SD, said he would defer any comments to a later date.
Robert Moriarity, Ocala Ave., CV, regarding nuisance versus environmental, said that as long
as it was a verbal agreement, the City may agree but a judge may not. But if it was changed
in the Code, the residents were locked into a situation. If there was a general violation of an
environmental law, the City would take the steps necessary to correct the problem. However,
it is a nuisance noise, the residents would call the police. If there was a specific exemption in
addition to the exemption given MCA to build and operate, they also have the noise exemption.
By definition, any noise from MCA is an environmental noise. In that case, if there was an
hour of noise at 80 decibels at Mr. Moriarity's home, he would not be able to call the police.
He would only be able to call the City and ask the City to go through their normal channels to
correct the violation of the 45 decibel limit, because this was now an environmental noise. He
asked the Commissioners to keep a grip on reality and recognize that if 40 or 45 decibels is what
the City law should be and above that is a nuisance, the Commission had given a special use
permit. He asked that the Commission at least give the residents an opportunity to call the
police.
David Wade, 419 Park Way, CV, concluded that this would be an average that would be
maintained below a certain decibel on the average for the hour. He asked if there would be any
limit to the sound spikes in this average.
Mr. Wrightson said that the spikes get included in the average. Everything during the hour is
included, as well as dead silence. There is no limit to the spike; however it is weighted very
heavily towards the highest sound levels recorded. A 10 dB spike would raise the average
dramatically even for a very short duration.
Commissioner Tarantino asked if it was different if an organization or business violates a noise
ordinance as opposed to a private citizen. He used for an example the loading and unloading
at Home Depot in the middle of the night. Mr. Griffin said the loading and unloading was an
expected regular, normal part of their operation and would be considered an environmental
noise.
Commissioner Tarantino surmised the residents wanted to be able to call the police if the MCA
amphitheater violated the noise ordinance. His question was whether the police would actually
go out there. Mr. Monaco said it would depend on the nature of the disturbance, if it was
something related to the land use, the noise associated with that use is considered environmental
noise which is part of their production process. An example of nuisance noise would be
IJ-/tJ
PC Minutes
-35-
September 6, 1995
someone playing a drum set in a residential neighborhood, something that is not associated with
a residential use.
Commissioner Tarantino explained that what they were doing was not special for MCA, but
something that is done routinely.
Mr. Griffin said if it was still considered nuisance noise, the amphitheater would be approved
but you wouldn't expect them to have any concerts.
Chair Tuchscher clarified that schools, roadways, freeways, distribution facilities were all
enviromnental noise. Mr. Griffin confirmed.
Answering Commissioner Davis, Mr. Griffin confirmed that if someone were violating a Code,
it would come under Code Enforcement versus the police.
No one else wishing to speak, the public hearing was closed.
Commissioner Ray asked why the enviromnental noise measurement would have to be for an
hour instead of perhaps a IS-minute measurement. Mr. Monaco answered that the one hour
average was the standard set in the noise ordinance.
Commissioner Ray stated that the residents would be impacted by those additional noises above
and beyond the concert noise. He was concerned that they were changing the whole make-up .
and the whole intent of everything they had been pushing for in terms of the noise restrictions
in the prior two items.
Commissioner Salas explained that the conditional use of the amphitheater--the normal use of
the amphitheater was that they would have rock concerts and would have some peak periods
where there would be more noise in some parts of the concert than in others. She noted some
examples of enviromnental noise.
Mr. Griffm stated that if certain special events such as fireworks, shooting off a cannon, etc.
were part of the program, it would be provided for in the conditional use permit and would
happen on a periodic basis and would be considered enviromnental noise because it would be
expected as part of the operations.
Chair Tuchscher said they had to notify the City 30 days prior to the use of special effects,
fireworks, etc.
MSC (Davis/Tarantino) 6-0 (Commissioner Thomas absent) to adopt Resolution PCA-96-01
recommending that the City Council amend Section 19.68.020 Tl of the Municipal Code
to clarify the distinction between environmental and nuisance noise as it relates to
conditional uses in accordance with the draft City Council ordinance and the findings
contained therein.
/3-/1
Attachment 3
Application and
Letter Dated
August 18, 1995
J:J');2..
THIS PAGE BLANK
JJ"JJ
City of Chula Vista
Planning Department
Case No: 'PeA - Cfi'o -01-
Filing Date: g -I g - <1(,.
MISCELLANEOUS REQUEST APPLICATION
TYPE OF REQUEST
Study:
Report:
Policy:
Master Plan:
Fee Schedule:
Preliminary:
Muni Code Amendment:
Street Name Change:
Land Use Chart:
Ordinance; Interim:
Urgency:
Other (Specify):
Specific Plan:
Amendment:
Redevelopment:
Amendment:
SPA Plan:
. x Amendment:
Noise Exception and
Clarifying Amendment
Project Description:
MCA Amphitheater - Outdoor amphitheater with 10,000 fixed
seats and additional seating for 10,000 patrons on a lawn berm. Project also
includes parking for 6,000 cars and support facilities, Le. restrooms,
=ncessions, etc.
Applicant: Bitterlin Brice Developnent Partners~ as Agent for Telephone No.619':'221-4406
MCA COncerts, Inc.
Address: 1055 Shafter Street, San Diego, CA 92106
*Fonnerly Bitterlin Starboard Developnent Partners
Contact Person: Garry R. Jackson
Telephone No. 619-221-4400
Related Cases: Condi tional use permi t/Design Review/Grading permi t/
Consolidation map/Street vacation
Assessor's Parcel Numbers: see attached
r~rry R .T;:u.~kiC:nn
Print Name
7/25/95
Date
mscappl
13-1'/
LAmAM & WATKINS
t .-.Ul R. WATI(lNS 11899.18731
DANA LATHAM 1111I8.187'"
ATTORNEYS AT LAW
701 .B. STREET. SUITE 2100
SAN DIEGO. CALIFORNIA 92101-9197
TELEPHONE (619) 236-1234
FAX (619) 696-7419
TLX 59077 9
ELN 62793276
2!}CAGO OFFICE
SEARS TOWER. SUITE noD
CHICAGO, ILLINOIS 601506
TELEPHONE 13121178.7700
FAX (3121 1.,..'.7
LONDON OFFICE
ONE ANGEL COURT
LONDON Ee2R 7HJ ENGLAND
TELEPHONE + 44-71.3744444
'AX + 44.71.31444110
LOS ANGELES OFFICE
133 WEST FIFTH STREET. SUITE 4000
1.0S ANGELES. CALIFORNIA 10071-2007
TELEPHONE 1213141&-123.
FAX 12131'1'-'763
MOSCOW OFFICE
11311 ;.ENINSKY PROSPECT. SUITE C200
MOSCOW 117188 RUSSIA
TElEPHONE + 7-50'3 e5l.un
FAX + 7.103 IU-IUI
August 18, 1995
BY TELECO~
Mr. Joe Monaco
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Re: MCA Amohitheater Pro;ect
Dear Joe:
NEW JERSEY OFFICE
ONE. NEWARK CENTER
NEWARK, NEW JERSEV 07101-317.
TELEPHONE (2011138.123.
FAX 1201) 138.7298
NEW YORK OFFICE
lIS THIRD AVENUE, SUITE 1000
NEW YORK, NEW YORK 10022.4102
TELEPHONE (2121 801.1200
FAX (2121 711-"114
ORANGE COUNTY OFFICE
.BiO TOWN CENTER DRIVE, SUITE 2000
COSTA MESA. CALIFORNIA 82121-11215
TELEPHONE 1714) 140-1235
FAX 17141 715-1280
SAN FRANCISCO OFFICE
lOBi MONTGOMERY STREET, SUITE 1800
IAN FRANCISCO. CALIFORNIA 84111-2512
TELEPHONE (411J '11.0100
FAX (415) llBi-lon
WASHINGTON D c. OFFICE
1001 'ENNSYLVANIA AVE., N.W., SUITE 1300
WASHINGTON. D.C. 20004-215015
TELEPHONE 12021137-2200
FAX 12021 831-2201
To follow up on our telephone conversation on
Wednesday, this will confirm our understanding that the Planning
Commission hearing on this project will be continued until
September 6, and that the City Council hearing will be continued
until September 26, unless the planned tour of other amphitheater
facilities can be completed in time to have the City Council
hearing occur on September 19.
To prepare for those hearings, you will supply me with
Tetra Tech's final revisions to the draft EIR, as well as a draft
of the conditional use permit, as soon as possible, and we will
endeavor to supply you with our comments within a day or two
after we receive the text. On a parallel track, we will work
with other departments in the City on the "business deal" so that
it can be adequately summarized for the Planning Commission and
the Council.
Also, in reference to Steve Griffin's letter of August
11, we understand the City'S position to be that the noise
ordinance regulates impacts on actual land uses, rather than
impacts on land use categories. In other words, unless and until
land impacted by sound emanating from the amphitheater is
developed and occupied, there would be no violation of the
SD180\WPS1\mca\monaco.102
IJ.../>
LATHAM ol WATKINS
Mr. Joe Monaco
August 18, 1995
Page 2
ordinance, even if measured sound in the (vacant) area exceeds
the threshholds established by the ordinance. Given this
interpretation by the City, and consistent with MCA's willingness
to cause its operations to be in compliance with the ordinance
when and if development occurs, MCA is prepared to withdraw its
request for an "exception" under Ii 19.68.070 of the Zoning
Ordinance.
However, in order to address MCA's concern that
measured sound in vacant areas in excess of the threshholds
established by the ordinance could be the basis of private
nuisance lawsuits, MCA would nonetheless require an amendment to
the noise ordinance clarifying that sound generated by operation
of the amphitheater would not constitute "nuisance noise" as
defined in the ordinance. As was stated in my letter of July 26,
as presently written, Ii 19.68.020 of the ordinance and the
categorization of sound sources listed in Appendix A of the
ordinance arguably require the sound emanating from the
amphitheater to be characterized as "nuisance noise," and we are
not content to rely on the discretion of the enforcement officer
under Ii 19.66.078 B. Thus, we propose the following clarifying
amendment to Ii 19.68.020 T.1 of the noise ordinance (new text is
underlined) :
"Noise Disturbance--Environmental. Those noise
disturbances resulting from land use activity
normally permitted under the land use code ~
Dermitted bv a conditional use oermit or variance,
but which exceed the noise level limits set by
this code for that particular land use.
Environmental noise sources are specified in, but
not limited by the list in Appendix A."
Finally, I will shortly sumbit to you proposed minor
reV1S1ons to the noise mitigation program outlined in your August
2 letter to Randy Jackson.
Please give me a call if you have any questions about
this letter. I would in any event appreciate confirmation that
the text of the proposed ordinance amendment, and the
justification for it, contained in this letter is sufficient to
cause the application previously filed to now be considered
SD18D\wp51\mea\monaeo,102
/3"-;"
LATHAM A WATKINS
Mr. Joe Monaco
August 18, 1995
Page 3
complete, as some confusi~n apparently was created previously
when my July 26 letter was not physically attached to the
application.
Very truly yours,
~
Jon D. Demorest
of LATHAM & WATKINS
cc: Mr. Jay Marciano
Adam Friedman, Esq.
Mr. Chris Bitterlin
SD180\WP51\mca\~naco.102
1:]-17
THIS PAGE BLANK
/J-/~
Attachment 4
Disclosure Statement
/3 -/7
THIS PAGE BLANK
/:J ',2..t)
THE CITY OF CHULA VISTA DISCLOSURE STATEMENT
You are required to file a Statement of Disclosure of certain ownership or financial
interest, payments, or campaign contributions, on all matters which will require
discretionary action on the part of the City Council, Planning Commission, and all
other official bodies. The following information must be disclosed:
1. List the names of all persons having a financial interest in the property which
is the subject of the application or the contract, e.g. owner, applicant,
contractor, subcontractor, material supplier.
Bitterlin Brice Development Partners (formerly Bitterlin Starboard
Development Partners)
Bitterlin Development Corporation
United Brice Group Ltd.
MCA Concerts, Inc.
Los Alisos Development America Kukdong, Inc.
2. If any person identified pursuant to (1) above is a corporation or partnership,
list the names of all individuals owning more than 10% of the shares in the
corporation or owning any partnership interest in the partnership.
Bitterlin Development Corporation
Chris Bitterlin
Mark Bitterlin
United Brice Group Ltd.
G. Bradford Saunders
Alice G. Saunders
3. If any person identified pursuant to (1) above is non-profit organization or a
trust, list the names of any person serving as director of the non-profit
organization or as trustee or beneficiary or trustor of the trust.
N/A
4. Have you had more than $250 worth of business transacted with any
member of the City staff, Boards, Commissions, Committees, and Council
within the past twelve months?
No
/3';1./
City of Chula Vista Disclosure Statement
Bitterlin Brice Development Partners
July 25, 1995
Page Two
5. Please identify each and every person, including any agents, employees,
consultants, or independent contractors who you have assigned to represent
you before the City in this matter.
Randy Jackson
Chris Bitterlin
Dave Nielsen
O'Malley Miller
Bill Bethmann
Tom Anglewicz
G. Bradford Saunders
Mark Bitterlin
Jon Demorest
Doug Paul
Kathy Garcia
Bill Engle
6. Have you and/or your officers or agents, in the aggregate, contributed more
then $1,000 to a Councilmember in the current or preceding election period?
No
Date:
July 25, 1995
~
J'J '.2;L
COUNCil AGENDA STATEMENT
Item 14
Meeting Date 10/3/95
REVIEWED BY:
Resolution 17986 Approving an agreement with Eastlake
Development Company which facilitates the transfer of economic incentives to
NYPRO San Diego, a high tech company locating in the High Tech/Biotech Zone
in exchange for certain concessions to Eastlake
Community Development D~f~r [. S.
City Manage~ ~ ~I
(4/5ths Vote: Yes_ NoL)
ITEM TITLE:
SUBMITTED BY:
BACKGROUND:
On April 18, 1995, Council approved in concept an agreement with the Eastlake Development
Company providing for Eastlake to pay $324,000 in NYPRO development related fees as a business
attraction/retention incentive, in exchange for the City providing Eastlake with specified concessions.
The agreement reflected a public/private partnership to provide an economic development incentive
at no cost to the City. Council directed staff to prepare the agreement for Council approval.
The April 18 staff report (Exhibit 1) indicated that the proposed agreement would require Eastlake
to subsidize NYPRO's development and Assessment District fees in the amount of $324,000 in
exchange for Eastlake development related concessions from the City. The report explained that
Eastlake had submitted a land sale offer to NYPRO proposing the City incentives, subject to Council
approval.
The report further noted that staff had identified potential concessions including: "1) renaming
Orange Ave. to Olympic Blvd. ($50,000 value), and 2) adding Orange Ave. improvements from
Wueste Road to the OTC (entrance) to the TDIF (estimated value of $450,000 to $600,000)." The
report also identified other options, "including the Otay lakes Road/Eastlake Parkway pedestrian
overcrossing in the DIF, rebating a portion of sales tax from the Village Center, extending the term
of the existing Eastlake III Development Agreement, allowing Eastlake to bond for park
improvements, etc."
On September 19, 1995, staff returned to Council with the proposed agreement (see staff report
Exhibit 2). Concerns were raised regarding the TDIF related concession, primarily in terms of the
timing of the required public hearing. The City Attorney proposed an amendment to the submitted
agreement to address this issue. Council directed staff to return with recommended revisions to the
agreement and with other optional concession items.
RECOMMENDATION: That Council 1 ) review the four alternative agreement scenarios outlined in this
staff report, each of which would provide that Eastlake pay $324,000 in NYPRO development
related fees, in exchange for City concessions as specified in the respective agreements; and 2) adopt
the Resolution approving Scenario #2; and 3) approve the Employment Services Agreement to be
executed by NYPRO as a condition of the incentive.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
It! - J
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Page 2, Item 14
Meeting Date 10/3/95
DISCUSSION:
I. NYPRO SAN DIEGO - ECONOMIC BENEFITS
NYPRO is an existing Chula Vista manufacturer which is considering relocating outside the City.
This would result in the loss of an existing 100 jobs, as well as the planned 35 new jobs. By
retaining NYPRO, the City helps to seed the High Tech/Biotech Zone and attract additional quality
jobs, as well as tax revenues.
II. PROPOSED AGREEMENT
A. Incentive to NYPRO
The proposed agreement requires EastLake to make $324,000 available to NYPRO to use
exclusively for City development-related and assessment district fees. This incentive
"narrows the gap" between the fees charged at the site outside the City and those charged
within Chula Vista; a gap of approximately $285,000 still remains.
Note that the proposed agreement between the City and Eastlake stipulates that NYPRO
must commence operations by June 1998. It also requires NYPRO to execute the attached
Employment Services Agreement (Exhibit 3) as proposed by the City's Workforce
Development Team (WDT). (NYPRO has agreed to do so.)
B. Concessions to EastLake
Previous Discussion
As indicated, the agreement, including specified optional concessions, was approved in
concept by Council on April 18.
Recognizing that several of the optional concession items would require a public hearing
and/or discretionary Council action, the April 18 report stipulated the following "In order to
avoid inappropriate precommitment by the Council to future discretionary approvals, at a
minimum, the proposed agreement will also provide that any proposed concession requiring
further public hearings, notices, findings for which there is not yet a factual basis, CEOA
analysis or unfettered discretionary action on the part of the Council, would not be
contractually guaranteed to Eastlake until such additional steps had taken place. The
agreement would, however, direct staff to take all appropriate steps to bring such
discretionary actions to the Council for its consideration."
On September 19, staff submitted a proposed agreement executed by EastLake which
included two of these optional concessions, namely:
1. Renaming Orange Ave
2. Including Orange Ave from
Wueste Road to OTC in the TDIF
$50,000
$545,000 - $800,000 (estimated total
value; minimum of $274,000 to apply to
NYPRO agreement)
;tf-J-
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Page 3, Item 14
Meeting Date 10/3/95
The agreement provided for the City "to initiate the inclusion of Orange Avenue in the TDIF
pursuant to laws and regulations...regarding amendment of Development Impact Fees, and
reserving...unfettered discretion...." The agreement also provided that if the Orange Avenue
segment was not included in the TDIF within two years (subsequent to a Public Hearing
process), the City would need to meet and confer with Eastlake to arrive at another
concession of equal value.
New Recommendations - Alternative Aareement Scenarios and Optional Concessions
Due to concerns raised by Council at the September 19 meeting, staff is now recommending
that Council consider and select one of four agreement scenarios, which are discussed
below. In all four scenarios, the renaming of Orange Avenue is identified as the "first"
concession at a value of $50,000. This leaves the need to provide an additional concession
worth $274,000 to total the $324,000 incentive to NYPRO (to be paid by Eastlake). It is
important to note that Scenario #3 is not recommended by staff but is being submitted per
Eastlake's request. Conversely, Eastlake has indicated they cannot support Scenario #1,
an amendment proposed at the Council meeting of September 19 as a compromise. Both
staff and Eastlake have agreed to Scenario #2, which is a compromise position. Finally,
Scenario #4 is the agreement proposed by staff on September 19 and is being resubmitted
unchanged for consideration. Each scenario is described below.
1) Aqreement Scenario #1 - Compromise Proposed bv Attornev September 19 and Current
Proposal
At the September 19 meeting, the City Attorney recommended that deletion of the
consequences pertaining to what would happen if inclusion (of Orange Avenue in the
TDIF) was successful or unsuccessful would avoid the risk of precommitment by
eliminating the economic incentive. He further suggested that the agreement continue
to direct staff to hold the (TDIF) public hearing as soon as possible and that Council
retain all unfettered discretion, and that staff would then bring back at the TDIF hearing
an amendment to the agreement. The Attorney also suggested that the agreement be
revised to identify other potential concessions of equal value ($ 274,000). This scenario
would not require expenditure of General Fund monies.
Following further review, the City Attorney has suggested a refinement of the approach
referred to above. This scenario would delete reference to a specific second
concession. Scenario #1 would commit the City to selecting a second concession (or
concessions) worth $274,000 in the future. If unacceptable to Eastlake, Eastlake may
refer the issue to nonbinding mediation; however, ultimately the City has the final
discretion as to the concession and its value. The contract language reads: "The City
shall have the discretion to determine the nature and value of the concessions provided
to Eastlake...if unacceptable to Eastlake, Eastlake may request referral to nonbinding
mediation before the City's discretion may be finally exercised." There is no
requirement to spend General Fund monies.
Eastlake has indicated that it could not sign an agreement under these conditions.
;1-3
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Page 4. Item 14
Meeting Date 10/3/95
2) Aareement Scenario #2 - Bindina ArbitrationlPotential Citv Pavment
This agreement would also delete the identification of a specific second concession and
provide that the City and EastLake have an obligation to meet and confer regarding the
selection and quantification of a second concession to be approved by Council in the
future. However. this option would further stipulate that in the event that the City and
EastLake do not agree upon a concession worth $274.000 within two years. the City
shall propose a specific concession (and related value) to EastLake. If EastLake does
not approve this concession, the matter will be taken to binding arbitration. If the
arbitration results in a finding that is less in value than $274.000, the City would be
obligated to reimburse EastLake the difference. This would be accomplished by the City
paying for public improvements for which EastLake is responsible (either by the City
constructing the improvements or by reimbursing EastLake for construction they
financed.) City payments would be made annually in an amount not to exceed
$75,000. At the end of four years, any remaining balance would be due to total the
$274,000.
Althouah this is not EastLake's preferred option thev have aareed to these terms. In
addition, this option should have little impact on the General Fund as the infrastructure
project identified will probably be eligible for Gas Tax, Sewer Fund, DIF Credits, or
comparable funds.
3) Aareement Scenario #3 - Selection of General Fund/Sales Tax as the Second
Concession
As previously indicated, this scenario is being presented at the request of EastLake and
is not recommended by staff. In addition to the fiscal impact to the General Fund, this
scenario raises a question concerning "Gift of Public Funds." The Attorney is
researching this legal issue. Under this scenario. a cash payment would be selected and
approved now as the "second concession." Council would reimburse EastLake the
$274,000 paid to NYPRO as sales tax revenues are generated to the City's General
Fund from Village Center South. Payments would be made annually in an amount equal
to 50% of the new sales tax generated by EastLake Village South in the preceding year.
At the end of four years, any remaining balance would be due to total the $274,000.
This Scenario #3 differs from Scenario #2 in several ways: 1) Scenario #3
automatically requires that a direct payment be made to EastLake from the City's
General Fund in the total amount of $274,000; 2) Scenario #3 raises a legal question
regarding the rebating of sales tax dollars; 3) Scenario #2 would only require that the
City provide EastLake with a refund if the value of the concession, as determined by
the arbitrator, is less than $274,000. The refund payment can take the form of the
City constructing public improvements or paying for the construction of public
improvements required by EastLake. Again, staff does not recommend Scenario #3.
In last minute discussion with EastLake regarding their proposal, Mr. Curt Stephenson,
Executive Vice President, indicated EastLake will support an agreement that substitutes
the formula identified by staff in Scenario #2 above, but is implemented immediately,
using Gas Tax or other non-General Fund source(s) identified by the City. If Council
)~ y
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Page 5, Item 14
Meeting Date 10/3/95
approves Scenario #2 above, it would accommodate EastLake's desire to fund
infrastructure improvements with non-General Fund sources if this is the concession
ultimately selected by the City.
4) Aqreement Scenario #4 - As proposed September 19
The agreement, as proposed on September 19 and previously executed by EastLake,
is resubmitted to offer Council this alternative (see Attachment to Exhibit 2, the
9/19/95 staff report). Staff still sees this as a viable alternative for Council to select.
This Scenario identifies the Orange Avenue TDIF as an optional concession. It retains
language regarding the need to meet and confer to identify another concession worth
$274,000 in the event that a Public Hearing does not find the Orange Avenue TDIF item
eligible. It does not require any expenditure from the City's General Fund.
In regards to Scenarios #1, #2 and #3, optional concessions are identified in Exhibit 4. One
or more of these items could be selected, negotiated and approved by Council in the future.
It should be noted, however, that none of these concessions have been fully negotiated -
nor agreement reached regarding respective values - by both the City and EastLake at this
time. Therefore, unless Council selects Scenario #3 (approving a "sales tax" cash
concession), no specific optional concession should be approved this evening.
FISCAL IMPACT:
All scenarios provide an indirect fiscal benefit to the City by allowing the City to offer a $324,000
financial incentive to a major employer in the form of development fee writedowns. Retention of this
employer will save up to 100 jobs and result in an additional 35 new jobs. It will also result in the
generation of new property tax revenues. Additionally, under Scenarios #1 , #2, and #4 (all scenarios
except the "sales tax" option). if concessions are ultimately approved that are higher than $324,000
in value, the City will receive "credits" in this excess amount to be used to provide incentives to
future prospects. In terms of costs to the City, under Scenarios #1 and #4 there is no cost to the
City's General Fund. Under Scenario #2 there is "potential" liability to the General Fund if other non-
General Fund Public Improvement-related accounts cannot be identified. And under Scenario #3, the
City would be required to pay a total of $274.000 in General Fund monies under EastLake's original
option. The fiscal impact of each scenario is outlined below:
Scenario #1 (Attornev's Proposed Amendmentl
This scenario would commit the City to a concession(s) worth $274,000 to be determined by the
City at its sole discretion in the future. There is no liability to the General Fund.
Scenario #2 (Arbitration/Potential Citv Pavmentl
Scenario #2 would commit the City to a concession(s) worth $274,000 to be determined in the
future. This Option will not impact City Funds if such a concession is approved within two years.
If a concession is not approved within two years the matter will go to binding arbitration. If
arbitration results in a finding that the concession value is less than $274,000, the difference must
be paid by constructing or paying for the construction of public improvements. Therefore, the City
could have an obligation to reimburse EastLake up to $274,000 from the General Fund but more
/<1--5
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Page 6. Item 14
Meeting Date 10/3/95
likely these funds will come from a non-General Fund account. These payments would not exceed
$75,000 in anyone year. However, at the end of four years any remaining balance is due to
Eastlake in cash. At the maximum amount due of $274,000, and an annual payment of $75,000,
the concession would be paid in less than 44 months.
Scenario #3 {General Fund/Sales Tax Concession}
Scenario #3 will immediatelv identifv and approve a cash concession that will require direct payment
of $274,00 from the City General Fund to Eastlake as sales tax revenues are generated over time
by Eastlake Village Center South. Specifically, the City would pay Eastlake 50% of the sales tax
generated by the Eastlake Village Center South from the preceding year, with any balance due paid
at the end of Year 4, for a total General Fund payment of $274,000.
Eastlake's alternate proposal is more aligned with and can be accommodated by City Scenario #2.
Scenario #4
This is the agreement as proposed September 19. It would allow for the TDIF or other concession
to be approved in the future. There is no liability to the General Fund.
EXHIBITS
1 - April 18, 1994 staff report
2 - September 19, 1995 staff report
3 - Employment Services Agreement
4 - Optional Concessions
5 - Examples of incentives - other cities
6 - High Point, North Carolina PubliclPrivate Partnership (land credits)
[(MDlc:\wp51\document\587.95 (rev. September 29, 1995))
/Y--0
,':)$::;
RESOLUTION 17986
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT
WITH EASTLAKE DEVELOPMENT COMPANY REQUIRING EASTLAKE TO TRANSFER ECONOMIC
INCENTIVES TO NYPRO SAN DIEGO, A HIGH TECH COMPANY WISHING TO RELOCA TEAND EXPAND
WITHIN THE CITY'S HIGH TECH/BIOTECH ZONE, IN EXCHANGE FOR THE CITY PROVIDING CERTAIN
CONCESSIONS TO EASTLAKE
WHEREAS, Council has created a High Tech/Biotech Zone within the EastLake Business Center to offer
incentives to attract targeted High Tech/Biotech and Biomed companies; and
WHEREAS, the attraction of these high growth companies will result in new, quality jobs for local residents;
and
WHEREAS, NYPRO San Diego, a biomed manufacturer, is considering relocating and expanding outside
of the City of Chula Vista, and the City wishes to encourage NYPRO to relocate and expand within the High
Tech/Biotech Zone; and
WHEREAS, NYPRO employs up to 100 people now and will employ up to 120 at its expanded facility,
including well paid management, engineers and technicians; and
WHEREAS, staff analysis of the proposed Chula Vista site and the "competitor" site reveals that the cost
of combined assessment district and development fees are significantly higher in Chula Vista and recommends that
through a creative partnership with EastLake a fee write-down of $324,000 be provided at no cost to the City; and
WHEREAS, such a recommendation was approved by Council in concept in April 1995 and is now provided
for in an agreement between the City and EastLake, requiring EastLake to pay the write-down in exchange for
concessions from the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE
AS FOLLOWS: /"
1) The City Council approves the First Concession Granting Agreement (versi4 c) )With EastLake
Development c~mpany, a copy of which is on file in the Office of the City Cler~asdocument N:-~:>, .
~.....
./
2) The Council reserves the right in its sole and unfettered discretion to approve or disapprove any
concessions requiring public hearings.
3) The Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for
and on behalf of the City of Chula Vista.
PRESENTED BY:
APPROVED AS TO FORM BY:
fL. S~ ~
Chris Salomone
Community Development Director
~~90
Bruce M. Boogaard
City Attorney
f~
01'1-7 fY--Y
{(MD)c:\wp51\document\589.95 (rev. September 29, 1995))
.Yfit.)
version 1.
FIRST CONCESSION GRANTING AGREEMENT
BETWEEN
CITY OF CHULA VISTA
AND
EASTLAKE DEVELOPMENT COMPANY
RE: HIGH TECH/BIO TECH ECONOMIC INCENTIVE PROGRAM
This Agreement, dated this day of , 1995, for
the purposes of reference only and effective as of the date last
executed between the parties, is made between the city of Chula
Vista, a chartered municipal corporation of the State of California
("City"), and EastLake Development Company, a California General
Partnership ("EastLake"), and is made with reference to the
following facts:
I. Recitals:
A. City and EastLake are trying to stimulate high technology,
biotechnology and biomedical technology business development in a
territory of the City known as the High Tech/Bio Tech Zone as set
forth in Resolution No. 2621 (adopted February 21, 1995), primarily
consisting of the EastLake Business Center.
B. The City and EastLake are currently negotiating a draft
agreement, dated March 10, 1995, that would establish a working
relationship to facilitate and encourage the location of high
technology, biotechnology and biomedical technology businesses
within the High Tech/Bio Tech Zone (commonly known as the "Menu
Agreement"). An agreement with similar objectives and comparable
provisions may be substituted for the Menu Agreement and is
referred to herein as the "Substitute Agreement".
C. Nypro San Diego ("Nypro") is a high tech
currently located in Chula vista that desires to relocate
existing leased facility and to expand its business
acquisition of land and construction of facilities.
business
from its
by the
D. Nypro had considered relocating to a site outside of the
City of Chula vista. A key consideration was the significant
differential in the cost of fees related to the two sites. The
city wished to facilitate a reduction in fee costs related to the
Chula vista site in order to make the site more economically
competitive.
E. City wishes to encourage Nypro to relocate within the
City'S High Tech/Biotech Zone in order to help "seed" the Zone with
a growing, high-tech, biomedical company via a proactive and
innovative business retention effort.
1
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F. EastLake has entered into an agreement with Nypro for the
sale of a certain parcel of land within the High Tech/Bio Tech
Zone, whereby EastLake will place into escrow a reserve of funds,
in the amount of $324,000, for the payment of Nypro's processing,
assessment district and/or school district fees provided, however,
the City agrees to grant EastLake benefits/concessions/entitlements
with an approximate value of $324,000.
G. City approved the EastLake/Nypro transaction in concept
pursuant to Resolution No. 17871 thereby directing staff to
negotiate and return to Council for approval of an agreement
("Concession Granting Agreement") granting such benefits/
concessions/entitlements as it determined appropriate.
H. This Agreement is intended to be such Concession Granting
Agreement.
II. Obligatory provisions:
Now, therefore, the parties agree as follows:
A. EastLake's Promise to Discount Land to Nypro.
EastLake promises City that EastLake will tender and
consummate, unless Nypro refuses, an offer ("Nypro Offer") for the
sale of land owned by EastLake in the High Tech/Bio Tech Zone to
Nypro at an overall effective price not to exceed $3.50 per square
foot of buildable acreage, and further agrees to reserve in escrow,
the amount of not less than $324,000 ("Escrow Fund"), for Nypro to
draw upon, up to a maximum equal to said amount, for the purpose of
paying Nypro's processing, permit, development impact, assessment
district, and/or school fees.
B. Concessions to be Granted by city.
The parties agree that, for the purposes of this transaction
only, the Nypro Offer, if concluded, contains an "Inducement Cost"
of $324,000 to be paid by EastLake. The parties acknowledge that
this "Inducement Cost" is the minimum amount needed to induce Nypro
to accept the Nypro Offer.
The parties further agree that, for the purposes of this
transaction only, the City is willing to bear, on the conditions
subsequent herein stated, the Inducement Cost by granting
concessions to EastLake ("city's Duty to Participate in Inducement
Costs") which will, in the City's sole judgement, be approximately
equal in value to the Inducement Costs. The City shall have the
discretion to determine the nature and value of the concessions
provided to Eastlake, which discretion shall be reasonably
exercised, and if unacceptable to EastLake, EastLake may request
referral of the decision to non-binding mediation before the City's
discretion may be finally exercised. The parties shall follow the
2
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rules for mediation set forth in JAMS. In the event the parties do
not agree with the decision of the mediator, the City shall
exercise its discretion to decide on the nature and value of the
concessions to be granted EastLake, which discretion shall be
reasonably exercised by the City.
The concessions may include, but not be limited to, changing
the name of Orange Avenue to olympic Drive. The City agrees to
diligently prosecute and consider in good faith, pursuant to the
laws, rules and regulations for street name changes and reserving
to itself such unfettered discretion as the law requires in the
circumstances, a city-initiated change of the name of Orange Avenue
to Olympic parkway or Olympic Drive for the segment of Orange
Avenue right of way existing between 1-805 and Wueste Road, and to
bear the full processing costs therefore ("Concession No.1").
1. Street Name Change Successful.
On the condition that the street name is
substantially changed in the manner described
within two years of the Effective Date of this
Agreement, the parties agree on the following
consequences:
(i) Value of Concession No.1. The described
street name change will satisfy the City's
Duty to Participate in the Inducement Costs to
the extent of $50,000 ("Value of Concession
No.1") .
2. Street Name Change Unsuccessful
If the street name is not substantially changed in
the manner described within two years of the
Effective Date of this Agreement, the City will
have a good faith duty to provide another
concession of equal or greater value.
C. Application of Excess City Credit.
The parties agree, that should the concessions granted by
the City be greater in value than the Inducement Cost ("Excess City
Credit") the City shall have the right, for 10 years after the
Effective Date hereof or the life of the Menu Agreement (or a
substitute agreement), whichever is greater, to apply the Excess
City Credit to the acquisition of EastLake owned land within the
High Tech/Bio Tech Zone or require EastLake to discount land to a
High Tech/Bio Tech Business designated by the City or require
EastLake to apply the City credit to fees or assessments on behalf
of a future city-designated business within the High Tech/Biotech
Zone.
3
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If the Menu Agreement (or a Substitute Agreement) has not been
executed between EastLake and the City within 18 months from the
Effective Date of this Agreement, or as may be extended by the
City, and the city has not already applied the Excess City Credit
in full in the manner described above, the City, may in its sole
discretion, require EastLake to make a cash payment to the City of
the Excess city Credit or any remaining portion thereof. EastLake
shall pay the City the Excess city Credit within 10 days after the
city has made a demand for such payment. Notwithstanding the
foregoing, EastLake may suspend payment of the Excess city Credit
to the City for a period of no longer than 45 days, or as may be
reasonably extended by the City, if EastLake reasonably anticipates
that an agreement with a High Tech/Bio Tech Business will be
executed within said 45 day period and the City has tentatively
agreed to apply the Excess city Credit towards such transaction.
Both parties agree to use its reasonable best efforts to negotiate
the Menu Agreement and to execute the same.
D. Conditions Subsequent.
The Duty of city to Participate in the Inducement Cost is
subject to the following Conditions Subsequent, such that if any of
the following conditions should occur, the City's Duty to
Participate in the Inducement Cost is voidable ab initio at the
City's option. If a concession has been effectuated to EastLake
before the occurrence of a Condition Subsequent permits the city's
Duty to be voidable and the City exercises its option to void the
Duty, the city shall have the right, at its option, to either (a)
acquire any other parcel of EastLake owned land within Chula vista
desired by the City at fair market value, and apply the full value
of the concession, to the acquisition of such other EastLake owned
parcel or parcels of land; (b) require EastLake to discount, to a
High Tech/Bio Tech Business designated by the City, a parcel of
EastLake owned land, within the High Tech/Bio Tech Zone, the amount
of the full value of the concession, or such portion thereof, that
the City designates; (c) require EastLake to reimburse the fees of
a High Tech/Biotech business designated by the City in the full
value of the concession, or (d) require EastLake to repay the City,
in cash, the following amounts: i) all undisbursed amounts
remaining in the Escrow Fund, within 10 days after notice of
voiding City's Duty is issued by city to EastLake; and ii) all
funds previously disbursed to Nypro from the Escrow Fund, and all
interest charges accrued thereon, that are recovered by EastLake.
EastLake agrees to pursue all reasonable available legal remedies
to collect all amounts disbursed to Nypro from the Escrow Fund and
shall do so at EastLake's sole cost and expense. EastLake shall
pay the City the recovered funds within 10 days of receiving said
funds. In the event the amount actually recovered by EastLake is
reduced due to a judgment against EastLake related to the Nypro
Offer, EastLake agrees to pay the City the amount by which such
disbursed funds was reduced, in addition to the amount that was
actually recovered by EastLake. EastLake further agrees to pay the
4
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City any remaining
repayments received
through (c) above.
value of the
by the City, in
concessions, less the cash
the manner described by (a)
Those Conditions Subsequent are as follows:
1. Building Investment. Nypro shall fail to complete
construction of an approximately 70,000 square foot facility on the
parcel(s) included in the Nypro Offer ("Nypro Facility") by
March 30, 1998.
2. Chula vista Jobs Outreach. Nypro shall fail to
execute the attached Employment Agreement (Exhibit B) with the City
of Chula vista prior to close of escrow, and, during the period it
is recruiting persons, to notify local employment service providers
and their respective local labor pools/clients via the South County
Career Center as provided in the agreement, and to advertise for
unfilled positions in a minimum of one daily local newspaper of
general circulation for at least three (3) days.
(3) Commence Operations. Nypro shall fail to commence
operations at the Nypro Facility by June 30, 1998.
III. Miscellaneous provisions.
A. Notice.
Any notice or other document required or permitted to be given
hereunder shall be in writing and may be delivered personally or by
deposit in the United States mail, postage prepaid, addressed as
follows:
To EastLake:
To City:
City Manager, City of Chula vista
276 Fourth Avenue
Chula Vista, CA. 91910
with copies to:
Subcommittee Chairperson (Mayor)
City Attorney
276 Fourth Avenue, Chula Vista, CA 91910
Notices and other documents deposited in the united States
mail shall be deemed delivered 48 hours following such deposit.
5
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Any party entitled or required to receive notice under this
Agreement may by like notice designate a different address to which
notices shall be sent.
B. No partnership, Etc.
Nothing herein contained shall be construed to create a
partnership or joint venture between City and EastLake with respect
to the development of the Zone or the EastLake Business Center or
any part thereof, nor shall City have any liability or obligation
to any person whatsoever except its obligations to EastLake as
specifically set forth herein.
C. Gender, Number.
Whenever the context requires, the use herein of (i) the
neuter gender includes the masculine and the feminine gender and
(ii) the singular number includes the plural number.
D. Captions.
Captions in this Agreement are inserted for convenience of
reference only and do not affect the construction or interpretation
of this Agreement.
E. Entire Agreement.
This Agreement contain(s) the entire agreement between the
parties relating to the transactions contemplated ~ereby and all
prior or contemporaneous agreements, understandings, representa-
tions and statement, oral or written, are merged into and
superseded by this Agreement.
F. Modification.
No modifications, waiver or discharge of this Agreement shall
be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver or discharge is
or may be ought. Any modifications, waiver or discharge on the
City's behalf must be approved by the city Council unless the
authority has been specifically delegated in writing by the Council
to another person, and such delegation specifically references this
Agreement.
G. Invalidity.
If any material covenant, condition or provision of this
Agreement is held to be invalid, void or unenforceable by a final
order or judgment of a court of competent jurisdiction, the
remainder of this Agreement shall be enforceable.
6
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H. counterparts.
This Agreement may be executed in any number of counterparts,
all of which together shall constitute one instrument.
I. Applicable Law.
This Agreement shall be construed and enforced in accordance
with the laws of the state of California.
J. Mediation.
The parties agree that any disputes as to the enforcement that
can not be resolved after a reasonable attempt at negotiation in
good faith will be resolved by submission of the contract right to
non-binding mediation prior to the institution of litigation by
either party, unless such institution is necessary because of the
expiration of a statute of limitation which would preclude jUdicial
relief. If the institution of litigation is first required to
preserve the right to judicial relief due to an expiring statute of
limitations, the parties are still obligated, prior to issuance of
judicial relief to have the dispute mediated. The parties shall,
in the absence of an agreement to the contrary, follow the rules
for mediation set for by JAMS.
7
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Signature Page to
Concession Granting Agreement
Between
City of Chula Vista
and
EastLake Development Company
Re:
High Tech/Bio Tech Economic Incentive Program
IN WITNESS WHEREOF, City and Developer have executed this
Agreement this day of , 1995.
GRANTOR
CITY OF CHULA VISTA
EASTLAKE DEVELOPMENT COMPANY,
a California general partnership
Shirley Horton
Mayor
By: BOSWELL PROPERTIES, INC.,
a California corporation,
General Partner
Attest:
By:
Name:
Title:
Beverly Authelet
City Clerk
By:
Name:
Title:
Approved as to form by
~7V(A~ 1-
Bruce M. Boogaard rro-~
City Attorney
By: THE TULAGO COMPANY, a
California corporation,
General Partner
By:
Name:
Title:
By:
Name:
Title:
M:\Home\Attorney\Bionyp1
8
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version 2
FIRST CONCESSION GRANTING AGREEMENT
BETWEEN
CITY OF CHULA VISTA
AND
EASTLAKE DEVELOPMENT COMPANY
RE: HIGH TECH/BIO TECH ECONOMIC INCENTIVE PROGRAM
This Agreement, dated this day of , 1995, for
the purposes of reference only and effective as of the date last
executed between the parties, is made between the city of Chula
Vista, a chartered municipal corporation of the State of California
("City"), and EastLake Development Company, a California General
Partnership ("EastLake"), and is made with reference to the
following facts:
r. Recitals:
A. city and EastLake are trying to stimulate high technology,
biotechnology and biomedical technology business development in a
territory of the city known as the High Tech/Bio Tech Zone as set
forth in Resolution No. 2621 (adopted February 21, 1995), primarily
consisting of the EastLake Business Center.
B. The City and EastLake are currently negotiating a draft
agreement, dated March 10, 1995, that would establish a working
relationship to facilitate and encourage the location of high
technology, biotechnology and biomedical technology businesses
within the High Tech/Bio Tech Zone (commonly known as the "Menu
Agreement"). An agreement with similar objectives and comparable
provisions may be substituted for the Menu Agreement and is
referred to herein as the "substitute Agreement".
C. Nypro San Diego ("Nypro") is a high tech
currently located in Chula vista that desires to relocate
existing leased facility and to expand its business
acquisition of land and construction of facilities.
business
from its
by the
D. Nypro had considered relocating to a site outside of the
City of Chula Vista. A key consideration was the significant
differential in the cost of fees related to the two sites. The
City wished to facilitate a reduction in fee costs related to the
Chula vista site in order to make the site more economically
competitive.
E. city wishes to encourage Nypro to relocate within the
City's High Tech/Biotech Zone in order to help "seed" the Zone with
a growing, high-tech, biomedical company via a proactive and
innovative business retention effort.
1
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F. EastLake has entered into an agreement with Nypro for the
sale of a certain parcel of land within the High Tech/Bio Tech
Zone, whereby EastLake will place into escrow a reserve of funds,
in the amount of $324,000, for the payment of Nypro's processing,
assessment district and/or school district fees provided, however,
the City agrees to grant EastLake benefits/concessions/entitlements
with an approximate value of $324,000.
G. City approved the EastLake/Nypro transaction in concept
pursuant to Resolution No. 17871 thereby directing staff to
negotiate and return to Council for approval of an agreement
("Concession Granting Agreement") granting such benefits/
concessions/entitlements as it determined appropriate.
H. This Agreement is intended to be such Concession Granting
Agreement.
II. obligatory Provisions.
Now, therefore, the parties agree as follows:
A. EastLake's Promise to Discount Land to Nypro.
EastLake promises City that EastLake will tender and
consummate, unless Nypro refuses, an offer ("Nypro Offer") for the
sale of land owned by EastLake in the High Tech/Bio Tech Zone to
Nypro at an overall effective price not to exceed $3.50 per square
foot of buildable acreage, and further agrees to reserve in escrow,
the amount of not less than $324,000 ("Escrow Fund"), for Nypro to
draw upon, up to a maximum equal to said amount, for the purpose of
paying Nypro's processing, permit, development impact, assessment
district, and/or school fees.
B. Concessions to be Granted by city.
The parties agree that, for the purposes of this transaction
only, the Nypro Offer, if concluded, contains an "Inducement Cost"
of $324,000 to be paid by EastLake. The parties acknowledge that
this "Inducement Cost" is the minimum amount needed to induce Nypro
to accept the Nypro Offer.
The parties further agree that, the City is willing to bear,
on the conditions subsequent herein stated, the Inducement Cost by
granting the concessions, described herein, to EastLake, ("city's
Duty to Participate in Inducement costs") equal or greater in value
to the Inducement Costs. If the concessions granted by the City is
greater in value than the Inducement Cost ("Excess City Credit")
the City shall have the right, to apply the Excess City Credit in
the manner described in this Agreement.
1. Changing name of Orange Avenue to Olympic Drive.
2
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The City agrees to diligently prosecute and consider in
good faith, pursuant to the laws, rules and regulations for street
name changes and reserving to itself such unfettered discretion as
the law requires in the circumstances, a City-initiated change of
the name of Orange Avenue to Olympic Parkway or Olympic Drive for
the segment of Orange Avenue right of way existing between I-805
and Wueste Road, and to bear the full processing costs therefore
("Concession No.1") .
a. Street Name Change Successful.
On the condition that the street name is
substantially changed in the manner described
within two years of the Effective Date of this
Agreement, the parties agree on the following
consequences:
(i) Value of Concession No.1. The described
street name change will satisfy the City's
Duty to Participate in the Inducement Costs to
the extent of $50,000 ("Value of Concession
No.1") .
b. Street Name Change Unsuccessful
If the street name is not substantially changed in
the manner described within two years of the
Effective Date of this Agreement, the City will
have a good faith duty to provide another
concession of equal or greater value.
2. Additional Concession.
The parties agree to diligently and in good faith, meet
and confer to decide on an additional concession(s) equal or
greater in value to $274,000. (In the event the value is greater
than $274,000, the city shall be entitled to the Excess City Credit
as set forth in this Agreement.) If at the end of two years from
the Effective Date of this Agreement, the parties have not agreed
on the additional concession or its value, after meeting and
conferring in good faith, the city shall provide EastLake with a
list of no more than three concessions, equal or greater in value
to $274,000 ("List of Concessions"), from which EastLake may select
the additional concession. EastLake shall provide the City with
written notification of its selection ofa concession or
disapproval of the List of Concessions ("Notice of Decision")
within 10 days of receiving said list. Failure to provide the City
with the Notice of Decision shall be deemed an acceptance of the
first concession and its value. If none of the concessions and/or
the respective values are acceptable to EastLake, the parties agree
to submit the dispute to binding arbitration, in accordance with
the Commercial Arbitration Rules of the American Arbitration
3
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Association, within 30 days of the City receiving the Notice of
Decision. The judgment rendered by the arbitrator shall be entered
in any court, in San Diego County, having jurisdiction thereof.
The arbitration shall take place in San Diego County, California.
The parties agree to each share equally in the cost and expense of
the arbitration. The parties acknowledge and agree that it is
impractical or extremely difficult for an arbitrator to choose a
concession that the City may have the authority or power to grant.
Consequently, the parties agree to limit the arbitrator to
selecting a concession from the List of Concessions as provided
herein by the City; provided, however, the arbitrator may determine
the value of said concessions.
In the event that the binding arbitration results in a
concession being granted to EastLake with a value, as decided by
the arbitrator, of less than $274,000, the City shall refund
EastLake, on a prorated basis, as described below, the difference
from the value of the concession determined by the arbitrator and
$274,000 ("Difference"). The City shall refund the Difference to
EastLake by constructing infrastructure improvements, that EastLake
is required to build, including but not limited to, roadway, sewer,
water or other utility improvements, or by paying for the
construction of such improvements. The city shall have the sole
discretion in determining which infrastructure improvements it
chooses to construct for EastLake or whether to pay for such
construction. The city shall refund EastLake the Difference at a
prorated basis of $75,000 each fiscal year, or the entire amount of
the Difference if the balance owed is less than $75,000; provided,
however, at the end of four years from the date of the arbitration
award, the City shall repay, in cash, any balance remaining to
Eastlake. In the event that the arbitration results in a
concession being granted to EastLake with a value, as determined by
the arbitrator, in excess of $274,000, the Excess city Credit shall
be refunded to the city as set forth in this Agreement.
C. Application of Excess City Credit.
The parties agree, that should the concessions granted by
the City be greater in value than the Inducement Cost ("Excess city
Credit") the City shall have the right, for 10 years after the
Effective Date hereof or the life of the Menu Agreement (or a
substitute agreement), whichever is greater, to apply the Excess
city Credit to the acquisition of EastLake owned land within the
High Tech/Bio Tech Zone or require EastLake to discount land to a
High Tech/Bio Tech Business designated by the city or require
EastLake to apply the City credit to fees or assessments on behalf
of a future city-designated business within the High Tech/Biotech
Zone.
If the Menu Agreement (or a Substitute Agreement) has not been
executed between EastLake and the City within 18 months from the
4
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Effective Date of this Agreement, as may be extended by the city,
and the city has not already applied the Excess city Credit in full
in the manner described above, the city, may in its sole
discretion, require EastLake to make a cash payment to the City of
the Excess city Credit or any remaining portion thereof. EastLake
shall pay the City the Excess City Credit within 10 days after the
City has made a demand for such payment. Notwithstanding the
foregoing, EastLake may suspend payment of the Excess City Credit
to the City for a period of no longer than 45 days, or as may be
reasonably extended by the city, if EastLake reasonably anticipates
that an agreement with a High Tech/Bio Tech Business will be
executed within said 45 day period and the City has tentatively
agreed to apply the Excess City Credit towards such transaction.
Both parties agree to use its reasonable best efforts to negotiate
the Menu Agreement and to execute the same.
D. Conditions Subsequent.
The Duty of City to Participate in the Inducement Cost is
subject to the following Conditions Subsequent, such that if any of
the following conditions should occur, the city's Duty to
Participate in the Inducement Cost is voidable ab initio at the
city's option. If a concession has been effectuated to EastLake
before the occurrence of a Condition Subsequent permits the city's
Duty to be voidable and the City exercises its option to void the
Duty, the City shall have the right, at its option, to either (a)
acquire any other parcel of EastLake owned land within Chula vista
desired by the city at fair market value, and apply the full value
of the concession, to the acquisition of such other EastLake owned
parcel or parcels of land; (b) require EastLake to discount, to a
High Tech/Bio Tech Business, designated by the City, a parcel of
EastLake owned land within the High Tech/Bio Tech Zone, in the
amount of the full value of the concession, or such portion
thereof, that the City designates; (c) require EastLake to
reimburse the fees of a High Tech/Biotech business designated by
the City in the full value of the concession, or (d) require
EastLake to repay the City, in cash, the following amounts: i) all
undisbursed amounts remaining in the Escrow Fund, within 10 days
after notice of voiding City'S Duty is issued by city to EastLake;
and ii) all funds previously disbursed to Nypro from the Escrow
Fund, and all interest charges accrued thereon, that are recovered
by EastLake. EastLake agrees to pursue all reasonable available
legal remedies to collect all amounts disbursed to Nypro from the
Escrow Fund and shall do so at EastLake's sole cost and expense.
EastLake shall pay the city the recovered funds within 10 days of
receiving said funds. In the event the amount actually recovered
by EastLake is reduced due to a judgment against EastLake related
to the Nypro Offer, EastLake agrees to pay the City the amount by
which such disbursed funds was reduced, in addition to the amount
that was actually recovered by EastLake. EastLake further agrees
to pay the City any remaining value of the concessions, less the
5
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cash repayments received by the City, in the manner described by
(a) through (c) above.
Those conditions Subsequent are as follows:
1. Building Investment. Nypro shall fail to complete
construction of an approximately 70,000 square foot facility on the
parcel(s) included in the Nypro Offer ("Nypro Facility") by
March 30, 1998.
2. Chula Vista Jobs Outreach. Nypro shall fail to
execute the attached Employment Agreement (Exhibit B) with the City
of Chula vista prior to close of escrow, and, during the period it
is recruiting persons, to notify local employment service providers
and their respective local labor pools/clients via the South County
Career Center as provided in the agreement, and to advertise for
unfilled positions in a minimum of one daily local newspaper of
general circulation for at least three (3) days.
(3) Commence Operations. Nypro shall fail to commence
operations at the Nypro Facility by June 30, 1998.
III. Miscellaneous provisions.
A. Notice.
Any notice or other document required or permitted to be given
hereunder shall be in writing and may be delivered personally or by
deposit in the United States mail, postage prepaid, addressed as
follows:
To EastLake:
To City:
city Manager, city of Chula vista
276 Fourth Avenue
Chula Vista, CA. 91910
with copies to:
Subcommittee Chairperson (Mayor)
City Attorney
276 Fourth Avenue, Chu1a Vista, CA 91910
Notices and other documents deposited in the united States
mail shall be deemed delivered 48 hours following such deposit.
6
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Any party entitled or required to receive notice under this
Agreement may by like notice designate a different address to which
notices shall be sent.
B. No Partnership, Etc.
Nothing herein contained shall be construed to create a
partnership or joint venture between City and EastLake with respect
to the development of the Zone or the EastLake Business Center or
any part thereof, nor shall city have any liability or obligation
to any person whatsoever except its obligations to EastLake as
specifically set forth herein.
C. Gender, Number.
Whenever the context requires, the use herein of (i) the
neuter gender includes the masculine and the feminine gender and
(ii) the singular number includes the plural number.
D. Captions.
captions in this Agreement are inserted for convenience of
reference only and do not affect the construction or interpretation
of this Agreement.
E. Entire Agreement.
This Agreement contain(s) the entire agreement between the
parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representa-
tions and statement, oral or written, are merged into and
superseded by this Agreement.
F. Modification.
No modifications, waiver or discharge of this Agreement shall
be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver or discharge is
or may be ought. Any modifications, waiver or discharge on the
city's behalf must be approved by the City Council unless the
authority has been specifically delegated in writing by the Council
to another person, and such delegation specifically references this
Agreement.
G. Invalidity.
If any material covenant, condition or provision of this
Agreement is held to be invalid, void or unenforceable by a final
order or judgment of a court of competent jurisdiction, the
remainder of this Agreement shall be enforceable.
7
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H. counterparts.
This Agreement may be executed in any number of counterparts,
all of which together shall constitute one instrument.
I. Applicable Law.
This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
8
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Signature Page to
Concession Granting Agreement
Between
city of Chula vista
and
EastLake Development Company
Re:
High Tech/Bio Tech Economic Incentive Program
IN WITNESS WHEREOF, City and Developer have executed this
Agreement this day of , 1995.
GRANTOR
CITY OF CHULA VISTA
EASTLAKE DEVELOPMENT COMPANY,
a California general partnership
By: BOSWELL PROPERTIES, INC.,
a California corporation,
General Partner
Shirley Horton
Mayor
Attest:
By:
Name:
Title:
Beverly Authelet
City Clerk
By:
Name:
Title:
Approved as to form by
Ct-, n<A~.
Bruce M. Boogaar
city Attorney
!,.(<k _
By: THE TULAGO COMPANY, a
California corporation,
General Partner
By:
Name:
Title:
By:
Name:
Title:
M:\Home\Attorney\Nyp2
9
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EXillBIT 1 TO 10/3/95
AGENDA STATEMENT
COUNCIL AGENDA STATEMENT
ITEM TITLE:
Resolution I r-r? 7/ Requesting that Council approve in concept an
agreement with the EastLake Development Company that would require EastLake to
transfer economic incentives to a high tech company locating in the High Tech/Biotech
Zone in exchange for the City providing certain concessions to EastLake, and
directing staff to retum to Council with a written agreement for Council consideration
Community Development Director ( _~ ,
City Manager J
Item---12-
Meeting Date 4/18/95
SUBMITTED BY:
REVIEWED BY:
(4/5ths Vote: Yes_No--.J
BACKGROUND:
Council has created a High Tech/Biotech Zone within the EastLake Business Park. The purpose of the Zone
is to enable the City to proactively offer incentives to attract high technology, biotechnology, and biomedical
firms to the City in order to capture jobs and tax revenues. The Zone is being implemented with the
EastLake Development Company as a highly creative pUblic-private partnership. Incentives range from a
maximum 50-day turn-around time for processing of permits and approvals, to a "guaranteed uninterrupted
water supply", to proposed land and fee write-downs (see Exhibit A).
~-:;
VVhile some of the incentives have been approved by Council, others are in process. Economic incentives,
including land and fee write downs, are being developed via an innovative "Menu Agreement" between the
City and EastLake. The purpose of this agreement is to enable the City to offer incentives in a manner that
does not require use of General Fund monies. This Menu Agreement will be presented to Council in the very
near future (pending final negotiations and legal approvals). .
A biomedical company - referred to herein as Company X for confidentiality reasons - has recently indicated
that it is considering relocating and expanding within the High Tech/Biotech Zone and is also considering an
altemative site outside of the City. Company X is moving quickly to select their new site (site selection is
being discussed at their next Board meeting on April 20). Because this opportunity is time sensitive, and in
order to position Chula Vista in a competitive manner, staff is proposing that Council tonight approve in
concept an incentive package for Company X. The incentive would be made available via an agreement with
EastLake. In its current form, subject to. final negotiations, financial analysis and approval by all parties, the
proposed agreement would require EastLake to pay $325,000 of the total City development fees and
Assessment District fees required to be paid by Company X. EastLake would pay these fees subject to the
City's agreement to provide concessions to EastLake benefitting EastLake in a roughly equal amount.
EastLake (following discussions with staff) has submitted a land sale offer to Company X with these fee write-
downs identified as a City incentive, subiect to Council approval. Council's conceptual approval of this
approach at this time would send a strong signal to Company X of the City's support and intent to quickly
prepare and consider a finalized agreement. At the same time, the City would reserve its discretion to
approve or disapprove the final agreement if after all the information and terms are presented, the City
elected to do so.
RECOMMENDATION: That Council approve in concept an agreement requiring EastLake Development
Company to pay $325,000 in fees and assessments on behalf of a prospective company considering locating
within the High Tech/Biotech Zone in exchange for certain concessions from the City, and direct staff to
prepare the agreement and bring it back to Council for its consideration.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
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Page 2, Item-1L
Meeting Date 4118195
DISCUSSION:
A. HIGH TECH/BIOTECH ZONE PURPOSE AND STATUS
In la.te 1992, Council directed staff to pursue the creation of a High Tech/Biotech Zone to encourage
these types of high-growth businesses to locate within the City of Chula Vista. After months of
meetings by a Task Force on this subject, Council approved, in April 1993, the concept of creating
a High Tech/Biotech Zone at the EastLake Business Park. In May 1993, Council directed staff to
proceed to develop a specified series of incentives to attract these targeted industries. In February
of this year, Council formally created the High Tech/Biotech Zone by ordinance, and established a
Council Subcommittee ~ whQm is delegated the authority of the Planning Commission and the
Design Review Committee in reviewing these projects in. terms of discretionary planning approvals.
Council also approved amendments . to the EastLake Planned Community District regulations,
streamlining regulatory requirements related to High Tech/Biotech land uses.
Staff is currently completing the preparation of an overall "Menu Agreement" with EastLake
Development Company which will provide a vehicle for facilitating the transfer of discounted and
donated land andlor the payment by EastLake of City fees. for City-designated high tech/biotech
companies through an inl'!Ovative public-private partnership. The premise for the agreement is that
the City wishes to offer economic incentives in order to effectively "compete" for desirable companies
and jobs, while at the sarne time minimizing any City cash expenditures. The Menu Agreement will
prOVide a list, or "Menu", of negotiable concession items that the City is willing to consider approving
in exchange for EastLake's Selling land to the City-designated company at an acreed UDon below
market price, or in exchange for EastLake funding all or a portion of the applicable City fees.
B. COMPANY X - BENEFITS TO CHULA VISTA
Company X represents a biomedical user currently employing approximately 100 people including
management, engineers and technicians. They wish to expand from their existing 70,000 sq. ft.
building to a 90,000 sq. ft. facility. The expansion is projected to result in an increase in personnel
by approximately 75 positions. This company has $230 million in annual sales and 19 plants
worldwide, including a maquila plant in Tijuana. Among their clients are Fortune 500 companies.
(This company is a major supplier to Nellcor, the existing biomed company within the Zone).
SignifiCantly, Company X would add a second biomed company to the High Tech/Biotech Zone, thus
helping to "seed" the Zone for further High Tech/Biotech attraction. The company will generate an
estimated $10,000 in property tax.
C. PROPOSED FEE WRITE-DOWNS/AGREEMENT WITH EAST LAKE
The opportunity to attract Company X has presented itself prior to presentation to Council of the
proposed overall "Menu Agreement" with EastLake. However, in light of Company X's time
constraints, staff. is recommending that Council direct staff to proceed to prepare a stand-alone
agreement with EastLake whil;h, if finally approved, would facilitate. the transfer of economic
incentives to Company X. utilizing the (future) Menu Agreement approach (i.e. the "approach" is that
EastLake pays down landandlor fees -in this case, fees - in exchange for City development
concessions of roughly equal value). It is staff's recommendation that a financial incentive be offered
to Company X due to the benefits to the City discussed above and based upon staff's analysis of land
and fee costs associated .with the EastLake site in comparison to the site outside the City (as
discussed below).
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Page 3, Item---1Z-
Meeting Date 4118195
In its current form, the proposed agreement with EastLake would provide for EastLake to subsidize
a portion of Company X's development fees and Assessment District fees, in the total amount of
$325,000. This amount is being recommended to narrow the aaD between fee and assessment costs
associated with the non-Chula Vista site and with the EastLake site, in order to create a "more level
playing field.". That is, the cost to Company X of fees and assessments at both the non-Chula Vista
site and the Chula Vista site have been analyzed by staff; Chula Vista fees have been determined
to be 3 to 4 times higher (a gap of approximately $600,000 to $900,000) depending upon the final
parcels acquired at EastLake (3 parcels are under consideration). The gap reflects both higher Chula
Vista dllvelopment fees and thll fact that the Chula Vista site Is located within several assessment
districts;. the non-Chura Vista site has li.Q assessments. (The higher fees also reflect the superior
physical improvements and amenities in EastLake.) (It is important to note that EastLake is selling
the property at a price ($3.50 sq. ft.) that staff concludes can reasonably be deemed to not exceed
fair market value.)
The proposed financial incentive would be offered by EastLake to Company X in exchange for
EastLake development-related concessions fi'om the City. As noted, staff and EastLake are currently
finalizing a "Menu". (or list) of concessions and assigning a method of quantifying the value to
EastLake for each of these concessions. Staff has identified a number of concessions that could
potentially be provided to. EastLake that would both be of value to them and within the context of
good City policy, such as: 1) renaming Orange Avenue to Olympic Blvd. (at an agreed upon value
of $50,000); or 2) to the extent legally feasible, adding Orange Avenue improvements from Wueste
Road to the U.S. Olympic Training Center to the Transportation DIF, (at an estimated value of
$450,000 to $600,000). Other examples could be: including the Otay Lakes RoadlEastLake Parkway
pedestrian overcrosslng in the DIF, rebating a portion of sales tax from the Village Center, extending
the term of the existing EastLake III Development Agreement, allowing EastLake to bond for park
improvements (versus paying cash as security), etc.
It is the intent of staff to incorporate into the agreement to be brought back for Council consideration
the following provisions: 1) any surplus value attributable to concession item(s) approved by Council
for facilitating the Company X $325,000 incentive will be "credited" to the City via the future Menu
agreement for use as. an Incentive for a future company (to be selected by the City). In the event the
Menu agreement is not executed within an acceptable timeframe, the "surplus concession value"
would be 100% reimbursed to the City (in a manner to be specified in the proposed agreement itself);
and 2) EastLake will be responsible for reimbursing the City all or a portion of the $325,000 value of
approved concessions in the event that certain identifi.edperformance standards are not met (e.g.
Company X OPllning by a certain date andlor operating for a designated period). In order to avoid
inappropriate precomlT)itment by the Council to future discretionary approvals, at a minimum, the
proposed agreement will also provide thatany proposed concession requiring further public hearings,
notices, findings for which there is not yet a factual basis, CEQA analysis or unfettered discretionary
action on the part of the Council, would !!2! be contractually guaranteed to EastLake until such
additional steps had taken place. . The agreement would, however, direct staff to take all appropriate
steps to bring such discretionary actions to the Council for its consideration.
FISCAL IMPACT: It is important to keep in mind that the proposed incentive is a CITY incentive to Company
X - !!2! an incentive from EastLake. EastLake acts as a conduit. By means of this creative approach, the
incentive requires no cash outlay from the City.
The proposed agreement to be brought back to Council in written form for approval would not result in any
General Fund expenditures by the City. It will result in an agreement by EastLake to pay $325,000 in fees
and assessments that Company X would otherwise be required to pay in exchange for an equivalent value
"1-7
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Page 4, Item-1L
Meeting Date 4/18/95
in concessions from the City. Further, the proposed agreement will require EastLake to transfer any "surplus
value" of concessions approved to facilitate the $325,000 incentive to Company X to a future company as
designated by the City via the future menu agreement (or to reimburse the City in cash).
It should be noted that if any fiscal impacts wera 10 result to the City from proposed specific concession items
such impacts will be identified at .Ihe time the agreement authorizing the concessions is brought to Council.
(For example, adding a project to the City's Transportation DIF could result in a minor adjustment to DIF fees
or would otherwise potentially impact the budgets of existing DIF projects.)
((MO) c::\wp51\document\372.95 (April 14, 1995)]
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RESOLUTION
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING IN CONCEPT AN AGREEMENT WITH THE EASTLAKE
DEVELOPMENT COMPANY THAT WOULD REQUIRE EAST LAKE TO
TRAN~FER ECONOMIC INCENTIVES TOA HIGH TECH COMPANY
LOCATING IN THE HIGH TECH/BIOTECH ZONE IN EXCHANGE FOR THE
CITY PROVltlING. CERTAI.N . CONCESSIONS TO EASTLAKE, AND
DIRECTING STAFF TO RETURN TO COUNCIL WITH A WRITTEN
AGREEMENT FOR CONSIDERATION
WHEREAS, Council has created a High Tech/Biotech Zone within the EastLake Business Center to offer
Incentives to attract targeted High Tech/Biotech and Biomed companies; and
WHEREAS, the attraction of these high growth companies will resu~ in new, quality jobs for Chula Vista
residents; and
WHEREAS, Council has already adopted certain incentives, including measures to fast-track High
Tech/Blotech projects, and has directed staff to finalize other incentive elements for Council consideration,
including negotiation of a 'Menu" Agreement with EastLake to facirrtate the transfer of city financial incentives
to targeted companies; and
WHEREAS, a targeted biomed corr.pany, which has asked that its name be kept confidential at this time
("Company X'), Is currently con$idering relocating to the High Tech/Biotech Zone as well as to another site
outside of the City, and their site selection decision is imminent; and
WHEREAS, although the master incentive package agreement ('Menu Agreement') with Eastlake
regarding the High TechlBiotech zone has not been finalized, staff desires to enco\lrage Company X to relocate
hi the High Tech/Biotech Zeme by negotiating a project specific incentive package agreement with Eastlake (the
"Eastlske/Company X Agreement") which contemplates that Eastlake would pay $325,000 of Company X's
development fees and assessment district fees in exchange for the City approving certain concessions
benefitting Eastlake; and
WHEREAS, prior to presenting a fully negotiated Eastlake/Company X Agreement to Council for its
consideration, City staff is requesting that City Council conceptually approve the agreement subject to the terms
and conditions set forth herein;
NOW, THEREFORE, THE CITY COUNCIL OFTHE CITY OF CHULA VISTA DOES HEREBY RESOLVE
AS fOLLOWS:
1} The City Council approves in concept the above-described Eastlake/Company X
Agreement calling for the payment by Eastlake of a $325,000 portion of Company X's
development and assessrnentdistrlct fees In exchange for certain concessions, to be
determined, which may be granted by the City for the benefit of Eastlake;
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2) The City Coun.cil directs staff to expeditiously finalize negotiations with Eastlake with
respect to the Easthlke/Company X Agreement and to present a finalized written form
of such agreement for Council consideration as soon as possible or appropriate.
3) The City Council reserves the right, in its sole and unfettered discretion to approve or
disapprove the finalized version of such agreement.
PRESENTED BY:
APPROVED AS TO FORM BY:
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Chris Salomone
Director of Community Development
M:ItbN~ttorMy\An.373
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AGENDA ITEM NO. 17
REVISED 4/18/95
MARKED FOR CHANGES
RESOLUTION 17871
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING INCONCi:PT AN AGRi:EMENT WITH THE EASTLAKE
OE:VELOPMENT COMPANY. THAT WOULD REQUIRE EAST LAKE TO
TRANSFER ECONOMIC INCENTIVES TO A HIGH TECH COMPANY
LOCATING IN THE HIGH TECH/BIOTECH ZONE IN EXCHANGE FOR THE
CITY PROVIDING CERTAIN CONCESSIONS TO EASTLAKE, AND
DIRECTING STAFF TO RETURN TO COUNCIL WITH A WRITTEN
AGREEMENT FOR CONSIDERATION
WHEREAS, Council has created a High TechfBiotech Zone within the EastLake Business Center to offer
incentives to attract targeted High Tech/Biotech and Biomed companies; and
WHEREAS, the attraction ofthese high growth companies will result in new, quality jobs for Chula Vista
residents; and .
WHEREAS, Council has already adopted certain incentives, including measures to fast-track High
TechlBiotech projects, and has directed staff to finalize other incentive elements for Council consideration,
including negotiation of a 'Menu' Agreement with EastLake to facilitate the transfer of city financial incentives
to targeted companies; and
WHEREAS, a targeted biomed company, which has asked that its name be kept confidential at this time
("Company X'), is currently considering relocating to the High Tech/Biotech Zone as well as to another site
outside of the City, and their site selection decision is imminent; and
WHEREAS, although the master incentive package agreement ('Menu Agreement') with Eastlake
regarding the High TechlBiotech Zone has not been finalized, staff desires to encourage Company X to relocate
in the High Tech/Biotech Zone by negotiating a pr9ject specific incentive package agreement with Eastlake (the
"Easl/ake/Company X Agreement') Which contemplates that Eastlake would pay $325,000 of Company X's
development fees and assessment district fees in exchange for the City approving certain concessions
benefitting Eastlake; and
WHEREAS, prior to presenting a fully negotiated Eastlake/Company X Agreement to Council for its
consideration, City staff is requesting that City Council conceptually approve the agreement subject to the terms
and conditions set forth herein;
NOW, THEREFORE, THE CITY COUNCIL OFTHE CITY OF CHULA VISTA DOES HEREBY RESOLVE
AS FOLLOWS:
1) The City Council approves In concept the above-described Eastlake/Company X
Agreement calling for the payment by Eastlake of a $325,000 portion of Company X's
development and assessment district fees In exchange for certain concessions, to be
determined, which may be granted by the City for the benefit of Eastlake;
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2) The City Council directs staff to expeditiously finalize negotiations with Eastlake with
respect to the Eastlake/Company X Agreement and to present a finalized written form
of such agreement for Council consideration as soon as possible or appropriate. The
staff reDort Dresentinq such ~areement shall include staff's analvsis of the relative benefit
of the DroJ)Osed Comoanv X proiect to the Citv arid Eastlake and of the estimated value
and burden of the DroDosed Citv/Eastlake concessions.
3) The City Council reserves the right, in its soJe and unfettered discretion to approve or
disapprove the finalized version of such agreement. Accordinalv. bv adoDtina this
Resolution the Citv creates no enforceable contractual riahts or benefits for anv Derson
or entity.
PRESENTED BY:
Chris Salomone
Director of Community Development
APPROVED AS TO FOR
LIU
Bruce M. Boogaard
City Attorney
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EXHIBIT 2 TO 10/3/95
AGENDA STATEMENT
COUNCIL AGENDA STATEMENT
Item / 3
Meeting Date 9119/95
ITEM TITLE:
Resolution Approving an agreement with the EastLake
Development Company which facilitates the transfer of economic incentives to
NYPRO San Diego, a high tech company locating in the High Tech/Biotech Zone in
exchange for certain concessions to EastLake
Community De~elopment ~,tor C _s .
e"y M'o,,,,,JC1 ~~ (415., Vo<" Y~_No_)
SUBMITTED BY:
REVIEWED BY:
BACKGROUND:
On April 18, 1995, Council approved in concept an agreement with the EastLake Development Company
providing for EastLake to pay $324,000 in NYPRO development related fees as an economic development
incentiv,e, in exchange for the City providing EastLake with specified concessions. Council further directed
staff to' prepare the necessary agreement for Council approval.
>'1
RECOMMENDATION: That Council adopt the resolution approving an agreement with the EastLake
Development Company providing that EastLake pay $324,000 in NYPRO development related fees, in
exchange for the City providing EastLake with specified concessions.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
I. NYPRO SAN DIEGO - ECONOMIC BENEFITS TO THE CITY
NYPRO is a biomedical manufacturer currently employing on average 85-100 people including
management, engineers and technicians. The company has $230 million in sales and 19 precision
plastics injection molding plants worldwide, including a maquiladora plant in Tijuana. Among their
clients are Fortune 500 companies (see Attachment A). NYPRO plans to expand from its current
60,000 square foot leased facility on Otay Valley Road to a 70,000 - 90,000 sq. ft. facility at the
EastLake Business Center (High Tech/Biotech Zone). NYPRO is acquiring 6.87 acres, adequate to
expand to 170,000 sq. ft. The initial expansion will employ an estimated 100-120 people. The
relocation of NYPRO to the High Tech/Biotech Zone will help "seed" the Zone promoting the
attraction of additional targeted high tech and biotech companies.
Also note that NYPRO's presence in Chula Vista helped to recruit General Polymers' plastic
distribution operations, which recently subleased 10,000 sq. ft. from NYPRO (see Article, Attachment
B). General Polymers may relocate with NYPRO to the Zone.
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Page 2, Item /3
Meeting Date 9/19/95
II. PROPOSED AGREEMENT WITH EASTLAKE
A. INCENTIVES TO NYPRO
As indicated, on April 18, 1995, Council directed staff to prepare a stand-alone agreement
with EastLake to facilitate $324,000 in City incentives to NYPRO. The proposed agreement
provides for EastLake to subsidize NYPRO's development-related fees in this amount. This
fee "write-down" will be accomplished by EastLake depositing the $324,000 in an escrow
account. Per EastLake's proposed Purchase and Sell agreement with NYPRO, NYPRO may
draw down funds from this escrow account only for qualified City development-related
processing and permit fees, which are estimated at $3 I 0,000. In the event there is a
remaining balance, NYPRO may draw these down for assessment district fees.
The proposed agreement between the City and EastLake stipulates that NYPRO must
commence operations at their new facility by June 1998 (consequences of non-performance
identified below: "NYPRO NON-PERFORMANCE"). Additionally, the City/EastLake
agreement stipulates that NYPRO shall execute the City's Employment Services Agreement
(as proposed by the Workforce Development Team), as provided in Attachment C.
B. BASIS FOR INCENTIVES TO NYPRO (BUSINESS RETENTlON/EXPANSJON
ASSISTANCE)
The NYPRO incentive is being offered as part of the City's Business Retention and Expansion
efforts and as part of a targeted effort to recruit high tech companies to the High TechlBiotech
Zone. In this case, an existing Chula VISta business was considering relocating and
expanding outside of the City. Staff, in coordination with EastLake and with NYPRO
brokers, conducted a detailed analysis of land and fee costs related to both the EastLake site
and the competitor site. The analysis showed that the total development-related fees and
assessments for the Chula Vista site were substantially higher than those for the other site.
The proposed fee write-down narrowed that gap and thus made Chula Vista more competitive.
(Note: The "competing" jurisdiction was willing to waive close to $ I 00,000 in fees.) Since
the presentation to Council in April, negotiations with EastLake and NYPRO have resulted
in the selection of new parcels within EastLake for the NYPRO facility (Lots 18 and a portion
of 19, versus the original Lots 3 and 4 and a portion of Phase 2). The resulting updated
calculations indicate that the total development fee and assessment district gap is $517,798.
Subtracting both City's subsidy amounts (i.e. after Chula VISta writing down NYPRO fees
and deducting the "competing" jurisdiction's $100,000 fee waiver), the remaining gap is
$284,500.
It is important to note that the High TechlBiotech Zone properties are subject to significant
. development impact fees, assessment districts and Mello-Roos districts; the competitor's site
is not. While these fees and others set EastLake apart in terms of affording transportation,
landscaping, recreational, and other amenities, the bottom line cost to the business is clearly
impacted. It is also important to note that EastLake is selling the property at $3.50 sq. ft. -
virtually the same as the price of the competitor site - a price that was determined by staff
to reasonably represent Fair Market Value.
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Page 3, Item 1_-)
Meeting Date 9/19/95
C. CONCESSIONS TO EASTLAKE
. The proposed concessions to EastLake and their respective estimated values were approved
in concept by Council on April 18, 1995. These actions or concession remain subject to
Council's unfettered discretion. If Council does not take such actions, the agreement allows
City staff and EastLake to identify alternative concessions which equate a value of at least
$324,000. The currently proposed concession items, and their values as generally agreed upon
in April and as currently understood are, as follows:
April 18 Estimate
$50,000
.
Renaming Orange Avenue to
Olympic Parkway
Including Orange Avenue from
Wueste Road to the U.S. Olympic
Training Center in the Transportation
Development Impact Fee (TDIF)
Proposed Agreement
$50,000
.
$450,000 - $600,000
Actual TDIF-eligible
cost (estimated at
$544,500 - $798,600)'
(see below)
I) Renaming Orange A venue
In terms of concession #1, the $50,000 value represents the City's commitment to use
best efforts to facilitate and expedite the renaming process, including coordination
with the U.S. Olympic Training Center and the community. Staffs recommendation
will be presented at a Public Hearing of the Planning Commission and City Council.
In the event that the Council does not approve the renaming, the agreement stipulates
that the City will have a "good faith duty to meet and confer with EastLake" to
identify another concession worth $50,000.
2) Including Orange Avenue in TDIF
In terms of item #2, the City will determine, at a future date, whether the portion of
Orange A venue, described above, can be viewed as an extension of an existing major
arterial (see Attachment D). A public hearing will be held regarding reclassitying this
portion of Orange Avenue to a major arterial, and including it in the TDIF. This
recommendation is subject to the unfettered discretion of the Council following the
testimony and evidence presented at such hearing. If the amendment to the TDIF
Ordinance is not approved by Council to include Orange A venue, the agreement
stipulates that the City will have a "good faith duty to meet and confer with EastLake"
to identity another concession worth $274,000.
If amendment of the TDIF Ordinance is approved by Council to include the Orange
A venue segment, the value of this concession to EastLake would be based upon
subtracting the portion of the total project cost that EastLake would continue to pay
as their share of the TDIF, (currently 40%) from the total TDIF-eligible project cost.
(The previously estimated $450,000 - $600,000 value to EastLake was based upon an
"Represents value to EastLake, i.e. 60% of total TDIF eligible cost
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Page 4, Item /3
Meeting Date 9/19/95
estimated total eligible project cost of $750,000 to $1,000,000; $750,000 x 60% =
$450,000).
The proposed agreement now stipulates that the value of the concession to EastLake,
if the TDIF ordinance is amended, will be based upon the actual cost, i.e. it will be
determined upon completion of construction of the Orange A ve segment in question.
At that time, actual eligible costs will be determined by the City Engineer. The
agreement further stipulates that a minimum $274,000 value will be applied to the
NYPllO incentive package; i.e. EastLake will pay $324,00 in NYPRO fees, based
upon the "renaming concession" worth $50,000 and the "TDlF concession" worth a
minimum of $274,000 (for a total of $324,000).
3) TDlF Concession "Excess Credit"
While the agreement stipulates that the value of the "TDlF concession" is a minimum
of $274,000 (to be applied to NYPRO), it is currently estimated that the total value
of this will be in the range of $544,500 to $798,600 (based upon bids received).
However, as indicated, the final value will be determined upon completion of
construction. The difference between the final value and the $274,000 will be
"credited" to the City to be applied to a future incenti"e for a City-designated
company within the Zone. (For example, if the actual cost savings to EastLake is
$544,500, after subtracting $274,000 the "excess credit" would be $270,500.) The
agreement provides that the City shall have the right for ten years after this agreement
(or for the life of the Menu Agreement, whichever is greater) to apply this "excess
credit" in the following manner: I) the city could apply the credit to acquire Zone
property; 2) the city cQuld require EastLake to discount the sales price of their
property for a designated business by the credit amount; and 3) the city could require
EastLake to write-down a designated business' development related fees.
D. NON-PERFORMANCE
I) NYPRO Non-Performance
Per the City's agreement with EastLake, in the event that certain deadlines are not met
by NYP\{O (i.e. construction completion by March 30, 1998, and opening by June 30,
1998) and EastLake has received concessions from the City, the following will occur:
. EastLake shall credit the full concession value received by EastLake
($324,000 plus any excess credit) to the City for use as an incentive for a
future business prospect within the Zone (or as a direct discount to the City
should the City wish to acquire Zone property).
. Per the Purchase and Sale Agreement between EastLake and NYPRO, in the
event these deadlines are not met, NVPRO is required to refund to EastLake
all expended incentive funds ($324,000).
~ Y J'i-;J%
::J:tJ
Page 5, Item I-~
Meeting Date 9/19/95
. The City has the right to require a $324,000 cash payment from EastLake
(with the "excess concession credit" still credited to the City for future use).
In the unlikely scenario that NYPRO both does not open and refuses to honor
its agreement to refund the expended incentive monies to EastLake, Eastlake
would be responsible for taking the legal action necessary to recover the funds
from NYPRO, and for refunding the City all monies recovered from NYPRO,
as well as any monies remaining in the escrow account.
. EastLake is responsible for paying 100% of all legal costs incurred in
recovering any incentive monies expended by NYPRO.
2) EastLake Non-Performance - Menu Agreement
The conditions discussed above pertain to performance by NYPRO. In addition, our
agreement with EastLake contains a performance standard directly related to EastLake.
In the event that a High Tech/Biotech Zone menu agreement is not executed between
EastLake and the City within eighteen (I8) months, the City reserves the right to
receive any excess credit in the form of cash from EastLake (even if NYPRO
performs as required).
III. STATUS OF CONCESSIONS/FURTHER COUNCIL ACTION REQUIRED
A. RENAMING ORANGE A VENUE
As indicated, pursuant to Council direction, staff will submit the proposed name change to
the Planning Commission and then to City Council. Each will hold a public hearing. Council
has unfettered discretion to approve or deny the renaming subject to public hearing input.
B. INCLUDING ORANGE AVE IN TDIF
In order for this project to be included in the TDIF, staff will bring a report to Council and
introduce an amendment to the TDIF Ordinance at a public hearing, followed by a second
reading, with the effective date 30 days subsequent. Staff will advise the major developers of
the proposal in advance of the public hearing. Again, Council has discretion to approve or
deny the recommendation subject to hearing input.
FISCAL IMPACT:
The proposed incentive to NVPRO in the form of a fee write-down by EastLake is a City incentive. Through
a creative public/private partnership EastLake acts as the conduit for the economic incentive. The orooosed
incentive will not result in anv General Fund or other City exoenditures. It will require EastLake to pay
NVPRO $324,000 for payment of their (NVPRO's) City fees and assessments. In exchange, the City will
provide EastLake with the concessions designated in the proposed agreement, or if these are not approved
by Council subject to future public hearings, the City will provide alternative concession(s) valued at no less
1han $324,000. Further, it will require EastLake to transfer any "excess credit" (additional value of the
<<;/3 -s r;t/-Jl
~1..1
Page 6, Item /-"
Meeting Date 9/19/95
currently proposed concessions above the $324,000 - roughly estimated at $270,500 to $524,600 - or of any
alternative concessions) to the City to apply to one or more future incentives to other companies.
Economic benefits to the City include the retention of significant local manufacturer, including 85-100 jobs,
and the addition of a minimum of 35 new jobs due to NYPRO's expansion. Other benefits include the
"seeding" our High Tech/BioTech Zone, enhancing our ability to attract other high tech companies, and the
opportunity to activate our local hiring agreement.
In terms of tax revenues, retention of NYPRO in Chula Vista will initially reduce the loss of annual
property tax revenue from $32,000 to $21,000, and following the backfilling of the Otay Valley site will
result in an estimated $11,000 l!ain to the City. This is explained as follows: NYPRO currently generates
approximately $67,000 a year to the Redevelopment Agency in real and personal property tax increment at
the Otay Valley Road site (which is in a Redevelopment Project area). Of this, $35,000 in land and building
property tax will continue to be paid to the Agency at the vacated Otay Valley site. However, the $32,000
in personal property tax (equipment) generated at the Otay site will be lost. The total personal and real
property tax generated at the EastLake site will be $11,000. The reduced amount is due to NYPRO no longer
being in a redevelopment area. Therefore, the net loss to the City would be $21,000. However, once the
Otay Valley site is backfilled (and equipment related tax revenues resume) the relocation of NYPRO to
EastLake will result in a net property tax revenue increase of $11,000.
ATTACHMENTS
A - NYPRO Clients
B - NYPRO/General Polymers Article
C - Employment Services Agreement
D- Map
E - April 18 City Council Minutes
F - SDG&E letter regarding incentives
G - Article regarding North Carolina City - Similar land credit incentive program
HMO) c:\wpSI\dowment\S19.9S(September IS, 1995)J
7~
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RESOLUTION
/79~~
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING AN AGREEMENT WITH EASTLAKE DEVELOPMENT COMPANY
REQUIRING EASTLAKETO TRANSFER ECONOMIC INCENTIVES TO NYPRO SAN
DIEGO, A HIGH TECH COMPANY WISHING TO RELOCATE AND EXPAND WITHIN
THE CITY'S HIGH TECH/BIOTECH ZONE, IN EXCHANGE FOR THE CITY
PROVIDING CERTAIN CONCESSiONS TO EASTLAKE
WHEREAS, Council has created a High Tech/Biotech Zone within the EastLake Business Center to offer
incentives to attract targeted High Tech/Biotech and Biomed companies; and
and
WHEREAS, the attraction of these high growth companies will result in new, quality jobs for local residents;
WHEREAS, NYPRO San Diego, a biomed manufacturer, is considering relocating and expanding outside of
the City of Chufa Vista, and the City wishes to encourage NYPRO to relocate and expand within the High
TechlBiotech Zone; and
WHEREAS, NYPRO employs up to 100 people now and will employ up to 120 at its expanded facility,
including well paid management, engineers and technicians; and .
WHEREAS, staff analysis of the proposed Chula Vista site and the "competitor" site reveals that the cost of
combined assessment district and development fees are significantly higher in Chula Vista and recommends that
through a creative partnership with EastLake a fee write-down of $324,000 be provided at no cost to the City; and
WHEREAS, such a recommendation was approved by Council in concept in April 1995 and is now provided
for in an agreement between the City and EastLake, requiring EastLake to pay the write-down in exchange for
concessions from the City; and
WHEREAS, the agreement stipulates that the two recommended concessions will be heard at respective
public hearings and that Council retains its discretion to approve or deny the concessions following hearing input,
and the agreement provides a remedy should such approvals not be forthcoming;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE AS
FOLLOWS:
1) The City Council approves the agreement with EastLake Development Company calling for
a payment of $324.000 in exchange for two identified concessions. which may be granted
following respective public hearings;
2) The City Council directs staff to bring the proposed two concessions. i.e. renaming of Orange
Avenue and the inclusion of Orange Avenue from Wueste Road to the U.S. Olympic Training
Center entrance. forward for public hearings;
3) The Council reserves the right in its sole and unfettered discretion to approve or disapprove
the two concessions subsequent to the public hearings.
PRESENTED BY:
APPROVED AS TO FORM BY:
~~
Chris Salomone
Community Development Director
Bruce M. Boogaard *
City Attorney
~ -:r *S~gnatu~e subject
~s~u~rln
to closed session
f(MD)c:Mp51\d0cUnent\531.95 (rev. September 1'$. 1995))
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STREETS IN TRANSPORTATION
DEVELOPMENT IMPACT FEE
(TDIF) PROGRAM
---
PROPOSED TDlF STREET
(ORANGE AVENUE - Entrance
to OTe to Wueste Rd.'
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. April 18, 1995
Page 5
G S U) . On 2128/95, Council *<!oplcod lh.: Rc<olulion oflnlenlion 10 order the acquisilion and financing of
cec1aUI in . ctu"'s.o(ving the EaslLake 0.-... npruJlQ'tie:s pUl'$UaQllo the Municil"'llmprovenlCllI A<1 of 1913.
all the Ie, Council adoplcod lbe r~lulion giving prelimilW}' approval 10 Ihe Engin"",'s Report for
AssessmeaIDi . Number 94-1 (EaslLake Cteens II) and selling public hearings (or 4/4195 and 4/18195 for the
. pulpose o( hearing p ic l.:stjlllODY. 11Ie rust public hearing was held on 414195. Starr rerommend~ Ihe nuhlk
eari 8n nlin 0 412 (Dinoctor of Public Worlcs)
MSUC (Rin40neJPadilla) to (Onlinue
public hearing to the meeling of 4125195 at 6:00 p.m.
RA
~
....
..'RocS-~ 2lS.FoiIrib iJ(VCn~. ChulaVW: ;.'-.... "-"';i,;g.;;'; a;.;b:~;.~~::~~o~
Cowlcil that 00 4124195 the .mayors (rom Our. VilOla and Tti ~ fulm the ConvenlioolVisilOrs BUteau.
and both l'1J.-b.n 0( Co_, ~d hold a press c:oa(.:n:nce U, ulll Vista 10 announce a regional partnership
(or progress and the SilYes button program. On 5113195, the OIam would be holding their second annual
Craffili Oul.
· Bill Ayers. 44 Easl Mankalo Slreet. Chula Visea, CA. ",ferred 10 hems d 13 On Ihe agenda and fell
Ihe actual streets 10 be closed should be includcod on Ihe agenda (or puhlic informalion.
None .-ubmiucld.
BOARD AND COMMISSION RECOMMENDATIONS
ACTION ITEMS
17.RE.<iOUITION 17871 REQUESTING THAT COUNCIL APPROVE IN CONCEPT AN
AGREEMENT WITH TIm EASTLAKE DEVELOPMENT COI\fPANY THAT WOULD REQUIRE
EASTLAKE TO TRANSFER ECONOMIClNCENTIVES TO A lfICH TECH COMPANY LOCATING IN
THE IDGH TECH~IOTECH ZONE IN EXCflANGE FOR THE CITY PROVIDING CERTAIN
CONCESSIONS TO EASTLAKE. AND DIRECTING STAFF TO RETURN WITH A WRITTEN
AGREEMENT FOR CITY COUNCR. ADOPTION. Council has crealed a High Tech/BiOlech Zone wilhin the
EaslLake Business Park. The purj>O$e of the Zone is 10. offer incenlives 10 attract high lechnology, biolechnology.
and biOmedical firms in Otder 10 capture jobs and tax revenues. The Zone is being implemenled wilh Ihe Easllake
Developmenl Company as a highlyerealive puhlic-privale partnership. SCaff rc:c:ommends approval of Ihe resolulion.
(Director o( CoDUllunily Developmenl)
Chris Salomone. Director o( Communily Developmenl. slalcod Ille Counc.il had approvcod Ihe High T ech/Bio T coch
Zone and lIskcd stiff 10 retum wilb a menu of incenlives. However. an Opportunily had been pr""""led 10 the Cily
prior 10 lhac menu being approvcod by Council. SCaff (dllhe Cily necldcd 10 be proaclive and act in a limely fashion
as lbe COtnpa/ly had indicalcod lha.llhey would be making a decision laler in Ihe week. SCaff Was lIsking thaI Council
relaiD their unfellered discrccion 10 have staff relum wilh a .8Cparale CQnllaCl (rom Ihal menu agreemenllaking ilems
lhac staff (ell would be of equal or g....ler value and offering lhem lL~ Ihe incenlive. In order 10 be business friendly
and proaclive staff (ell they needcod 10 l,'ellhe al'pmval, .11"""1 in cancerl, undel'l<landing Ihal Council would notain
discrccion 10 laler see the conlracl and approve it
Mr. Boogaard SCaled he had proposed a revision 10 Ihe r...",lulion which in his judgemeril gave Council grealer
t1exibilily lhan Ihe original resolulion.
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rage ~
RESOLUTION 17871, ASAMENDED, OFFERED BY MA YOR HORTON, reading or the text was waived.
Councilmcmber RiDdone requesl.od that staff discuss the possibility of changing Olympic Boulevard to Olympic
Drive with the rep_talivcs (rom the Olympic Training Ceoler. He '1ueslion.od if all 175 johs would bc
transferred'or if it would bc just the add.od 75 jobs (rom the expansion.
Mayor HortoD replied that it was her undecstanding thaI the company currenlly had 100 employees. With the Dew
(acillly they would be addiog an additional 75 employees (or a tOlaI o( 175 employees. I( tbcy moved oul of the
Cily the City would lose 100 jobs and the oew additional 75 jobs.
Couacilmembcr Padilla stal.od lie would normaily bc relUCWlllo look al any agnoement where complete values and
cost ealcuIatioas l1ad ant bec;a del~.od. H" c:ongralulat<<i staff 00 the report and (ell $0_ o( lhe options w"'e
innoVative. Ite (e1t staff had made the right decision to mov"forward quickly in bringing the itllm to Council.
Couoc:iIme.ubcr Moot qucstioocd how staff cfetermin.od t\Jol val"" o(the ~vcs~bc pro.q~_.if.... ~ysis;..
. "fsimilar ~ ~W bcea'dooO~ththe Citiii(~'Di~,WiliC:h he _1Md was th" City's prime
compdllOt'. He IUrthcc- '!\lolSlioocd how staff would evaluale, in the fialure, the amounl of i""""tiv.,. that would bc
off<<cd to...y particular colllplllY. llte important thing to Ie""" in mind was lhat the fin;( one creal.od a benchmark.
. ~'.'.' . .
Mr. Salomone replied maay o( the ilolms on the menu had not heen quanlified and would require negotiations and
quanlificalion by c:oasuItants to determine their value. In the particular C&Sol bcfore Council, staff look items they
kMw. were capital improvements where the value could. bc '1uanlifi.od. or !h",e was an agrc=enl on the value
berwcco the City and EastLake that bolh (e1t was fair. Those would bc the on.,. Ihat would be offered. Hopefully,
staff would not bc bringing Council any valu.,. that were suhjeclive in nature.
Council member Moot stated his '1u.,.tion was more direcled loward the amounl of the incentive. i.e. $325,000.
How did stait arrive at thaI figure? ThaI was the figure the nexl company would bc comparing Iheir requesl 10.
Mr. Salomone replied it was a market driven competition. The Cily w..... in competition wilh Ihe Cily of San Diego,
olh", industrial type (""ilili.,. at Brown Fi"ld, and ~'Urrounding cities. Slaff knew what lhe land cost was on the site,
whal tbe: f.,.,. Wolle, ir!heR were -=smeals, and what the land values were al wlLake. w1Lake was wriling
down those land prices to be competitiv" and they were trying to make up what Ihey felt was th" difference to create
... evco playing field. Ia addilion, they were trying 10 convin~ the company lhal th" amenilies and ullirnat" equity
they would hav" in the Fl'ct,.I(" businc!SS park would bc a far grolalc:r value Ihan iflh"ywcol to a neighboring city.
Councilrnember Moot stated one of his commilt"" assignments wa.~ to r"Present the Cily on Ihe Soulh County
Economic Developmenl Commiltu and 011" o( Ihe olXperienccs he had learned was that Ihe Cily o( San Diego had
found a need to be able to quantify the amounl of incenlive given and Ihe Iype and sib: of company that that
incentive WOuld be provided to. llte general consensus was that Ihe pl"OColSs needed to he .tandardiz.:d in a manner
so that they would be comparing "appl.,. to apples and oranges to oranges", A company thaI would bring in 25
jobs should not have the salIlC expectalions as a company thaI would hring in 200 jobs. He (ell il important, bccausc
the proposed deal oould Sd a benchmark, that the City work bctween now and when the conCract would be brought
back to be abl" to articulate tho siZol of the incenlive, visa vie Ihe benefit il W-4S bringing to the City. He ("Jllhat
process would become extremely importanl.
Mr. Goss staled one o( the problems was that there was a competilion involved. Even Ihough the City may bc
offering incentives and the menu was not totally f1esh.od out, he (elt there w-... going 10 be a limit as to whal amount
there would be Or how (ar the Cily could go.
:Ouncilmemhc:r Rindone (e1t Councilmember Moor"s c:ommc:nts were appropriale. He (ell Ihe City Manager'.
<)mmenls W"'e accurate as well. 'In ord", to seed Ihe projCCI and 10 gel the z<>ne slarted Ihose companies may
eceive g_t", incenlives bccause they would encourage olher compa"ies. He was pleased slaff had proposed
.ffering incentives wilhout an oulflow of cash (rom the City. He fell sraff had heen very crealive. '.
. .'
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. .
FIRST CONCESSION GRANTING AGREEMENT
BETWEEN
CITY OF CHULA VISTA
AND
EASTLAKE DEVELOPMENT COMPANY
RE: HIGH TECH/BIO TECH ECONOMIC INCENTIVE PROGRAM
This Agreement, dated this day of , 1995, for
the purposes of reference only and effective as of the date last
executed between, the parties, is made between the City of Chula
Vista, a chartered municipal corporation of the State of California
("city"), and EastLake Development Company, a California General
Partnership ("EastLake"), and is made with reference to the
following facts:
1. Recitals
A. City and EastLake are trying to stimulate high technology,
biotechnology and biomedical technology business development in a
territory of the City known as the High Tech/Bio Tech Zone as set
forth in Resolution No. 2621 (adopted February 21,1995), primarily
consisting of the EastLake Business Center.
B. The City and EastLake are currently negotiating a draft
agreement, dated March 10, 1995, that would establish a working
relationship to facilitate and encourage the location of high
technology, biotechnology and biomedical technology businesses
within the High Tech/Bio Tech Zone (commonly known as the "Menu
Agreement"). An agreement with similar objectives and comparable
provisions may be substituted for the Menu Agreement and is
referred to herein as the "Substitute Agreement".
C. Nypro San Diego ("Nypro") is a high tech business
currently located in Chula vista that desires to relocate from its
existing leased facility and to expand its business by the
acquisition of land and construction of facilities.
D. Nypro had considered relocating to a site outside of the
City of Chula vista. A key consideration was the significant
differential in the cost of fees related to the two sites. The
city wished to facilitate a reduction in fee costs related to the
Chula vista site in order to make the site more economically
competitive.
E. City wishes to encourage Nypro to relocate within the
City's High Tech/Biotech Zone in order to help "seed" the Zone with
a growing, high-tech, biomedical company via a proactive and
innovative business retention effort.
F. EastLake has entered into an agreement with Nypro for the
sale of a certain parcel of land within the High Tech/Bio Tech
1
'~ Ul7
a_-~'/'-1/?
f!#}'d
., .
Zone, whereby EastLake will place into escrow a reserve of funds,
in the amount of $324,000, for the payment of Nypro's processing,
assessment district and/or school district fees provided, however,
the city agrees to grant EastLake benefits/concessions/entitlements
with an approximate value of $324,000.
G. City approved the EastLake/Nypro transaction in concept
pursuant - to Resolution No. 17871 thereby directing staff to
negotiate and return to Council for approval of an agreement
("Concession Granting Agreement") granting such benefitsF
concessions/entitlements as it determined appropriate.
H. This Agreement is intended to be such Concession Granting
Agreement.
II. Obligatory Provisions.
Now, therefore, the parties agree as follows:
A. EastLake's Promise to Discount Land to Nypro.
EastLake promises City that EastLake will tender and
consummate, unless Nypro refuses, an offer ("Nypro Offer") for the
sale of land owned by EastLake in the High Tech/Bio Tech Zone to
Nypro at an overall effective price not to exceed $3.50 per square
foot of buildable acreage, and further agrees to reserve in escrow,
the amount of not less than $324,000 ("Escrow Fund"), for Nypro to
draw upon up to a maximum equal to said amount for the purpose of
paying Nypro's processing, permit, development impact, assessment
district, and/or school fees.
B. Agreement On Value of Discount-~"Inducement Value"
The parties agree that, for the purposes of this transaction
only, the Nypro Offer, if concluded, contains an "Inducement Cost"
of $324,000 to be paid by EastLake. The parties acknowledge that
this "Inducement Cost" is the minimum amount needed to induce Nypro
to accept the Nypro Offer.
The parties further agree that, for the purposes of this
transaction only, the city is willing to bear, on the conditions
subsequent herein stated,.$324,OOO (100%) of the Inducement Cost by
granting the following concessions ("city's Duty to Participate in
Inducement Costs") which are estimated to be of approximately equal
or greater value to EastLake as the cost to EastLake of reimbursing
Nypro for a portion of its fees:
1. Concession No.1: Changing Name of Orange Avenue to
Olympic Drive.
The City agrees to diligently prosecute and consider in
good faith, pursuant to the laws, rules and regulations for street
2
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~ -./
,.
name changes and reserving to itself such unfettered discretion as
the law requires in the circumstances,' a city-initiated change of
the name of Orange Avenue to Olympic Parkway or Olympic Drive for
the segment of Orange Avenue right of way existing between I-80S
and Wueste Road, and to bear the full processing costs therefore
("Concession No.1").
a. Street Name Change Successful.
On the condition that the street name is
substantially changed in the manner described
within two years of the Effective Date of this
Agreement, the parties agree on the following
consequences:
(1) Value of Concession No.1. The described
street name change will satisfy the City's
Duty to Participate in the Inducement Costs to
the extent of $50,000 ("Value of Concession
No.1") .
b. street Name Change Unsuccessful
If the street name is not substantially changed in
the manner described within two years of the
Effective Date of this Agreement, the City will
have a good faith duty to meet and confer with
EastLake for the purpose of arriving at another
concession and value equal to, in the opinion of
both parties, $50,000. The City may, however,
without any further agreement, apply any excess
credit described below under Concession No.2, to
its Duty to Participate in the Inducement Cost.
2. Concession No.
(Olympic Parkway or Olympic
Development Impact Fee Program.
The city agrees to diligently prosecute and consider in
good faith, pursuant to the laws, rules and regulations for the
establishment and amendment of Development Impact Fees, and
reserving to itself such unfettered discretion as the law requires
in the circumstances, a City-initiated effort to include the
eligible costs of building the segment of Orange Avenue (Olympic
Parkway or Olympic Drive, if the name is successfully changed)
between Wueste Road and the. U.S. Olympic Training Center (OTC)
entrance ("Orange Avenue Extension" - see map, Exhibit A), in the
Transportation Development Impact Fee Program (Trans DIF) (referred
to herein as "Concession No.2"). EastLake understands and agrees
that EastLake shall be responsible for paying its share, as
established by Council Policy, of all the items included in the
Transportation DIF Program ("Trans DIF Fees").
2: Inclusion of
Drive) in the
Orange Avenue
Transportation
3
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a. Inclusion Successful.
On the condition that the costs of constructing the
Orange Avenue Extension are substantially included
in the City's Trans DIF within two years of the
Effective Date of this Agreement, such time period
being tolled during any litigation over the
validity of this Agreement, the parties agree on
the following consequences:
(1) Value of Concession No.2. Concession
No. 2 will satisfy the City's Duty to
Participate in the Inducement Costs to the
extent of $274,000 and may leave an Excess
City Credit. The amount of Excess City Credit
shall be determined by the final value of
Concession No. 2 less $274,000 (the city's
Duty to Participate in the Inducement Costs).
The calculation of the final value of
Concession No. 2 shall be determined by the
city based upon the following formula: the
total eligible costs included in the Trans
DIF, as eligible is determined by the City, of
constructing the Orange Avenue Extension,
including all eligible city incurred costs,
less EastLake's share of the Trans DIF Fees.
(For illustrative purposes only, if EastLake's
Trans DIF Fees are calculated to be 40% of all
items included in the Trans DIF, and the total
eligible cost of constructing the Orange
Avenue extension is $780,000, the final value
of Concession No. 2 will be $468,000. From
that value, $274,000 will be applied to the
Nypro inducement costs and would leave an
. Excess City Credit of $194,000.)
(2) Application of Excess Credit. city shall
have the right, for 10 years after the
Effective Date hereof or the life of the Menu
Agreement (or a Substitute Agreement),
whichever is greater, to apply the Excess city
Credit to the acquisition of EastLake owned
land within the High Tech/Bio Tech Zone or
require EastLake to discount land to a High
Tech/Bio Tech Business designated by the city
or require EastLake to apply the City credit
to fees or assessments on behalf of a future
City-designated business within the High
Tech/Biotech Zone. If the Menu Agreement (or
a Substitute Agreement) has not been executed
between EastLake and the City within 18 months
from the Effective Date of this Agreement and
4
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the city has not already applied the Excess
'City Credit in full in the manner described
above, the City, may in its sole discretion,
require EastLake to make a cash payment to the
city of the Excess City Credit or any
remaining portion thereof. EastLake shall pay
the city the Excess City Credit within 10 days
after the city has made a demand for such
payment. Notwithstanding the foregoing,
EastLake may suspend payment of the Excess
City Credit to the city for a period of no
longer than 45 days, or as may be reasonably
extended by the City, if EastLake reasonably
anticipates that an agreement with a High
Tech/Bio Tech Business will be executed within
said 45 day period and the City has
tentatively agreed to apply the Excess City
Credit towards such transaction. Both parties
agree to use its reasonable best efforts to
negotiate the Menu Agreement and to execute
the same.
b. Inclusion Unsuccessful.
If the described proportion of the Orange Avenue
Extension costs are not substantially included in
the City's Trans DIF program within two years of
the Effective Date of this Agreement, the City will
have a good faith duty to meet and confer with
EastLake for the purpose of arriving at another
concession of a value equal to, in the opinion of
both parties, $274,000.
C. Conditions Subsequent.
The Duty of City to Participate in the Inducement Cost is
subject to the following Conditions Subsequent, such that if any of
the following conditions should occur, the City's Duty to
Participate in the Inducement Cost is voidable ab initio at the
City's option. If a concession has been effectuated to EastLake
before the occurrence of a Condition Subsequent permits the city's
Duty to be voidable and the City exercises its option to void the
Duty, the City shall have the right, at its option, to either (a)
acquire any other parcel of EastLake owned land within Chula vista
desired by the City at fair market value, and apply the full value
of the concession, as herein in this Agreement valued, to the
acquisition of such other EastLake owned parcel or parcels of land;
(b) require EastLake to sell any other parcel of EastLake owned
land within the High Tech/Bio Tech Zone to a High Tech/Bio Tech
Business designated by the City, at the fair market price thereof,
less a discount from the price in the full value of the concession,
as herein in this Agreement valued, or such portion thereof, that
5
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the City designates; (c) require EastLake to reimburse the fees of
a High Tech/Biotech business designated by the City in the full
value of the concession, or (d) require EastLake to repay the City,
the following amounts: i) all undisbursed amounts remaining in the
Escrow Fund, within 10 days after notice of voiding City's Duty is
issued by City to EastLake; and ii) all funds previously disbursed
to Nypro from the Escrow Fund, and all interest charges accrued
thereon (Final language will be provided to the city Council prior
to ita meeting after detaila have been negotiated with EaatLake].
EastLake shall pay the City the recovered funds within 10 days of
receiving said funds. EastLake agrees to pursue all available
legal remedies to collect all amounts disbursed to Nypro from the
Escrow Fund and shall do so at EastLake's sole cost and expense.
Any remaining value of the concessions, less the cash repayments
received by the city, shall be repaid to city in the manner
described by (a) through (c) above.
Those Conditions Subsequent are as follows:
1. Building Investment. Nypro shall fail to complete
construction of an approximately 70,000 square foot facility on the
parcel(s) included in the Nypro Offer ("Nypro Facility") by
March 30, 1998.
2. Chula vista Jobs Outreach. Nypro shall fail to
execute the attached Employment Agreement (Exhibit B) with the City
of Chula vista prior to close of escrow, and, during the period it
is recruiting persons, to notify local employment service providers
and their respective local labor pools/clients via the South County
Career Center as provided in the agreement, and to advertise for
unfilled positions in a minimum of one daily local newspaper of
general circulation for at least three (3) days.,
(3) Commence Operations. Nypro shall fail to commence
operations at the Nypro Facility by June 30, 1998.
D. Notices.
Any notice or other document required or permitted to be given
hereunder shall be in writing and may be delivered personally or by
deposit in the united States mail, postage prepaid, addressed as
follows:
To EastLake:
To City:
city Manager, City of Chula vista
276 Fourth Avenue
Chula Vista, CA. 91910
6
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with copies to:
Subcommittee Chairperson (Mayor)
City Attorney
276 Fourth Avenue, Chula Vista, CA 91910
Notices and other documents deposited in the united States
mail shall be deemed delivered 48 hours following such deposit.
Any party entitled or required to receive notice under this
Agreement may by like notice designate a different address to which
notices shall be sent.
E. No Partnership, Etc.
Nothing herein contained shall be construed to create a
partnership or joint venture between City and EastLake with respect
to the development of the Zone or the EastLake Business Center or
any part thereof, nor shall city have any liability or obligation
to any person whatsoever except its obligations to EastLake as
specifically set forth herein.
F. Gender, Number.
Whenever the context requires, the use herein of (i) the
neuter gender includes the masculine and the feminine gender and
(ii) the singular number includes the plural number.
G. Captions.
Captions in this Agreement are inserted for convenience of
reference only and do not affect the construction or interpretation
of this Agreement.
H. Entire Agreement.
This Agreement contain(s} the entire agreement between the
parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representa-
tions and statement, oral or written, are merged into and
superseded by this Agreement.
I. Modification.
No modifications, waiver or discharge of this Agreement shall
be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver or discharge is
or maybe ought. Any modifications, waiver or discharge on the
City's behalf must be approved by the City Council unless the
authority has been specifically delegated in writing by the Council
7
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to another person, and such delegation specifically references this
Agreement.
J. Invalidity.
If any material covenant, condition or provision of this
Agreement is held to be invalid, void or unenforceable by a final
order or judgment of a court of competent jurisdiction, the
remainder of this Agreement shall be enforceable.
K. Counterparts.
This Agreement may be executed in any number of counterparts,
all of which together shall constitute one instrument.
L. Applicable Law.
This Agreement shall be construed and enforced in accordance
with the laws of the state of California.
M. Mediation.
The parties agree that any disputes as to the enforcement that
can not be resolved after a reasonable attempt at negotiation in
good faith will be resolved by submission of the contract right to
non-binding mediation prior to the institution of litigation by
either party, unless such institution is necessary because of the
expiration of a statute of limitation which would preclude judicial
relief. If the institution of litigation is first required to
preserve the right to judicial relief due to an expiring statute of
limitations, the parties are still obligated, prior to issuance of
jUdicial relief to have the dispute mediated. The parties shall,
in the absence of an agreement to the contrary, follow the rules
for mediation set for by JAMS.
8
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Signature Page to
Concession Granting Agreement
Between
City of Chula vista
and
EastLake Development Company
Re:
High Tech/Bio Tech Economic Incentive Program
IN WITNESS WHEREOF, city and Developer have executed this
Agreement this day of , 1995.
GRANTOR
CITY OF CHULA VISTA
EASTLAKE DEVELOPMENT COMPANY,
a California general partnership
Shirley Horton
Mayor
By: BOSWELL PROPERTIES, INC.,
a California corporation,
General Partner
Attest:
By:
Name:
Title:
Beverly Authelet
City Clerk
By:
Name:
Title:
Approved as to form by
By:
THE TULAGO COMPANY, a
California corporation,
General Partner
Bruce M. Boogaard
City Attorney
By:
Name:
Title:
By:
Name:
Title:
M:\H~e\Attorney\B1onyp5
9
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STATEMENT OF INTENT AND AGREEMENT I$I:IWEEN
THE SOUTH COUNTY CAREER CENTER
AND
NYPRO SAN DIEGO INC. EXHIBIT 3 TO 10/3/95
AGENDA STATEMENT
This Agreement entered into between the South County Career Center, 1111 Bay Bo.ulevard, Chura
Vista, CA 91911, herein referred to as the Center and the NYPRO SAN DIEGO INC. herein referred
to as the Company.
WHEREAS, the Center coordinates workforce development programs for adults in areas
relevant to the business of the Company, s\.lchas retail sales, office procedures, general clerical,
manufacturing, warehousing and the like, and offers other employment-related services such as job
recruitment and pre-screening, and providing candidates for Company internships;
..........
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........ .
:. :M'. _..._"'; I. " ..... ...... .,.........
WHEREAS, it is to the mutual benefit of both parties that the Company proactively recruit,
hire and train Chula Vista residents for the Company's new (ADDRESS) location through working
with the Center's Workforce Development Coordinator.
NOW, THEREFORE, the parties hereto agree as follows:
I. The Center and the Company agree to establish a linkage that assists the Company to recruit
and hire qualified applicants for staffing the Company's new location by taking the following
actions:
c.
D.
E.
:......;..,"' . .'~ \.1...."'" .'
A.
The Company shall meet and confer with the Center's Workforce Development
Coordinator located at 1111 Bay Boulevard, Chula Vista, CA 91911 (424-1112) prior
to initially staffing the .Company's new facility alfowing the Center to make the
Company aware of their resources and the Company to in-tum discuss its needs. The
Center acknowledges that the Company operates an existing facility in Chula Vista
and that it is anticipated that most current employees will remain with the Company.
B.
The Company shall post initial job announcements for the new location at the Center
in advance of the general distribution of such job announcements.
If so requested by the Company, the Center will offer, on a no-fee basis, prescreen ing
of job candidates recruited through the Center based upon specifications developed
with the Company.
The Center will facilitate Company access to appropriate and available workforce
development programs (e.g. State and Federally funded job training).
The Company shall advise the Center of any customized training the Company may
require, on an as-needed basis, (e.g. second language improvement or customized
computer skill training) in order that the Center and the Company might work
cooperatively to meet these needs. . .
. . '.. '. . . '.' ~ .... . , ~ "'~:>'o" ...,~"""- ....,..........~:..
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f. The Company agrees to make a good faith effort to provide input as requested by the
Center regarding the Center's development of workforce development curriculum and
of work experience/internship programs.
II. Neither the Center nor the Company shall discriminate against any student or employee on
the basis of race, color, national origin, ancestry, religion, socioeconomic status or disability.
III. This Agreement shall only take effect if the Company completes and commences business
in the new facility.
The parties agree to perform such further acts and to execute and deliver such additional
documents and instruments as may be reasonably required in order to carry out the provisions of
this Agreement and the intentions of the parties.
.. .'.'h' The undersigned hereby ac:knowledges.thatthis Agreement iseffectiveso.longas..the Compant'.. ....
operates within the Chula Vista facility.
Margaret Gilbert
Director of Regional
Career Centers
South County Career Center
San Diego Consortium and
Private Industry Council
Signature
NYPRO SAN DIEGO INC.
((MDJc::\wp51\documenM".In1 C-. September 1. 1995D
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HIGH TECH/BIOTECH ZONE
MENU ITEMS/OPfIONAL CONCESSIONS
APPROVALS REQUIRED
EXHIBIT 4 TO 10/3/95
AGENDA STATEMENT
PUB.
ADM. COUNCIL HRG
I. Inclusion of Orange A venue from Wueste Road to OTC in the TOlF. .I
2. Reduce AD Bond administration fee for new EastLake bond issuances. .I"
3. Amend EastLake III Development Agreement to vest development fees. .I
4. Increase the per unit reimbursement related to the fire station. .I"
5. Utilize portion of sales tax generated by U.S. Olympic Training Center, .I
ViIla~e Centers South and/or North for EastLake public improvements.
6. Allow EastLake to post LOC in lieu of paying Interim SR 125 fees. .I""
7. Amend existing EastLake III Development Agreement to:
a. extend the tenn by 10 years; .I
b. include the two land swap areas. .I
8. Amend existing EastLake III Project Plans to reduce land requirements for .I
Salt Creek greenbelt.
9. Provide park dedication credits for private parks. .I
10. Guarantee traffic capacity rights to develop projects within the Business .I
Center.
II. Vest Public Facilities and SR 125 fees for Phase I and II of the Business .I
Center.
12. Eliminate pedestrian bridge or include in the Transportation OlF. .I
13. Establish Administrative Fast Tracking Procedures with designated .I
timeframes.
14. Facilitate affordable housing. .I
15. Density transfers. .I
"May require public hearing. Requires further legal review.
""While some ordiruulCes provide for an LOC, the SR 125 Ordinance does not. This requires further legal review.
((MD)c:\wpSl\documentl584.A (rev. September 28. 1995)J
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.J.nfo,.malion memo,.andum
EXIDBIT 5 TO 10/3/95
AGENDA STATEMENT
September 28, 1995
TO:
The Honorable Mayor and City coun~\1\
John D. Goss, City Managerj~ ~~ .
Chris Salomone, Director of commJJty Development ( _L, I
VIA:
FROM:
SUBJECT:
Business Incentives Used by Other Cities
INTRODUCTION
According to the national Economic Develooment Review, "at the local level incentives can play an important
role.. . incentives can create a win/win situation... It is at this level that community aggressiveness and creativity can make
the difference between securing the project or being a runner up in the attraction process." According to Susan Piegza
of the San Diego Economic Development Corporation, "Where incentives are important are when there are two or three
competing cities that are pretty close, and you need something to tip the balance in your favor. "
State and local incentives have been provided to attract desirable business for decades. Many entities target industry types
to channel their resources effectively. For example, a California Business Intelligence Service Survey identified the
following targeted sectors by California cities over 10,000:
. Electronics/Software
. Business/Office
. Warehouse, Distribution
. Heavy Manufacturing
. Biotech
. Incubator
. No Target
71%
60%
37%
14%
43%
26%
8%
A recent survey by Site Selection magazine showed that state and local incentives have grown from a 79.6% very
imp/imp rating in 1986 to a 89.3% rating in 1994. A recent CalED survey identified "relief of development fees,
exactions and permit fees," "subsidizing and amortizing of off-site infrastructure," "encouragement of industrial
parks," and "rebate of sales tax or TOT tax" to be among the top nine (out of 25) incentives in terms of importance
in their site selection process.
A 1992 League of California Cities survey concluded that local incentives were provided 43.5 % of the time by cities and
34.8% by Redevelopment Agencies. The top 10 incentives are most often financed by: 1) general fund, 2)
redevelopment tax increment, and 3) CDBG.
STATE INCENTIVES
States have been notably generous with their incentives. Examples include Utah's $300 million in tax rebates and grants
to Micron Computers, and $150 million in direct incentives from Alabama to Mercedez-Benz.
CALIFORNIA CITIES' INCENTIVES
Summarized below are recent examples of incentives used by California cities.
~/tf-tl
'334
Business Incentives Used by Other Cities
Page 2
September 28, 1995
CITY
COMPANY
INCENTlVE(S)
1. San Diego Matsushita . Waived $150,000 Housing Trust Fund fee .
. 135 jobs . Cut water and sewer hook-up fees by 54%
. Fast tracked
2. Poway WalMart . $1 million in public improvements
(Redevelopment . 200 jobs
Agency) . $500,000 sales tax
3. Bakersfield Carnation Ice Cream . Sewer fees amortized over several years without
interest
. Vesting of all fees for 10 years
4. Vacaville Genentech . $2-3 million property tax rebate first 3 years
(Redevelopment . 350 employees . $1.4 million payment of Development Impact Fees
Agency . $150 million facility (using Redevelopment monies)
involved) . Waiver of $200,000 permit processing fees
. Waiver of $200,000 sewer and water fees
. $15 million State JTP
. $3.2 million federal EDA base closure grant
. $1.9 Private Industry Council
. $750,000 Solano Company
. Reduced fees by Solano Irrigation District
Total = $20.85 million
5. Santa Ana Segerstom & Sons . $2.2 million grant to developer to rehabilitate 3 office
(Redevelopment (developer) buildings (using Redevelopment monies)
Agency) FHP (healthcare)
6. Sacramento Packard Bell . $17 million loan for site/building improvements (12
years)
. $9 million loan for relocation expenses (5 years)
. Option to buy 1.8 sq. ft. of land for $6.8 million after
10 years ($3.78 sq. ft.)
7. Sacramento Blue Diamond Almonds . City paying for:
(Redevelopment (ongoing) - street closures and offsite improvements
Agency . 700 jobs - construction of railroad tunnels
involved) . $30 million in - second connection to water system
capital - land for facility
improvements - all environmental and planning studies for all
public improvements
- bicycle trail construction
. Vesting of development rights
. Waiving height limitations
. City initiating rezoning for expansion
. Agency refunding 70 % of tax increment over 15 years
Total: est. $8.478 million
% /t/~t.J-
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Business Incentives Used by Other Cities
Page 3
September 28, 1995
INCENTIVES PROVIDED FOR CHULA VISTA BUSINESS DEVELOPMENT
PROJECT COMPANY INCENTIVE(S)
1. Autodealers Ford, Chevrolet, Honda . $1,750,955 Land cost write-down at new site
(Redevelopment . Purchased properties on Broadway for more than $2.6
Agency) million of current value
Total = $4,350,955
2. Homart Chula Vista Center . $7.1 million certificates of participation bond issue
(Redevelopment (Phase I)
Agency)
Chula Vista Center . $2.6 million grant to building parking structure.
(Phase II) (Financed by certificates of participation.)
3. Rohr Inc. Office building/ . $400,000 R.D.A. contribution for infrastructure
(Redevelopment headquarters improvements
Agency)
4. Palomar Trolley Phase I . Providing developer with $51,236 for site acquisition
Center costs - reimbursed through sales taxes. Money being
(Redevelopment provided to developer via agency loan from general
Agency) fund.
Phase II . Providing developer $724,835 for site acquisition
costs - reimbursed through sales taxes. Money being
provided to developer via agency loan from general
fund.
5. Rancho Del Rey McMillin (developer) . Provided $835,000 for public improvements paid out
Power Center of transportation related accounts
6. Rancho Del Rey Price Club . Price Club advanced City $1.892 million for
Power Center improvements, to be paid by City from General Fund
at 8 % interest over 10 years
. Price Club advanced City $192,000 in DIF to be
repaid by City from General Fund over 10 years
7. Rancho Del Rey K-Mart . City provided a 10 year, no interest loan from the
Power Center General Fund for payment of TransDIF in the amount
of $847,000, reflecting a subsidy of about $300,000
(in potential interest income).
[(MD)c:\wp51\documcnt\586.95 (rev. September 28, 1995)]
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,.....
EXHIBIT 6 TO 10/3/95
AGENDA STATEMENT
OBJECTIVES OF
PROSPECTUS FOR
DEVELOPMENT
o To offer fiscally responsible incentives
that enhance economic development op-
portunities while insuring an adequate re-
turn on the investment of public funds.
o To stimulate private sector participa-
tion in the planned growth and develop-
ment of specific industrial growth areas.
t-+t1V D U<.CDt f'S
High
Point,
North Carolina's
Prospectus for Development.
Daniel A. Lynch, CED
DEMONSTRATED SUCCESS
The Prospectus for Developmentwas designed to address the need for a programmatic approach
to the complex world of publicly financed incentives. Creative thinking combined with strategic planning
positioned High point to capitalize on quality development opportunities. As a resuh, the following
programs were initiated: the Industrial Incentive Program, the PublicIPrivate Partnership Cooperative.
and the Infrastructure Reimbursement Program. These pol~es have been the focal point of our
success for the past five years measured by continuing business development and quality jOb growth
in High Point.
From its inception in 1990 to Decem-
ber 1992, the EDC was responsible for at-
tracting sixty-six new companies to High
Point and convincing sixty-five existing
companies to expand. That activity brought
2,725 new jobs to the city and accounted
for $150.5 million in capital investmenl at
a cosl of $540,000 in city funds.
Last year, with PROSPECI1JS FOR
DEVELOPMENT in place, thirty-three
new and expanding companies added 430
jobs and invested $82.5 million at a cost of
$190,000 in city funds.
In July 1993, the High Point City Coun-
cil and the Economic Development Cor-
poration established an Industrial Incentive
Policy to guide the process of designing
incentive proposals to enhance economic
development opportunities. The City al-
19Catf":rI'tc;oo nno tn fnnrl the fi~t year of
the PfOl!f3IJI. In sbUcturing the policy, there
was equal focus on assisting expansion of
existing. industry, and relocation of new
companies.
The size and scope of the potential in-
centive are based on several factors, includ-
ing: location of the site, capital investment
of the project, number of employees trans-
ferred and qualily of the jobs created. A
major component of the incentive program
is to create quality, head-of-household jobs
that will further stimulate the local econ-
omy.
CD INDUSTRIAL INCENTIVE
PROGRAM
The EDC's mission is to aggressively
market the city to facilitate the economic
development process. Major emphasis is
placed on the retention and expansion of
existing business and industry and the at-
traction of new business opportunities.
In 1983, to stimulate residential and
industrial development, the City of High
Point sel up a fund to reimburse develop-
ers for installing water and sewer lines and
for building streets to specifications that
would handle future increased traffic loads.
The program contributed to the construc-
tion of housing units and industrial con-
cerns from 1985 to 1993, at a cost of
$8.538.589.
In 1991, the City restructured the reim-
bursement program to concentrate on in-
dustrial development. The Economic De-
velopment Corporation Board, in concert
with the City's planning and water/sewer
utilities departments, studied land use and
growth patterns, and recommended five
areas for designation as "industrial growth
corridors" where the City's reimbursement
resources should be targeted.
In 1993, following two particularly
hard'fought efforts to tailor incentives to
land industrial projects, the City Council
and Economic Development Corporation
Board agreed to design an incentive pol-
icy with measurable return on investment.
The city and EDC also prevailed upon
the Guilford County (NC) Board of Com-
missioners to participate in High Point's
inventives program. The county agreed to
contribute funds to offset site preparation
costs because the level of its participation
could be tied proportionally to the increase Scope .
in ils tax base. ~ The scope of the inc~ntive. pa~kage Will
-"a / (be :~ase7on l fo119wmg cntena:
/'-= -
58 ECONOMIC DEVELOPMENT REVIEW. FALL, 1994
INTRODUCTION
I
n the highly competitive world of
economic development, the High
Point (NC) Economic Development
Corporation was determined to enhance
development opportunities. Many potential
deals brought demands from prospects to
offset development costs, forgive fees, or
extend urban services-with no consislent
way to measure the return Qn investment
of public dollars or to encourage develop-
ment in designnted industrial growth cor-
ridors.
Through Prospectus for Del'e/opment.
the High Poinl Economic Development
Corporation and the. City of High Point:
o pulled together the various written and
unwritten poJicies and financial incentives
avnilable to lure prospects to High Point
or to encourage expansion of existing de-
velopment;
o developed realistic measures by which
to judge the economic viability of ench op-
portunity and to determine the appropriate
level of public funding; and
o negotiated a public/private partnership
thai gave the city land cre~its in High
Point's premiere business park.
BACKGROUND
The Economic Development Corpora-
tion (EDC) was established in 1990 by Ihe
High Point City Council. Its $226,000
annual budget is funded with public and
private dollars on a 75%(25% basis. Its
board of directors is made up of business
and community leaders, city government
officials. and city council members.
~
The City of High Point, in cooperation
with Guilford County, may provide vari-
ous fmancial incentives for companies
seeking to relocate or expand a business.
The incentive program is designed to
stimulate development by offsetting up-
front costs and operating expenses associ-
ated with a business relocation or expan-
sion.
D New capital investment of at least $5
million.
D Expansion capital investment of at least
$1.5 million and a 25% increase in the labor
force.
D Creation of quality, head-of-household
jobs.
D Utilization of the city's electrical sys-
tem.
./ Citv funds may acouire land or reduce
"-the cost or land for cortmanle~ selecting a
site serviced ily thE": rity'~ electrical sys.
tern A site not serviced by the City's elec-
trical system will not qualify for this pro-
gram. County ~lInd~ will provide for site
preparation ei<.~nses including environ-
mental testinlZ:. c e'ann2. e:radine. and wa-
ter/sewer extension.
Contribution Level
The parameters defming the level ofthe
contribution will be as follows:
o A maximum of 7~% of the increased
tax revenue .f'?r.';;.y_~!!!~_~p"p'lied toward land
acquisltiolL.A further component of that
calculation will be based on the quality of
the jobs created. The schedule below allo-
cates a percentage of the total tax revenue
generated for each of three hourly wage
levels,
Wage rates
$6.00 - $8.50
$8.50 - $11.00
$11.00+
Percent of total
50%
75%
100%
o A maximum of 50% of the increased
tax revenue for 5 years applied toward site
preparation.
Examples
During the first six months of the in-
centive program. three companies made ap-
piication for funds. Outlined below are the
basic project parameters and calculated a
potential incentive proposal, for two of
these.
Project One
Company one is considering a fifty acre
site in Piedmont Centre for a $10 million
corporate complex and manufacturing
facility. Phase I of the project is 240,000
square feet and will employ 310 workers.
1lle average hourly manufacturing wage is
$10.00 and the facility will be serviced by
the High Point municipal electric system.
Calculation of potential incentive package:
City Allocation
Capital investment $IO,ooo,OOU
0.59 per $100 value
$59,000
$295,000
Tax rate
Annual tax revenue
5 year tax revenue
Level of contribution
$295,000 x .75' = $221,250
$221,250 x .75' = *$165,937
175% is the maximum level of participa-
tion available.
'Level of contribution available for the
$8.50 to $11.00 hourly wage rate.
* Requires approval of the High Point City
Council.
County Allocation
Capital investment $1,500,000
Tax rate 0.7899 per $100 value
Annual tax revenue $11,848
5 year tax revenue $59,250
Level of contribution
$59,240 x .50' = *$29,620
350% is the maximum level of county par.
ticipation available.
* Requires approval of the Guilford County
Board of Commissioners.
The City could allocate up to $24,891 for
County Allocation site preparation and the waiver of permit
Capital investment $10,000,000 and tap fees for this project. The County
Tax rate 0.7899 per $100 value could allocate up to $29,620 for site prepa-
Annual tax revenue $78,990 ration expenses.
5 year tax revenue $394,950 ~
Level of contribution ~ PUBLIC/PRIVATE PARTNERSHIP
$394,950 x .50' = *$197,475
'50% is the maximum level of county par-
ticipation available.
*Requires approval of the Guilford County
Board of Commissioners.
The City could elect to invest up to
$165,937 for the acquisitionofland for Ibis
project. The County could allocate up to
. $197,475 for site preparation expenses.
Project Two
Company two is an existing High Point
company considering expansion of its
manufacturing facility. Prior to the initial
meeting, the firm was plarming to move
the opemtion out of the city to reduce the
property tax liability. The plan was to
construct a new 100,000 square foot facil-
ity for a cost of $1.5 million and add thirty-
five workers to the existing employment
base of seventy-five. The average hourly
manufacturing rate was $8.92. The follow-
ing incentive package was calculated for
Company two with the qualifying sti!,ula-
tion that it must locate on a site serviced
by the municipal electric system. .
C;.lculation of possible incentive package:
City Allocation
Capital investment $1,500,000
Tax rate 0.59 per $100 value
Annual tax revenue $8,850
5 year tax revenue $44,250
Level of contribution
$44,250 x .75' = $33,187
$33,187 x .75' = "$24,891
Public/private partnerships have be-
corne a vital link in ~tnlCf1lrinf pro~ressive
development straleaies. Such a strategy re-
cently had a major impact on northern High
Point and future development along the NC
. aT.
out ern .tedmont Centre is comprised
of approximately 250 acres of prime real
estate zoned for office and light manufac-
turing, The south end is located two miles
from the 1-40 interchange and three miles
from Piedmont Triad International Airport.
Although situated between major high-
ways, NC 68 and Wendover Avenue, a
majority of the 250 acres was landlocked
without water and sewer service or seeon.
hi hwa a
n nprece eote maneuver, e I
Tee to - a e connector
ulevard between he a' . hwa s
W _ Ie - r er t e 250 acre site. The Ity
spent approxImately $1,300,000 to con-
slnlct the boulevard and install water and
sewer service. turn, the develo rs
ave. the Ci wo 0 an
rom e 0 acre site. e ere Its
represent between forty-eight and fifty-
ei t acres of the 250 acre site. .
Bv c:ontrollin~ land creclit~ the F~o-
nomir. n,.v,.,lnnmf'l'nt-("nmnrntinn fFDC)
can emf' A vprv Aoof'PlI;.lI;.ive incentive oack~
~tilizing formulas whIch the "EDC
developed, the City can determine the value
oCa oroiect based on c~pital invf";!l:tment and
quality iob creation. A ftpr flll1v pv~ll1::!otina
t .. "
e
'75% is the maximum level of participa- t
tion available. land cos
'Level of contribution available for an s a resu t of this program, the High
hourly wage rate of $8,50 to $11.00. Point EDC has successfully recruited a
* Requires approval ofthe High Point City major corporation to the s~~j~ct property.
C '1 In February 1994, a subSIdIary of a For-
auneI. .
-I-il-. J....rt ECONOMIC DEVELOPMENT REVIEW. FALL, 199459
VJf~~? -
tune 250 company will annOunce plans to
construct a 240,000 square foot corporate
center. Phase I employment will be ap-
proximately 175 office personnel and 200
manufacturing personnel.
Utilizing the land credits enabled the
EDC to buy down the cost of land for the
project. Total land cost amounted to
$510,000 or roughly $14,500peracre. This
is well below the market value of $25,000
per acre for land in Piedmont Centre.
~ INFRASTRUCTURE
. REIMBURSEMENT PROGRAM
The Infrastructure Reimbwsement Pro-
gram was established by the City of High
Point to stimulaie private sector participa-
tion in the planned growth and develop-
ment of specific industrial areas. To qual-
ify, under the program, the development
must be located in one of the industrial
growthcotridors as designated by the City.
Infrastructure covered under this pro-
gram includes water and sewer lines and
the oversizing of roads beyond the 36 foot
minimum requirement. The developer is
responsible for the initial cost of construc-
tion, and the installation of the infrastruc-
ture must be designed to City standards.
The developer i. reimbursed for the total
cost of installation over a five year period.
Reimbursements are made yearly on a
prorated basis as certificates of occupancy
are issued.
The Infrastructure Reimbursement Pr0-
gram is responsible for Piedmont Centre,
an 1,100 acre business park located in High
Point at the heart of North Carolina's Pied-
mont Triad. Since the Centre opened, over
2,500,000 square feet of office, manufac-
turing and distribution space have been
constructed. By mid-1994, the Centre will
be home to over 55 companies employing
approximately 4,500 workers.
This program is directly responsible for
increasing High Point's tax base by sev-
eral hundred million dollars.
In addition to reimbursing developers
for oversized public improvements, the
City may reimburse developers for part of
the cost of constructing public water and
sewer lines where these improvements
promote industrial development. The reim-
bursement policy is as follows:
o Industrial developments of any size that
locates in targeted Industrial Growth AI-
eas may qualify for a reimbursement com-
mitment.
o Approval Process:
- Approval of Preliminary Subdivision or
Group Development Plan and Street and
Utilities Plans by the Technical Review
Committee;
- For sites in a designated water supply
watershed, approval of Watershed Control
Plan by the Watershed Review Commit-
tee;
- Approval of a Reimbursement Commit-
ment by City Council, based on rum cost
estimates, provided the site is within the
corporate limits when the Commitment is
approved.
o Eligible Costs: ReimbUlll8ble costs in-
clude the construction costs of installing
on~site water and sewer improvements.
Service lines, meter boxes. meters, and
c1ean~outs arc not reimbursable. Extension
of off-site sewer outfalls and water mains
will be eligible for reimbursement in the
first year after completion.
o Reimbursement Process: Annual reim-
bursements for on-site utilities shall be
Ad ~!f
-ff/o/~? ?
60 ECONOMIC DEVELOPMENT REVIEW . FAll, 1994
based on the proportion of the development
on which buildings received a certificate
of compliance during the previous calen-
dar year.
Developers shall notify the water and
Sewer Utilities Department in writing by
February I, listing the buildings and acre-
age completed during the previous year.
Upon verifying this list, the Department
will budget for reimbursements to be made
in September of the same year.
o This policy is valid for two years from
the date of approval by City Council. To
qualify for reimbursement, a development
must secure a reimbursement commitment
from City Council by December 31, 1995.
Reimbursements shall be made for build-
ings completed not later than December 31,
2000.
It is the intent of City Council to budget
ually for reimbursements for industrial
urposes in the General Fund, up to a.x
maximum oUI million for the life of this
policy.
Daniel A. lynch, CEO
Daniel A. lynch is the President
ofJhe High Point Economic Develop-"
ment Corporation In High Point, North>,
C;trolina. HecurrentIy serves on the
lx1.ard of dir~orsofthe AmeriCllll'<
Economic Development Councill1f1~""
.'. North Carolina Economic Develope~
. ASSOcIation. Dan is. also on the board..
of directors oflhe Piedmont Triad'
Partnership, an eleven county re-
gional economic development organ~
zation. His article is based on his
award winning entry in the 1994
Arthur D. Ultle Awards for Excellence
in Economic Development. He can be
reached at 91 0/883-3116.
", I
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San Oielo Business Journal - November 21, 1994
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Matsushita says
it will relocate
HQ to San Diego
..
BY MIKE ALLEN
Staff Writer
Matsushita Television Co. formally an-
nounced its plans to relocate its North Ameri-
can headquarters from a Chicago suburb to
the Brown Field Business Park on Otay Mesa.
As reported in the San DiegoBusinessJour-
nal in September, the Matsushita relocation
will bring 120 jobs to San Diego. The site at
7615 Waterville Road in the business park
will house .hecompany's administrative, en..
gin.ering, design and development functions.
Matsushita operates several maquiladora
pl'ants in Tijuana with some 3,(X)() workers.
Along with an annual payroll of more than
S7 million,the relocation from Franklin Park,
III., will result in SII million in eonstruction
costs and SS million in housing investments.
In all, the first-year economic impact from the
. eompany is estimated at S35.5 million, ac-
eording to Mayor Susan Golding.
The company had been mnsidering several
~ites in Soutbern California, including the
EastLake Business Park in Chula VisIa. Thecom-
pany said it sel<lCled San Diego because of !he
proximity to its manufacturing p1ants.and !he
....itivestanceby !heaty. The city council waived
housing lnlSl.fulld fees in !he Olay Mesa Enter-
prise Zone as an incentive to bring !he firm here.
Matsushita Television is a division of
Matsushita Electric Corp. of America (MECA)
anll a subsidiary of Matsushita Electric Indus-
t,;a1 Co. Ltd. of Japan. With its subsidiaries
and affiliates, MECA has 17 North American
factories and employs 14,000.
MECA, which sells products under the
Panasonic, Technics and Quasar brands, had
sales of S6.5 billion in the last fiscal year.
Matsushita Television's, new headquarters
will be a IIO,()()()..square-foot building lo-
cated On a 9's-acre lot. The project's develop-
ers are 'renantFirst Real Estate Services Inc.
and Miisui Real Estate Sales USA Co., Ltd.
Co.nstruction will begin next month and'
should be completed by the spring, said Chris
Yamada, senior vice president of Mitusi Real
Eslate Sales USA.
~~ /y-/.Y
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COUNCIL AGENDA STATEMENT
Item / 3
Meeting Date 9/19/95
ITEM TITLE:
Resolution Approving an agreement with the EastLake
Development Company which facilitates the transfer of economic incentives to
NYPRO San Diego, a high tech company locating in the High Tech/Biotech Zone in
exchange for certain concessions to EastLake
Community De~el,opment %to~ (~S .
City ManagerJ4 ~~
SUBMITTED BY:
REVIEWED BY:
(4/5ths Vote: Yes_No~
BACKGROUND:
On April 18, 1995, Council approved in concept an agreement with the EastLake Development Company
providing for EastLake to pay $324,000 in NYPRO development related fees as an economic development
incentiv,e, in exchange for the City providing EastLake with specified concessions. Council further directed
staff to' prepare the necessary agreement for Council approval.
RECOMMENDATION: That Council adopt the resolution approving an agreement with the EastLake
Development Company providing that EastLake pay $324,000 in NYPRO development related fees, in
exchange for the City providing EastLake with specified concessions.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
I. NYPRO SAN DIEGO - ECONOMIC BENEFITS TO THE CITY
NYPRO is a biomedical manufacturer currently employing on average 85-100 people including
management, engineers and technicians. The company has $230 million in sales and 19 precision
plastics injection molding plants worldwide, including a maquiladora plant in Tijuana. Among their
clients are Fortune 500 companies (see Attachment A). NYPRO plans to expand from its current
60,000 square foot leased facility on Otay Valley Road to a 70,000 - 90,000 sq. ft. facility at the
EastLake Business Center (High TechlBiotech Zone). NYPRO is acquiring 6.87 acres, adequate to
expand to 170,000 sq. ft. The initial expansion will employ an estimated 100-120 people. The
relocation of NYPRO to the High Tech/Biotech Zone will help "seed" the Zone promoting the
attraction of additional targeted high tech and biotech companies.
Also note that NYPRO's presence in Chula Vista helped to recruit General Polymers' plastic
distribution operations, which recently subleased 10,000 sq. ft. from NYPRO (see Article, Attachment
B). General Polymers may relocate with NYPRO to the Zone.
~~-li
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Page 2, Item~
Meeting Date 9/19/95
-
II. PROPOSED AGREEMENT WITH EASTLAKE
A. INCENTIVES TO NYPRO
As indicated, on April 18, 1995, Council directed staff to prepare a stand-alone agreement
with EastLake to facilitate $324,000 in City incentives to NYPRO. The proposed agreement
provides for EastLake to subsidize NYPRO's development-related fees in this amount. This
fee "write-down" will be accomplished by EastLake depositing the $324,000 in an escrow
account. Per EastLake's proposed Purchase and Sell agreement with NYPRO, NYPRO may
draw down funds from this escrow account only for qualified City development-related
processing and permit fees, which are estimated at $3] 0,000. In the event there is a
remaining balance, NYPRO may draw these down for assessment district fees.
The proposed agreement between the City and EastLake stipulates that NYPRO must
commence operations at their new facility by June 1998 (consequences of non-performance
identified below: "NYPRO NON-PERFORMANCE"). Additionally, the CitylEastLake
agreement stipulates that NYPRO shall execute the City's Employment Services Agreement
(as proposed by the Workforce Development Team), as provided in Attachment C.
B. BASIS FOR INCENTlVES TO NYPRO (BUSINESS RETENTlONIEXPANSlON
ASSISTANCE)
The NYPRO incentive is being offered as part of the City's Business Retention and Expansion
efforts and as part of a targeted effort to recruit high tech companies to the High TechlBiotech
Zone. In this case, an existing Chula Vista business was considering relocating and
expanding outside of the City. Staff, in coordination with EastLake and with NYPRO
brokers, conducted a detailed analysis of land and fee costs related to both the EastLake site
and the competitor site. The analysis showed that the total development-related fees and
assessments for the Chula Vista site were substantially higher than those for the other site.
The proposed fee write-down narrowed that gap and thus made Chula Vista more competitive.
(Note: The "competing" jurisdiction was willing to waive close to $ 100,000 in fees.) Since
the presentation to Council in April, negotiations with EastLake and NYPRO have resulted
in the selection of new parcels within EastLake for the NYPRO facility (Lots 18 and a portion
of ] 9, versus the original Lots 3 and 4 and a portion of Phase 2). The resulting updated
calculations indicate that the total development fee and assessment district gap is $5]7,798.
Subtracting both City's subsidy amounts (Le. after Chula Vista writing down NYPRO fees
and deducting the "competing" jurisdiction's $100,000 fee waiver), the remaining gap is
$284,500.
-,
It is important to note that the High TechlBiotech Zone properties are subject to significant
development impact fees, assessment districts and Mello-Roos districts; the competitor's site
is not. While these fees and others set EastLake apart in terms of affording transportation,
landscaping, recreational, and other amenities, the bottom line cost to the business is clearly
impacted. It is also important to note that EastLake is selling the property at $3.50 sq. ft. _
virtually the same as the price of the competitor site - a price that was determined by staff
to reasonably represent Fair Market Value.
""'"
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Page 3, Item 13
Meeting Date 9/19/95
c.
CONCESSIONS TO EASTLAKE
The proposed concessions to EastLake and their respective estimated values were approved
in concept by Council on April 18, 1995. These actions or concession remain subject to
Council's unfettered discretion. If Council does not take such actions, the agreement allows
City staff and EastLake to identify alternative concessions which equate a value of at least
$324,000. The currently proposed concession items, and their values as generally agreed upon
in April and as currently understood are, as follows:
Apri I 18 Estimate
$50,000
.
Renaming Orange Avenue to
Olympic Parkway
Including Orange A venue from
Wueste Road to the U.S. Olympic
Training Center in the Transportation
Development Impact Fee (TDIF)
Proposed Agreement
$50,000
$450,000 - $600,000
Actual TDIF-eligible
cost (estimated at
$544,500 - $798,600)"
(see below)
.
I)
Renaming Orange A venue
In terms of concession #1, the $50,000 value represents the City's commitment to use
best efforts to facilitate and expedite the renaming process, including coordination
with the U.S. Olympic Training Center and the community. Staff's recommendation
will be presented at a Public Hearing of the Planning Commission and City Council.
In the event that the Council does not approve the renaming, the agreement stipulates
that the City will have a "good faith duty to meet and confer with EastLake" to
identify another concession worth $50,000.
2)
Including Orange Avenue in TDIF
In terms of item #2, the City will determine, at a future date, whether the portion of
Orange Avenue, described above, can be viewed as an extension of an existing major
arterial (see Attachment D). A public hearing will be held regarding reclassifYing this
portion of Orange Avenue to a major arterial, and including it in the TDIF. This
recommendation is subject to the unfettered discretion of the Council following the
testimony and evidence presented at such hearing. If the amendment to the TDIF
Ordinance is not approved by Council to include Orange A venue, the agreement
stipulates that the City will have a "good faith duty to meet and confer with EastLake"
to identify another concession worth $274,000.
If amendment of the TDIF Ordinance is approved by Council to include the Orange
A venue segment, the value of this concession to EastLake would be based upon
subtracting the portion of the total project cost that EastLake would continue to pay
as their share of the TDIF, (currently 40%) from the total TDIF-eligible project cost.
(The previously estimated $450,000 - $600,000 value to EastLake was based upon an
"Represents value to EastLake, i.e. 60% of total TDIF eligible cost
~ /"/-7/
Page 4, Item /3
Meeting Date 9/19/95
~
estimated total eligible project cost of $750,000 to $1,000,000; $750,000 x 60% ~
$450,000).
The proposed agreement now stipulates that the value of the concession to EastLake,
if the TDIF ordinance is amended, will be based upon the actual cost, i.e. it will be
determined upon completion of construction of the Orange A ve segment in question.
At that time, actual eligible costs will be determined by the City Engineer. The
agreement further stipulates that a minimum $274,000 value will be applied to the
NY PRO incentive package; i.e. EastLake will pay $324,00 in NYPRO fees, based
upon the "renaming concession" worth $50,000 and the "TDlF concession" worth a
minimum of $274,000 (for a total of $324,000).
3) TOIF Concession "Excess Credit"
While the agreement stipulates that the value of the "TOIF concession" is a minimum
of $274,000 (to be applied to NYPRO), it is currently estimated that the total value
of this will be in the range of $544,500 to $798,600 (based upon bids received).
However, as indicated, the final value will be determined upon completion of
construction. The difference between the final value and the $274,000 will be
"credited" to the City to be applied to a future incentive for a City-designated
company within the Zone. (For example, if the actual cost savings to EastLake is
$544,500, after subtracting $274,000 the "excess credit" would be $270,500.) The _
agreement provides that the City shall have the right for ten years after this agreement
(or for the life of the Menu Agreement, whichever is greater) to apply this "excess
credit" in the following manner: I) the city could apply the credit to acquire Zone
property; 2) the city could require EastLake to discount the sales price of their
property for a designated business by the credit amount; and 3) the city could require
EastLake to write-down a designated business' development related fees.
O. NON-PERFORMANCE
I) NYPRO Non-Performance
Per the City's agreement with EastLake, in the event that certain deadlines are not met
by NYPRO (i.e. construction completion by March 30, 1998, and opening by June 30,
1998) and EastLake has received concessions from the City, the following will occur:
· EastLake shall credit the full concession value received by EastLake
($324,000 plus any excess credit) to the City for use as an incentive for a
future business prospect within the Zone (or as a direct discount to the City
should the City wish to acquire Zone property).
.
Per the Purchase and Sale Agreement between EastLake and NYPRO, in the
event these deadlines are not met, NYPRO is required to refund to EastLake
all expended incentive funds ($324,000).
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Page 5, Item l ~
Meeting Date 9/19/95
.
The City has the right to require a $324,000 cash payment from EastLake
(with the "excess concession credit" still credited to the City for future use).
In the unlikely scenario that NYPRO both does not open and refuses to honor
its agreement to refund the expended incentive monies to EastLake, Eastlake
would be responsible for taking the legal action necessary to recover the funds
from NYPRO, and for refunding the City all monies recovered from NYPRO,
as well as any monies remaining in the escrow account.
. EastLake is responsible for paying 100% of all legal costs incurred In
recovering any incentive monies expended by NYPRO.
2) EastLake Non-Performance - Menu Agreement
The conditions discussed above pertain to performance by NYPRO. In addition, our
agreement with EastLake contains a performance standard directly related to EastLake.
In the event that a High Tech/Biotech Zone menu agreement is not executed between
EastLake and the City within eighteen (I8) months, the City reserves the right to
receive any excess credit in the form of cash from EastLake (even if NYPRO
performs as required).
III. STATUS OF CONCESSIONS/FURTHER COUNCIL ACTION REQUIRED
A.
RENAMING ORANGE A VENUE
As indicated, pursuant to Council direction, staff will submit the proposed name change to
the Planning Commission and then to City Council. Each will hold a public hearing. Council
has unfettered discretion to approve or deny the renaming subject to public hearing input.
B. INCLUDING ORANGE AVE IN TDIF
In order for this project to be included in the TD IF, staff will bring a report to Council and
introduce an amendment to the TDIF Ordinance at a public hearing, followed by a second
reading, with the effective date 30 days subsequent. Staff will advise the major developers of
the proposal in advance of the public hearing. Again, Council has discretion to approve or
deny the recommendation subject to hearing input.
FISCAL IMPACT:
The proposed incentive to NYPRO in the form of a fee write-down by EastLake is a City incentive. Through
a creative public/private partnership EastLake acts as the conduit for the economic incentive. The proposed
incentive will not result in anv General Fund or other City expenditures. It will require EastLake to pay
NYPRO $324,000 for payment of their (NYPRO's) City fees and assessments. In exchange, the City will
provide EastLake with the concessions designated in the proposed agreement, or if these are not approved
by Council subject to future public hearings, the City will provide alternative concession(s) valued at no less
than $324,000. Further, it will require EastLake to transfer any "excess credit" (additional value of the
/~/Y-?J
Page 6, Item 13
Meeting Date 9/19/95
-
currently proposed concessions above the $324,000 - roughly estimated at $270,500 to $524,600 _ or of any
alternative concessions) to the City to apply to one or more future incentives to other companies.
Economic benefits to the City include the retention of significant local manufacturer, including 85-100 jobs,
and the addition of a minimum of 35 new jobs due to NYPRO's expansion. Other benefits include the
"seeding" our High Tech/BioTech Zone, enhancing our ability to attract other high tech companies, and the
opportunity to activate our local hiring agreement.
In terms of tax revenues, retention of NYPRO in Chula Vista will initially reduce the loss of annual
property tax revenue from $32,000 to $21,000, and following the backfilling of the Otay Valley site will
result in an estimated $11,000 l!ain to the City. This is explained as follows: NYPRO currently generates
approximately $67,000 a year to the Redevelopment Agency in real and personal property tax increment at
the Otay Valley Road site (which is in a Redevelopment Project area). Of this, $35,000 in land and building
property tax will continue to be paid to the Agency at the vacated Otay Valley site. However, the $32,000
in personal property tax (equipment) generated at the Otay site will be lost. The total personal and real
property tax generated at the EastLake site will be $11,000. The reduced amount is due to NYPRO no longer
being in a redevelopment area. Therefore, the net loss to the City would be $21,000. However, once the
Otay Valley site is backfilled (and equipment related tax revenues resume) the relocation of NYPRO to
EastLake will result in a net property tax revenue increase of $11,000.
ATTACHMENTS
A - NYPRO Clients
B - NYPRO/General Polymers Article
C - Employment Services Agreement
D - Map
E - April 18 City Council Minutes
F - SDG&E letter regarding incentives
G - Article regarding North Carolina City - Similar land credit incentive program
-
[(MO) c:\wp51\document\519.95(September 15, 1995)J
-
~-?t(
RESOLUTION
17 9 3'~
.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING AN AGREEMENT WITH EASTLAKE DEVELOPMENT COMPANY
REQUIRING EASTLAKETO TRANSFER ECONOMIC INCENTIVES TO NYPRO SA
DIEGO, A HIGH TECH COMPANYWISHING TO RELOCATE AND EXPAND WITHI
THE CITY'S HIGH TECH/BIOTECH ZONE, IN EXCHANGE FOR THE CI
PROVIDING CERTAIN CONCESSIONS TO EASTLAKE
WHEREAS, Council has cre ed a High Tech/Biotech Zone within the EastLake B iness Center to offer
incentives to attract targeted High Tecn iotech and Biomed companies; and
and
WHEREAS, the attraction of these . h growth companies will result in new, qual" jobs for local residents;
anufacturer, is considering reloc Ing and expanding outside of
ncourage NYPRO to relocate and expand within the High
to 120 at its expanded facility,
WHEREAS, NYPRO San Diego, a biome
the City of Chula Vista, and the City wishes to
Tech/Biotech Zone; and
WHEREAS, NYPRO employs up to 100 people wand will employ
including well paid management, engineers and technicians; nd
WHEREAS, staff analysis of the proposed Chula Vista s and the "c mpetitor" site reveals that the cost of
combined assessment district and development fees are signific t1y highe in Chula Vista and recommends that
through a creative partnership with EastLake a fee write-down of $ 4,000 e provided at no cost to the City; and
~~
ES HEREBY RESOLVE AS
WHEREAS, such a recommendation was approved by Council i concept in April 1995 and is now provided
for in an agreement between the City and EastLake, requiring East k to pay the write-down in exchange for
. concessions from the City; and
WHEREAS, the agreement stipulates that the two recom
pUblic hearings and that Council retains its discretion to approve r deny the co cessions following hearing input,
and the agreement provides a remedy should such approvals no be forthcoming;
NOW, THEREFORE, THE CITY COUNCIL OF THE CI
FOLLOWS:
1)
The City Council approves the agreement
a payment of $324,000 in exchange for
following respective public hearings;
ith EastLake Development Co
o identified concessions, which
2) The City Council directs staff to bring t e proposed two concessions, I.e. renaming f Orange
Avenue and the inclusion of Orange enue from Wueste Road to the U.S. Olympic
Center entrance, forward for public arings;
3) The Council reserves the right in . s sole and unfettered discretion to approve or disapp
the two concessions subsequent 0 the public hearings.
PRESENTED BY:
APPROVED AS TO FORM BY:
.hris Salomone
Community Development Director
Bruce M. Boogaard *
ity Attorney
7 *Signature subject
/; Z~.iscussion
to closed session
I(MD)c:\wp51\document\531.95 (rev. September 14,1995))
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. ATTACHMENT B
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O'lrlulU'lL.nl \,..
.
STATEMENT OF INTENT AND AGREEMENT BETWEEN
THE SOUTH COUNTY CAREER CENTER
AND
NYPRO SAN DIEGO INC.
This Agreement entered into between the South County Career Center, 1111 Bay Bo.ulevard, Chula
Vista, CA 91911, herein referred to as the Center and the NYPRO SAN DIEGO INC. herein referred
to as the Company.
WHEREAS, the Center coordinates workforce development programs for adults in areas
relevant to the business of the Company, such as retail sales, office procedures, general clerical,
manufacturing, warehousing and the like, and offers other employment-related services such as job
recruitment and pre-screening, and providing candidates for Company internships;
. ~... ~.,
...".'
.....,,,. ., " .
..'w' ...,.....,.
WHEREAS, it is to the mutual benefit of both parties that the Company proactively recruit,
hire and train Chula Vista residents for the Company's new (ADDRESS) location through working
with the Center's Workforce Development Coordinator.
NOW, THEREFORE, the parties hereto agree as follows:
I. The Center and the Company agree to establish a linkage that assists the Company to recruit
and hire qualified applicants for staffing the Company's new location by taking the following
actions:
.
A.
The Company shall meet and confer with the Center's Workforce Development
Coordinator located at 1111 Bay Boulevard, Chula Vista, CA 91911 (424-1112) prior
to initially staffing the .Company's new facility allowing the Center to make the
Company aware of their resources and the Company to in-turn discuss its needs. The
Center acknowledges that the Company operates an existing facility in Chula Vista
and that it is anticipated that most current employees will remain with the Company.
B. The Company shall post initial job announcements for the new location at the Center
in advance of the general distribution of such job announcements.
C. If so requested by the Company, the Center will offer, on a no-fee basis, prescreening
of job candidates recruited through the Center based upon specifications developed
with the Company.
D. The Center will facilitate Company access to appropriate and available workforce
development programs (e.g. State and Federally funded job training).
.
E. The Company shall advise the Center of any customized training the Company may
require, on an as-needed basis, (e.g. second language improvement or customized
computer skill training) in order that the Center and the Company might work
cooperatively to meet these needs. . .
. . '. '''''I. " . ,.. "4" ..;.. -. .......,,... 4.' ! .'..JJ.;................'.Ii"-.#'~..:~......:....
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F. The Company agrees to make a good faith effort to provide input as requested by the
Center regarding the Center's development of workforce development curriculum and
of work experience/internship programs.
II. Neither the Center nor the Company shall discriminate against any student or employee on
the basis of race, color, national origin, ancestry, religion, socioeconomic status or disability.
........
III. This Agreement shall only take effect if the Company completes and Commences business
in the new facility.
The parties agree to perform such further acts and to execute and deliver such additional
documents and instruments as may be reasonably required in order to carry out the provisions of
this Agreement and the intentions of the parties.
The undersigned hereby acknowledges.thatthis Agreement iseffectiveso.longas,.the Company"'" ._do
operates within the Chula Vista facility.
Margaret Gilbert
Director of Regional
Career Centers
South County Career Center
San Diego Consortium and
Private Industry Council
Signature
NYPRO SAN DIEGO INC.
-
[(MDlclwp51'documenIl491.h1l (rev. Seplembet 1, 1995))
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STREETS IN TRANSPORTATION
DEVELOPMENT IMPACT FEE
(TDIF) PROGRAM
---
PROPOSED TDIF STREET
(ORANGE AVENUE - Entrance
to OTe to Wueste Rd.)
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JVunu(es
. April 18. 1995
Page 5
G S II) - On 2/28/95, Council adopt<<llhe R"""lution of I~tention to order tbe acquisition and financing of
<:e<tain in ctu.... serving lhe EastWe Gnoc:as If propc:rti"" pursuant to lhe Municipallmproventc:nt Act of 1913.
On lbe ate, Council adopt<<l tbe: resolution giving prcliminary approval to tbe Engineer's Report for
AssesslllCllt Oi . Number 94-1 (EastWe Gnoc:as If) and setting public bearings for 4/4/95 and 4/18/95 for lbe
putpOSC of bearing p ic testimony. 1Qe first public bearing was hcld on 414/95. Staff recommend. the ouhlic
heari en an ntinued to 4125 (Oinoctor of Public Works)
.
MSUC (RindonelPadilla) to continue
vertis<<l, lbe public hearing was declar<<l open.
public hearing to the meeting of 4125195 at 6:00 p.m.
'. , - -'. . "',' .'. --.., - ;..~..."':.:...o.."":'"~.. .~-;O<~",",."...,,,,.:""'."''''... '. ..~.. ':....... ..;0.;.:--.'
. .... ..'RlictDaws. 23$' FOclrth 'Xvenue. Ollila Vista. . . . ting lhe ClJambcr of Commerce, informed
Council that oa 4124195 the: .mayon; (rom OIuIa Vil;ta and Ty I1lembc:rs fr;om lhe ConVCGtioalVisitors Bu....u.
and bolh l'h'~bers o(~. would hold a p...... coo(c:n:acc: ilJ ula Vista to announce a ....gional partnership
(or progress and the: SilYes button program. On 5113195. lbe OIam would be: holding lbc:ir sc:c:oad annual
Graffiti Out.
· Bill Ayers, 44 East Manlcato Strc:c:t, Chula Vista, CA, referred to Items d 13 On the agenda and foIt
the actual stnocts to be c1os<<l should be iocluded on the agenda for puhlic information.
None hllbmill<<l.
BOARD AND COMMISSION RECOMMENDATIONS
.
ACTION ITEMS
17. RESOLUTION 17871 REQUESTING THAT COUNCIL APPROVE IN CONCEPT AN
AGREEIlfENT WITH THE EASTLAKE DEVELOPMENT COIlfPANY THAT WOULD REQUIRE
EASTLAKE TO TRANSFER ECONOI\fIC INCENTIVES TO A HIGH TECH COI\fPANY LOCATING IN
THE mGH TECHIBIO'fECH ZONE IN EXCHANGE FOR THE CITY PROVIDING CERTAIN
CONCESSIONS TO EASTLAKE. AND DffiECTING STAFF TO RETURN WITH A WRIlTEN
AGREEI\fENT FOR CITY COUNCIL ADOPTION - Council has creat<<l a High Tech/Biotech Zone within the
EastWe Business Parle. The purpose: of lbe Zone is to offer incentives to attract high technology. biotechnology.
and biomedical finns in order to capture jobs and taa revenues. The Zone is being implemented with the Eastlake
Development Company as a highlyc.....tive puhlic-private partnership. Staff r<:commends approval of the resolution.
(Director of Conununity Development)
Chris Salomone, Dinoctor of Conununity Development. stat<<l the Council had approv<<l the High T echlBio T c:ch
Zone and asked staff to return wilh a menu of incentives. However, an opportunity had been presented to the City
prior to that menu being approv<<l by Council. Staff felt the City ne<<l<<l to be proactive and act in a timely fashion
as lbe company had indicated chat they would be making a decision laler in the week. Staff was asking chat Council
retain lbeir unfettered discretion to have staff ....tum wilh '-separate oontract from that menu agrc:emc:nt taking items
that staff felt would be: of equal or g.....ter value and offering tbe:m ... the incentive. In order to be business friendly
and proactive staff (elt they ne<<led to get the approval,lIllc:a.'1 in concept. und~"'landing that Council would retain
discretion to lat~r see the contract and approve: it.
Mr. Boogaard stated he had proposed a revision 10 the r~"olution which in his judgement gave Council greater
flexibility than the original resolution.
. .
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Page 6
RESOLUTION 17871, AS AMENDED, OFFERED BY MAYOR HORTON, reading nfthe text was waived.
Councilmember Riodooe requested lhat staff discuss the possibilily of changing Olympic Boul"""rd to Olympic
Drive with the repr=latives from the Olympic Training Cente:r. He: qUc:slioned if all 17S jobs would be:
transferred .or if it would be: just the: added 7S jobs from the: e:xpansion.
-
Mayor Horloo replied lhat it was her understanding lhalthe company currenlly had 100 employees. With the: oew
facilily they would be: addiog an additional 7S c:mployc:c:s for a tolal of 17S c:mployc:c:s. If the:y moved out of the
City the: City would lose 100 jobs and the: nc:w addilional 7S jobs.
Councilme:mber Padilla stated he: would normaily be: rdUClantto look at any ag""""""l whc:re: complcote: values and
cost calculalions had not bc:c:a dc:Iinc:atod. He: congllllUlaled staff on the: "'flOrt and fdt some: of lhe: options wc:re:
innovative. He fdt staff had made the righl dc:cision to move: forward quickly in bringing the: ilc:m to Council.
Couocilmember Moot questioned how staff dc:tc:rmined ~.,:a1uc:.of lh.; i~!ivesto_be: pt"O"j4<<!aadj(an .analysis;,
. of aimiIar iaeeati\'e programs had beettdotie'Withlhe City -Of SatiDiego, which he: assumc:d was the City's prime
compelitor. He further questioned how staff would evaluate:, in the: future:, the amount of incenlives that would be:
offerc:d to any particular company. Tbc: importaotthing to k""P in mind wa._ that the: first one created a benchmarle.
. ~','.' .
Mr. Salomone replied many of the ilc:ms 00 the menu had nOl hc:c:n quantified and would rc:quire negotiations and
quantificalion by COOSu/laols to determine their value. In the: particular case: be:fore: Council, staff took items they
knew were capilal improvements where: the value could be: quantified or lhc:re: was anagr"""""'t On the value
bc:lween the Cily and EastLake that both fdl Was fair. Those: would be: the: ones lhat would be offe:red. Hope:fully,
staff would not be: bringing Council any values thaI we:re: suhjC:Clive: in nalure:_
Councilmembe:r Moot Slaled his question was more: dirc:cted loward the amount of the incc:ntive:. i.e:_ $325,000_
How did staff arrive althat figure:? That was lhe figure: the: ne:xl company would be: comparing lhe:ir rc:quest to_
Mr. Salomone: re:plied il was a marlec:t drivc:n compc:lition. The: City Wa.< in compc:lition wilh lhe: City of San Die:go,
othc:r industrial type: facilities at Brown Fidd, and "Jrrounding Cili"". Slaff knc:w Whatlhe: land cost was on the: sileo,
whalthe: fc:c:s were, if there were: 8SSc:!;sme:nts, and what the: land V"dluc:s We:re: al Ea._I Lake:. Ea,,1Lake: was wriling
down those: land prices to be: compc:titive: and the:y we:cc: trying 10 make: up whalthe:y fe:11 was the: diffc:rc:ncc: to create:
an e:vc:n playing 6dd. In addition, the:y wecc: trying to convince: Ihe: company that the amc:nilies and ultimale c:quity
thc:y would have in the: EastLake: businc:ss parle would he: a far grc:alc:r value than if the:y wc:ntto a ne:ighboring city.
-
Councilmember Moot staled one: of his commill"" assignmc:nts Wa., to rc:presc:nt the: Cily on the: Soulh County
Economic Development Commillee and one of the: expc:riencc:s he had Ic:amed was thaI the Cily of San Diego had
found a need to be: able to quanlify the amounl of incc:ntive: givc:n and the type: and size: of company that that
incc:ntive would be provided 10. The genc:llIl consc:nsus was lhallhe procc:ss nc:c:ded to be slandardizc:d in a manner
so Ihalthey would be COmparing "apples 10 apples and Oranges 10 oranges'. A company lhat would bring in 2S
jobs should nol have the same expc:ctalions as a compally lhat would bring in 200 jobs. He: !<:It il important, bc:cause
the proposed deal could scot a benchmarle, thallhe: Cily worle bc:twec:n now and whe:n the: contract would be: broughl
back 10 be able 10 articulale Ihe size of Ihe incc:nlive:, visa vie: the: bene:fil it Was bringing 10 lhe: City. He fe:lllhal
process would become eXlre:mely important.
Mr. Goss staled One of the problems was lhal the:re: was a compe:tilion involved. Evc:n (hough lhe Cily may be
offering incc:ntives and Ihe menu was nOllotally fleshed OUl, he: fe:!lthe:re: Was going 10 he: a limil as to what amounl
lhere would be or how far Ihe City could go.
Councilmc:mbc:r Rindone: fe:!l Councilme:mhe:r Mooes comme:nls Were: appropriate:. He: !<:It the Cily Manage:r's
:ommc:nts were accurale: as we:IL .In orde:r 10 sc:c:d Ihe: projC:CI and to gc:l the: Zone: slarted lhose: COmpanicos may
-ecc:i~e I!rc:ate:~ incentives bc:causc: Ihe:y would c:ncoUrdge: olhe:r companies. He: Was plc:ased staff had Proposed
.ffe:"ng lDcc:nllves wlthoul an oUlflow of cash from Ihe Cily. He: fe:1t slaff had bc:c:n ve:ry crc:alive:_ . .
.'
. '," .-
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.
.
.
April 18, 1995
Page 7
VOTE ON RESOLUflON 17871: approved unanimoUSly.
REPORT
ff.
UPDATE ON REGIONAL SEWER ISSUES - An oral report will be giv
John Li ill, Director of Public Works, informed Council that the City submilled a check for a portion of e bill
from San iego. The amount sent W3S related to the maintenance and operation costs of the System. lJlff had'
previously t a checIc for the Capacity charge based on the 1960 agreement. All other charges would arbitrated
or would be ressed in Meet & Confer with San Diego.
19.
OTHER BUSINESS
;.;.",-,
ITEMS PULLED FROM THE CONSENT CALENDAR
Th.. minutes reflect the. published ag~
.. '. '. .. .
. -. .... . '" .
'.- .
.J'-.'"
a. Scheduling of meetings. Mr. ass slated budgel workshop' had been scheduled On four consecutive
Wednesdays beginning on Sn4I9S. Th.. would be no Council m ing on 5130/95 and he suggested a budget
hearing On lhat dale. Ir was lh.. consensus the Council that 51 195 would be held open for budget hearings if
necessary. A memorandum had been sent to unci I regardin orkshop ilems, other lhan budget, but there had
been a problem in scheduling. He recommended at one me.. 'ng per month deal with a workshop item rather than
public hearings, action items, clc.
Councilmember Padilla did not feel there would be a blem in hearing workshop items during regular meetings
as long as it did lIQt baclcJog public hearings or imp' t it of serious debate.
Councilmember Rindone W3S supportive of the uggestion. felt one mcoeling per month should be designated,
it did Dot mean that it would be exclusively a rlcshop, but an portunity to focus on a worlcshop issue. Normal
City business should lIQt be delaycld. Ire"" ottime sensitive coul schcldulcld for the other meetings held during
the month, thereby balancing the ageed
Mr. Goss Slated if Council did not jcet staff would try it on a trial ha. . s for 1-2 months.
b. Mr. Goss Slatcld an In rmation Memo had been sent to Council rega ing the purging of Council referrals.
He requested Council input 4n519S and if no input was received, slaff wo proceed.
ended the efforts of staff on the dedication of the South Ch a Vista Librdry and the media
20.
David Hirsch - CUllural Arts Commis.sion.
a.
(HortonlRindone) to ratify the appnintment of David Hirsch to the Cultural Arts Com
Appointment of Council representative to various Council commill.,.,.. Continued from the m
Mayor Horton requestcld the ilem be continued to the meeting of 519195.
~
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This page blank.
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SOIlE San Dl8flD GIIII & E1l1Ctric
tsMCl&NTUA't'PARKCOUM . 4W4 OI:GO. CAtfD1S1.Glt'~
luly 27,.199j
AU!
l4s. CbelyJ Dye
~fc Dcvc10pment Manager
City of CJw1a VJsla
276 Fourth AVCIIUC
ChuJa VJsla, CaIifomfa 91910
He: SDG&B T~ and DesIgn AssIstance
Dear Ms. Dye:
I am imprelSed with the City ofCbuJa VISta's program 10 ~ and
)'aU know, SJ)G&B supports 1JJeac economfc cJevelrpn-m cCforts and
wstomers to n:main compc:titive by .IJcJplng 10 lower lheIr gas and
. ATTACHMENT F
buaIUeIJ8eS. As
II8Sist our
biDs.
I
I
I l1IIdemland you arc worldng confldcntIaUy with . COIIIplIny that is . to ~
to llJlOtbcc lite. TIIiB a;w .con~.~ fitJ pcd'~ wJthia S . new
COII8tluctioD demand.sIdo ~ program, BavInp 'Ibrough Des! BdcfJy, Ihfs
program wotb c::bcJy with die desIp team and 18MmmMdt CIIeIJY .....teg;1lS 8Dd
tccJmoJogJes to maximize the ovoraII ~ efficiency oftbc now . Ittbc QJstomcr
accopts the ~Il"",. and fmI'IDa tho eragy em..~~ SpG&B will
pcovlde the ClOIltncted finR""'aJ fllC'1'<cllln. lOOn aftetwatd. To that ead, ~&B BfaIIds
mldy to work the project desfgn Ieam upon your requcat.
If you have IlIIY quest1au,s and/or concems, please let me know rigl1t a y.
~
;:: OcveIopnlClIt/Kcy Co ers Maaagcr
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~ I<(~!'/
TOTAL P. 02
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t-+t1V D UCt::Dn:,,:>
High
Point,
. North Carolina's
Prospectus for Development
Daniel A. Lynch, CEO
The Prospectus for DeveJopmentwas designed to address the need for a programmatic approach
to the complex world of publicly financed incentives. Creative thinking combined with strategic planning
positioned High point to capitalize on quality development opportunities. As a result, the following
programs were initiated:the Industrial Incentive Program, the Public/Private PartnershlpCooperativ8,
and the Infrastructure Reimbursement Program. These policies have been the focal point of our
success for the past five years measured by continuing business development and quality job growth
in High Point.
INTRODUCTION
.
In the highly competitive world of
economic development. the High
Point (NC) Economic Development
Corporation was determined to enhance
development opportunities. Many potential
deals brought demands from prospects to
offset development costs, forgive fees, or
extend urban services-with no consistent
way to measure the return on investment
of public dollars or to encourage develop-
ment in designated industrial growth cor-
ridors. .
Through Prospectus for Del'elopmell!,
the High Point Economic Development
Corporation and the. City of High Point:
o pulled together the various written and
unwritten policies and financial incentives
available to lure prospects to High Point
or to encourage expansion of existing de-
velopment;
o developed realistic measures by which
to judge the economic viability of each op-
portunity and to determine the appropriate
level of public funding; and
o negotiated a public/private partnership
that gave the city land credits in High
Point's premiere business park.
BACKGROUND
The Economic Development Corpora-
tion (EDC) was established in 1990 by the
High Point City Council. Its $226,000
annual budget is funded with public and
. private dollars on a 75%/25% basis. Its
board of directors is made up of business
and community leaders, city government
officials, and city council members.
The EDC's mission is to aggressively
market the city to facilitate the economic
development process. Major emphasis is
placed on the retention and expansion of
existing business and industry and the at-
traction of new business opportunities.
In 1983, to stimulate residential and
industrial development, the City of High
Point set up a fund to reimburse develop-
ers for installing water and sewer lines and
for building streets to specifications that
would handle future increased traffic loads.
The program contributed to the construc-
tion of housing units and industrial con-
cerns from 1985 to 1993, at a cost of
$8,538,589.
In 1991, the City restructured the reim-
bursement program to concentrate on in-
dustrial development. The Economic De-
velopment Corporation Board, in concert
with the City's planning and water/sewer
utilities departments, studied land use and
growth patterns, and recommended five
areas for designation as "industrial growth
corridors" where the City's reimbursement
resources should be targeted.
In 1993, following two particularly.
hard'fought efforts to tailor incentives to
land industrial projects, the City Council
and Economic Development Corporation
Board agreed to design an incentive pol-
icy with measurable return on investment.
The city and EDC also prevailed upon
the Guilford County (NC) Board of Com-
missioners to participate in High Point's
inventives program. The county agreed to
contribute funds to offset site preparation
costs because the level of its participation
could be tied proportionally to the increase
in its tax base.
58 ECONOMIC DEVELOPMENT REVIEW. FALL, 1994
-r:J
- 0<-::) ;</-11
Attachment G
OBJECTIVES OF
PROSPECTUS FOR
DEVELOPMENT
o To offer fiscally responsible incentives
that enhance economic development op-
portunities while insuring an adequate re-
turn on the investment of public funds.
o To stimulate private sector participa-
tion in the planned growth and develop-
ment of specific industrial growth areas.
DEMONSTRATED SUCCESS
From its inception in 1990 to Decem-
ber 1992, the EDC was responsible for at-
tracting sixty-six new companies to High
Point and convincing sixty-five existing
companies to expand. That activity brought
2,725 new jobs to the city and accounted
for $150.5 million in capital investment at
a cost of $540,000 in city funds.
Last year, with PROSPEcruS FOR
DEVELOPMENT in place, thirty-three
new and expanding companies added 430
jobs and invested $82.5 million at a cost of
$190,000 in city funds.
In July 1993, the High Point City Coun-
cil and the Economic Development Cor-
poration established an Industrial Incentive
Policy to guide the process of designing
incentive proposals to enhance economic
development opportunities. The City al-
Ipcat~cf ~"\oo 000 tn fitntf the first year of
the pro=. In structuring the policy, there
was equal focus on assisting expansion of
existing industry, and relocation of new
companies.
The size and scope of the potential in-
centive are based on several factors, includ-
ing: location of the site, capital investment
of the project, number of employees trans-
ferred and quality of the jobs created. A
major component of the incentive program
is to create quality, head-of-household jobs
that will further stimulate the local econ-
omy.
(D INDUSTRIAL INCENTIVE
PROGRAM
The City of High Point, in cooperation
with Guilford County, may provide vari-
ous [manciaI incentives for companies
seeking to relocate or expand a business.
The incentive program is designed to
stimulate development by offsetting up-
front costs and operating expenses associ-
ated with a business relocation or expan-
sion.
Scope
The scope of the incentive package will
be based on the foll9wing criteria:
)<
o New capital investment of at least $5
million.
o Expansion capital investment of at least
$1.5 million and a 25% increase in the labor
force. '
o Creation of quality, head-of-household
jobs.
o Utilization of the city's electrical sys-
tem.
City funds may aCQuire land or reduce
the cost of land for comoanies selectin~ a
site serviced by the City'" electrical sys-
tem. A site not serviced by the City's elec-
trical system will not qualify for this pro-
gram. County funds w111 provide for site
preparation expenses including environ-
mental testin$t. cIeann.p;. gradine: and wa-
ter/sewer extension.
Contribution Level
The parameters defming the level of the
contribution will be as follows:
o A maximum of 75% of the increased
tax revenue .f.'?r.,~.Y..~"!:s..~p'p'lied toward land
acquisjtiQn. A further component of that
calculation will be based on the quality of
the jobs created, The schedule below allo-
cates a percentage of the total tax revenue
generated for each of three hourly wage
levels.
Wage rates
$6.00 - $g.50
$8.50 - $11.00
$11.00+
Percent of total
50%
'75%
100%
o A maximum of 50% of the increased
tax revenue for 5 years applied toward site
preparation.
Examples
During the first six months of the in-
centive program, three companies made ap-
plication for funds. Outlined below are the
basic project parameters and calculated a
potential incentive proposal. for two of
these.
Project One
Company one is considering a fifty acre
site in Piedmont Centre for a $10 milJion
corporate complex and manufacturing
facility. Phase I of the project is 240,000
square feet and will employ 310 workers.
The average hourly manufacturing wage is
$10.00 and the facility will be serviced by
the High Point municipal electric system,
Calculation of potential incentive package:
City Allocation
Capital investment $10,000,000
Tax rate
Annual tax revenue
5 year tax revenue
Level of contribution
$295,000 x .75' = $221,250
$221,250 x .75' = *$165,937
0.59 per $100 value
$59,000
$295,000
]75% is the maximum level of participa-
tion available.
2Level of contribution available for the
$8.50 to $11.00 hourly wage rate.
* Requires approval of the High Point City
Council.
County Allocation
Capital investment $1,500,000
Tax rate 0.7899 per $100 value
Annual tax revenue $11,848
5 year tax revenue $59,250
Level of contribution
$59,240 x .503 = *$29,620
350% is the maximum level of county par-
ticipation available.
* Requires approval of the Guilford County
Board of Commissioners.
-.
The City could allocate up to $24,891 for
County Allocation site preparation and the waiver of permit
Capital investment $10,000,000 and tap fees for this project. The County
Tax rate 0,7899 per $100 value could allocate up to $29,620 for site prepa-
Annual tax revenue $78,990 ration expenses.
5 year tax revenue $394,950 /7;\
Level of contribution 0' PUBLlC/PRIV A TE PARTNERSHIP
$394,950 x .50' = *$197,475
,...- . Public/private partnerships have be-
come a vital link in stmctllnng pro~ressive
development stratc2ies. Such a strategy re-
cently had a major impact on northern High
Point and future development along the NC
LO '~or.
,;)oumem PIedmont Centre is comprised
of approximately 250 acres of prime real
estate zoned for office and light manufac-
turing. The south end is located two miles
from the 1-40 interchange and three miles
from Piedmont Triad International Airport.
Although situated between major high-
ways, NC 68 and Wendover Avenue, a
majority of the 250 acres was landlocked
without water and sewer service or secon~
hi hwa ac
n an un ree cote maneuver, e 1
fee to c v - ane connector
ulevard between the ma . hwa s
w IC rder the 250 acre site. The Ity
spent approxlmately $1,300,000 to con-
struct the boulevard and insuUl water and
sewer service. n return, the develo rs
ave the Cit I wo 0
rom the 0 acre site. e ere Its
represent between forty-eight and fifty-
ei ht acres of the 250 acre site.
Bv controlling land credit~ the ~.co-.
nomic np-v,-Innm,..nt C'nrnnrntinn (FOe)
can craft;ll v,..rv ::toar"'!i:.~i"e incentive Dack.
<iIilioJ.1tilizing formulas whIch the "EDC
developed, the City can determine the value
of a proiect based on capita I investment and
quality job creation. A ftp.rfnl1vf'!v::tll1:ltinO'
t . , "
.......,
350% is the maximum level of county par-
ticipation available.
*Requires approval of the Guilford County
Board of Commissioners.
The City could elect to invest up to
$165,937 for the acquisition ofIand for this
project. The County could allocate up to
$197,475 for site preparation expenses.
Project Two
Company two is an existing High Point
company considering expansion of its
manufacturing facility. Prior to the initial
meeting, the finn was planning to move
the operation out of the city to reduce the
property tax liability. The plan was to
construct a new 100,000 square foot facil-
ity for a cost of $1.5 million and add thirty-
five workers to the existing employment
base of seventy-five. The average hourly
manufacturing rate was $8,92. The follow-
ing incentive package was calculated for
Company two with the qualifying stipula-
tion that it must locate on a site serviced
by the municipal electric system.
Calculation of possible incentive package:
City Allocation
Capital investment
Tax rate
Annual tax revenue
5 year tax revenue
Level of contribution
$44,250 x .75' = $33,187
$33,187 x .75' = *$24,891
$1,500,000
0.59 per $100 value
$8,850
$44,250
'75% is the maximum level of participa-
tion available.
2Level of contribution available for an
hourly wage rate of $8.50 to $11.00.
* Requires approval of the High Point City
Council. I
~/ 3 d-.!.j
/ t/ - ? ,;2..,
o
land cost
s a resu t of this program, the High
Point EDC has successfully recruited a
major corporation to the subj<(ct property.
In February 1994, a. subsidiary of a For-
-.
ECONOMIC DEVELOPMENT REVIEW. FALL. 199459
tune 250 company will announce plans to
construct a 240,000 square foot corporate
center. Phase I employment will be ap-
proximately 175 office personnel and 200
manufacturing personnel.
. Utilizing the land credits enabled the
EDC to buy down the cost of land for the
project. Total land cost amounted to
$510,000 or roughly $14,500 per acre. This
is well below the market value of $25,000
per acre for land in Piedmont Centre.
~ INFRASTRUCTURE
REIMBURSEMENT PROGRAM
.
The Infrastructure Reimbursement Pro-
gram was established by the City of High
Point to stimulate private sector participa-
tion in the planned growth and develop-
ment of specific industrial areas. To qual-
ify, under the program, the development
must be located in one of the industrial
growth corridors as designated by the City.
Infrastructure covered under this pro-
gram includes water and sewer lines and
the oversizing of roads beyond the 36 foot
minimum requirement. The developer is
responsible for the initial cost of construc-
tion, and the installation of the infrastruc-
ture must be designed to City standards.
The developer is reimbursed for the total
cost of instaIlation over a five year period.
Reimbursements are made yearly on a
prorated basis as certificates of occupancy
are issued.
The Infrastructure Reimbursement Pro-
gram is responsible for Piedmont Centre,
an 1,100 acre business park located in High
Point at the heart of North Carolina's Pied-
mont Triad. Since the Centre opened, over
2,500,000 square feet of office, manufac-
turing and distribution space have been
.
constructed. By mid-1994, the Centre will
be home to over 55 companies employing
approximately 4,500 workers.
This program is directly responsible for
, increasing High Point' s tax base by sev-
eral hundred million dollars.
In addition to reimbursing developers
for oversized public improvements, the
City may reimburse developers for part of
the cost of constructing public water and
sewer lines where these improvements
promote industrial development. The reim-
bursement policy is as follows:
o Industrial developments of any size that
locates in targeted Industrial Growth Ar-
eas may qualify for a reimbursement com-
mitment.
o Approval Process:
- Approval of Preliminary Subdivision or
Group Development Plan and Street and
Utilities Plans by the Technical Review
Committee;
- For sites in a designated water supply
watershed, approval of Watershed Control
Plan by the Watershed Review Commit-
tee;
- Approval of a Reimbursement Commit-
ment by City Council, based on fum cost
estimates, provided the site is within the
corporate limits when the Commitment is
approved.
o Eligible Costs: Reimbursable costs in-
clude the construction costs of installing
on-site water and sewer improvements.
Service lines. meter boxes. meters. and
clean-outs are not reimbursable. Extension
of off-site sewer outfalls and water mains
will be eligible for reimbursement in the
first year after completion.
o Reimbursement Process: Annual reim-
bursements for on-site utilities shall be
j,.d- -dS
/'/- 7 ;J
60 ECONOMIC DEVELOPMENT REVIEW. FAll, 1994
based on the proportion of the development
on which buildings received a certificate
of compliance during the previous calen-
dar year.
Developers shall notify the water and
Sewer Utilities Department in writing by
February I. listing the buildings and acre-
age completed during the previous year.
Upon verifying this list, the Department
will budget for reimbursements to be made
in September of the same year.
o This policy is valid for two years from
the date of approval by City Council. To
qualify for reimbursement. a development
must secure a reimbursement commitment
from City Council by December 31, 1995.
Reimbursements shall be made for build-
ings completed not later than December 3 I,
2000.
It is the intent of City Council to budget
ually for reimbursements for industrial
urposes in the General Fund, up to a;><
maximum of $ I million for the life of this
policy.
Daniel A. lynch, CEO
Daniel A. lynch is the President
of the High Point Economic Develop-
ment Corporation in HIgh Point, North, .
Carolina. He currently serves on the
board of directors of the American",?"
Economic Development Cocuncil and'
North Carolina Economic Developers .
Assoclation:Dan Is also on the board' .
of directors of the PIedmont Triad:
Partnership, an eleven county reo
gional economic development organi-
zation. His article is based on his
award winning entry in the 1994
Arthur D.liltle Awards for Excellence
in Economic Development. He can be
reached at91 0/883-3116.
San Diego Business Journal - November 21, 1994
-,
Matsushita says
it will relocate
HQ to San Diego
BY MIKE ALLEN
Staff Writer
Matsushita Television Co. formally an-
nounced its plans to relocate its North Ameri-
can headquartets from a Chicago suburb to
the Brown Field Business Park on Otay Mesa.
As reported in the San DiegoBusinessJour-
fUll in September, the Matsushita relocation
will bring 120 jobs 10 San Diego. The site at
7625 Waterville Road in the bu..iness park
will house the company's administrative, en-
gineering, design and development functions.
Matsushita operates several maquiladora
plants in Tijuana with some 3,000 workers.
Along with an annual payroll of more than
$7 million, the relocation from Franklin Park,
III., will result in $11 million in construction
costs and $5 million in housing investments.
In all, the first-year economic impact from the
company is estimated at $35.5 million, ac-
cording to Mayor Susan Golding.
The company had been considering several
sites in Southern California, including the
EastLake Business Park in Chula Vista. Thecom-
pany said il ..leeIed San Diego because of the
proximity to its manufacturing plants.and the
positive stance by thecily. Thecity council waived
housing trust fund fees in the Otay Mesa Enter-
prise Zone as an incentive 10 brin the fino here.
atsushita Television is a division 0
Matsushita Electric Corp. of America (MECA)
and a subsidiary of Matsushita Electric Indus-
trial Co. Ltd. of Japan. With its subsidiaries
and affiliates, MECA has 17 North American
factories and employs t 4,000.
MECA, which sells products under the
Panasonic, Technics and Quasar brands, had
sales of $6.5 billion in the last fiscal year.
Matsushita Television's. new headquarters
will be a IIO,OOO-square-foot building lo-
cated on a 9.5-acre lot. The project's develop-
ers are TenantFirst Real Estate Services Inc.
and Miisui Real Estate Sales USA Co., Ltd.
Construction will begin next month and-
should be completed by the spring, said Chris
Yamada, senior vice president of Mitusi Real
Esjale Sales USA.
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~/Y~7'c/
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FIRST CONCESSION GRANTING AGREEMENT
BETWEEN
CITY OF CHULA VISTA
AND
EASTLAKE DEVELOPMENT COMPANY
RE: HIGH TECH/BIO TECH ECONOMIC INCENTIVE PROGRAM
This Agreement, dated this day of , 1995, for
the purposes of reference only and effective as of the date last
executed between, the parties, is made between the city of Chula
Vista, a chartered municipal corporation of the State of California
("city"), and EastLake Development Company, a California General
Partnership ("EastLake"), and is made with reference to the
following facts:
1. Recitals
A. City and EastLake are trying to stimulate high technology,
biotechnology and biomedical technology business development in a
territory of the City known as the High Tech/Bio Tech Zone as set
forth in Resolution No. 2621 (adopted February 21, 1995), primarily
consisting of the EastLake Business Center.
.
B. The City and EastLake are currently negotiating a draft
agreement, dated March 10, 1995, that would establish a working
relationship to facilitate and encourage the location of high
technology, biotechnology and biomedical technology businesses
within the High Tech/Bio Tech Zone (commonly known as the "Menu
Agreement"). An agreement with similar objectives and comparable
provisions may be substituted for the Menu Agreement and is
referred to herein as the "Substitute Agreement".
C. Nypro San Diego ("Nypro") is a high tech
currently located in Chula Vista that desires to relocate
existing leased facility and to expand its business
acquisition of land and construction of facilities.
business
from its
by the
D. Nypro had considered relocating to a site outside of the
City of Chula vista. A key consideration was the significant
differential in the cost of fees related to the two sites. The
City wished to facilitate a reduction in fee costs related to the
Chula vista site in order to make the site more economically
competitive.
E. City wishes to encourage Nypro to relocate within the
City'S High Tech/Biotech Zone in order to help "seed" the Zone with
a growing, high-tech, biomedical company via a proactive and
innovative business retention effort.
F. EastLake has entered into an agreement with Nypro for the
sale of a certain parcel of land within the High Tech/Bio Tech
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Zone, whereby EastLake will place into escrow a reserve of funds,
in the amount of $324,000, for the payment of Nypro's processing,
assessment district and/or school district fees provided, however,
the City agrees to grant EastLake benefits/concessions/entitlements
with an approximate value of $324,000.
-,
G. City approved the EastLake/Nypro transaction in concept
pursuant to Resolution No. 17871 thereby directing staff to
negotiate and return to Council for approval of an agreement
("Concession Granting Agreement") granting such benefits/.
concessions/entitlements as it determined appropriate.
H. This Agreement is intended to be such Concession Granting
Agreement.
II. Obligatory Provisions.
Now, therefore, the parties agree as follows:
A. EastLake's Promise to Discount Land to Nypro.
EastLake promises City that EastLake will tender and
consummate, unless Nypro refuses, an offer ("Nypro Offer") for the
sale of land owned by EastLake in the High Tech/Bio Tech Zone to
Nypro at an overall effective price not to exceed $3.50 per square
foot of buildable acreage, and further agrees to reserve in escrow,
the amount of not less than $324,000 ("Escrow Fund"), for Nypro to
draw upon up to a maximum equal to said amount for the purpose of -,
paying Nypro's processing, permit, development impact, assessment
district, and/or school fees.
B. Agreement On Value of Discount--"Inducement Value"
The parties agree that, for the purposes of this transaction
only, the Nypro Offer, if concluded, contains an "Inducement Cost"
of $324,000 to be paid by EastLake. The parties acknowledge that
this "Inducement Cost" is the minimum amount needed to induce Nypro
to accept the Nypro Offer.
The parties further agree that, for the purposes of this
transaction only, the City is willing to bear, on the conditions
subsequent herein stated, $324,000 (100%) of the Inducement Cost by
granting the following concessions ("City'S Duty to Participate in
Inducement Costs") which are estimated to be of approximately equal
or greater value to EastLake as the cost to EastLake of reimbursing
Nypro for a portion of its fees:
1. Concession No.1: Changing Name of Orange Avenue to
Olympic Drive.
The city agrees to diligently prosecute and c.onsider in
good faith, pursuant to the laws, rules and regulations for street
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name changes and reserving to itself such unfettered discretion as
the law requires in the circumstances, a City-initiated change of
the name of Orange Avenue to Olympic Parkway or Olympic Drive for
the segment of Orange Avenue right of way existing between 1-805
and Wueste Road, and to bear the full processing costs therefore
("Concession No.1").
a. street Name Change Successful.
On the condition that the street name is-
substantially changed in the manner described
within two years of the Effective Date of this
Agreement, the parties agree on the following
consequences:
(1) Value of Concession No.1. The described
street name change will satisfy the City's
Duty to Participate in the Inducement Costs to
the extent of $50,000 ("Value of Concession
NO.1") .
b. Street Name Change Unsuccessful
.
If the street name is not substantially changed in
the manner described within two years of the
Effective Date of this Agreement, the City will
have a good faith duty to meet and confer with
EastLake for the purpose of arriving at another
concession and value equal to, in the opinion of
both parties, $50,000. The City may, however,
without any further agreement, apply any excess
credit described below under Concession No.2, to
its Duty to Participate in the Inducement Cost.
2. Concession No.
(Olympic Parkway or Olympic
Development Impact Fee Program.
The City agrees to diligently prosecute and consider in
good faith, pursuant to the laws, rules and regulations for the
establishment and amendment of Development Impact Fees, and
reserving to itself such unfettered discretion as the law requires
in the circumstances, a city-initiated effort to include the
eligible costs of building the segment of Orange Avenue (Olympic
Parkway or Olympic Drive, if the name is successfully changed)
between Wueste Road and the U.s. Olympic Training Center (OTC)
entrance ("Orange Avenue Extension" - see map, Exhibit A), in the
Transportation Development Impact Fee Program (Trans DIF) (referred
to herein as "Concession No.2"). EastLake understands and agrees
that EastLake shall be responsible for paying its share, as
established by Council POlicy, of all the items included in the
Transportation DIF Program ("Trans DIF Fees").
2: Inclusion of
Drive) in the
Orange Avenue
Transportation
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a. Inclusion Successful.
On the condition that the costs of constructing the
Orange Avenue Extension are substantially included
in the City's Trans DIF wi thin two years of the
Effective Date of this Agreement, such time period
being tolled during any litigation over the
validity of this Agreement, the parties agree on
the following consequences:
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(1) Value of Concession No.2. Concession
No. 2 will satisfy the City's Duty to
Participate in the Inducement Costs to the
extent of $274,000 and may leave an Excess
City Credit. The amount of Excess City Credit
shall be determined by the final value of
Concession No. 2 less $274,000 (the City's
Duty to Participate in the Inducement Costs).
The calculation of the final value of
Concession No. 2 shall be determined by the
City based upon the following formula: the
total eligible costs included in the Trans
DIF, as eligible is determined by the City, of
constructing the Orange Avenue Extension,
including all eligible City incurred costs,
less EastLake's share of the Trans DIF Fees.
(For illustrative purposes only, if EastLake's
Trans DIF Fees are calculated to be 40% of all _
items included in the Trans DIF, and the total
eligible cost of constructing the Orange
Avenue extension is $780,000, the final value
of Concession No. 2 will be $468,000. From
that value, $274,000 will be applied to the
Nypro inducement costs and would leave an
. Excess city Credit of $194,000.)
(2) Application of Excess Credit. City shall
have the right, for 10 years after the
Effective Date hereof or the life of the Menu
Agreement (or a Substitute Agreement),
whichever is greater, to apply the Excess City
Credit to the acquisition of EastLake owned
land within the High Tech/Bio Tech Zone or
require EastLake to discount land to a High
Tech/Bio Tech Business designated by the City
or require EastLake to apply the City credit
to fees or assessments on behalf of a future
City-designated business within the High
Tech/Biotech Zone. If the Menu Agreement (or
a Substitute Agreement) has not been executed
between EastLake and the City within 18 months
from the Effective Date of this Agreement and
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the City has not already applied the Excess
city Credit in full in the manner described
above, the City, may in its sole discretion,
require EastLake to make a cash payment to the
City of the Excess city Credit or any
remaining portion thereof. EastLake shall pay
the City the Excess city Credit within 10 days
after the City has made a demand for such
payment. Notwithstanding the foregoing,
EastLake may suspend payment of the Excess
city Credit to the city for a period of no
longer than 45 days, or as may be reasonably
extended by the City, if EastLake reasonably
anticipates that an agreement with a High
Tech/Bio Tech Business will be executed within
said 45 day period and the City has
tentatively agreed to apply the Excess City
Credit towards such transaction. Both parties
agree to use its reasonable best efforts to
negotiate the Menu Agreement and to execute
the same.
b.
Inclusion Unsuccessful.
.
If the described proportion of the Orange Avenue
Extension costs are not substantially included in
the city's Trans DIF program within two years of
the Effective Date of this Agreement, the city will
have a good faith duty to meet and confer with
EastLake for the purpose of arriving at another
concession of a value equal to, in the opinion of
both parties, $274,000.
c.
Conditions Subsequent.
The Duty of city to Participate in the Inducement Cost is
subject to the following Conditions Subsequent, such that if any of
the following conditions should occur, the City's Duty to
Participate in the Inducement Cost is voidable ab initio at the
City's option. If a concession has been effectuated to EastLake
before the occurrence of a Condition Subsequent permits the city's
Duty to be voidable and the City exercises its option to void the
Duty, the city shall have the right, at its option, to either (a)
acquire any other parcel of EastLake owned land within Chula vista
desired by the City at fair market value, and apply the full value
of the concession, as herein in this Agreement valued, to the
acquisition of such other EastLake owned parcel or parcels of land;
(b) require EastLake to sell any other parcel of EastLake owned
land within the High Tech/Bio Tech Zone to a High Tech/Bio Tech
Business designated by the City, at the fair market price thereof,
less a discount from the price in the full value of the concession,
as herein in this Agreement valued, or such portion thereof, that
.
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the City designates; (c) require EastLake to reimburse the fees of
a High Tech/Biotech business designated by the City in the full ~,
value of the concession, or (d) require EastLake to repay the City,
the following amounts: i) all undisbursed amounts remaining in the
Escrow Fund, within 10 days after notice of voiding City's Duty is
issued by City to EastLake; and ii) all funds previously disbursed
to Nypro from the Escrow Fund, and all interest charges accrued
thereon [Final language will be provided to the City Council prior
to its meeting after details have been negotiated with EastLake].
EastLake shall pay the City the recovered funds within 10 days of
receiving said funds. EastLake agrees to pursue all available
legal remedies to collect all amounts disbursed to Nypro from the
Escrow Fund and shall do so at EastLake's sole cost and expense.
Any remaining value of the concessions, less the cash repayments
recei ved by the City, shall be repaid to City in the manner
described by (a) through (c) above.
Those Conditions Subsequent are as follows:
1. Building Investment. Nypro shall fail to complete
construction of an approximately 70,000 square foot facility on the
parcel(s) included in the Nypro Offer ("Nypro Facility") by
March 30, 1998.
2. Chula Vista Jobs Outreach. Nypro shall fail to
execute the attached Employment Agreement (Exhibit B) with the City
of Chula Vista prior to close of escrow, and, during the period it
is recruiting persons, to notify local employment service providers
and their respective local labor pools/clients via the South County
Career Center as provided in the agreement, and to advertise for
unfilled positions in a minimum of one daily local newspaper of
general circulation for at least three (3) days.
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(3) Commence Operations. Nypro shall fail to commence
operations at the Nypro Facility by June 30, 1998.
D. Notices.
Any notice or other document required or permitted to be given
hereunder shall be in writing and may be delivered personally or by
deposit in the United States mail, postage prepaid, addressed as
follows:
To EastLake:
To City:
""
City Manager, City of Chula Vista
276 Fourth Avenue
Chula Vista, CA. 91910
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with copies to:
.
Subcommittee Chairperson (Mayor)
City Attorney
276 Fourth Avenue, Chula Vista, CA 91910
Notices and other documents deposited in the United States
mail shall be deemed delivered 48 hours following such deposit.
Any party entitled or required to receive notice under this
Agreement may by like notice designate a different address to which
notices shall be sent.
E. No Partnership,Etc.
Nothing herein contained shall be construed to create a
partnership or joint venture between city and EastLake with respect
to the development of the Zone or the EastLake Business Center or
any part thereof, nor shall city have any liability or obligation
to any person whatsoever except its obligations to EastLake as
specifically set forth herein.
F. Gender, Number.
Whenever the context requires, the use herein of (i) the
neuter gender includes the masculine and the feminine gender and
. (ii) the singular number includes the plural number.
G. Captions.
Captions in this Agreement are inserted for convenience of
reference only and do not affect the construction or interpretation
of this Agreement.
H. Entire Agreement.
This Agreement contain(s) the entire agreement between the
parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representa-
tions and statement, oral or written, are merged into and
superseded by this Agreement.
I. Modification.
No modifications, waiver or discharge of this Agreement shall
be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver or discharge is
or may be ought. Any modifications, waiver or discharge on the
city's behalf must be approved by the City Council unless the
authority has been specifically delegated in writing by the Council
.
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to another person, and such delegation specifically references this
Agreement. """"',
J. Invalidity.
If any material covenant, condition or provision of this
Agreement is held to be invalid, void or unenforceable by a final
order or judgment of a court of competent jurisdiction, the
remainder of this Agreement shall be enforceable.
K. Counterparts.
This Agreement may be executed in any number of counterparts,
all of which together shall constitute one instrument.
L. Applicable Law.
This Agreement shall be construed and enforced in accordance
with the laws of the state of California.
M. Mediation.
The parties agree that any disputes as to the enforcement that
can not be resolved after a reasonable attempt at negotiation in
good faith will be resolved by submission of the contract right to
non-binding mediation prior to the institution of litigation by
either party, unless such institution is necessary because of the
expiration of a statute of limitation which would preclude judicial
relief. If the institution of litigation is first required to
preserve the right to jUdicial relief due to an expiring statute of
limitations, the parties are still obligated, prior to issuance of
jUdicial relief to have the dispute mediated. The parties shall,
in the absence of an agreement to the contrary, follow the rules
for mediation set for by JAMS.
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Signature Page to
Concession Granting Agreement
Between
City of Chula Vista
and
EastLake Development Company
Re:
High Tech/Bio Tech Economic Incentive Program
IN WITNESS WHEREOF, City and Developer have executed this
Agreement this day of , 1995.
GRANTOR
CITY OF CHULA VISTA
EASTLAKE DEVELOPMENT COMPANY,
a California general partnership
By: BOSWELL PROPERTIES, INC.,
a California corporation,
General Partner
Shirley Horton
Mayor
Attest:
By:
Name:
Title:
Beverly Authelet
city Clerk
By:
Name:
Title:
Approved as to form by
By:
THE TULAGO COMPANY, a
California corporation,
General Partner
Bruce M. Boogaard
City Attorney
By:
Name:
Title:
By:
Name:
Title:
M:\Ho.e\Attorney\Bionyp5
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This page blank.
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TO:
VIA:
FROM:
SUBJECT:
MEMORANDUM
September 14,1995
The Honorable Mayor and Council ~e~j j
John D. Goss, City Manager~ ~ i ~ C S>
Chris Salomone, Community Development Director e-fVC-[)
NYPRO Agreement - Council Agenda for September 19, 1995
This is to advise you that minor changes are being made to the Agreement between the City
and EastLake to resolve one outstanding issue. Therefore, the Agreement and staff report will
be delivered on Friday, September 15, 1995. Thank you for your understanding in this
matter.
CD/CS/bb
IBBIC:I WP51 ICOUNCIL IMEMOS\lNF09503. MEMJ
~Jo/~/t9~
t
.Jnformation memorandum
ryY~ /'1
.
September 19, 1995
TO:
The Honorable Mayor and City Council
John D. Goss, City Manager q ~ J
Chris Salomone, Director of Community Development 0",
VIA:
FROM:
SUBJECT:
Signed NYPRO Agreement
Attached is the agreement between the City and EastLake which has now been signed by the City
Attorney and EastLake. (Note that the first paragraph on page 6 has been amended from the version
that was distributed to Council with the staff report on Friday, September 15; there is no substantive
change.)
cc: Sid Morris, Assistant City Manager
CherylL. Dye, Economic Development Manager
.
. e ((MD)c:\wp5I"
~.9.5 (n:v. 5-rL 1 19. 1995)J
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FIRST CONCESSION GRANTING AGREEMENT
BETWEEN
CITY OF CHULA VISTA
AND
EASTLAKE DEVELOPMENT COMPANY
RE: HIGH TECH/BIO TECH ECONOMIC INCENTIVE PROGRAM
~
This Agreement, dated this day of , 1995, for
the purposes of reference only and effective as of the date last
executed between the parties, is made between the City of Chula
Vista, a chartered municipal corporation of the State of California
("City"), and EastLake Development Company, a California General
Partnership ("EastLake"), and is made with reference to the
following facts:
I. Recitals
A. City and EastLake are trying to stimulate high technology,
biotechnology and biomedical technology business development in a
territory of the City known as the High Tech/Bio Tech Zone as set
forth in Resolution No. 2621 (adopted February 21, 1995), primarily
consisting of the EastLake Business Center.
B. The City end EastLake are currently negotiating a draft
agreement, dated March 10, 1995, that would establish a working
relationship to facilitate and encourage the location of high
technology, biotechnology and biomedical technology businesses
within the High Tech/Bio Tech Zone (commonly known as the "Menu .-,
Agreement"). An agreement with similar objectives and comparable
provisions may be substituted for the Menu Agreement and is
referred to herein as the "Substitute Agreement".
C. Nypro San Diego (t1Nypro") is a high tech business
currently located in Chula Vista that desires to relocate from its
existing leased facility and to expand its business by the
acquisition of land and construction of facilities.
D. Nypro had considered relocating to a site outside of the
City Of Chula Vista. A key consideration was the significant
differential in the cost of fees related to the two sites. The
City wished to facilitate a reduction in fee costs related to the
Chula Vista site in order to make the site more economically
competitive.
E. City wishes to encourage Nypro to relocate within the
city's Hiqh Tech/Biotech Zone in order to help "seed" the Zone with
a growinq, hiqh-tech, biomedical company via a proactive and
innovative business retention effort.
F. EastLake has entered into an agreement with Nypro for the
sale of a certain parcel of land within the High Tech/Bio Tech
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Zone, whereby EastLake will place into escrow a reserve of funds,
in the amount of $324,000, for the payment of Nypro's processing,
assessment district and/or school district fees provided, however,
'the city agrees to grant :EastLake benefits/concessions/entitlements
with an approximate value of $324,000.
G. city approved the EastLake/Nypro transaction in concept
pursuant to Resolution No. 11871 thereby directing staff to
negotiate and return to Council for approval of an agreement
("Concession Granting Agreement") granting such benefits/
concessions/entitlements as it determined appropriate.
H. This Agreement is intended to be such concession Granting
Agreement.
~~. obligatory Provisions.
Now, therefore, the parties agree as follows:
A. EastLake's Promise to Discount Land to Nypro.
EastLake promises City that EastLake will tender and
consummate, unless Nypro refuses, an offer ("Nypro Offer") for the
sale of land owned by EastLake in the High Tech/Bio Tech Zone to
Nypro at an overall effective pri~e not to exceed $3.50 per square
foot of buildable acreage, and further agrees to reserve in escrow,
the amount of not less than $324,000 (":Escrow Fund"), for Nypro to
draw upon up to a maximum equal to said amount for the purpose of
.paying Nypro's processing, permit, development impact, assessment
district, and/or school fees.
B. Agreement On Value of Discount--tlInducement Value"
The parties agree that, for the purposes of this transaction
only, the Nypro Offlilr, if concluded, contains an "Inducement Cost"
qf $324,000 to be paid by EastLake. The parties acknowledge that
this "Inducement Cost" is the minimum amount needed to induce Nypro
to accept the Nypro Offer.
The parties further agree that, for the purposes of this
transaction only, the city is willing to bear, on the conditions
subsequent herein stated, $324,000 (100%) of the Inducement Cost by
granting the following concessions ("city's Duty to Participate in
Inducement costs") which are estimated to be of approximately equal
or greater value to :EastLake as the cost to Easttake of reimbursing
Nypro for a portion of its fees:
1. concession No.1: Changing Name of Orange Avenue to
Olympic Drive.
The city agrees to diligently prosecute and consider in
good faith, pursuant to the laws, rules and regulations for street
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name changes and reserving to itself such unfettered discretion as
the law requires in the circumstances, a City-initiated change of
the name of Orange Avenue to Olympic Parkway or Olympic Drive for
the segment of Orange Avenue right of way existing between 1-805
and Wueste Road, and to bear the full processing costs therefore
("Concession NO.1").
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a. Street Name Change Successful.
On the condi tion that the street name is
substantially changed in the manner described
within two years of the ~ffective Date of this
Agreement, the parties agree on the following
consequences:
(1) Value of Concession No.1. The described
street name change will satisfy the City's
Duty to Participate in the Inducement Costs to
the extent of $50,000 ("Value of Concession
NO.1").
b. Street Name Change Unsuccessful
If the street name is not substantially changed in
the manner described within two years of the
Effective Date of this Agreement, the City wilJ
have a good faith duty to meet and confer with
EastLake for the purpose o.f arriving at another
concession and value equal to, in the opinion of .-..
both parties, $50,000. The City may, however,
without any further agreement, apply any excess
credit described below under Concession NO.2, to
its Duty to Participate in the Inducement Cost.
2. Concession No.
(Olympic Parkway or Olympic
Development Impact Fee Program.
The City agrees to diligently prosecute and consider in
qoOd faith, pursuant to the laws, .rules and regulations for the
establishment and amendment of Development Impact Fees, and
reserving to itself such unfettered discretion as the law requires
in the circumstances, a City-initiated effort to include the
eligible costs of building the segment of Orange Avenue (Olympic
Parkway or. Olympic Drive, if the name is successfully changed)
between Wueste Road and the U.S. Olympic Training Center (OTC)
entrance ("orange Avenue Extension" - see map, Exhibit A), in the
Transportation Development Impact ree Program (Trans DIF) (referred
to herein as "Concession No, 2"). EastLake understands and agrees
that EastLake shall be responsible fOr paying its share, as
established by Council Policy, of all the items included in the
Transportation DIF Program ("Trans DIF Fees").
2: Inclusion of
Drive) in the
Orange Avenue
Transportation
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a. Inclusion Successful.
.
On the condition that the costs of constructing the
Orange Avenue Extension are substantially included
in the City's Trans DIF within two years of the
Effective Date of this Agreement, such time period
being tolled during any litigation over the
validity of this Agreement, the parties agree on
the following consequences:
(1) Value of Concession No.2. Concession
No. 2 will satisfy the city's Duty to
Participate in the Inducement Costs to the
extent of $274,000 and may leave an Excess
City Credit. The amount of Excess City Credit
shall be determined by the final value of
Concession No. 2 less $274,000 (the city's
Duty to Participate in the Inducement Costs).
The calculation of the final value of
Concession No. 2 shall be determined by the
City based upon the following formula: the
total eligible costs included in the Trans
OIF, 8S eligible is determined by the City, of
constructing the Orange Avenue Extension,
including all eligible City incurred costs,
less EastLake's share of the Trans DIF Fees.
(For illustrative purposes only, if EastLake's
Trans DIF Fees are calculated to be 40% of all
items included in the Trans DIF, and the total
eligible cost of constructing the Orange
Avenue extension is $780,000, the final value
of Concession No. 2 will be $468,000. From
that value, $274,000 will be applied to the
Nypro inducement costs and would leave an
Excess City Credit of $194,000.)
(2) Application of Excess Credit. City shall
have the right, for 10 years after the
Effective Date hereof or the life of the Menu
Agreement (or a substitute Agreement),
whichever is greater, to apply the Excess City
Credi 1: to the acquisition of EastLake owned
land within. the High Tecll/Bio Tech Zone or
require EastLake to discount land toa High
Tech/Bio Tech Business designated by the city
or require EastLake to apply the City credit
to fees or assessments on behalf of a future
city-designated business within the High
Tech/Biotech Zone. If the Menu Agreement (or
a Substitute Agreement) has not been executed
between EastLake and the City within 18 months
from the Effective Date of this Agreement and
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the City has not already applied the Excess
City Credit in full in the manner described
above, the City, may in its sole discretion, ~
require EastLake to make a cash payment to the
city of the Excess City Credit or any
remaining portion thereof. EastLake shall pay
the City the Excess city Credit within 10 days
after the City has made a demand for such
payment. Notwithstanding the foregoing,
EastLake may suspend payment of the Excess
city Credit to the city for a period of no
longer than 45 days, or as may be reasonably
extended by the City, if EastLake reasonably
anticipates that an agreement with a High
Tech/Bio Tech Business will be executed within
said 45 day period and the city has
tentatively agreed to apply the Excess City
Credit towards such transaction. Both parties
agree to use its reasonable best efforts to
negotiate the Menu Agreement and to execute
the same.
b. Inclusion Unsuccessful.
If the described proportion of the Orange Avenue
Extension costs are not substantially included in
the City's Trans DIF program within two years of
the Effective Date of this Agreement, the city will
have a good faith duty to meet and confer with ........,
EastLake for the purpose of arriving at another
concession of a value equal to, in the opinion of
both parties, $274,000.
C. Conditions Subsequent.
The Duty of City to Participate in the Inducement Cost is
subject to the following Conditions Subsequent, such that if any of
the following conditions should occur, the City's Duty to
Participate in the Inducement Cost is voidable ab initio at the
City's option. If a concession has been effectuated to EastLake
before the occurrence of a Condition Subsequent permits the City's
Duty to be voidable and the City exercises its option to void the
Duty, the City shall have the right, at its option, to either (a)
acquire any other parcel of EastLake owned land within Chub Vista
desired by the City at fair market value, and apply the full value
of the concession, as herein in this Agreement valued, to the
acquisition of such other EastLake owned parcel or parcels of land;
(b) require ~astLake to sell any other parcel of EastLake owned
land within the High Tech/Bio Tech Zone to a High Tech/Bio Tech
~usiness designated by the City, at the fair market price thereof,
less a discount from the price in the full value of the concession,
as herein in this Agreement valued, or such portion thereof, that
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the city designates: (c) require EastLake to reimburse the fees of
a High Tech/Bioteeh business designated by the City in the full
value of ~he concession, or (d) require EastLake to repay the City,
in c~sh, the following amounts: i) all undisbursed amounts
remaining in the Escrow Fund, within 10 days after notice of
voiding City's Duty is issued by city to EastLake: and ii) all
f~nds prev~ously disbursed to Nypro from the Escrow Fund, and all
interest charges accrued thereon, that are recovered by EastLake.
EastLake agrees to pursue all reasonable available legal remedies
to collect all amounts disbursed to Nypro from the Escrow Fund and
.hall do so at EastLake's sole cost and expense. EastLake shall
pay the City the recovered funds within 10 days of receiving said
funds. Xn the event the amount actually recovered by EastLake is
reduced due to a judgment against .EastLake related to the Nypro
Offer, EastLake agrees to pay the City the amount by which such
disbursed funds was reduced,. in addition to the amount that was
actually recovered by EastLake. EastLake further agrees to pay the
city any remaining value of the concessions, less the cash
repayments received by the city, in the manner described by (a)
through (c) above.
Those Conditions Subsequent are as follows:
1. Building Investment. Nypro shall fail to complete
construction of an approximately 70,000 square foot faciH ty on the
parcel(s) included in the Nypro Offer ("Nypro Facility") by
March 30, 1998.
2. Chula Vista Jobs Outreach. Nypro shall fail to
execute the attached Employment Agreement (EXhibit B) with the city
of Chula Vista prior to close of escrow, and, during the period it
is recruiting persons, to notify local employment service providers
and their respective local labor pools/clients via the South County
Career Center as provided in the agreement, and to advertise for
unfilled positions in a minimum of one daily local newspaper of
general circulation for at least three (3) days.
(3) COmmence Operations. Nypro shall fail to commence
operations at the Nypro Facility by June 30, 1998.
D. Notices.
Any notice or other document required or permitted to be given
hereunder shall be in writing and may be delivered personally or by
deposit in the United states mail, postage prepaid, addressed as
~ollows:
6
It( - //.;L
To EastLake:
~C~: ~
City Manager, City of Chula Vista
276 Fourth Avenue
Chula Vista, CA. 91910
with copies to:
Subcommittee Chairperson (Mayor)
City Attorney
276 Fourth Avenue, Chula Vista, CA 91910
Notices and other documents deposited in the United States
mail shall be deemed delivered 48 hours following such deposit.
Any party entitled or required to receive notice under this
Agreement may by like notice designate a different address to which
notices shall be sent.
E. No Partnership, Etc.
Nothing herein contained shall be construed to create a
partnership or joint venture between city and EastLake with respect
to the development of the Zone or the EastLake Business Center or
any part thereof, nor shall City have any liability or obligation ~.
to any person whatsoever except its obligations to EastLake as
specifically set forth herein.
F. Gender, Number.
Whenever the context requires, the use herein of (i) the
neuter gender includes the masculine and the feminine gender and
(ii) the singular number includes the plural number.
G. Captions.
Captions in this Agreement are inserted for convenience of
reference only and do not affect the construction or interpretation
of this Agreement.
H. Entire Agreement.
This Agreement contain(s) the entire agreement between the
parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representa-
tions and statement, oral or written, are merged into and
superseded by this Agreement.
7
~
/'1-// }
.
.
.
~
I. Modification.
No modifications, waiver or discharge of this Agreement shall
be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver or discharge is
Qr may be ought. Any modifications, waiver or discharge on the
City's behalf must. be approved by the City Council unless the
authority has been specifically delegated in writing by the Council
to another person, and such delegation specifically references this
Agreement.
J. Invalidity.
If any material covenant, condition or provision of this
Agreement is held to be invalid, void or unenforceable by a final
order or judgment of a court of competent jurisdiction, the
remainder of this Agreement shall be enforceable.
R. Counterparts.
This Agreement may be executed in any number of counterparts,
all of which together shall constitute one instrument.
L. Applicable Law.
This Agreement shall be construed and enforced in accordance
with the laws of the state of California.
M. Mediation.
The parties agree that any disputes as to the enforcement that
can not be resolved after a reasonable attempt at negotiation in
good faith will be resolved by submission of the contract right to
non-binding mediation prior to the institution of litigation by
either party, unless such institution is necessary because of the
expiration of a statute of limitation which would preclude judicial
relief. If the institution of litigation is first required to
preserve the right to judicial relief due to an expiring statute of
limitations, the parties are still obligated, prior to issuance of
judicial relief to have the dispute mediated. The parties shall,
in the absence of an agreement to the contrary, follow the rules
~or mediation set for by JAMS.
8
(1"~/I'1
4
Signature Page to
Concession Granting Agreement
Between
City of Chula Vista
and
EastLake Development Company
Re:
High Tech/Bio Tech Economic Incentive Program
IN WITNESS WHEREOF, city and Developer have executed this
Agreement this day of , 1995.
GRANTOR
-"
CITY OF CHULA VISTA
EASTLAKE DEVELOPMENT COMPANY,
a California general partnership
Shirley Horton
Mayor
By: BOSWELL PROPERTIES, INC.,
a California corporation,
Genera~tner .
BY:~~-
Name: -p- .
Title:
Attest:
Beverly Auth~let
City Clerk
By:
Name:
Title:
~
-"
Approved as to form by
Ovv- ~\--.
Bruce M. Boogaard
City Attorney
By: THE TULAGO COMPANY, a
California corporation,
Gene~al P rtner .
er~- . //?~
By: ~~"
Name:
Title:
By:
Name:
Title:
.:\Hoee\Attornoy\Bl0nyp6
9
--"
11-/-/(3
COUNCIL AGENDA STATEMENT
SUBMITTED BY:
Item )~
Meeting Date 10/03/95
Resolution , ~ D~~ Amending the FY 1995/96 budget to reduce a Senior
Lifeguard position from 0.75 FTE to 0.50 FTE and to appropriate $3,715 in
additional funds for the position
Director of Parks and Recreati~
City Manager ~G (4/5ths Vote: Yes..x. No---1
ITEM TITLE:
REVIEWED BY:
During this year's budget process, a proposal to delete a 0.75 FTE Senior Lifeguard (permanent part-time
benefitted) position in the Aquatics Section of the Parks and Recreation Department was considered by
the Council. A decision was made to continue to fund the position for a period of three months in FY
1995/96, pending an analysis of further options. Staff has evaluated three options to effect budget savings
in FY 1995/96.
STAFF RECOMMENDATION: That the Council approve the Resolution:
1. supporting Option #2 which maintains the Senior Lifeguard position as a permanent, part-time
benefitted position at 0.50 FTE; and
2. appropriating $3,715 for this purpose from the General Fund reserve for the position for FY
1995/96.
DISCUSSION: The Senior Lifeguard (one employee) assists the Pool Managers (two employees) in a
wide variety of tasks at both City pools. The Senior Lifeguard functions in the role of Pool Manager
during periods of time when the Senior Lifeguard is the sole supervisor on duty at a pool. The Senior
Lifeguard's primary role is as an on-deck supervisor, directly overseeing and evaluating the performance
of part-time Lifeguards, Recreation Aides, and the independent contractors conducting an assortment of
programs. The Senior Lifeguard is constantly providing individual training as these employees perform
their duties, and is also the direct link between the public and the administrative level of the Aquatics
Section. The Senior Lifeguard directs the overall functions of the staff during progrannnatic periods and
during emergency situations.
In order to realize budget savings, staff looked at a variety of options throughout the Department. As
discussed by the Council during budget deliberations, there was a dialogue regarding the reduction of
middle management positions in the Department with one focus being the Aquatics Section. Staff has
re-evaluated these classifications and other full-time and part-time positions.
Staff has developed three options which offer alternatives to the deletion of the 0.75 FTE Senior
Lifeguard position in order to adequately support the pool operations.
The options below will discuss the budget savings between fiscal years 1994/95 and 1995/96. In
synopsis, the budgeted amount for the 0.75 FTE Senior Lifeguard position was reduced from FY 1994/95
to FY 1995/96 by $23,445. Per Council direction, the Senior Lifeguard position was re-budgeted for
FY 1995/96 for three months at $7,961. The staffrecommended option below is to reduce the position,
[Network - srguard.rpt] 1
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Item ~
Meeting Date 10/03/95
which will require the appropriation of $3,715 for FY 1995/96. However, as discussed below, with the
reduction of other part-time hours, the total savings to the budget will be $11,770.
Option #1:
Elimination of 0.75 FTE and Addition of Part-Time Hourly Staff Position - In FY
1994/95, a 0.75 FTE permanent part-time benefitted Senior Lifeguard position was
budgeted for $23,445. For FY 1995/96, the Senior Lifeguard position is budgeted as a
permanent part-time benefitted position for three months (July - September). The 3
month cost for this position is $7,961, which was added to the budget. The savings from
the FY 1994/95 to the FY 1995/96 budget was $15,484.
IMPACT: The Senior Lifeguard position is the lowest benefitted position in the Aquatic
Section. The position is highly specialized and cannot be interchanged with other
positions in the Recreation Division. Therefore, the incumbent employee has no ability
to bump into a lower classification (with benefits), and since the incumbent is the only
Senior Lifeguard in the City, no similar positions will be opening due to attrition.
However, the Senior Lifeguard could be offered a part -time non-benefitted position as
a Lifeguard II.
In addition, should the 0.75 FTE Senior Lifeguard position be eliminated, because of the
supervision required for the safe operation of the pools, staff would recommend the
addition of 0.54 FTE part-time hourly Lifeguard II hours to the budget. The need for
this addition is because the loss of hours which would result from the elimination of the
Senior Lifeguard would need to be reclaimed in order to maintain the functional operation
of the pools.
It should be noted that while staff is recommending Option #2 below, it may be that the
same decision to eliminate the position entirely will be reconsidered during the FY
1996/97 budget if additional cuts are required.
In order to comply with State Health Services regulations, and operate our pools
efficiently, they are currently staffed at all times by a Pool Manager, a Senior Lifeguard,
or part-time Lifeguard II. The City's pools are open an average of 172 hours/week
during the busy summer months, and programs are offered seven days per week and
often start early in the morning and end late in the evening. Even with creative
scheduling, the Pool Managers, Senior Lifeguard, and Aquatic Coordinator cannot
directly oversee all operations at the pools. Trained Lifeguard II's are utilized to act as
facility managers in the absence of full-time and permanent part time staff. Although this
arrangement ensures compliance with State regulations, part time staff do not have the
same amount of training, experience, and expertise that the Senior Lifeguard has, and the
loss of this position would necessitate utilizing lesser trained staff in a critical pool
management function.
Approval of elimination of the 0.75 FTE Senior Lifeguard would require the
addition of 0.54 FTE part-time hourly Lifeguard II hours to the budget at a cost of
[Network - srguard.rpt]
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Option #2:
Option #3:
[Network - srguard.rptl
Item ~
Meeting Date 10/03/95
$11,832. As a result, the net savings to the FY 1995/96 budget from FY 1994/95 is
$3,652.
0.75 FTE Benefitted Position Reduced to 0.50 FTE Benefitted Position (Staff
Recommendation) - The Senior Lifeguard position would be budgeted at 0.50 FTE as
a permanent part-time benefitted position at a cost of $15,390 (a reduction of 0.25 FTE).
For FY 1995/96, $7,429 would need to appropriated to the budget for the 0.50 FTE
position. The FY 1995/96 budget savings from FY 1994/95 would be $7,777.
However, additional savings could be realized by utilizing the Senior Lifeguard during
fall, winter, and spring to lifeguard the Adult Lap Swimming periods. This would save
400 hours of part-time Lifeguard II budgeted funds in the amount of $3,715. No savings
would result in FY 1995/96 (net addition in FY 1995/96 of $3,715); but the total
budget savings of Option #2 from FY 1994/95 to FY 1995/96 would be $11,492.
IMPACT: While this option offers savings through the reduction of part-time Lifeguard
II hours, it is important to note that this is a reduction that is considered reluctantly.
For example, one lifeguard can properly supervise and oversee the Adult Lap Swimming
program. However, four lifeguards and one "floating" Lifeguard II (the 0.75 FTE Senior
Lifeguard) are required to properly supervise activities during recreational swimming
periods, and five instructors, one lifeguard, and one Lifeguard II are normally required
to conduct the City's instructional swimming classes for children. During the summer
months, the pools are open 3 hours/day for recreational swimming, and classes are
conducted from 4-6 hours each day. It is clear that the Senior Lifeguard, as an
individual, cannot take on the role of more than one lifeguard or instructor. However,
during the fall, winter and spring months, the Senior Lifeguard could guard the Adult
Lap Swim program, replacing a part-time staff member normally assigned to this duty.
The advantage to this option is the City retains an experienced and trained employee,
avoids a lay-off and recognizes some salary, benefit, and hourly wage savings, and
reduces the amount of time that the pools are supervised by part-time staff. ObVious
advantages to the employee includes the retention of employment with the City and
benefits.
0.75 FTE Senior Lifeguard Position Remains Budgeted - The Senior Lifeguard
position remains budgeted as a 0.75 FTE permanent part-time position (total fiscal year
cost of $23,445), as was funded in the FY 1994/95 budget. Should the position be
restored in its entirety, the FY 1995/96 budget would increase by $15,484 ($7,961
already budgeted in FY 1995/96).
However, additional savings could be realized by utilizing the Senior Lifeguard during
fall, winter, and spring to lifeguard Adult Lap Swimming periods. This would save 400
hours of part-time Lifeguard II budgeted funds in the amount of $3,715. This option
3
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Item &.
Meeting Date 10/03/95
would result in a net increase in the FY 1995/96 budget of $11,769). The total
budget savings of Option #3 from FY 1994/95 to FY 1995/96 would be $3,510.
IMPACT: Savings would be the same as Option #2. Advantages would be having
additional supervisory personnel available on a year round basis to cover on-going
programs, and preservation of the incumbent's position at last year's funding level.
FISCAL IMPACT:
DIFFERENCE
FY 1995/96 IN BUDGET
BUDGET IMPACT FROM
OPTlON DESCRIPTlON IMPACT FY 1994/95
#1 Senior Lifeguard is budgeted for 3 months at
$7,961; plus 0.54 FTE part-time Sr. Lifeguard
hours would be added (1,127 hrs. at "A"
[$9.98] plus benefits) for an additional
$11,832
-$3,652 -$3,652
FY 1995/96 savings equal
#2 Senior Lifeguard is budgeted for 6 months
(0.50 FTE) Lifeguard (at a total FY cost of
(Staff $15,390 [$7,961 is already budgeted]); and
Recommendation) 400 hours of part-time Lifeguard IT are deleted
(savings of $3,715)
Add'l savings in FY 1995/96 equal -$3,715 -$11,770
#3 Senior Lifeguard position is budgeted for
additional 9 months (0.75 FTE) and 400 hours
of Lifeguard 11 are deleted (savings of $3,715)
Savings - none; additional costs equal
+$11,769 -$3,715
Attachments; "A" - Minutes of the City Council meeting of June 20, 1995
"B" - Minutes of the City Council meeting of June 21, 1995
[Network - srguard.rpt]
4
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3/0
RESOLUTION NO. l.rtfl~:L
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE FY 1995/96 BUDGET TO
REDUCE A SENIOR LIFEGUARD POSITION FROM 0.75
FTE TO 0.50 FTE AND APPROPRIATING $3,715 IN
ADDITIONAL FUNDS FOR THE POSITION
WHEREAS, during this year's budget process, a proposal to
delete a 0.75 FTE Senior Lifeguard (permanent part-time benefitted)
position in the Aquatics section was considered by the Council; and
WHEREAS, a decision was made to continue to fund the
position for a period of three months in FY 1995/96, pending an
analysis of further options; and
WHEREAS, staff has evaluated the options available to
effect budget savings and recommends supporting the reduction of
0.75 FTE benefitted position being reduced to 0.50 benefitted
position; and
WHEREAS, it is necessary to appropriate $3,715 to fund
this option.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
city of Chula vista does hereby amend the FY 1995/96 budget to
reduce a Senior Lifeguard position from 0.75 FTE to 0.50 FTE.
BE IT FURTHER RESOLVED that the amount of $3,715 is
hereby appropriated from the unappropriated balance of the General
Fund into various employee service accounts in Activity 1534.
form by
Presented by
Jess Valenzuela, Director of
Parks and Recreation
C:\rs\lifegard.sr
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Minutes
June 20, 199,5
Page 10
ATTACHMENT A-I
Councilmember Moot slated it was a punishment, the youth had been caught participating in illegal activities.
Chief Emerson slated they currently paid a fee to SBCS for diversion.
Councilmember Padilla requested that Ms. Lembo address the proposed changes.
Kathy Lembo, Director of South Bay Community Services, slated they agreed on painting the trolley fence through
the ,lraffiti eradication prollram. , They fell they did IIot need the additional $3,900 for supplies. The $10.00 fee
would be an assessment fee for the juveniles in the Diversion Program and would not be applied to tbe run aways.
It would only be for first time offenders. The other fee was currently in the Community Service component. Youth
""ferred from tbe Probation Department was currently charged $50.00. 'The fee for the Chula ViSla Police
Department youth referred to the Diversion Program, those illcluding community service, would be increased from
$25.00 to $50.00. Any child that came from a family they deemed below the poverty level would not be charged
any of the fees. The;' did that throughout their agency. II was important to remember that they were estimates
only.
Council member Padilla questiolled the number of referrals that were below the poverty level that were subsidized.
Ms. Lembo responded that 60-65 % of those referred were subsidized by SBCS.
VOTE ON MOTION: approved ullanimously.
Vehicle J.Q. Verification. Securitv Alarm Fees. Sewer Billin~ Pro~rarn Reirnbursemenl~. and Allernate
rundin~ for the Minor CIP Pro~rarn
MSUC (Moot/Alevy) to approve the addition of the Vehicle I.D. Verification chaf1te, Security Alarm Fees,
Sewer Billing Program Reimhursements, and alternate funding for the Minor CIP prugram.
......
Mr. Goss slated carrying over the Mechanic 1 and Senior Lifeguard positions for three months would cost between
$10,000 - $18,000 and would avoid immedialelayoffs. Staffs goal would be 10 avoid layoffs alllogetber. For
the Mechanic I it would be like an over hire with the position deleled when there was a vacancy, With some
combination of funding and part time hours at the Life Guard II level they could support at some level the Senior
LifeGuard as a benefited position. He recommended that be added to the overall balance presented to Council at
the next budget meeting.
PoISC (Horton/Alevy) to approve the slalT recommendation. Approved 4-1 with 1\I00t opposed.
......
T....n.fer of the OWl.. Position to the Police Denarlment
Mr. Goss recommended that the transfer be subject to a requirement that Slaff return with a beller description of
the options on how it would work operationally, including a possible reclassification. The salary level of the
poSitioll currently did not fit well within the slructure of the Police Department and there may lleed to be a
downward revision of that. He requested a 30 day time frame to bring the report back to Council. ,
Councilmember Moot questioned what a reclassification was.
Mr. Goss slated because of different duties the position could be reclassified, either a change ill title and/or
compensation.
Councilmember Padilla questioned if the person would remain in Persollnel al the current budget level.
Mr. Goss stated that was correct, but it was not something thai could be done for an extremely long period of time
due 10 tbe delicate balancillg of the budget. Therefore, he had requested 30 day turnaround.
IS' -1
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Minutes.
June 21, 1995
Page 2
ATTACHMENT B-1
salary structure for aids, leaders and specialists in the Parks & Recreation budget ami freeze new part-time staff
salaries for aides (to be brought back for clarification); 12) add back the senior lifeguard for three months, staff to <
return with alternatives; 13) addition of seven computers in the Police Department budget; 14) reinstate South Bay
Community Sel'Vices funding for juvenile diversion, less amount of new revenue offset; 15) reinstate the Equipment
Mechanic I for three months, vacate ihrough attrition; 16) program costs for sewer billing - new position in
Engineering; and 17) re1cassifications. The total expenditures were $244,434 with an overall balance of $44,558.
Mr. Thomson, Deputy City Manager, stated the $6,000 for the cable TV rate consultant was the continuation of
a program started several years ago when Chula Vista worked with five other cities to regulate Cox Cable's rates.
The City would be reimbursed $4,000 from the other cities. The City would be receiving a refund of approximately
$160,000 for the ratepayers in Chula Vista as well as a reduction of $.42 in the monthly rate.
SUDDlemental Bud...t Memo #29 - Under-Utili..ed Vehicles
Mr. Goss stated the item was informational only.
SUDDlemental Bud..et Memo #31 - Economic DeveloDmenll\larketinl!/Puhlic Relations
Mr. Goss reviewed the current activities presently budget for FY 1995/96 which he felt dealt more with visitor
promotion. He felt the request dealt more towards economic development. The Economic Development
Commission made recommendations r~garding the City's marketing, community promotions. and economic
development activities.
. Mayor Horton stated it was not just economic, but the whole public relations program for the City. When a survey
was done of the bio.tech companies their perception of Chula Vista was not positive and she felt that was one of
\be reasons for a good marketing/public relations program, i.e. to overcome those perceptions. Even though it was
tied into economics it was the overall image.
Councilmember Rindone stated they had tried to send a staff member that was not an elected official to Washington
. D.C. for the hydrogen fuel cell and there were no monies provided for that. That was one of the categories and
he wanted that noted. He did not want that to happen again.
Mr. Goss stated the City spent a Jot of money in promoting the community. The total for economic
development/visitor promotion was $156,000.
Council member AJevy slated there was a need for the City to make a concerted/designed effort to try to assist the
current efforts being made to bring business to the City and enhance the image of the City. The Council needed
10 make a commitment.
Mr. Goss stated part of the prohlem staff had was in not coming together with an outline of how the $50,000 would
be spent. He suggested that whatever figure the Council decided on that it be used as a placeholder figure with staff
returning with a specific program on how it would be utilized.
.....
Councilmember Rindone questioned which items on the expenditure list had not been voted on other than marketing
program and deletion of funding for library hooks.
Mr. Goss stated the deletion of funds for microfilming for Building & Housing, cahle TV rate consultant, police
reserves stipend, labor negotiations consultant (POA), and reclassifications had not been acted upon.
Councilmember Rindone questioned which ilems on the revenue list had not been voted upon.
Mr. Goss replied that the sewer billing, release of CIP revenues to the General Fund, and storm drain fees had not
been acted upon. The following supplemental Budget Memos needed action: 6, 8, 9, 17, 20, 26, 27, 30, and 31.
I~-f
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Council Agenda statement
Item: Jt
Meeting Date: October 3, 1995
Item Title: Report from the Charter Review Commission and City
Attorney regarding Vacancy Reform.
Submitted by: Bruce M. Boogaard, City Attorney~
Charter Review Commission
Agenda Classification:
( ) Consent
(XX) Action Item
( ) Public Hearing
( ) Other:
4/5ths Vote: ( ) Yes (X) No
On a referral by the City Council, the Charter Review Commission
("CRC") and City Attorney recommends that the Council submit to
the People, for inclusion in the Charter, the following Vacancy
Reform proposal, containing the following elements:
(1) Inexpensive Intervening Election Rule. A vacancy will
be required to be filled by election instead of Council
appointment when the vacancy results from a Councilperson's
election to higher office in advance of a call date for a
city-wide election and. there is an intervening consolidated
election which can permit the vacancy to be filled
inexpensively; and,
(2) Appointed Councilperson's Period of Service. Otherwise,
the Council will continue to have a good faith duty to fill
vacant offices by appointment, and if an appointment is made
by the Council, this reform proposal will permit an
appointed councilmembers to serve until the next opportunity
to fill the office by election materializes, unless that
opportunity falls within a year of the normal expiration of
the office, in which case the appointed replacee shall serve
until the normal expiration of the office, without any
election; and,
(3) Switch Back to Plurality Rule in Special Elections.
This reform proposal allows a plurality vote to determine
the results of special election thereby eliminating the
requirement of run-off special elections (This won't affect
1
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the requirement of a run-off election for general elections
held every four years); and,
(4) Immediately Effective Rule. The Plurality Rule Change
for Special Elections, as referred to in subparagraph (3),
above, would be applicable to the election (March, 1996) at
which it is approved by the People; and,
(5) Miscellaneous Changes.
(a) Approval for absences of Councilperson can be
obtained in advance of the absence for acceptable
cause.
(b) Vacancies will be recognized by submittal of a
letter of resignation from a councilperson without
having to wait for 4 unexcused absences.
(c) Rules are established for determining exactly when
a vacancy occurs.
(d) The City Clerk is given authority to devise a
random method in order to resolve ties in a special
election in lieu of the current method of a coin flip.
Recommendation:
Approve the Vacancy Reform amendments to the Charter for inclu-
sion on the March, 1996 Ballot, and direct the City Attorney and
the City Clerk to include said language on the Resolution calling
the March, 1996 election.
Boards and Commissions Recommendation
The Charter Review Commission has co-authored this report.
Discussion
On request by the City Council at a meeting preceding the
deliberations of the appointment to fill the vacancy in the
Council seat created by the election of then Councilperson/now
Mayor Horton, the Charter Review Commission ("CRC") has accepted
the referral of studying the matter of vacancies in council
office. As a result thereof, the CRC has three primary recommen-
dations for changes, herein contained.
Reasons for Council Vacancies
The most frequent reason that a vacancy occurs in Office
appears to be the case where an incumbent Councilperson who is
elected to and serving a four year term decides, mid term, to run
for the Mayoral, or higher governmental agency, seat. In the
2
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last 18 years since 1977, 8 abnormal' vacancies were created,
and four of the times were for the same reason--a seated
councilperson pursuing a higher office:
(1) Mr. Hamilton resigned in 1977 to accept a Supervisorial
seat, after which Mr. Egdahl was appointed to backfill his
council seat.
(2) Mr. Cox, as a seated councilperson, in 1981, ran for
and was elected Mayor, after which Mr. Campbell was
appointed to backfill his Council seat;
(3) Mr. Nader, as a seated councilperson, in 1991, ran for
and was elected Mayor, after which Ms. Horton was appointed
to backfill his Council seat;
(4) Ms. Horton, as a seated councilperson, in 1994, ran for
and was elected Mayor, by which Mr. Moot was appointed to
backfill her Council seat;
There were four other miscellaneous causes of abnormal vacancies
as follows:
(1) 1979, Mr. Egdahl resigned because he was moving out of
town, whereupon Ms. McCandliss was appointed to fill his
vacancy;
(2) 1986, Mr. Scott voluntarily resigned in 1986 on the
principled ground that he felt his term should not be
extended by changes in the election date, whereupon Mr.
Campbell was appointed to backfill his remaining term.
(3) 1991, Ms. McCandliss died in office, whereupon Mr. Nader
was elected to fill the Mayor's term.
(4) 1995, Mr. Fox resigned for personal reasons, whereupon
Mr. Alevy was appointed to fill his seat.
As a result of studying the foregoing history, the CRC recommends
the following changes:
1. Regarding filling anticipated vacancies by elections instead
of by appointments.
Change No.1: The first change proposed herewith is to
require that anticipated vacancies caused by an incumbent
1. An abnormal vacancy is a midterm vacancy, and is not intended
to address a vacancy occurring as a result of loss at a general
municipal elections, or a vacancy created by operation of the
term limits provisions.
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elected to higher office be filled by an election when it
can be accomplished by an inexpensive, intervening
consolidated election occurring prior to the actual vacancy.
This is in lieu of the current procedure under the charter
by which the city council is required to wait until the
actual vacancy occurs before it can take steps to fill it by
appointment.
Under the existing Charter provisions, the Council has the power
to fill vacancies by appointment if they can do so in 30 days.
If they can't agree on a replacee, the vacancy is to be filled by
special election. An appointed replacee serves until the next
general municipal election despite the fact that the seat he or
she is filling may have a longer term. At the next general
municipal election, the seat is to be filled by the People at
said election.
The "framers" of this arrangement appear to have adopted the
theory that the People should not normally be deprived of their
right to elect their representatives except when it is costly
(i.e., by special elections), and then the appointed replacee may
only serve until a replacement can be elected inexpensively
(i.e., at a consolidated election).2
There are certain times and circumstances where a vacancy in a
council seat can be anticipated sufficiently in advance to permit
the vacancy to be filled inexpensively by an intervening consoli-
dated election, rather than waiting until the seat is actually
vacant and the opportunity for an inexpensive intervening
election has past.
Such is the case when a councilperson seeks and wins the Mayoral
seat in March or June of an election year. It is known 5 or 6
months in advance that in December, when the former Council-
person/newly elected Mayor takes the new office, that his or her
council seat will become vacant. It is also known, in
sufficient time to have an election contest, that there will be
an inexpensive intervening consolidated (special) election that
can be held in November whereby the anticipated vacant seat can
be filled by election.3
2. Special elections conducted by the County generally cost the
City about $120,000. Consolidated elections, held jointly with
other jurisdictions, permit the election costs to be spread over
more payors, and the cost drops, generally to the $25,000 level.
3. Another example of an anticipated vacancy is when a
councilperson submits a letter of resignation to surrender the
office at a future date. But such a situation has never
occurred, and due to the difficulties with ascertaining the
(continued. . . )
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The authors feel that when such circumstances occur--i.e., an
inexpensive intervening election--the People should be reinvested
with their power to elect their representative for such seat
rather than wait until the actual vacancy occurs, and at a time
when the opportunity for an inexpensive intervening election has
been lost.
2. Regarding the Duration of Terms of Office of Replacee
Councilperson.
Change No.2: The second change proposed herewith is to
permit an "appointed replacee" to serve until the next
opportunity arises for an election unless such election
would permit the successor to serve for less than a year, in
which case the special election would be eliminated and the
appointee replacee would serve the remainder of the term.
Under the current provisions, a vacancy on the Council can be
filled by appointment or, if an appointee can not be agreed upon,
by election. The current Charter language provides, at section
303, that "appointed replacees" may only serve until the next
General Municipal Election, at which time, a special election for
the remainder of the term is to be held. The Charter is not
clear as to "elected replacees", but the presumption is that
"elected replacees" enjoy the privilege of serving the remainder
of the unexpired term, even if that is beyond the date of the
next General Municipal Election. That ambiguity is particularly
clarified by this Vacancy Reform Proposal.
Hence, as it stands now, in the case of an "appointed replacee"
appointed immediately following a vacancy created by an incumbent
councilperson being elected to the Mayor's Office, said appointed
replacee would only be able to serve until March of the year
following (about 15 months), at which time the City is required
to conduct a special election4 in order to hold the seat for 8
more months to December (the "remainder of the term,,).5
3. (. . . continued)
certainty of commitment of a elected official to a voluntary
future resignation, it was felt too complex and too infrequent a
situation for which to attempt to draft language.
4. Albeit inexpensively because it is being consolidated with
the General Municipal Election to fill a 4 year term commencing
in December of that election year.
5. This problem has been created by the increased time
separation that has been developing between the election date and
the seating date. Before the decision of the People to have
runoffs if there was no clear (i.e., majority) winner, the
(continued... )
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In the specific case of Councilwoman Horton's election to Mayor
in June of 1994, and the appointment of Councilman Moot to
Horton's seat in December of 1994, Councilman Moot, an appointed
replacee, may only serve until March of 1996, the date of the
next General Municipal Election at which time there will be two
elections (the same applies to Councilperson Alevy's seat): (1)
a special election for the 8 months remaining in the term for
Seat No. 3 (Horton's previous Seat) between March and December;
and (2) the general municipal election for the four year term for
Seat No. 3 commencing December, 1996 to December, 2000.
Under this proposed change, the appointed replacee would be able
to serve until December, not March, thereby eliminating the need
and cost for a special election for such short periods of time--
less than a year.
3. Regarding the elimination of the requirement for a special
run-off elections:
Change No.3: The third proposed change is to eliminate the
requirement for a runoff election following a special elec-
tion so that a winner in a special election is determined by
a plurality vote (highest vote getter) even if it is less
than a majority of the votes cast.
As the result of a recent change to the Charter in 1992, the
current charter requires runoff elections where the highest (or
plurality) vote-getter fails to secure the majority of the votes
cast. This applies, not only in the case of general municipal
elections where four year terms are at stake, but also in the
case of special elections. This change would eliminate the
requirement of a run off election to special elections called to
fill a vacancy, by declaring that the highest vote getter shall
be the winner, even if less than a majority of the votes cast.
This change does not affect the current requirement for a runoff
election in general municipal elections where no single candidate
secures a majority of the votes.
The Commission's reasons for recommending this change is that the
runoff election procedure is cumbersome, time consuming and
5. (...continued)
election was held in November and was seated in December, which
was 3 weeks longer than permitted in a general law city. Then,
with the advent of runoffs, we had the general election in June
to coincide with the State primary to save money. Then the State
moved.its primary to March in presidential election years, and we
moved our general election to March in such years to save money.
Now we have 8 or 9 months between the General Election and the
, .
seating Date, and the same language that the app01nted replacee
is to serve only until the next general election.
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expensive, and serves to fill vacancies for short terms only.
TRe lil'lcxpircd term is, at IllOGt, only t\lO yearG.
4. Miscellaneous Changes.
The miscellaneous changes are described above on page 2,
item (5) (a) through (d) and are self-explanatory and appear
self-justifying.
Proposed Ballot Label
The Charter Review Commission proposes the following ballot
label for these changes. This is what will appear on the ballot
if approved by Council in the call resolution to be submitted
later.
Shall the Charter be amended to reform rules
relating to Council vacancies, including (1)
permitting certain anticipated vacancies to be
filled by election instead of by appointment
where there is an intervening consolidated YES
election; (2) at special elections only, permit
a winner to be declared by a plurality vote
instead of a majority thereby eliminating the
expense of special runoff elections (effective NO
immediately); (3) avoids a special election to
replace an appointed councilmember if there is
less than 1 year remaining on the term; among
other miscellaneous channes?
Charter Lanquaqe
In order to accomplish the change, the Charter Language,
marked for such changes, would appear as follows:
[Markings are intended from this point on only to reflect changes
from current Charter text.]
"section 300.
" H. Any person to be elected at a special municipal
election called to fill a vacancy pursuant to the provision
of section 303 for any numbered council seats one through
four or the Office of Mayor, for which nomination papers
have been filed, shall be deemed elected upon receipt of the
hiqhest number a majority of the votes cast for the
particular seat or the Office of Mayor at the election. A
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special run-off election shall not be reauired in the case
of a special election called to fill a vacancy. If RO
eaRdidate at such apccial eleetieR recei7ea a majority ef
the vetes caot, there ahall bo a apeeial rHR off eleetioR to
se held OR a dato aot by COHncil aa aOOR after such speeial
eleetioR aCl Elractical boblCen the t.;o caRdidates rocei ving
the highest and aecond highoot numser of votea in auch
apoeial election for said aeat or the office ef Uayer in
order to determine tho .;inneF and ahall se Cleated upon
eeFtification of the reaulta of tho eleetieR. By \lay of
elarificatieR, tTies among the candidates receiving the two
highest number of votes at such special election shall be
resolved by a special rHR off olectioRlot uClin~ a eeiR
neleeted and tessed conducted. bY the city Clerk.
Sec. 303. Vacancies.
A. When a Vacancy Occurs; Grantina permission for Absences.
,,7 If a member of the City Council is absent from
four (4) consecutive regular meetings of the City Council
scheduled and held, unless by permission of the city Council
expressed in its official minutes contemporaneously with
such absences or sooner, or is convicted of a felony or
crime involving moral turpitude, or submits a letter of
resianation to the city clerk, the office shall become
vacant as of the date of the last absence (in the case of
four unexcused. consecutive absences from reaular city
council meetinas). the date of such conviction (in the case
of conviction of a felony or crime involvina moral
turpitude). or the date set forth in such letter of
resianation. as applicable. The permission of the Council
shall be granted for any temporary illness of the requesting
Councilmember disabling him or her from attendance at such
meeting. The city council shall declare the existence of
any vacancy or anticipated vacancy Bas soon as
practicable."
6. Note changed to "conducted".
7. [The following paragraph was the Third Paragraph of section
303, and except for the marks for changes, was relocated as the
First Paragraph without other changes.]
8. Note new language.
9. This sentence was relocated without change from below for
context enhancement purposes only.
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B. Anticipated Vacancies with Interveninq Consolidated
Elections: Duration of Elected Replacee's Term..
If (1) a vacancv is expected to occur in an office of
anv member of the citv councilor Mayor because of either
the election of the current office holder to another seat on
the councilor other office requirinq the surrender of the
city office seat. and (2) if. between the time the
expectation of vacancy occurs (bY final election results
havinq been announced) and the time the actual vacancy
occurs. any other federal. state or local (non-city)
election involvinq all'" the electors of the City is
scheduled to be held at such a time that permits a special
election to be called and consolidated with such other
federal. state or local election. then (A) the city council
shall call and request consolidation of such special
election with such other election or elections. and (B) the
vacancy so expected to be created shall be filled bY such
special election. A person elected in such special election
to fill a vacancy shall serve for the remainder of the term
of the office11 and until a successor qualifies.'2
C. Duration of Appointed Replacee's Term: When Special
Election Required.
Except under the circumstances hereinabove provided in
paraqraph B. best efforts shall be used to fill the vacancy
in any office of the city council by appointment by the city
council. such appointee to hold such office until a succes-
sor qualifies bY the electoral process herein required for
the office. '3 If. at the time the next election followinq
the occurrence of such vacancy is called by the city for any
reason. whether it be a qeneral municipal. qeneral runoff.
or special election. such office is not otherwise scheduled
10. The Council may wish to consider, at this point, the
insertion: "or substantially all".
11. Note that this is not just to the next seating date, but for
the entire duration of the Office's term.
12. This sentence is intended to apply to elected replacees
under the intervening consolidated election rule, and at a
special election held after impasse rule.
13. The intent is: an appointed replacee shall serve until the
next opportunity to fill the office by election materializes,
unless that opportunity falls within a year of the normal
expiration of the office, in which case the appointed replacee
shall serve until the normal expiration of the office.
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to be filled by said election and such office will have a
term remaininq of 1 year or more after said election
(measured from the normal seatinq date of said office). such
office shall be placed on the ballot for fillinq bY special
election. Upon certification of the results of said special
election. the successful candidate for such office shall
serve. subiect to the usual causes for vacancy. in the
office for the remainder of any unexpired term of said
office. If such office is scheduled to be filled bY the
election requirinq the call. or the remainder of such term
is for a period of less than one year. no such interim
election shall be required and the appointed replacee shall
be entitled to serve durinq such remainder term.
D. Duty to Attempt Appointment or Call Special Election.
TRe city Council Ghall declare the CldGtenee of any
7acancy aG GeeR aG practicable." Except where a special
election is required to be called to fill such a vacancy as
herein provided. t~he city council shall use its best
efforts in qood faith to fill such vacancv by appointment
within thirty days of their declaration of the existence of
the vacancy. In the event it shall fail to fill a vacancy
bY appointment within thirty days after such office shall
have been so declared vacant. or sooner. if impasse is
reached sooner. it shall forthwith cause a special election
to be held to fill such vacancy.
Effective Date of this Measure
The following language, appearing in the approval
resolution, and not for codification into the Charter, could make
the language effective immediately and applicable to the results
of the election at which it is, if at all, approved.
"This measure is intended and shall take effect immediatelY
upon adoption. and shall applY. in particular. to thereupon
eliminate special runoff elections as of the date of
adoption such that any person elected bY a plurality vote in
a special election conducted at the same election where this
measure is adopted bY the People shall be deemed elected
upon receipt of a plurality vote. even thouqh a maiority
vote was not received bv such candidate. without the need
for a special runoff election."
Hence, its operative effect, if passed in March, would be to
obviate the need for a special run-off election if a clear (i.e.,
majority) winner wasn't selected in March. The plurality winner
14. This sentence was not eliminated, but simply relocated above
for context enhancement purposes.
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would serve the entire 8 month term. A plurality vote would be
sufficient. without this language, another special election
would have to be held about three months later at some
substantial additional cost.
Fiscal Impact:
Each of the various provisions have different fiscal effects
associated with them:
(1) As to the holding of elections to fill anticipated
vacancies, this will be more costly than the current
procedure of waiting for a vacancy, and filling the vacancy
by appointment. Such an election is, by the language,
required to be done only if there is an intervening
consolidated election, so each election under this procedure
is expected to cost about $25,000 more than under the
current arrangement.
(2) As to the change permitting an appointed councilmember
to remain in Office until the next normal election unless
within a year of the remainder of the term, instead of to
the next general municipal election date (either March or
June), we should be able to save the incremental cost of a
separate ballot item15. Thus, the incremental cost of a
March special election is saved--about $16,000 per ballot
item.
(3) As to allowing a plurality vote to determine the results
of special election, we will eliminate the requirement of
run-off special elections--or a savings of about $120,000 if
a clear winner is not selected at the special election.
M:\ho.e\attorney\vacancy.wp
15. These elections occur when there is a general election
anyway, so the savings is only associated with a separate ballot
item, not the full election costs, which will have to be incurred
anyway.
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September 26, 1995
Dear Commissioner, Board Member, Committee
Members and Department Head,
As the recent city sponsored presentation on Ethics by Michael
Josephson demonstrates, the city of Chula vista places a
significant emphasis on ethics by its officers and employees at
all levels of decision making. We would like each of our
decision makers to internalize this ethical approach to decision
making. That is why I am writing to you, as a leader and
decision maker for the city.
By way of re-emphasizing this point, I would like to personally
encourage each of the boards, commissions, committees and
departments which you chair, supervise, or otherwise participate
in to consider ethics as an intricate part of your decision
making process.
We encourage your groups to discuss, formulate and publicize to
your members individualized ethical rules or guidelines relevant
to frequently reoccuring situations in the particular trade,
profession, industry, or area of expertise in which you
specialize. Certain trades and professions already have adopted
a particularlized code of ethics, such as engineers and building
officials. These industry-accepted rules of ethics may be a good
starting place or may in fact be adequate without modification.
The Council would like to encourage you to discuss such ethical
rules among yourselves and your members in order to make them and
others aware that we expect and appreciate your consideration of
ethical aspects of decision making when you perform your business
for the city.
We feel that ethical considerations at the earliest stages of
decision making can work to avoid significant problems later,
equip our officers and employees to deal "head-on" with ethical
dilemas as they are un-folding, and create a greater overall
sense of trust and confidence in government.
We will appreciate hearing any reports of progress in such
endeavor.
Sincerely,
Mayor Shirley Horton
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COUNCIL AGENDA STATEMENT
Page 1, Item .JLJ,4
Meeting Date 11/17/95
ITEM TITLE: Public Hearing: 1) To consider Conditional Use Permit PCC-95-47, to establish
a 20,000 seat outdoor amphitheater and an open air market located at the
southwest quadrant of Otay Valley Road and Otay Rio Road - Bitterlin-Brice
Development Partners for MCA Concerts, Inc. and Kobey's Chula Vista Market
Place, LLC; and 2) To consider the vacation of various streets in Otay Rio
Business Park
Resolution Certifying Final Environmental Impact Report EIR-
95-03, MCA Chula Vista Amphitheater
Resolution Approving 1) Tri-party Agreement by and among
Los Alisos Company, MCA Concerts, Inc., and the City of Chula Vista, 2) A
Ground Lease by and between Los Alisos Company and MCA Concerts, Inc.,
and 3) A Sublease by and between the City of Chula Vista and MCA Concerts,
Inc.
.
Resolution Granting a Conditional Use Permit, PCC-95-47, to
Bitterlin-Brice Development Partners for MCA Concerts, Inc. to construct a
20,000 seat capacity amphitheater at the southwest quadrant of Otay Valley
Road and Otay Rio Road
Resolution Granting a Conditional Use Permit, PCC-95-47, to
Kobey's Chula Vista Marketplace, LLC, to operate an open air market at the
southwest quadrant of Otay Valley Road and Otay Rio Road
Resolution
Rio Business Park
Ordering the vacation of various streets in Otay
Director of Community
Director of Planning
Director of Public Works
REVIEWED BY: City Manage~ txkD: \ 1
RECOMMENOA TI ON: Staff recommends thatJ Co;cil
November 7, 1995.
IS.
opment (/.
SUBMITTED BY:
(4/5ths Vote: Yes_NolLl
continue the item to the meeting of
. M:ISHAREDICOMMDEVlMCACONT.113
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