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Home My WebLink AboutAgenda Packet 1995/11/07 Tuesday, November 7, 1995 4:00p.m. UI declare I1n~er pcnaHy o.r perjury that I an1 employed by tho City of Ghu!a Vista ~n the Office of the City Clori\ 5n::! that I posted this Agenda/No:ice on t:1C BuJietin Board at the Public Sp,rv'c,enBu:ldin7, a~.~ at ~ 1'~U.pn_ Council Chambers DATED, ,I- .7s SIGNEOk.::'C' ~.c- "Public Services Building /. L. _,:; Rel!Ular Meetina of the City of Chu\a Vista City Council CALL TO ORDER 1. ROLL CALL: Councilmembers Alevy _, Moot _, Padilla _, Rindone _, and Mayor Horton _' 2. PLEDGE OF ALLEGIANCE TO THE FLAG. SILENT PRAYER 3. APPROVAL OF MINUTES: October 17, 1995 (Regular City Council Meeting), October 17, 1995 (Joint Meeting of the City CouncillRedevelopment Agency), and October 24, 1995 (Regular City Council Meeting). 4. SPECIAL ORDERS OF THE DAY: None ***** Effective April 1, 1994, there have been new amendments to the Brown Act. The City Council must now reconvene into open session to report any linal actions taken in closed session and to atljoum the meeting. Because of the cost involved, there wiU be no videotaping of the reconvened portion of the meeting. However, final actions reported wiU be recorded in the minutes which wiU be availoble in the City Clerk's Office. ***** CONSENT CALENDAR (Items 5 through 13) The staff recommendations regarding the following items listed under the Consent Calendar will be enacted by the Council by one motion without discussion unless a Coundbnember, a member of the public or City staff requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak Fonn" avaiLoble in the lobby and submit it to the City Clerk prior to the meeting. (Complete the green fonn to speak in favor of the staff recommendation; complete the pink fonn to speak in opposition to the staff recommendation.) Items puUed from the Consent Calendar will be discussed after Board and Commission Recommendations and Action Items. Items pulled by the public will be the first items of business. 5. WRITTEN COMMUNICATIONS: a. Letter from the City Attorney stating that there were no observed reportable actions taken in Closed Session on 10/24/95. It is recommended that the letter be received and filed. b. Letter of resignation from Lionel G. McQuillon - Board of Ethics. It is recommended that the resiguation be accepted with regret and the City Clerk be directed to post immediately according to the Maddy Act in the Clerk's Office and the Public Library. Agenda -2- November 7, 1995 6. RESOLUTION 18089 APPROPRIATING FUNDS TO CONDUCT LEGALLY REQUIRED DISCRIMINATION AND HARASSMENT INVESTIGATIONS - The resolution appropriates $30,000 from the general fund's reserve balance and gives staff the individual discretion, on a case-by-case basis, to retain investigators under the services and purchasing guidelines contained in the Municipal Code. Staff recommends approval of the resolution. (City Attorney) 4/5th's vote required. 7. RESOLUTION 18090 ACCEPTING THE 1994/95 GRANTEE PERFORMANCE REPORT AND AUTHORIZING SUBMITTAL TO THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND AUTHORIZING THE CITY MANAGER TO EXECUTE DOCUMENTS - The City annualIy submits a Grantee Performance Report (GPR) to the U.S. Department of Housing and Urban Development. The GPR provides detailed information on the use of Community Development Block Grant funds including the progress achieved and the status of funds. Staff recommends approval of the resolution. (Director of Community Development) 8. RESOLUTION 18091 APPROVING AN AGREEMENT WITH DECISION MANAGEMENT, INC. (DMC) FOR AN OPTICAL IMAGING SYSTEM TO INSTALL AND IMPLEMENT AS PART OF THE CITY-WIDE RECORDS MANAGEMENT CIP PROJECT WHICH INCLUDES THE ACQUISITION OF INITIAL HARDWARE AND SOFTWARE - The City- wide Records Management Program is a multi-year CIP project which was approved in fiscal year 1990/91. Phase II of the project includes the acquisition of an imaging system to store and preserve the City's vital records. Staff bas completed the RFP process for Phase II and has negotiated a contract with the highest rated vendor. Staff recommends approval of the resolution. (City Clerk and Director of Management and Information Services) 9. RESOLUTION 18092 APPROVING MEMORANDUM OF UNDERSTANDING CONCERNING WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT WITH THE CHULA VISTA POLICE OFFICER'S ASSOCIATION FOR FISCAL YEARS 1995/96 AND 1996/97 - With the assistance of a State mediator, negotiating teams representing the City and the Chula Vista Police Officer's Association (FOA) have reached an agreement on a Memorandum of Understanding (MOU) covering fiscal years 1995/96 and 1996/97. The proposed MOU was ratified by the POA membership on 10/23/95. The major changes to the terms and conditions are outlined in the report. Staff recommends approval of the resolution. (Senior Management Assistant Young) 10. RESOLUTION 18093 APPROVING AGREEMENT WITH CALGlS, INC. FOR A GIS BASED TRAFFIC ACCIDENT RECORD SYSTEM - The City received a grant from the State of California, Office of Traffic Safety, to develop a GIS based Traffic Accident Record System. An RFP was prepared and proposals were received. After evaluation of the proposals, interviews were conducted, and CALGIS, Inc. was chosen as the consultant for the project. The Office of Traffic Safety has approved CALGIS, Inc. as the selected consultant. Staff recommends approval of the resolution. (Director of Public Works) /) Agenda -3- November 7, 1995 11. RESOLUTION 18094 ACCEPTING BIDS AND AWARDING CONTRACT FOR "RESURFACING OF TENNIS COURTS AND MULTIPURPOSE COURTS AT VARIOUS LOCATIONS IN THE CITY (PR-20S)" - On 10/4/95, bids were received for the "Resurfacing of Tennis Courts and Multipurpose Courts at Various Locations in the City." The work includes the resurfacing of 15 tennis courts and the resurfacing of multipurpose courts as well as other miscellaneous work. Staff recommends approval of the resolution awarding the contract to Eastwood Tennis Surface, Inc. - San Diego in the amount of $37,458. (Director of Public Works) 12.A. RESOLUTION 18095 APPROVING A STIPULATION FOR JUDGEMENT FOR ACQUISITION OF RIGHT-OF-WAY FROM SDG&E AND SNMB, L.P. (UNITED ENTERPRlSES) FOR THE WIDENING OF OTA Y VALLEY ROAD AND AUTHORIZING PAYMENT THEREOF - On 9/6/94, Council declared the public necessity to acquire certain right-<lf-way for Otay Valley Road and authorized the commencement of condemnation proceedings by outside counsel to acquire said right-<lf-way. Staff, special counsel, and the property owner have reached agreement on the acquisition price for approximately one acre of right-<lf-wayeasement from SDG&E and SNMB, L.P (United Enterprises) for the widening of Otay Valley Road (Assessment District 90-2). Staff recommends approval of the resolutions. (Director of Public Works) B. RESOLUTION 180% AUTHORIZING PAYMENT TORG. FENTON MATERlAL COMPANY, A CORPORATION, AND NELSON & SLOAN, A CO-PARTNERSHIP, FOR ACQUISITION OF RIGHT-OF-WAY FOR THE WIDENING OF OTAY VALLEY ROAD C. RESOLUTION 18097 CLARlFYING CITY RIGHT-OF-WAY POLICY IN REGARDS TO THE CITY MANAGER'S OR HIS DESIGNEE'S AUTHORITY TO SIGN ACQUISITION AGREEMENT(S) AND TO MAKE PAYMENT FOR RIGHT-OF-WAY OF UP TO $25,000 FOR EACH PARCEL ACQUIRED FOR CONSTRUCTION OF BUDGETED PROJECTS 13.A. RESOLUTION 18098 APPROVING FINAL MAP AND SUBDIVISION IMPROVEMENT AGREEMENT FOR TRACT 88-3A, EASTLAKE SOUTH GREENS, PHASE 2 AND 3 - On 8/16/94, Council approved an amended tentative map for EastLake South Greens and imposed additional conditions of approval. The amendment to the tentative map covers the area south of Clubhouse Drive. The Final Map creates super block lots for Phase 2 and 3 of EastLake South Greens. Subsequent final maps will be required to create residential lots. Staff recommends approval of the resolutions. (Director of Public Works) B. RESOLUTION 18099 APPROVING SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT REQUIRlNG DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTIONS NUMBER 15200 AND 17618 APPROVING A TENTATIVE SUBDIVISION MAP FOR EASTLAKE GREENS, AND AUTHORIZING THE MAYOR TO EXECUTE SAME C. RESOLUTION 18100 APPROVING THE ACCEPTANCE BY THE CITY OF A PORTION OF SILVERADO DRIVE ON BEHALF OF THE PUBLIC * * END OF CONSENT CALENDAR * * :3 Agenda -4- November 7, 1995 PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES The 10Uowing Items have been advertised and/or posted as public hearings as required by law. llYou wish to speak to any Item, please fiU out the "Request to Speak Fonn" available in the lobby and submit It to the City Clerk prior to the meeting. (Complete the green lonn to speak in lavor 01 the stall recommendatlan; complete the pink lonn to speak in opposition to the staff recommendation.) Comments are limited to five minutes per individual. 14. PUBLIC HEARING VARIOUS REQUESTS FOR WAIVER OF PLANNING DEPARTMENT APPLICATION FEES - Applications have been received from various nonprofitorgani7Jltions seeking a waiver of Planning Department application fees for construction or expansion of their facilities. Staff recommends approval of the resolution. (Director of Planning) RESOLUTION 18101 GRANTING A WAIVER OF PLANNING DEPARTMENT APPLICATION FEES FOR VARIOUS LOCAL NONPROFIT ORGANIZATIONS 15. PUBLIC HEARING CONSIDERING A 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 OTAYV ALLEY ROAD AND OTA YRIO ROAD - BITTERLIN-BRICE DEVELOPMENT PARTNERS FOR MCA CONCERTS, INC. AND KOBEY'S CHULA VISTA MARKET PLACE, LLC; AND CONSIDERING THE VACATION OF VARIOUS STREETS IN OTAY RIO BUSINESS PARK - Bitterlin-Brice Development Partuers 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 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 10/17/95. -- Time Certain - 6:00 P.M. A. RESOLUTION 18057 CERTIFYING FINAL ENVIRONMENTAL IMPACT REPORT EIR-95-03, MCA CHULA VISTA AMPHITHEATER B. RESOLUTION 18058 APPROVING (1) A TRI-PARTY AGREEMENT WITH LOS ALISOS COMPANY AND MCA CONCERTS, INC., (2) A GROUND LEASE BY AND BETWEEN LOS ALISOS COMPANY AND MCA CONCERTS, INC., (3) A SUBLEASE WITH MCA CONCERTS, INC., AND (4) AUTHORIZING THE MODIFICATION AND DEFERMENT OF CERTAIN CITY PERMIT AND DEVELOPMENT IMPACT FEES DUE FOR DEVELOPMENT OF THE PROJECT C. RESOLUTION 18059 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 D. RESOLUTION 18060 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 OTA Y RIO ROAD E. RESOLUTION 18061 ORDERING THE VACATION OF VARIOUS STREETS IN OTAY RIO BUSINESS PARK 4 Agenda 16. PUBLIC HEARING ORDINANCE 2642 -5- November 7, 1995 ZONING TEXT AMENDMENT PCA-96-tll; REQUEST TO ADD WORDING TO SECTION 19.68.020 T.l OF THE MUNICIPAL CODE WIllCH 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. - 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 15061(b)(3) of the California Environmental Quality Act. Staff recommends Council place the ordinance on first reading. (Director of Planning) Continued from the meeting of 10/17/95. AMENDING SECTION 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 (first readil1l!:) ORAL COMMUNICATIONS This is an opportunity for the general public to address the City Council on any subject matter within the Council's jurisdiction that is !1Ql an item on this agenda for public discussion. (State law, however, genemUy prohibits the City Council from ta1cing action on any issues not included on the posted agenda.) If you wish to address the Council on such a subject, please complete the yellow "Request to Speak Under Oml Communications Fonn" available in the lobby and submit it to the City Clerk prior to the meeting. Those who wish to speak, please give your name and address for record purposes and follow up action. Your time is limited to three minutes per speaker. BOARD AND COMMISSION RECOMMENDATIONS This is the time the City Council wiU consider items which have been forwarded to them for considemtion by one of the City's Boards, Commissions and/or Committees. None submitted. ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantiol discussions and delibemtions by the Council, staff, or members of the general public. The items wiU be considered individually by the Council and staff recommendations may in certain cases be presented in the allernative. Those who wish to speak, please flU out a "Request to Speak" fonn available in the lobby and submit it to the City Clerk prior to the meeting. Public comments are limited to jive minutes. None submitted. _IJ Agenda -{j- November 7. 1995 ITEMS PULLED FROM THE CONSENT CALENDAR This is the time the CiJy CouncU will discuss items which have been removed from the Consent Calendar. Agenda items pulled at the request of the public will be considered prior to those pulled by Councilmembers. PubUc comments are limited to five minutes per individual. OTHER BUSINESS 17. CITY MANAGER'S REPORTISl a. Scheduling of meetings. 18. MAYOR'S REPORTIs) a. RESOLUTION 18088 OPPOSING U.S. SENATE BILL S. 269 UNLESS AMENDED - S. 269 ISIMPSON) IMMIGRATION/BORDER FEES would establish a $1 land border crossing fee for all non-commercial traffic, with unspecified discounts available to frequent crossers. Other provisions include pilot programs for automated border crossing facilities, hiring of 700 new Border Patrol agents per year through the year 2000, hiring 300 new INS investigators per year through the year 1998, and strengthening criminal penalties for alien smuggling or document fraud. The Legislative Committee recommends a position of "Oppose unless amended" and general opposition to the border fee component of the bill. Continued from the meeting on 10/24/95. 19. COUNCIL COMMENTS ADJOURNMENT The meeting will adjourn to (a closed session and thence to) the Regular City Council Meeting on November 14, 1995 at 6:00 p.m. in the City Council Chambers. A Meeting of the Redevelopment Agency will be held immediately following the City Council Meeting. A Special Meeting of the Industrial Development Authority will be held immediately following the Meeting of the Redevelopment Agency. L) Agenda -7- November 7, 1995 .**.. CLOSED SESSION Unless the City Anorney, the City MaMger or the City CouncU states otherwise at this time, the CouncU wUl discuss and deliberate on the following items of business which are pennined by law to be the subject of a closed session discussion, and which the CouncU is ndvised should be discussed in closed session to best protect the interests of the City. The CouncU is required by law to return ta open session, issue any reports of JiIJJJ1 action taken in closed session, and the votes taken. However, due to the typical length of time taken up by closed sessions, the videotaping wUl be tenniMted at this point in order to save costs so that the CouncU's return from closed session, reports of J1MIl action taken, and a4journment wUl not be videotaped. Nevertheless, the report of final action taken wUl be recorded in the minutes which wUl be available in the City Clerk's Office. 20. CONFERENCE WITH LEGAL COUNSEL REGARDING: 1. Existing litigation pursuant to Govenunent Code Section 54956.9 . Chammas vs. the City of Chula Vista. . Chula Vista and nine other cities vs. the County of San Diego regarding solid waste issues (trash litigation). . Trinidad De La Rosa vs. the City of Chula Vista.. PUBLIC EMPLOYEE PERFORMANCE EVALUATION - Pursuant to Government Code Section 54957 . Title: City Clerk. CONFERENCE WITH LABOR NEGOTIATOR - Pursuant to Government Code Section 54957.6 . Agency negotiator: John Goss or designee for CVEA, WCE, POA, IAFF, Executive Management, Mid-Management, and Unrepresented. Employee organization: Chula Vista Employees Association (CVEA) and Western Council of Engineers (WCE), Police Officers Association (POA) and International Association of Fire Fighters (IAFF). Unrepresented employee: Executive Management, Mid-Management, and Unrepresented. SALE AND DISPOSITION OF REAL PROPERTY - Pursuant to Govenunent Code Section 54956.8 . Franchise for Otay Water District for Streets and Right-of-Way. 21. REPORT OF ACTIONS TAKEN IN CLOSED SESSION **""""* " November 2, 1995 FROM: The Honorable Mayor and city coun9f\.\ John D. Goss, City Manage~~~~ City Council Meeting of Novembe1J7,~995 TO: SUBJECT: This will transmit the agenda and related materials for the regular City Council meeting of Tuesday, November 7, 1995. Comments regarding the Written Communications are as follows: 5a. This is a letter from the City Attorney stating that there were no observed reportable actions taken by the City Council in Closed Session on October 24, 1995. IT IS RECOMMENDED THAT THE LETTER BE RECEIVED AND FILED. 5b. IT IS RECOMMENDED THAT LIONEL MCQUILLON' 5 RESIGNATION FROM THE BOARD OF ETHICS BE ACCEPTED WITH REGRET AND THE CITY CLERK BE DIRECTED TO POST IMMEDIATELY ACCORDING TO THE MADDY ACT IN THE CLERK'S OFFICE AND THE PUBLIC LIBRARY. JDG:mab )7 ,; SPECIAL ORDERS OF THE DAY: MAYOR HORTON WILL INTRODUCE WILLIAM VIRCHIS, DIRECTOR OF BANDIDO -- AN AMERICAN MELODRAMA WHICH WILL BE PERFORMED AT MAYAN HALL, SOUTHWESTERN COLLEGE ON NOVEMBER 9, 10, 11 and NOVEMBER 15 THRU NOVEMBER 18. MR. VIRCHIS WILL INTRODUCE MARl HERIOT WHO PORTRAYS ROSARIO IN BANDIDO. la-) ~Ut.- :~~~ :.-....O;~~-...; ~~~~ CllY OF CHULA VISTA OFFICE OF THE CITY ATTORNEY Date: November 1, 1995 From: The Honorable Mayor and City Council Bruce M. Boogaard, City Attorney~ Report Regarding Actions Taken in Closed Session for the Meeting of 10/24/95 To: Re: The city Attorney hereby reports to the best of my knowledge from observance of actions taken in the Closed Session, that there were no actions taken in the Closed Session of 10/24/95 which are required under the Brown Act to be reported. BMB:lgk C:\lt\clossess.no 5a-J 276 FOURTH AVE/CHULA VISTA, CALIFORNIA 91910/(619) 691-5037 ( I "ECEIVED '95 IIW -1 All:23 m(CHULA VIS1/: ... .'S OFFICE November 1, 1995 City of ChulEl VistEl 276 Fourth Avenue ChulEl VistEl CEI 9191~ Attn: Beverly Authelet City Clerk Susan Harney Chairman - Board of Ethics Re BOElrd of Ethics Resignation Medical cancer. consultations have diagnosed terminal prostate Medical specialist involved is on staff of Cedars Sinai Hospital, Los Angeles, Ca. Imperative that we immediately re-locate closer to hospitEll. It is with deep regret that I tender my resignation from ~' JO);';1::~:::'." l::ionel G. McQuillon WRrf'I'gru~ ""f,"' .,-'7"'. '", .\. ':\ _~: ,~, -,":":. ':' '. f>'-: <:~', . fi(~':::'~ :::~'.~~(~ 0.;.~(}li;~I!/ft~ ~~V a:\:J ~ \~;~,:~i ~ ~~"'i~ r/p~ cc: cr ~/'- ('I) 4~ .5; / / ''"', ,...."~ council Agenda statement Item: ~ I~t?~ Meeting Date: November 7, 1995 . r.. Item Title: Resolut1on: Appropr1at1ng funds to conduct legally required discrimination and harassment investigations. \1^.~ Submitted by: Bruce M. Boogaard, city AttorneY\l\~ Agenda Classification: (X Consent ( Action Item ( Public Hearing ( other: 4/5ths Vote: (Xl Yes (l No When an employee makes a contention or claim of discrimination, a proper managerial response indicates that we conduct an investi- gation of the matter as quickly as possible. Management attempts to commence investigations within 10 days of the claim. Differ- ent types of claims require various levels of sophistication and independence in conducting the investigation. While many claims can be investigated by inhouse staff, some require an outside investigator. No funds have been separately appropriated for that purpose in the current year's budget, and there is a current and continuing need to spend funds on such investigations. The attached resolution appropriates $30,000 from the general fund's reserve balance for such items, giving Staff the indi- vidual discretion, on a case-by-case basis, to retain investi- gators under the services and purchasing guidelines contained in the Municipal Code.1 Recommendation: Approve the attached resolution which appropriates $30,000 to conduct legally required discrimination and harassment investigations. Boards and Commissions Recommendation: None. Not applicable. 1. The city Manager is authorized to retain investigatory services expected to be rendered within the $25,000 cost limit set forth in the purchasing guidelines, if budgeted. ~-/ I' <I Discussion: In the absence of a general appropriation for such purposes as is being requested herein, separate appropriation requests would be required on a case-by-case basis. Due to agenda preparation schedules, and timing of Council meetings, this would generally involve a time delay beyond our typical investigation commencement target date of 10 days. More importantly though, it would involve separately placing individual appropriations on the Council agenda for approval. Staff is concerned that this may have the consequence of focusing undue co-worker and public scrutiny on involved parties which could lead to unnecessary potential embarrassment and stress to the parties just from the investigatory process--regardless of the merits of the claim. Aside from the privacy issues of the parties, staff is also concerned that co-worker and public scrutiny could have the consequence of ecsaserbating the potential for litigation instead of resolving the matter at the administrative level as the law intended. While the City Manager is diligent to conduct as many investi- gations with the use of inhouse personnel, due to the circum- stances of a particular case, such as the anticipation of litigation, level of complexity, etc., there may be a special need for an outside investigator, and sometimes an attorney- investigator where litigation is anticipated. If the circumstances of the claim are of such a nature as to create a concern with the City Attorney that there is a moderate potential for litigation, Council will be kept informed of the matter through the closed session discussions authorized under the Brown Act, and the investigator selected may, with the recommendation and concurrance of the city Attorney, be an attorney. Fiscal Impact: This action creates the budgetary framework in the amount of $30,000. The actual expense will depend on the happenstance of claims being flied. Each actual investigation, depending on the level of complexity involved and the rate of pay for the inves- tigator, is expected to run between $3,000 and $9,000 per investigation, with the average expected to cost about $6,000. The rate for investigators ranges from $50 per hour to $175 per hour (usually for an attorney-investigator). &-,;( I') j- RESOLUTION NO. ~JYt7~j7 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING FUNDS TO CONDUCT LEGALLY REQUIRED DISCRIMINATION AND HARASSMENT INVESTIGATIONS WHEREAS, when an employee makes a contention or claim of discrimination, a proper managerial response indicates that an investigation of the matter be conducted typically within ten days; and WHEREAS, different types of claims require various levels of sophistication and independence in conducting the investigation; and WHEREAS, while many claims can be investigated by inhouse staff, some require an outside investigator; and WHEREAS, no funds have been appropriated for that purpose in the current year's budget, and there is a current and continuing need to spend funds on such investigations; and WHEREAS, it is necessary to appropriate $30,000 to give staff the individual discretion, on a case-by-case basis to retain investigators under the services and purchasing guidelines contained in the Municipal Code. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby appropriate $30,000 from the unappropriated balance of the General Fund into Account 100-0150- 5202-LAW041. C:\rs\harass,$ ~-3 I :~; CITY COUNCIL AGENDA STATEMENT ITEM TITLE: Item :7 Meeting Date 11/07/95 RESOLUTION /O'tJj7t::? ACCEPTING THE 1994/95 GRANTEE PERFORMANCE REPORT AND AUTHORIZING SUBMITTAL TO THE U.S DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND AUTHORIZING CITY MANAGER TO EXECUTE DOCUMENTS Community Development ~f\:ctor C:" City Manager ::A ~ ~\ lJ ~, (4/5ths Vote: Yes _ No XJ Council Referral No. SUBMITTED BY: REVIEWED BY: BACKGROUND: The City annually submits a Grantee Performance Report (GPR) to the U.S. Department of Housing and Urban Development (HUD). The GPR provides detailed information on the use of Community Development Block Grant (CDBG) funds including the progress achieved and the status of funds. HUD reviews the GPR and evaluates whether the City has carried out its activities in accordance with the City's 1993-96 Community Development Plan and federal requirements. RECOMMENDATION: That the City Council adopt the resolution accepting the 1994/95 Grantee Performance Report and authorizing its submittal to HUD. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The Grantee Performance Report (GPR) states, for each project, the amount of CDBG funds expended, the amount of funds remaining, and the progress achieved on each project. The City expended $2,754,987 in CDBG funds during 1994/95 and had a balance of $38,918 as of June 30, 1994. The GPR also includes an assessment of how well the City met its Community Development objectives; demographic information on the people who derived direct benefit from CDBG- funded human services programs; and a summary of the City's Fair Housing Program activities. FISCAL IMPACT: Accepting the Grantee Performance Report effectively "closes the books" on the City's responsibility to HUD for the $2.7 million. Failure to approve the GPR could result in HUD requiring repayment of those funds. 7~ I / 7~:2. 1,\ RESOLUTION NO. /8" tJ ~ cJ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE 1994/95 GRANTEE PERFORMANCE REPORT FOR THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM AND AUTHORIZING ITS SUBMISSION TO THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WHEREAS, the City of Chula Vista receives Community Development Block Grant funds from the U.S. Department of Housing and Urban Development (HUD) for the implementation of programs and projects to benefit low and moderate income persons and aid in the prevention of slum and blight; and, WHEREAS, the City is required to submit annual Grantee Performance Reports to HUD to report on the progress achieved and the status of funds; and, WHEREAS, the 1994/95 Grantee Performance Report has been prepared according to HUD regulations and instructions; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY FIND, DETERMINE, ORDER, AND RESOLVE AS FOLLOWS: Section 1. The City Council hereby approves the 1994/95 Grantee Performance Report, attached hereto. Section 2. The Community Development Director is hereby authorized to execute and submit the 1994/95 Grantee Performance Report to the U.S. Department of Housing and Urban Development. Section 3. This resolution shall take and be in full force and effect immediately upon the passage and adoption hereof. Section 4. The City Clerk shall certify to the passage and adoption of this Resolution; shall enter the same in the book of original Resolutions of said City; and shall make a minute of the passage and adoption hereof in the minutes of the meeting at which the same is passed and adopted. ~~ Chris Salomone Community Development Director A ro OO~;;~ y ~ Presented by: Bruce M. Boogaard City Attorney 7~3 /?-~ I~ ../ Cover Page I Grantee Performance Repon Community Development Block Grant Progrwn US Dopartmonl of HolIoln; ancl Urb.... Development Office 01 CoI'M\Ul'Iity PI"l'In"v and De_lopmenl __.. ... .. OMBApproyaJNo.25OA-M77(.>p.MlI~ PWoIiaR"I"'rlms _fo>.1I1i.eolIo<lioooJlnlonnellonl.ea1Imaledlo.....ragooo:; ho""'p..."""".....J~1heUroeforN>Ylowing...uuOtiOn.. _''II..i.~, data sources.gaIleringand mainlJlinillfllhadaUlnoocllld.andCornplutingancl.eviswing1hsooJ1actiOll oIinformallon. SandCtlmmonlS rogardOlglhisburd8n....... or M1 othotaop..clol this .olI&etion olin_ion. b>duding .._Oonal... ~O thi. .....rd8.. 10 tho Repor1& !A_monl Off"",.. Ollioeollnformathn PoIIcI, ..dSyotom..u.s....J?-P6tlmenlol/-b...:""...dU...... COp. 1......W'l~ Walmvk>n. 0.0.20410-3<<)0 and 10 .,.Ofl<:eoIMeneaemen'....dlludglr(, p.."..--..flod"", ~m. WashlnalO. D.C. 2l!i03. Do 1lO1000001hi&;';"';';l&llldfcrm to Ililllorallh.se *<l:I1OS$04$. s.. HUD Handbotl/c 65tO.2. "Enfltl"""'nl Or...,.. FIe I. ~~bIhaPn.pno'f_"""" 2. &.olNunbor Report InsfrUGtJans' tor guldan...... completIng thI11 IUpoJt 6- 3 0- 9 5 B 9 4MC 0 6 0 5 4 0 $. _"_010..._ City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 .. Nmt.&Addrr.ll5a1CumrnmityDeniapmerdDinmlor: Mr. Chris Salomone 276 Fourth Avenue Chula Vista, CA 91910 5. Namof.Tolot>""""N._"'J......fanoIn.rwldllnle.-''''''l.dlit.'''''''' 8. _.T"""""""'...._..__.o_......._........."''''''... , AoI.....AoIoIf_ Mr. Juan P. Arr~y (619) 691-5047 I Judith Foland (619) 691-5036 7. Have 1hese Co1Ylo'lD1ity DlW8lopment Block anm (COOO) funds been wed; \ a. 10 IllMtlhe cammlMllly !l8V8IopIll8IIl pnlgtaIIl DbJecdV8s EflllCIIed In lh9 lInBI_mentlor thI& ptOgtam yeat? 11 110, explllit\ G1"[,~ hallllmllMl allachment, how: (f) 1he uoea cllcI nat reIats 10 pmll-obJgedvee: lItlcI (2) lulnacdvl1les Of fl/'09- ~ 0 no<> might cIwlge a a nKUI of ~ yur's experl8nees.. b. ~LIflivoIyI00ith0t~bw-an~'" (lowhnod)incon1t ~.wJin1hepr_nfonorGrIlTinaGonofalumsorblight. or meet commlMllly development need!;, haVltO a JlQIdcuIat IltQ&IICY? If no, ~J\ In tt tItlA'ttlIII8 ttlZl!IChll,enl. E1: B: B: / c. sucl11h:1t 1he granlll8 has compiad wi1h, at wi! comply willi, its certifieaIioft 10 exponcI tlGt IAa!; than 700/.. DIll!: CDIlG ful'ltk, durtJg .. spec;ltiBd 'period. on ~ whlGh ben8ftt Iowi'mod Income pen;ons? II no, explain In a nanallve IIItactunenL 8. WeRl eibn eomlll'lf'lb l\1XIlIt this report lII1(\IW 1he CDBG plllgraflI rec:eive<l? If yes, atlach a nerl'll1ive SlImntafY. i II. 1rdcal8 Mw 1he ChnIII8 Performanee R8p0n was mad8 llVdabIe 10 1hA public: ... Brpd_nOlioe:~adateof..lllfiD8li..~ I b. 911",lllioheat"'9:(pIaDoad&to) The Star News November 11 & 12, 1995 .. ... Otbat: (8lQlIeln) 10. The folbwWlg forms IIlU$t be cornpIetIId and_ched: "- AolMty Sunmluy, ~ HUO-4Q.4G.2 II, ~ Re~ Summary, fOrm H00-4949-4 b. At:rMry SU'tIMlII')', bjn HlJD-4949.2A o. RAhabIIiIttIiat Activiliee, "'"' HU0-4949.S o. FInancIaIllwnm8ty, "'"' ~940.a r. Disp!acemenc Sulllflllll)', form HUD -49411.6 I I ~eortify1hm: This Np9rtoontainsaD~iredi1Nnsidetllifiedttbove; F6d8~~ll\rlO(lll1lldertallableund8r1he Community DeveIopme. Black Grant ....",..... (C09G) has not been u1i1izad 10 N<tJc:e stm~lialIy the amount 01 ~ 1inoondal ",""port for community cMvelopme. a:livilies Wow "'" .....1 of&U<t1l;\1pportpforlo f1e sIIut ot1hemostreeendy cornpIetIId CDBG ptogtllm Y$<<; d 1he information ~ hereir _WIllI.. anylnlormallon pRWIcI&cIln the _nlpMimont huIewIlh. ioI_lIIlcI .00UftltB. W...,;"g, HUD ..;uproeecu....... <IooImo....dMl""""'fo. Coo_ mayresu/llna1mlnal__penslUo..{leU.$.O.W01, 1010, 1012;31 u.s.c.372ll.3lll1 "J\tped Name &. TlCe of Aulhotl2lld 0ItIcltd ~nlalive; I ~naM8; rats: i John D. Goss, City Manager lbie Iolm tIlIlJ boo I"P'Wloaodon ~ oUb>..pen;. Pruvlo\I.lIdIGons lIrOob$Ole49. Re1MllhIs~"r3\'OVS. .. ~(I IOI(~'b IonnIltlO-4lm. 1(0lDlI.I\ ...rHandbo<)I(B511;1, ?-s 110 ./ Zl J M is a c "$ 1lI~ if :is ~:i Jl~ Ol i~ Ecu ;::,... mCJ 1! .. Ii! ... o J~ a& liS ...~ :!5c!'l l~ t'l lj ~o.. -21- Oc i~ i~ l:i; a.. ~~ ~ ~l - '" '" ~ '" M 0 0 0 0 '" 0 0 '" ~ I " " " '" '" 0 If ., '" ~ N '" ! M . . . . '" I '" ~ N '" '" '" ~ N N -"N I:: jJ! 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I.rr"""clog u-,;.burdGn.lD tho Ruporls U~"l om..... orf"", oflnlo<maJion Policl.. undS~ U.S-D<>p<<1montof H......Sand Urban Dewlopnon\ WasIlingloo. O.c. ~ICl-36OO undlQth90Ift",olNanagemen'and Budgat. PlIP"fWOrI< RO<lu(1ion Profott (2506-0077). WashingtOn. 0.0. 2OroJ. DonOl_dll>iscompJaladlormloollMrol tho$O _....& t Nanw>otGr...... ~ GrMlNuni><< a RoponfngPorlod Cit of Chula Vista B94MC060540 F~m7-1-94 IY ReoC>UroBa U.s. o.partmahl of HOI'.lng """ Urban Do"olopm.n' otIica of Community Pl4nnlno ami Develop"""nt t u,._tIoO COSO tundsalend 01 pre..... reporling plId""(e..lonoo fTom JlfforprogJalTl Y"ars) :s Pall!: 2. Enli1l8manl Gtanlfrom tonn 1-100-7002 951,905 , . $ S. SUrplua Urben Renowal Funds 1.812.000 '$' o 4. Sac1i.n 108 llU41aolOOdu,.., "umla (Pdnclpal Amount) $ a. ReVDlving !'ullds 30,000 5. I'r<>grarn Inoome,..,.....d by: GBnlDa (CoilllmAj SlI~nt (Column B) b. othor(ldorrilr boIo1r.lfrno.. spa:e II needed _an aua..I.,-,l) I eo Pdor Pwiod Aqualmonla(ll om fa a nogotI... llIIlOUnl.ondooalll br~ \ ....wrbgthll ~ pGl!od(wmo' Unas 1 tkough 61 c. _lit SUllllllliryafCOOO ExpWllv.... I , lI. T..:wVlp\Oll\llorV$"""'rtad.,ktiviySummsry.IamsK.l~t.~.2'" 0. Total expet><led Iorl'fMnlnsr~rnil\i""'lon.lbnn HUD-494U 1 10. Amounl lIJbjBCI III LowMod srll CUUIaIlon (lin,,8I1inullno 9) 11. C09G funds uood br e....... 06 ~poI t. inloroatpilymonla * 265,416 * 2,499,542 $ 12. 'rOla!elCpOllC!iUn>a(li088p1us $ . , 2,754,987 13. Unoxpendedbolon"" (Me 7.. . $ t4. '1".101 Lo.ruoclan61l... . g J>.1iad I }riltlg etpendtureoflDm lorm HUP-4949.ZA , Iyjrlgu IoWllncdoxpond\urus from IormsHUD-4Il49.2 and4949.2A Ill. TOIa! (~"" 14 plu. ~na 15) 0 $ 2 499 "542 $ 2 499,542 100 0/. 17. Psrc:enlbeMlit 10 fowl""'" ~ (flll816.._ byline 10 IIli> '''''''ring ..riodl lhlt Iorm nay bo n>pro<Juwd on local ob oopl..... Proviousvdi1ionsarvobao~ J IWain tHo rooord lor 3 yo.... , paQG(~P 01 (Jr.p 7-..25' f<JrmHU~.-"~J ...1 Handl>ook6S10.2 3~~ I I I .1 I I /, ~ ~ ~ II I. 1 p_rt N: Lo..../'Mod acnd';c {O.rf.;(uf'(;...y.-.<C.((rtoc...<JOM (Compl.aCe onlylt owti(oCll~n p<i00d ~s; pl"0cx ra..us) 92---,-- py 93, py 94 PCog'.atn yo.ars (PY)co":,'Of'~ tnCQf1lc,c.at:':;1f'l py 18. CumtiU.t<_ n.oteJ:P4nd'4IUfGS ~jact 10 piGgr.l.m becwC.Cafcv4I;on 19. ~G_oq>onditUl'esbg{\<;lC.(ongCo....lmodp.('S.O(Is 20. P<<<<ntb4c\.oCi(lolowfmodp4C$OC\sC'ne 19~videdby'no le) P_rtV: ~Pub(tcS<<vicc(PS) Activrtiu Onl)": Pub{;cSe('Vte.rC~c..(cu(.(;on 21. ToUl PS.~ost.Omcolumnh..bmHUO-4~A 22_ ToW' PS~lodob~t.,nsfromcoNnYl.(_IotmHUO...c9.(9.2A 23. Sumofl~2h~~22 2<4. Total PSun~tedobGgalionsrepot1ed at Che .<'\dol Ule pce...ouscG()Of1ing period 2S. Not ob'g.ahons b pvblOc s~s ('ino 23 mOnus lino 2<) 26. Amount of Pcogr.am Iocnme CCK.Q.",ed in lho pf"C<;N1ing progrAm rev 27. Enti~IGcanIAmouoI(l.-oml.....2) 28. Sumofl;.,q26.and'ne27 29. P<<c::enlftJnd$obGg.alodSoc- Put*:SorW:. Activiliu (Iino 25 dCWWd by Sioe 28) P.rt VI: Pt.nning and Prog~ AdnW..iser.tion C.p C.!culetion 30. Awoonl sCJbj9cC 10 planning and ~;slu.CtvO cap (gt.ant .arrouot from liOQ 2 pSus ,"0 x) 31. Amot.:ntexpondod IofA.anntng&Adminislcation(lcomline9.above) 32. POC'C8nt funds expendQd (tine 31~ by line 30) , Instructions ..:.- < ~;:\~. , '.4,714,441. 100 % , , 70,355 , .288 , 58,488 I' 271. 800 I' 0 I' 812 000 , 1,812,000 % , 1,812,000 s 14 % Name of Grantee: Enter the gfanlee's name as shown 00 the approved Grant Agreement (1<xm HUD-7082) for the most recendy completed program year. Grant Number: Enter the 9faot number assigned by HUO (0 the Community Development B1ock. GC'3.nt for the most recendy comp(eted p(Ogl'3m y...... Period Covered: Enter the beginning date and eod(ng date for the most recendy completed program year. 7.:.-,;;1 6,:::,: focmHUO-C94S.3(OGf2.(J93) R1fHandbook6S10.2 '-'_if'} ! I _I ~ ! ....; ~ en / ~ '" ~~ I i 0 '" l! I )... ~ '" 1I m i- ~ 'J! ....; '" i ..:t 1$ I II" ~J ~ L Ii! ....; "ilI .. I :c 1: ":_ N ~ ~ E it '" :. & I -j" - I ....; ....; '2! .. Ii ft ".2 ~A 11 gllo 11 :!II. '0;';' I] J~ ~~ ~ I E ~ 1 wI' t ~'l 1-~ a:,g !.f ~ 111 't i ~ c5CJ J 0 ) -j" .. ~ en ~ OJ 0 J!l " '" ~ " Ii 0 c ~ OJ ~ ~ ::> " J ~ z ;J, I "" ! '" ~ ... II: ..... I!l ..c: H 0 en - N 1:: ....; .. II. l ....; .1"1 "'~.& U 'I'j''' alA -d.ll'~- ....; .Hn '" ii.. j*i ... ... ;1 ~ i .. ~<l ; i . " .fI 6 ~ .. "i3 0 j ~ .! ~.. ::! ~ ~ ~ i "ii ~ !l :c ... I ~ · II ,IL I , I '" I -j" I ....; ....; OJ g OJ ~ OJ 00 ~ ... o en '" '" ....; en N, ~ .~ 7-,;< ? ~a "i ~1l ~l: 'I 3~ :I: j I I .- ~ 1i - - " ~ - t ~ '" .1 8 . ~ ] Ijl J-gcu ~ss ~lIi ii~ U:; "~i i5a:o: . ~:3 >-: FlehabIIIt4dlon Activities Grantee Parfarmance Repon Community PeveIopment I3Iock Grant Program OMElAltIllll\!!No.25D8-Olr11(atp 8/111.) Pull8eRaplllllllg"""'lorlhl'ooIocIblGlInllrIlUanIaH*nllllll)a....,.ogil6.D"""'$por.............~.ll18larllll/lewlfteiMll'UCllolllc.l8llI'l:Illngtlda1kv dlla.....r_a1h8rlnoand........".I~=t~oompollll8ond~IIh............Olln SBnd_t&l'II!I8IlIIftglltltbUlI'lene&limM 01 UIlIolhor~a1i1raaalleclllQnof e=5nalar~'II.bunI&n.101Ile~ MII1lIQfIIIfIIIOI'lIllIr.OIIIceOllnformallan PaIlcIM IIIdS)ile....U..s. Otpa/lm;nlol HaulfrulllldUlban iii. W~n. D.O'1041lf48llO;"""'......OIIIcoot~1Ud IilUIIgOI.""""'-"Re~ PID~(ZaoOO71)Wa&hIngIaa,D.c.205II3. DaIDl ..CIIII1JlI8IeIf"""'~oIlheral_....,.... IlIItrucliallll NImll at IIrlll1l8e: Erll...thltgRUl......._...lIoIm on...SWQYOd Gr.lIlIAuo-.-ll(lcrm 1lIJt).7OII2)fot ".I\'lOCI-IlJ~ PlalIlMI)8lM'. OINt NumbIar. EnIorlllelJWllnnn1Mlt UIllgn8d ",IIJD~1ho ClImmullill' o.v.lopMonl_ GrMtIor1h8 RIll" 18....1y 0llfIlIIh*d /lIDlll'lIIlI ,...,. Period ev...d: am.rthlt~hlldalrland Bltlngdlllt fcl'lIMl....I.-..,~IOI8d....,gnnY8fl'. _01_ _ u.s. Deparlm...., Dt 1!cIu1~ &. Ul'Illlll Delleloplt1811\ Ollice of Co~nily PIlInn/ni IlIIII Dawbplllllnt CITY OF CHULA VISTA t. ClMd;lIOOOlOllJt 1'__...... CDeC.l............acfhoitlH, it. ..,.~ nulll_OURa"'Y....IFTElllalfytllQlDltIlllls} ll. ...........y_ _ /dvIJdoIMrllAl$mCOBabJda $ La.It__:AmoIoIt........dod lIlr 1IlIIl7"'P'n2~ .. OUMrdJNool ....(nollndulledlnl.... $ ..... 'oil Ftom 7-1-94 To 6-30-95 MulIkmI --- (fwc>.II_""I--) B94MC060540 11........11 ~ (On8 UIlIIStnIGtlnaa) .- I x n_ 1 20,996 o I o o o , , 67,559 o 67,559 o 2 ~ ... c.nntF'l.......v.rl!llpr-........... ForalptaJodB(botbClpM..d , ~U)..."'.......nl........IbJ...rllI....pagnIIIl)'fl61'~.....,_ 389,219 LQ)BGfunlbexptftCl8d b. 0Iher publio (FtdItnrI. $laIt. Lo'*)11Irda IIXpNlIlod eo. PliYaII Imd5e>:p1MllfBd I. P'IaiIcIwV"'IIoIIaI>'"' . 4/ClMWtwild L ............ol~_lIIdlnd1klnil...." b.folImIIeroru.....~ I. 0IIlltl~.. ....nl~(a+b+aa.rawtlar~ ~....IItod'nh...d5b LOUIiliIUll~ b. OIho.pul1llclFodotll.S""".I.oGII)i1'" ...._""" I II. I'IttIlIeMlboblgal8(ll 7. ~R .......-. 1.uc..-.....IIIlI... L NumIw." .- mW1iuna.... II. Nu......,.,""""_."..1o.d ... c.. IJfi..~t_ GnI<<......_lallundJ...lll*Id8l1....... ............ ..Ii""" pragram1"lf'SlorJlRllllolllllOll1llo*'CIIIIIIlO II. JI1IlII1III $ ,...,..ca+lI+c); .. . L CllQG Iund,oxpondM . II. OI1...""bIIc(~. S_.l.....J) llInlbe.,.now II. PIIvlI1t IundsOX)lOtlded . IncImdullll maycopy""skffla'nolfi""mpIon..~ Pnnlou. EoI........ClbooIvto. n.loIn thl.....,.,row ~ )_.. is , o . 389,219 $ $ . o 31 6 67,559 o $ 389 219 I 0 s $ , 389,219 . 67,559 . o 2 s o $ 6 VnIIJ $ 389,219 o 389,219 o is 67,559 o . . . 67,559 $ o 1lDII"1~:?> ) all ~~) IonnHUIHMD.!J COS/l!4IllSJ ...1.~65tO.lI 7.....;2 -.;.> ,,", , e I Ii CJ;l .U ~o 1"1 !II'" .!OJ; J~ of IJ c!] vi" :::;8 ~ a 2 n.. C 5~ e:-iE alSO) Eci DJ!! i~~ El~ B!~ -a.!E rSCJS fin I 11 .. I !l 0 ~ , W ~~~ '" :iJ JA!:i " 0 '" I S.. 0 li "" .ll I c '" 5 " 0 ~ ..,2 :l: ;J:l2 .... 18 ... ~l~~ E I "... .lI D."C " <II %0 0 I j , '" - 1~ a. IJt~ .:z !2 Q 0 ;j!0 ~ E ..~ , nlii ~ ~.a'lil ... 0 ! ! <.s~z; .. <SoL.. ~ ."'-8 - 0 ...1'; 0 '" ll~ '" .!! '" ~; 0 Is .2 '::'liI c -"!l' j!. - 0 ~::<: j~ 1:'" :;: l!'" ,,'" ;g! .x ~ C - I j~ i;! ..: .c 0 J <II ~o & ;l!; " :f ]5 ~~ll-!Ic 0 l :;: ~ E .pj~ iJ d~:l! - 0 ! II il a ~~~ c fU5 .. 0 8 ..... &!... ~~ "" - 3 ::1 .. , OJ! l ... 0 g h .. , , :f 'I: l!:j! " !;o .. ~ .2 J;; 1 i _~U u 0 Ii " 01 ~o " .II X c .. ~ ~:2 i~ .0 - .c 5: "'0 .. I :r '" .. '-' " a '" X ..... I :> "" " '" ..... .-< .s '-' '-' ;:j . .. " ;:j ..c: 'l; ;;:~. OJ "" "" u ; C L .. 0<0< ... e ~ g I ~ i ... -i 1 ! '" ~ i! ..1 '1 !! ..1 = ! 16 '0 ~ & ! 1 3 f 01 J! c j.l!!l! jh. _ 0" !S.l! .! ..-e ..~ ~ ~.., ~ E:::ii -"'- o-jl" ~l!~ FILe: L' ., !-.'~ COUNCIL AGENDA STATEMENT Item gr Meeting Date 11/7/95 Resolution */J:f 9/ Approving an Agreement with Decision Management, Inc. (DMC) for an Optical Imaging System to install and implement as part of the City-wide Records Management CIP project which includes the acquisition of initial hardware and software. (Capital Improvement Project No. GG-129) SUBMITTED BY: City Clerk and Director ~(?1~agement and Information serviceo/ # REVmWED BY: City Manager \(1. bv\ (J.J'~ l "\...k\ U ~ (4/5th Vote: Yes_ No..K..J The City-wide Records Management Program is a multi-year CIP project which was approved FY 90/91. The first phase of the project included the hiring of a consultant to assist in the establishing of a city-wide filing system, retention schedules, and procedures for the handling of active and inactive records. Council approved Phase I on August 2, 1994. Phase II of the project includes the acquisition of an imaging system to store and preserve the city's vital records. Staff has completed the RFP process for Phase II, the purchase, installation, and maintenance of an imaging system, and has negotiated a contract with the highest rated vendor. ITEM TITLE: RECOMMENDATION: That Council approve the agreement in the amount of $J02.,649.61 ~83 ,649.61 for the initial system plus $4,750 per year for maintenance) with DMC for the development, installation, and maintenance of a city-wide optical imaging system. BOARDS/COMMISSION RECOMMENDATION: Not applicable. ).'~ DISCUSSION: On June 19, 1990, the City Council approved the City-wide Records Management Program as part of the CIP Project (Project No. GG-129). The Records Program would be accomplished in two phases. Phase I: On April 2, 1991, the City Council approved an agreement (RI6076A) with Susan Biegelow and Associates to design a city-wide filing system with retention schedules. Staff then took the basic information and wrote a manual entitled, "the City-wide Records Management Program," which included: . Procedures for creating new files and destruction of inactive files. lr) 1" ..if Page 2 Meeting Date 11/7/95 . Description of the Filing System with the filing categories and subcategories. . Alphabetical cross reference . Retention schedules and naming the Office of Record (department responsible for the record) . Procedures for the Inactive System (records which need to be kept longer than a three year period and how to transfer records to the Records Center, retrieve records, and destroying records once retention periods have been met) On August 2, 1994, the City Council approved the City-wide Records Management Program for the active and inactive systems including the retention schedules and procedures, and authorizing the destruction of public records according to the Program. Pbase II: In March 1994 staff issued a request for proposals for an optical imaging system for the City of Chula Vista. In addition to mailing the RFP to four vendors, the City advertised the RFP in the San Diego Union, Star News and several Imaging magazines. The following six proposals were received in response to the City's RFP. Prooosed No. Vendor Location Initial Quote Concurrent l!m:1 Decision Management Company, Inc. (DMC) Laguna Hills $40,095 3 users Adaptive Infosystems (AlS) Mission Viejo $156,273 6 users Intelus Seattle, Wash $451,779 8 users Unisys San Diego $201,763 6 users Mini-Graphics San Diego $183,945 10 users Active Image Management San Diego $ 76,437 5 users A Selection Committee was formed comprising of: Gerald Young, representing Administration; Shauna Stokes, representing Engineering; Susan Cole, representing Finance, Deborah Barrow, representing the Library, and Louie Vignapiano, Director of Management and Information Services, and Beverly Authelet, City Clerk. The Committee used the following pre-established criteria: . . . . Responsiveness to the RFP Ease of Operation Vendor Qualifications Overall cost Vendor experience References . . 3'~,.2.. LP Page 3 Meeting Date 11/7/95 The Selection Committee took the following steps in evaluating the proposals: . Had each vendor present a demonstration of their system . Evaluated the demonstrations and reduced the field to three viable vendors (DMC, AIS, and Intelus) . Visited other agencies to view on-site demonstrations of an installation done by each of the three top vendors. Two cities visited which had a DMC installation were Pasadena and Upland; none of the other vendors had done any cities. . Had the top three vendors present another demonstration in our organization and using our documents Based on the above, the Selection Committee selected Decision Management Company, Inc. (DMC) as the top-ranking candidate. The Imaging System will include the following hardware and software: System. workstation Fujitsu 3096 scanner 20" Viewsonic color monitor 15 5-114 disk jukebox Two full system licenses, and Twenty-four retrieval/search licenses Reasons for selecting DMC were: Overall cost, the equipment did what we wanted it do, DMC had experience in doing cities using the same software packages such as the GIS as Chula Vista, and their software was easy to use and very flexible. Since the DMC product met all of the City's criteria for an imaging system, the vendor had the experience and qualifications needed to perform the job, and did so at the lowest cost to the City of all of the vendors, the Selection Committee chose DMC. The large difference in the cost initially proposed by each vendor was due in large part to the operating system and the data base engine being proposed by each vendor. The four vendors with the highest cost all proposed to use the UNIX operating system for both the juke box management as well as for the operation of the scanning and retrieval software. In addition, each of those four vendors proposed a UNIX based data base engine, either Oracle or Informix, both of which are very costly. DMC also uses the UNIX operating system to manage the juke box, however their scanning and retrieval software runs under Windows on a Novell network (both of which are already in place in the City). In addition, the DMC product uses the Paradox data base engine which is less costly than either Oracle or Informix and is just as efficient for the application being proposed here. Y-J Page 4 Meeting Date 11/7/95 The original q~ote from DMC consisted of only 3 concurrent users. They had not envisioned a truly city-wi<je system, and therefore, did not include many items which we felt were essential such as a juke1>ox; some items were upgraded such as a color monitor instead of a black and white and a better scanner was needed in order to get the grey tones necessary for graphics. It was decided tIIat since this was a city-wide system and funds were available to increase the number of cO!icurrent users; and since our full-text retrieval license was for twenty-five concurrent users, it was decided to purchase as near as possible an equivalent number of retrieval/searcillicenses. The increase in the number of retrieval/search licenses would better serve the entir~ city and would allow a goodly number of people simultaneous access to the system from their computers. The system workstation where the scanning will be done will be located in the Clerk's Office. Initial work will be done for Engineering, Planning, Building and Housing, and finance. There are two :additional funding years in the CIP Project which will allow for an increase in the number of retrieval/search licenses, purchase of a special scanner for the Police Department, and additional jukeboxes. At buildout, every department will have access to and have records on the system. FISCAL IMPACT: The initial system will cost $83,649.61 which has been budgeted in the CIP Project GG-129. The cost for maintenance is included for the first year. Maintenance costs for years 2-3 ~ill cost an additional $4,750 per year (total of $9,500) which has also been included in th~ CIP. There are two ~ore years of funding for the CIP; maintenance costs for years 4-5 are included in those additi~nal years. After the fifth year, the cost of maintenance will need to be paid for from the City's operating budget. Also included to the project are funds for a part-time person to assist with the scanning in years 3, 4, and 5. this person is needed to assist in the overall implementation of the program in getting documfnts into the system. If, at the end of the fifth year, there is an additional on going need for: staff support, we will discuss those needs with Council during the normal budget process. ~-1 . ., L.. ~ :...~ , RESOLUTION NO. /~t?1J RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH DECISION MANAGEMENT, INC. (DMC) FOR AN OPTICAL IMAGING SYSTEM TO INSTALL AND IMPLEMENT AS PART OF THE CITY-WIDE RECORDS MANAGEMENT CIP PROJECT WHICH INCLUDES THE ACQUISITION OF INITIAL HARDWARE AND SOFTWARE WHEREAS, the City-wide Records Management Program is a multi-year CIP project which was approved FY 90/91; and WHEREAS, Council approved Phase I on August 2, 1994 which included the hiring of a consultant to assist in the establishing of a city-wide filing system, retention schedules and procedures for the handling of active and inactive records; and WHEREAS, Phase II of the project includes the acquisition of an imaging system to store and preserve the city's vi tal records; and II, the system, vendor. WHEREAS, staff has completed the RFP process for Phase purchase, installation, and maintenance of an imaging and has negotiated a contract with the highest rated NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve an Agreement with Decision Management, Inc. (DMC) for an Optical Imaging system to install and implement as part of the City-wide Records Management CIP project which includes the acquisition of initial hardware and software, which agreement 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 of Chu a vista Presented by or]) Beverly Authelet, City Clerk City C:\rs\DMC If ~5' Ie;-? ,i, L_I'.,' Agreement between City of Chula Vista and Decision Management Company, Inc. for the design and implementation of an Optical Imaging System This agreement ("Agreement"), dated for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City of Chula Vista, hereinafter called "City", whose business form is set forth on Exhibit A, paragraph 3, and Decision Management Company, Inc., hereinafter called "Consultant," the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, the City of Chula Vista issued an RFP in mid-March 1994 for an Optical Imaging System which was the third phase of the City-wide Records Management Program CIP GG-129, approved by the City Council on 6/19/90; and Whereas, Consultant was rated highest among the respondents of the RFP for the Project, cost and functionality considered; and Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant's Duties: A. General Duties: Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule: In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein -1- 'b-7 0'0 referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work: City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services: In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care: Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. F. Insurance: Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City and Applicant as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City and Applicant in the same manner as members ofthe general public ("Cross-liability Coverage"). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage is included in the General Liability policy. G. Proof of Insurance Coverage: (1) Certificates of Insurance: Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the -2- s-? LI'! policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required: In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. H. Security for Performance: (1) Performance Bond: In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. Said Performance Bond to be furnished and delivered to the City of Chula Vista within three weeks following the signing of contract by both parties and before any work is started unless a delay in obtaining the Performance Bond is agreed upon by both parties. Work timetable begins upon delivery of said Performance Bond. (2) Letter of Credit: In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A. (3) Other Security: In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. 1. Business License: Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City: A. Consultation and Cooperation: City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City -3- <6-9 shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation: Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 (C) to be charged upon making such payment. 3. Arlrnini~ration of Contract: Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Tenn: This Agreement shall terminate when the Parties have complied with all executory provisions hereof. 5. Liquidated Damages: The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in per- formance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate"). Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. -4- ?i-/e) LH 6. Financial Interests of Consultant: A. Consultant is Designated as an FPPC Filer: If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC fIler", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate: Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Detennine Economic Interests: Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests: Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests: Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests: Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 15. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. -5- '8-// Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless: Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the conduct of the Consultant, or any agent or employee, subcontractors, or others in connection with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful conduct of the City, its officers, or employees. Consultant's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, Consultant at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consultants' indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. 8. Termination of Agreement for Cause: If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions: In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City: City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall -6- ~ -I,}) be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability: The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material: All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Consultant: City is interested only in the results obtained and Consultant shall perform as an independent Consultant with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent Consultant and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Adminiqrative Claims Requirements and Procedures: No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees: Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred in the defense of the claim, including costs and attorney's fees. -7- <8'-! 3 16. Statement of Costs: In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous: A. Consultant not authorized to Represent City: Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman: If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices: All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement: This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties: Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing Law/Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. -8- ~ -P-l c- '-! Signature Page to Agreement between City of Chula Vista and Decision Management Company, Inc. for an Optical Imaging System IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: , 1995 City of Chula Vista By: Attest: Shirley A. Horton, Mayor Beverly A. Authelet, City Clerk Dated: /0-23- 7)- Decision Management Company, Inc. ~c ojin Hadzi-Pavlovic, President Exhibit List to Agreement (X) Exhibit A (X) Exhibit B -9- <2> - IS ....' ,:/ , Exhibit A to Agreement between City of Chula Vista and Decision Management Company, Inc. I. Effective Date of Agreement: 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California () Redevelopment Agency of the City of Chula Vista ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 ("Consultant") 4. Name of Consultant: Decision Management Company, Inc. 5. Bnsiness Form of Consultant: () Sole Proprietorship () Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 23151 Verdugo Drive, Suite 114 Laguna Hills, CA 92653-1340 Voice Phone (714) 855-6885 Facsimile (714) 458-6004 7. General Duties: Provide turnkey software, hardware, and services as necessary to develop, implement, and train staff to use the Questys optical imaging system for the City of Chula Vista. -10- '2j~/? .ill!...............::.......i................::........... .........i< <." "Comoonents Unit Cost ...tilt..fcllSC..... One Time Costs 1 lot Installation $ 800.00 $ 800.00 1 lot Training 1,200.00 1,200.00 1 lot Intee:ration 6,650.00 6 650.00 Toinl One- Time Costs $ 8 650.00 Maintenance 1st yr Maintenance Cost for First Year (iukebox only) $ 2,750.00 $ 2,750.00 Subtotal $ 78 923.00 7% Sales Tax (on bardware & software only) 4,726.61 Total Cost $ 83 649.61 *4 yrs Option, at City's election per Maintenance Contract $ 2,000.00 $ 8,000.00 attached as Exhibit B. Maintenance Costs (years 2- 5/vr) (includin. tax) 4 yrs Option, at City's election per Maintenance Contract $ 2,750.00 $ 11,000.00 attached as Exhibit. Maintenance costs (years 2- S/vr for iukebox only, includin. tax). Total Cost witb Maintenance fnr 5 years $102,649.61 (2) Consultant shall install equipment identified in this Agreement in City's designated office within ninety days of execution of this Agreement and submission of Performance Bonds. Installation dates may be changed by mutual consent of Consultant and City. This installation shall include the successful interfacing and testing of equipment according to standard procedures associated with each manufactured item of the system and shall be interfaced to City's personal computers and network. The unpacking and placement of equipment shall be the joint responsibility of Decision Management, Inc. and the City. All hardware provided by Consultant as specified in the above table must be new and unused and come with a full manufacturer's warranty. (3) Consultant shall successfully install and test (on Consultant-delivered hardware) all software outlined in this Agreement. Consultant will assist City with the resolution of any functional conflicts to City's existing personal computers and network caused by the interfacing of Consultant-supplied software or networking equipment. Consultant must install all software on the City's file server in a manner specified by the City's Information Systems staff such that all microcomputers connected to the City's local area network will have access to the Questys software. (4) Consultant understands that all of the workstations connected to the City's local area network are currently used for a variety of applications, and available conventional memory is critical to the operation of these applications. Consultant shall be responsible for ensuring that all applications currently running on the City's microcomputers tied to the LAN continue to operate normally after -12- Y~/~ cr-j Vi I Consultant has installed and configured the Questys software. Several City applications require 540K of conventional memory on the workstation to operate. Consultant must ensure that all workstations having more than 540K available before loading Questys will have at least 540K after loading Questys. (5) All licensed software provided to the City by the Consultant shall be on a concurrent usage basis such that any user on any microcomputer connected to the City's network will have access to the Questys software up to the number of concurrent usages purchased by the City. (6) City shall provide technical staff, as needed, including City System Administrator to work with Consultant's staff, install software, and learn basic maintenance and management procedures for software. If software is to be installed on or interfaced to City equipment not furnished by Decision Management, Inc., City technical staff shall participate in the software installation and shall provide assistance in interfacing ,Consultant-supplied software and hardware with City's computer equipment and networks. City technical staff shall be available during training to assist with operating system adjustments, review and analysis for minor bug fixes, and so forth. City shall provide system administrator-level access to Consultant on its computer system and provide requested user accounts required for software installation. (7) The Consultant will provide two optical drives as part of this contract. One drive will operate as a stand-alone running the Mastermind software to operate the drive. The other will run as part of the 15-platter juke box running the QST AR software from a SUN server. After configuration by the Consultant, optical media created on one drive should be readable on the other drive and vice versa. (8) Consultant will provide maintenance for all telephone support, software modifications and new releases, and hardware maintenance for all equipment provided by the Consultant on the terms and conditions set forth on the attached Exhibit B. (9) Consultant will provide on-site training for the Systems Administrator, Systems Programmer, Functional Department Manager/Supervisor, and End Users. (10) Consultant warrants that full-text search speeds will remain constant and are not dependent on file size. (11) System to support scanning at one site (City Clerk's Office) and indexing at a remote site (Departmental Offices) before document is saved to disk. (12) The Optical Character Recognition (OCR) portion of the system to include Calera- M software. -13- ~-17 , , (13) Software shall be accepted by City when Consultant and City jointly perform the Questys Installation Summary and Functionality Test and jointly agree in writing that the modules are operational according to Decision Management's published specification. (14) Consultant to provide three (3) complete sets of system documentation. (15) The City will receive from DMC upon first year's payment an Affidavit of Purchase from DMC which will entitle the City to all of the rights and privileges that are due under the Escrow Agreement between DMC and Maroney and Brandt, Inc., the Escrow Agent. B. Date for Commencement of Consultant Services: Same as effective date of Agreement C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. I: Delivery of hardware and software as stated in the table in Section 8A within thirty days after execution of the contract and submission of Performance Bonds. Deliverable No.2: Installation of hardware and software. Configuration and the testing of the entire system within thirty days after the delivery of the equipment. Deliverable No.3: Training of City personnel within thirty days of the installation of the system. D. Date for completion of Consultant services: Ninety days after the installation of the system, except for maintenance. 9. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Commercial General Liability Insurance: $1,000,000. (X) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 10. Materials Required to be Supplied by City to Consultant: None 11. Compensation: A. (X) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: . -14- <15'-.:20 59 . , Single Fixed Fee Amount: $83,649.61, payable as follows: Milestone/Event/Deliverable Amount or Percent of Fixed Fee Execution of Contract $ 8,364.96 (10% ) Delivery of Equipment 41,824.81 (50% ) Installation and Testing of equipment 16,729.92 (20 % ) Completion of training 8,364.96 (10%) Complete acceptance of the system by the City (90 days after completion of training) 8,364.96 (10%) B. 0 Phased Fixed Fee Arrangement C. (X) Rate Schedule for Additional Services Consultant Rate Hourly Rate Principal Consultant $125 Senior Consultant $100 Staff Consultant $ 75 (X) Hourly rates may increase by 3% for services rendered after January I, 1996 if delay in providing services is caused by City. 12. Materials Reimbursement Arrangement: None 13. Contract Administrators: City: Louie Vignapiano, Director of Management of Information Systems; and Beverly A. Authelet, City Clerk. Consultant: Vojin Hadzi-Pavlovic, President 14. Liquidated Damages Rate: None 15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer 16. Real Estate Broker: Not Applicable 17. Permitted Subconsultants: None -15- ~ -.:{ I ~Q 18. Bill Processing: Per schedule as outlined in Section 11 19. Security for Performance: (X) Performance Bond: $ 50,000 ( ) Letter of Credit: Retention Release Event: ( ) Completion of all Consultant Services (X) Other: 90 days after acceptance of the project -16- ?>-,;!~ . , 0i . " Exhibit B to Agreement between City of Chula Vista and Decision Management Company, Inc. for Software and Hardware Agreement L HARDWARE MAINTENANCE FOR INITIAL TWELVE MONTH PERIOD Consultant warrants for sixty (60) days from date of installation acceptance each of the hardware components furnished under this Contract to be free from defects in material and workmanship. Contractor's liability under this warranty is limited to servicing or adjusting any component returned by City to the factory for that purpose and to replace any defective parts therein. Contractor shall provide maintenance agreements with each hardware manufacturer for ongoing maintenance support at site during the initial twelve (12) month period. 2. SOFTWARE MAINTENANCE AND UPDATE SERVICE FOR INITIAL TWELVE MONTH PERIOD During the working hours of 7:00 a.m. and 6:00 p.m., Consultant will support/maintain the Questys software for a period of twelve months following acceptance. This maintenance and support will include the following: A. Problem analysis and resolution B. Correction of malfunctions caused by incorrect coding or programming. C. Correction of functions that fail to perform as specified in this Agreement, the Request for Proposal, and software documentation. D. Distribution of enhancements to existing products E. Documentation updates and revisions, as made available Consultant also agrees to provide program corrections for any system errors reported and determined to be in the system, the documentation, or in any published operational procedures in the most expeditious manner possible and at no cost to the user for a period of twelve months following installation. In order to facilitate the orderly handling of problems that occur in the software, the following procedures will occur: -17- "}- :13 &,~) , :' A. City will document any problem that occurs in the software with respect to the specific data file on which it occurs. B. The above-mentioned documentation will be forwarded to Consultant's office for review and analysis of errors. C. Consultant will correct the problem and return the corrections to City in a clearly documented form in a timely manner but in no event later than ten working days. During the period of maintenance and update service, Consultant shall be available to assist in the review and analysis or answering user questions regarding software operation by telephone consultation of weekdays between the hours of 8:00 a.m. and 5:00 p.m. Pacific standard time. City's System Administrator designated in Appendix A shall mail or telephone problems or questions to the Decision Management Coordinator, also designated in Exhibit A. In addition, Consultant will deliver to City all updates to the Questys software that is distributed within twelve months following acceptance. These updates will be sent to City's System Administrator designated in Appendix A. 4. SOFTWARE MAINTENANCE AND UPDA TE SERVICE AFTER INITIAL TWELVE MONTH PERIOD AND FOR THE NEXT FORTY-EIGHT (48) MONTHS If City elects, in its sole discretion, to extend Consultant's maintenance repair and software update service as provided herein, it may do so annually for twelve month periods for up to four (4) additional years by giving written notice to Consultant. If City does so elect to extend, Consultant shall provide such services at a rate of $2,000 per year payable on the yearly renewal date. -18- ~ -,:/ y , i, , ~/, Item Meeting Date 9 COUNCIL AGENDA STATEMENT 11/7/95 ITEM TITLE: Resolution /8't19~ Approving Memorandum of Understanding concerning wages and other terms and conditions of employment between the City of Chula vista and the Chula vista Police Officer's Association for fiscal years 1995-96 and 1996-97. SUBMITTED BY: Senior Management City Manage~ ssi tant Young~ /5ths Vote: Yes___ No-X-) REVIEWED BY: with the assistance of a mediator, negotiating teams representing the city and the Chula vista Police Officer's Association (POA) have reached an agreement on a Memorandul!l of Understanding (MOU) covering fiscal years 1995-96 and 1996-97. The proposed MOU was ratified by the POA membership on October 23, 1995. The major changes to the terms and conditions are outlined in this report. RECOMMENDATION: That Council adopt the resolution approving the Memorandum of Understanding with POA for fiscal years 1995-96 and 1996-97. BOARD/COMMISSION RECOMMENDATIONS: Not applicable. DISCUSSION The two-year MOU with POA includes the following major changes from the 1994-95 MOU: 1. 2.01. Waqes For the fiscal year 1995-96, the City will pay each POA- represented employee a one-time $1,200 stipend. Effective the first pay period in July, 1996, the City will increase represented employees' base wages by 4%. Effective the first pay period in January 1997, the city will increase represented employees' base wages by 2%. 2. 2.03. Uniforms For employees required to be in uniform less than 50% of their working hours, the uniform cleaning allowance shall be increased from $150 to $200 per year. 3. 2.04 Mileaqe Reimbursement Mileage reimbursement shall be increased $0.02 per mile to: $0.28 per mile for the first 200 miles each month $0.26 per mile for the next 300 miles each month $0.24 per mile for miles over 500 each month 9-/ , ' 0~ Item Meeting Date I , Page 2 1117/95 4. 2.07 Callback For employees called back to work after leaving the work site, the bonus is increased from $30 to $40. 5. 2.08 Bilinqual Pav The City and POA agree to develop mutually acceptable guidelines regarding ongoing performance evaluation. 6. 2.09 Differential Pav For Peace Officers and Police Agents who are designated as Field Training Officers (FTOs) to train Peace Officers, the FTO pay differential shall be increased from $0.40 per hour to $0.80 per hour. 7. 2.10 Health and Welfare For the period of July 5, 1995 through December 31, 1995, the City will continue to pay up to the current monthly amounts for health insurance for employees and qualified dependents: Employee only Employee +one dependent Employee +family $152.74 $305.46 $432.26 Effective January 1, 1996, the City will pay up to the following maximum monthly amounts for employees and their qualified dependents: Employee only Employee +one dependent Employee +family $143.81 $287.61 $406.82 Effective January 1, 1997, the City's maximum monthly payments in each category will be adjusted (up or down) by 50% of the increase of decrease, respectively, in the monthly rate of the Kaiser 4253-01 Health Plan. 8. 2.12 Holidavs Floating Holidays for Washington's and Lincoln's birthdays shall be replaced by floating holidays for Martin Luther King Day and Presidents Day. FISCAL IMPACT: The cost of this Memorandum of Understanding is within the guidelines established by the City Council. The cost of this package has not been included here so that confidentiality is maintained vhile negotiations with other bargaining groups (for 1995-96 and for corresponding 1996-97 agreements) are in progress. 'j-e2 ( r "':'::;'-'> Item Meeting Date I , Page 3 1117/95 The appropriating resolution will be forwarded to Council when these other negotiations are completed. NOTE: The proposed MOU is on file and available for public review in the City Clerk's office. JY\\c.\wp51\memos\ccl107.113 9-J /er-If '..1 .' RESOLUTION NO. J3't:7;;:2, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING MEMORANDUM OF UNDERSTANDING CONCERNING WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT WITH THE CHULA VISTA POLICE OFFICER'S ASSOCIATION FOR FISCAL YEARS 1995-96 AND 1996-97 WHEREAS, with the assistance of a state mediator, the Management Negotiation Team representing the City Manager of the City of Chula Vista, acting for and on behalf of the city Council of the City of Chula Vista, have heretofore met and conferred with the Chula vista Police Officer's Association (POA), an organization representing sworn members of the Chula vista Police Department from Peace Officer up through the rank of Police Lieutenant, in accordance with the provisions of Section 3500 et seq. of the Government Code of the State of California; and WHEREAS, the Memorandum of Understanding jointly prepared by said parties as a result of meeting and conferring in good faith has been presented to the City Council and is on file in the office of the city Clerk. NOW, THEREFORE, BE IT RESOLVED that the City Council of the city of Chula vista does hereby approve the Memorandum of Understanding Concerning Wages and Other Terms and Conditions of Employment with the Chula vista Police Officer's Association for Fiscal Years 1995-96 and 1996-97, a copy of which is on file in the office of the City Clerk. c: \rs\POA,MOU Bruce M. Booga Attorney Presented by Gerald Young, Senior Management Assistant 9/.5' /1-(" (;17 , COUNCIL AGENDA STATEMENT Item Meeting Date 11/7/95 ITEM TITLE: Resolution Approving Memorandum of Understanding concerning wages and other terms and conditions of employment between the City of Chula vista and the Chula vista Police Officer's Association for fiscal years 1995-96 and 1996-97. SUBMITTED BY: Senior Management Assistant Young REVIEWED BY: City Manager (4/5ths Vote: Yes___ No-X-) with the assistance of a state mediator, negotiating teams representing the City and the Chula vista Police Officer's Associ<ltion (POA) have reached an agreement on a Memorandum of Understanding (MOU) covering fiscal years 1995-96 and 1996-97. The proposed MOU was ratified by the POA membership on October 23, 1995. The major changes to the terms and conditions are outlined in this report. UPON FURTHER DISCUSSION OF THE FINAL LANGUAGE OF THE MOU, POA AND THE CITY AGREE NOT TO MAKE ANY CHANGES TO SECTION 2.12 OF THE MOU REGARDING HOLIDAYS, AND I WOULD RECOMMEND THAT THE THIRD PARAGRAPH OF THE RESOLUTION BE AMENDED TO READ: Now, Therefore, be it resolved that the City Council of the ci ty of Chula vista does hereby approve the MemorandUIII of Understanding concerning Wages and Other Terms and Conditions of Employment with the Chula Vista Police Officer's Association for Fiscal Years 1995-96 and 1996-97, a copy of which is on file in the office of the City Clerk. AND AS AMENDED BY MUTUAL AGREEMENT OF THE PARTIES TO LEAVE SECTION 2.12 AS IT READ IN THE 1994-95 MOU. RECOMMENDATION: That Council adopt the resolution. AS AMENDED. approving the Memorandum of Understanding with POA for fiscal years 1995-96 and 1996-97. BOARD/COMMISSION RECOMMENDATIONS: Not applicable. DISCUSSION The two-year MOU with POA includes the following major changes from the 1994-95 MOU: 1. 2.01. Waaes For the fiscal year 1995-96, the City will pay each POA- represented employee a one-time $1,200 stipend. Effective the first pay period in July, 1996, the City will increase represented employees' base wages by 4%. Effective the first pay period in January 1997, the City will increase represented employees' base wages by 2%. 9-7 Item Meeting Date ., Page 2 11/7/95 2. 2.03. Uniforms For employees required to be in uniform less than 50% of their working hours, the uniform cleaning allowance shall be increased from $150 to $200 per year. 3. 2.04 Mileaqe Reimbursement Mileage reimbursement shall be increased $0.02 per mile to: $0.28 per mile for the first 200 miles each month $0.26 per mile for the next 300 miles each month $0.24 per mile for miles over 500 each month 4. 2.07 Callback For employees called back to work after leaving the work site, the bonus is increased from $30 to $40. 5. 2.08 Bilinqual Pav The city and POA agree to develop mutually acceptable guidelines regarding ongoing performance evaluation. 6. 2.09 Differential Pay For Peace Officers and Police Agents who are designated as Field Training Officers (FTOs) to train Peace Officers, the FTO pay differential shall be increased from $0.40 per hour to $0.80 per hour. 7. 2.10 Health and Welfare For the period of July 5, 1995 through December 31, 1995, the City will continue to pay up to the current monthly amounts for health insurance for employees and qualified dependents: Employee only Employee +one dependent Employee +family $152.74 $305.46 $432.26 Effective January 1, 1996, the city will pay up to the following maximum monthly amounts for employees and their qualified dependents: Employee only Employee +one dependent Employee +family $143.81 $287.61 $406.82 Effective January 1, 1997, the city's maximum monthly payments in each category will be adjusted (up or down) by 50% of the increase of decrease, respectively, in the monthly rate of the Kaiser 4253-01 Health Plan. 1-( , ~f ',"-.. , Item Meeting Date , Page 3 1117/95 B. 2.12 IIelida~s Flea'tiRg' IIeliElFl~i"6 fer WachiREjtefl' 51 aRa Lifleeln' s l3irt.haaY51 ahall se replaeea BY fleat.iREj heliaa}~6 fer Uartin Ll:lt.her KiBEJ Day aRa PrcaiaeRt.s Day. FISCAL IMPACT: The cost of this Memorandum of Understanding is within the guidelines established by the City Council. The cost of this package has not been included here so that confidentiality is maintained while negotiations with other bargaining groups (for 1995-96 and for corresponding 1996-97 agreements) are in progress. The appropriating resolution will be forwarded to Council when these other negotiations are completed. NOTE: The proposed MOU is on file and available for public review in the City Clerk's office. JY\\c: \wpS1\memos\cc1107. 113 ?j-f "I ' :....\ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA l'PPROVING MEMORANDUM OF UNDERSTANDING CONCERNING WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT WITH THE CHULA VISTA POLICE OFFICER'S ASSOCIATION FOR FISCAL YEARS 1995-96 AND 1996-97 WHEREAS, with the assistance of a state mediator, the Management Negotiation Team representing the City Manager of the city of Chula Vista, acting for and on behalf of the city council of the city of Chula vista, have heretofore met and conferred with the Chula vista Police Officer's Association (POA), an organization representing sworn members of the Chula vista Police Department from Peace Officer up through the rank of Police Lieutenant, in accordance with the provisions of section 3500 et seq. of the Government Code of the State of California; and WHEREAS, the Memorandum of Understanding jointly prepared by said parties as a result of meeting and conferring in good faith has been presented to the City Council and is on file in the office of the city Clerk. NOW, THEREFORE, BE IT RESOLVED that the city council of the City of Chula vista does hereby approve the Memorandum of Understanding Concerning Wages and Other Terms and Conditions of Employment with the Chula vista Police Officer's Association for Fiscal Years 1995-96 and 1996-97, a copy of which is on file in the office of the city Clerk, and as amended bv mutual aareement of the arties to leave section 2.12 as it read 'n the 19 4-95 MOU. C:\r8\POA,IlOU Presented by Gerald Young, Senior Management Assistant f7i " #1 November 7, 1995 Dear Madame Mayor and Members of the City Council: This letter is written on behalf of the Middle Managers group of the City, which consists of 76 hightly dedicated employees. Our decision to write to you is unique because we are concerned about the overall fmances of the City and how the approval of the proposed Police Officers Association (POA) Memorandum of Understanding (MOU) could negatively impact the services provided to the citizens of Chula Vista. We would like you to consider the following three points: First and most importantly, we are concerned with how the City can afford to pay the proposed wage and benefit increases, when we understand the City is facing the fourth consecutive year of budget cuts and the second year of a potential 10% cut which translates into elimination of services to the citizens of Chula Vista. To put it in perspective, the cost of the first year of this package, which we have estimated to be close to $190,000, would pay for one year of the afterschool recreation program, one year of operations of the Otay Gym, or three years of the juvenile diversion program operated by South Bay Community Services. The net result is that it leads us to question the need for such a high wage increase during these austere times. Secondly, such a substantial wage increase raises issues of equity among our members and decreases the morale of the work force. We have supported and implemented the decisions regarding budget cuts in our departments with the understanding that they were needed in order to balance the budget and to accommodate reductions in revenue. It was under this spirit of cooperation and sacrifice that we accepted the decision to take a 2% salary reduction to pay for the 2% at 55 retirement benefit. Similarly, we have endured the deletion of 43 positions throughout the City which resulted in an increase of all employees' individual workloads. We did this with the understanding that all groups were sharing equally in carrying this burden. This appears to be no longer the case and we are concerned that the proposed wage increases will be funded by budget reductions made by the rest of the City. Our third and final point is our concerns with the damage done to the integrity of the bargaining process and to the principle that it is performed in good faith, when we have been told that there is no money for salary increases for employees and yet before you tonight is a package containing bonuses and salary increases worth approximately $650,000. For these reasons, we are opposed to the principle of a wage increase to the POA or to any single bargaining unit at the expense of reductions in services to the community and a potential reduction in the workforce and we ask you to think about the impact of this item on the fmancial stability of the City, impact on public services and morale of the workforce when casting your vote. ;:;:::;;/ ~ /. L..,-~ ~~S"'atlcedo Middle Management Co-Chair 0~.fo/~ Shauna Stokes Middle Management Co-Chair tj.-ID '} '; ,J ~ {f.t.. ~ - - - - " - - . - - --~- - - - - ~ -- ~ CllY OF CHUlAVISTA MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND CHULA VISTA POLICE OFFICER'S ASSOCIATION FY 1995-96 AND FY 1996-97 <1-// , . . MEMORANDUM OF UNDERSTANDING CONCERNING WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT BETWEEN THE CITY OF CHULA VISTA AND THECHULA VISTA POLICE OFFICER'S ASSOCIATION FOR FISCAL YEAR 1995-96 AND FISCAL YEAR 1996-97. 1.01 PREAMBLE 1 1.02 RECOGNITION 1 1.03 CITY RIGHTS 1 1.04 ASSOCIATION RIGHTS 2 1.05 EMPLOYEE RIGHTS 2 2.01 WAGES 3 2.02 EDUCATION/p.O.S.T. INCENTIVE PAY 4 2.03 UNIFORMS 4 2.04 MILEAGE REIMBURSEMENT 5 2.05 WORK PERIOD/PA Y PERIOD/WORK SCHEDULES 5 2.06 OVERTIME 5 2.07 CALLBACK 7 2.08 BILINGUAL PAY 7 2.09 DIFFERENTIAL PAY 7 2.10 HEALTH AND WELFARE 8 2.11 RETIREMENT 14 2.12 HOLIDAYS 14 2.13 VACATION AND SICK LEAVE 16 2.14 LEAVE OF ABSENCE 19 2.15 MILITARY LEAVE 20 2.16 JURY DUTY 20 2.17 RATE OF PAY FOLLOWING PROMOTION 21 2.18 OUT-OF-CLASS ASSIGNMENT 21 3.01 PAYROLL DEDUCTION 22 3.02 PROBATIONARY PERIOD 22 3.03 ADVANCE NOTICE 22 3.04 GRIEVANCE PROCEDURE 23 3.05 PROHIBITED PRACTICES 27 3.06 DRIVING ELIGIBILITY 28 3.07 SUBSTANCE ABUSE POLICY 29 4.01 HEALTH FITNESS PROGRAM 29 4.02 AMERICANS WITH DISABILITIES ACT 29 5.01 TERM AND EFFECT OF MOU 30 5.02 RETENTION OF BENEFITS 30 5.03 SAVINGS CLAUSE 31 9- /.:2 '7~ 1.01 PREAMBLE The following constitutes a Memorandum of Understanding between the City of Chula Vista ("City") and the Chula Vista Police Officer's Association ("Association") as a result of meeting and conferring in good faith concerning wages, hours and other terms and conditions of employment, pursuant to Government Code Section 3500 et. seq. and the Employer-Employee Relations Policy of the City of Chula Vista. 1.02 RECOGNITION The City recognizes the Association as the certified representative for all employees of the Police Department who are employed in the classifications of, or have the working titles of: Peace Officer, Police Agent, Police Sergeant, and Police Lieutenant. 1.03 CITY RIGHTS Nothing contained herein shaH be construed to restrict any legal or inherent exclusive City rights with respect to matters of legislative or managerial policy. The exclusive rights of the City shaH include, but not be limited to, the right to: Establish, plan for, and direct the work force toward the organizational goals of the City government. Determine the organization, and the merits, necessity and level of activity or service provided to the public. Determine the City budget. Establish, regulate and administer a merit or civil service system which provides for all types of personnel transactions, including, but not limited to, determining the procedures and standards for the hiring, promotion, transfer, assignment, layoff, retention, and classification of positions in accordance with the City Charter, Civil Service Rules, and the established personnel practices. Discipline or discharge employees for proper cause. Determine the methods, means, numbers, and kinds of personnel, and the job or position content required to accomplish the objectives and goals of the City. Effect a reduction in authorized positions. Take actions necessary to carry out the mission of the City in emergencies and in other situations of unusual or temporary circumstances. Continue to exercise efficient and productive management practices consistent with Federal and State laws and in compliance with the City Charter and City ordinances. POUCE MOU FY 1994195 (Rev. November 3. 1995) Page 1 CJ - ~3 4'.. , In exercising these rights the City shall comply with all applicable provisions of this agreement. The establishment or exercise of City rights shall not be subject to meeting and conferring; provided, however, the Association shall not be precluded from meeting and conferring with representatives of the City when the consequences of decisions on matters of City rights directly affect wages, hours, and other terms and conditions of employment. 1.04 ASSOCIATION RIGHTS 1. Authorized representatives of the Association shall be allowed reasonable access to unit employees at their work locations during working hours for the purpose of consulting with employees in the unit regarding the employer-employee relationship, provided that: (1) the work of the employee and the service of the public are not unduly impaired, and (2) the authorized representatives shall have given advance notice to the Chief of Police or his!her designated representative when contacting unit employees during the duty period of the employees. The Chief of Police or his!her designee shall determine the appropriate time for such access. II. The Association may be granted use of City facilities by the appropriate appointing authority for meetings composed of unit employees, provided such meetings are held outside regularly scheduled working hours for the group which is meeting, and provided space can be made available without interfering with the City needs. III. A reasonable amount of space shall be provided to the Association on City bulletin boards for legitimate comwunications with members. The Association shall be responsible to maintain space provided in an orderly condition and shall promptly remove outdated materials. IV. The City shall continue to bill the Association $.10 per member per pay period for the actual costs incurred for dues deduction on behalf of the Association. 1.05 EMPWYEE RIGHTS I. Employees may form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation in matters of employer-employee relations. II. City agrees that no officers, agents, representatives, members or anyone connected with either party will in any manner intimidate, coerce, restrain or interfere with employees to form, join or assist labor organizations or to refrain from any of these activities, specifically including the rights of employees to withdraw, revoke or cancel Association membership, or because of the exercise of any right provided to the employee by this agreement. POLlCE MOV FY 1994195 (Rev. N....mber 3. 1995) Page 2 9-p/ 7b ~; 2.01 WAGES I. Base wages durlRg the teFfH af this agpeemeRt shall Rat he iRereased RaF deereased aRd &Fe for reDresented emDloyees for the Derlod from July 5. 1995 until July 3. 1996 shall be as set forth below: HOURLY RATE OF PAY CLASSIFICATION IOTI!P I ~TI:P 2 STEP A STEP B STEP C STEP D STEP E Peace Officer $l'.JiJl $ 17.HifU $18.0183 $18.9192 $19.8652 $20.8585 $21.9014 Police Agent 19.1174 20.0733 21.0770 22.1308 23.2373 Police Sergeant 21.9733 23.0720 24.2256 25.4369 26.7087 Police Lieutenant 25.8158 27.1066 28.4619 29.8850 31.3793 IDTI<:: Police RecruIts are reDresented hy ('\IF.A. II. All other payroll and wage changes shall be made effective at the beginning of the regular pay period closest to the date of change. III. Distribution of paychecks shall be done only on regular paydays except in an emergency, when employees may receive their check on a day other than a regular payday if a memo is directed from the Chief of Police to the Finance Officer justifying the request. IV. All employees covered by this agreement may receive a maximum of two weeks earned vacation pay in advance. Vacation pay in advance will be made on a regular payday provided the employee notifies the Finance Department at least three (3) working days prior to the payday on which payment is desired. V. Step Advance - Each employee shall be required to complete the following specified number of months of continuous paid service at each step of the salary schedule set forth iR ....ppeRdix .\ prior to advancing to the next step of the schedule. Step increases may be delayed by the Chief of Police in cases of sub-standard performance. Only permanent status employees may appeal that decision through the Civil Service Commission. In cases of exceptional performance, an employee may be granted an early step increase or double step increase based on the recommendation by the Chief of Police and the approval of the Director of Personnel, City Manager or his/her designee and Civil Service Commission. Required months of service for each step shall be: Months ~ , Rl8Rtbs iR I , 1R8Bths iR a 6 months in A 6 months in B 12 months in C 12 months in D Thereafter 10 E Page 3 POLICE MOV FY 1994,95 (Rev. Novembe, 3. 1995) tj'-/5 -77 VI. Effeeth'e 9/2/94 tThe City will pay 2% of the employee's portion of the PERS contribution. VII. For the Fiscal Year 1995-96. the Citv will pay each POA-reDresented emDlovee a one-time. taxable $1.200 stipend. Said stiDend shall be Daid no later than six weeks followin!! the effective date of this MOU. ym.. Effective Julv 4. 1996 (Der Section 2.01.ro. the Citv will increase reDresented emDlovees' base wa!!es by 4% (four oercent). IX. Effective .Tanuarv 3. 1997 (Der Section 2.Ot.ro. the Citv will increase reDresented emDloyees' base wa!!es bv 2% (two Dercent). 2.02 EDUCATION/P.O.S.T. INCENTIVE PAY I. Employees represented by the Association shall be entitled to either $150 or $200 per month if they meet the educational/P.O.S.T. incentive pay requirements detailed below. A. Police Officers or Agents who have obtained either an A.A.lA.S. (or higher) degree or an Advanced P.O.S.T. Certificate shall be entitled to $150 per month. Police Officers or Agents who have obtained both a B.A.lB.S. (or higher) degree and an Advanced P.O.S.T. Certificate shall be entitled to $200 per month. B. Police Sergeants who have obtained either an A.A.lA.S. (or higher) degree or a Supervisory P.O.S.T. Certificate shall be entitled to $150 per month. Police Sergeants who have obtained both a B.A.lB.S. (or higher) degree and a Supervisory P.O.S.T. Certificate shall be entitled to $200 per month. C. Police Lieutenants who have obtained either an A.A.lA.S. (or higher) degree or a Management P.O.S.T. Certificate shall be entitled to $150 per month. Police Lieutenants who have obtained both a B.A.lB.S. (or higher) degree and a Management P.O.S.T. Certificate shall be entitled to $200 per month. II. Employees represented by the Association who complete at least 3 college credits pursuant to an approved college degree program that is reasonably related to the employee's present position or is beneficial to the employee's professional development or must enhance career advancement potential within the City of Chula Vista Police Department shall be entitled to a $75 bonus payment per semester. Said payment shall be payable at the end of each school semester in which proof of course completion is submitted and shall not exceed $225 per fiscal year. The course work must reasonably relate to the employee's present position or be beneficial to the employee's city-related professional development or must enhance career advancement potential within the City of Chula Vista Police Department. 2.03 UNIFORMS I. ISSUE AND REPLACEMENT POUCE MOU FY 1994195 (Rev. _.mbe, 3. 1995) Page 4 9-/? ~7(;: 1('.' All regulation police uniforms (excluding shoes) and equipment will be provided at City expense. If regulation police uniforms or equipment are destroyed or damaged in the line of duty, they will be repaired or replaced as determined by the Chief of Police or his/her designee. Uniform cleaning will be the employees' responsibility. When an employee terminates employment with the Police Department, he or she must return to the City all regulation police uniforms and equipment provided at City expense; provided, however, that employees hired prior to July 1, 1984, may keep any equipment and uniforms they purchased before July 1, 1984. II. CLEANING Employees represented by the Association shall be entitled to a uniform cleaning allowance calculated at $300 per year for officers required to be in uniform more than 50% of their working hours and $lSQ ~ per year for officers required to be in uniform less than 50% of their working hours. Said cleaning allowance shall be payable during the first pay period ending in December. 2.04 MILEAGE REIMBURSEMENT Employees shall be subject to the City's mileage reimbursement program when required to use their private automobile for authorized City business: Ui 28c per mile first 200 miles each month iW 26c per mile next 300 miles each month ~ 24c per mile over 500 miles each month If an employee is reporting to court or to training on their day off they may be reimbursed for up to a maximum of 50 miles total roundtrip. Employees will not receive mileage reimbursement for staff meetings, committee meetings or any other reason to return to work except for scheduled court or training. 2.05 WORK PERIOD/PAY PERIOD/WORK SCHEDULES I. The City enacted the 7k exemption in the case of law enforcement as permitted under the Fair Labor Standards Act. The work period for law enforcement employees will be 80 hours in a 14-day cycle beginning at 0001 on Friday and ending 14 days later. II. Any deviation from the current scheduling practice will be preceded by a meeting of a committee of the City and Association no more than 6 months and no less than 3 months before implementation of the new schedule. If a mutual agreement is not attained in the committee, the Chief of Police shall have final authority. III. The City shall have the right to "flex" schedules under anyone of the following conditions: 1) on an as-needed basis for emergency situations, 2) on an as-needed basis for employees working in the following special assignments--Crime Suppression Unit, the Gang Unit, the Street Team, the Cargo Unit, Regional Auto Theft Task Force, , 3) for voluntary training assignments, 4) with the voluntary consent of the employee. Emergency situations shall b.. defined as natural Page 5 POLICE MOV FY 1994195 (Rev. November 3. 1995)n <1-/7 "7" .1 I disasters, declared civil disasters and riots within the City of Chula Vista or when response is required under a mutual aid agreement. 2.06 OVERTIME I. Subject to the provisions of Paragraphs II through IV below, when an employee is required or is ordered to: A. Work on his/her day off; or B. Report back to work after he/she has left his/her work station; he/she shall be compensated for a minimum of two hours for such time worked in accordance with the provisions of the Fair Labor Standards Act and the 7k exemption. For purpose of calculating the overtime premium, time worked shall include paid time off and eligibility for overtime shall be based on hours worked during a work period in excess of 80 hours in a work period. "Immediate" callbacks require the employee to return to the station or to proceed to a crime scene as soon as possible upon notification. "Non-immediate" callbacks require the employee to return to the station at a time certain, wherein said time is not designated as being as soon as possible. For immediate callbacks, overtime shall commence at the time of arrival at the station or at the crime scene, with an additional one-half hour added for work related activities undertaken between the time of notification and arrival. C. Association employees will be compensated for such time worked in accordance with the provisions of the FLSA and the 7K exemption. For the purpose of calculating the overtime premium, time worked shall include paid time off and eligibility for overtime shall be based on hours worked during a work period in excess of 80 hours in a work period. II. Holdovers Beyond Regular Shift - An employee who works beyond his/her regular scheduled shift by reason of, but not limited to, late calls, arrests, report preparation, etc. shall receive payment in accordance with Section C. above. In no event will an employee be paid for less than 15 minutes with such time disregarded and not accumulated. III. Court Time - Employees on scheduled time off, who are subpoenaed in the line of duty or required by the Chief of Police or his/her designee to be present in criminal or juvenile court, or other judicial proceedings, shall be compensated as provided under 2.06.I.C above for all time actually spent and required to be in court and all actual travel time required between the court and either the Police Station or the employee's home, as the case may be. Employees shall be guaranteed a minimum of three hours for each separate court appearance, including any travel time. Said employee shall be reimbursed for all actual mileage said employee travels between the court and either the Police Station or the employee's home, as the case may be, at the mileage reimbursement rate as set out in Section 2.04. For purposes of calculating payment, if a court appearance is scheduled to begin at a time contiguous with the end of an employee's shift, payment shall be made under the provisions of Section 2.06 III (Court Time). If, however, a court appearance begins during an employee's POUCE MOU FY 1994195 (Rev. Novemh<, 3. 1995) Page 6 y;-/! F',) shift and extends beyond the normal end of that shift, payment shall be made under provisions of Section 2.06 II (Holdovers Beyond Regular Shift). IV. Overtime Premium Pay shall be calculated at the regular rate as required by the Fair Labor Standards Act. V. Compensatory Time - An employee eligible to receive overtime pursuant to this section may receive payor compensatory time off. Compensatory time shall be calculated at the rate of 1-112 times the extra hours worked. The use of compensatory time in lieu of overtime pay will be at the option of the department head and/or supervisor, based on the employee's request while recognizing the overall staffing requirements of the department. Compensatory time shall not be accrued to an employee's credit for any time in excess of eighty (80) hours. A record of compensatory time earned and utilized shall be maintained on the biweekly pay records. VI. A committee consisting of Police Department management and Police Officers Association members shall be formed to study the use of overtime in the department and develop recommendations as to how overtime can be managed more effectively. 2.07 CALLBACK Whenever an employee is called back to work, after he/she has left his/her work site, and is required to return to work before the scheduled start of his/her next shift, he/she will receive a thirty ($30) fm:U ($40) differential '-*ts, with pay as provided under 2.06 IB above. 2.08 BILINGUAL PAY Those employees who, upon recommendation of the Chief of Police and the approval of the Personnel Department and City Manager, successfully complete the Bilingual Performance Evaluation, and are regularly required to use their bilingual skills in the performance of their duties will receive $125 per month in addition to their regular pay. The City and Association al!ree to develoD mutuallv acceDtable l!Uidelines rel!ardinl! onl!oin!1 oerformance evaluation. 2.09 DIFFERENTIAL PAY I. Standby - Employees shall receive $75 compensation for each full bi-weekly period during which they are assigned standby duties or a prorated amount if the standby period is less than two (2) weeks. Standby duty is defined as that period of time, in addition to the employee's normal work week assignment, during which said employee must remain at all times where he/she can be contacted by telephone or pager, ready for callback to perform essential service within one (I) hour of notification. Any callbacks that occur while an employee is on standby duty shall not reduce the amount of standby pay the employee would have earned had there not been a callback. Any overtime or callback pay shall thus be in addition to the standby compensation. In terms of FLSA, the parties agree that standby time shall not be counted as hours worked. II. Motorcycle Pay - Employees who are assigned to Motorcycle Duty shall receive $85.00 per month. POUCE MOU FY 1994195 (Rev. Novembe, 3. 1995) Page 7 9-/9 I III. Dog Handlers - Employees who are designated Dog Handlers will receive $85.00 per month. IV. Field Training Officers - Peace Officers and Police A!!ents who are designated Field Training Officers (FTO's) for the purpose of trainin!! Peace Officers will receive $l)..4O ~ per hour additional compensation when they are actually engaged as FTO's. Police A!!ents shall not be considered FrOs or receive FTO comoensation for time soent traini"!! other Police A!!ents. V. Police Agent - The wage spread between the classifications of Peace Officer and Police Agent shall remain at six percent (6%). 2.10 HEALTH AND WELFARE I. Hospital/Medical Care Benefits A. Each represented employee must select one of the health insurance plans offered by the City for the employee's own health protection. This minimum category of coverage is known as "Employee" coverage. A represented employee may select coverage for his/her qualified dependents from one of the City's health insurance plans under one of two categories of optional coverage: "Employee plus One" or "Employee plus Family" coverage. A represented employee who is married to another City of Chula Vista employee may elect to obtain his/her City health insurance coverage as a dependent under the spouse's primary health insurance plan. B. FP8RI the period of Jul)' 8, 1994 December 31, 1994, the City "Hill pay up to the fellawiftg moHthly amoullts filr health insuFftllee fer employees alld qualified depelJdellts: Emplo)'ee Oaly Emplo)'ee & Olle Depmdellt Emple)"ee & Family $154.86 $399.71 $438.37 Effective January I, 1995 until December 31. 1995, the City will contribute the following maximum monthly amounts for employees and qualified dependents: Employee Only Employee & One Dependent Employee & Family $152.74 $305.46 $432.26 Effective Januarv 1. 1996 until December 31. 1996. the City will contribute the followin!! maximum monthly amounts for emnlovees and Qualified denendents: Emoloyee Onlv Emolovee & One Denendent Emnlovee & Familv $143.81 $287.61 $406.82 POUCE MOV FY 1994,<;>5 (RoY. Novembe, 3, 1995) Page 8 '7 - c2LJ Effective Januarv 1. 1997. the City's maximum monthlv navments in each catel!:orv of health coveral!:e shall be adiusted (un or down) bv 50% of the increase or decrease. resnectivelv. in the monthlv rate of the Kaiser 4253-01 Health Plan. The City agrees to provide the Kaiser 4253-01 Health Plan (or an equivalent health maintenance organization plan) to employees and qualified dependents. The City will pay up to the above monthly amounts (for the applicable category of coverage) towards the Kaiser Health Plan cost or towards the cost of any alternative health plans provided by the City (currently the Health Net E.P.O., Health Net HMO, and Health Net Flex Net plans). Any difference between the above maximum City contribution (for the applicable category of coverage) and the actual cost of the health plan selected by the employee shall be paid by the affected employee through payroll deductions (see Section VI.) and/or the Flexible Benefit Plan (see Section II). If a represented employee selects a City health insurance plan costing less than the above maximum City contribution (for the applicable category of coverage), the employee may apply the difference toward the cost of a group dental plan arranged by the City. (See Section 2.10.II.BA. regarding payment for health and life insurance during an unpaid Leave of Absence of more than one month.) II. Flexible Benefit Plan A. Description of Program - Employees in represented classifications shall receive the following dollar amount to be used for approved employee benefits: Flex Plan Amount Effeeth'e Date $375 ner fiscal year Jllly 8,1994 B. Administration of Program 1. If the actual cost of the premiums for an employee's health insurance coverage (including any optional dependent health insurance coverage selected by the employee) is in excess of the City's contribution under the terms of Section 2.10, the difference will be paid from the employee's Flexible Benefit Plan up to the amounts listed in Section 2.10.I.B above. An employee may spend any balance remaining in his/her Flexible Benefit Plan (after any deductions for heath insurance premiums) for the optional Flex Plan selections described in Section 2.10.II.C. below. Any Flex Plan balances not spent by the end of a fiscal year will revert to the City. 2. Reimbursements for optional Flex Plan selections shall be for a minimum of $50 except from May 15 to June 30 of the fiscal year, when no minimum will be POLICE MOU FY 1994195 (a... N""ember ~. 1995) Page 9 ,?~,Q / required for reimbursements (see #3 below regarding other limitations from June 15 through June 30). Flex Plan reimbursements will generally be processed by the City on a biweekly basis. 3. Fiscal year reimbursement under the City "Flexible Benefit Plan" will be closed the second Tuesday in .Tune. Reimbursement after this time will be aporoyed Fi"am June 15 tkraugh June 39 aftke rlSeal year, requests far Flex Plan reimbursements will be Bllllraved for "emergency" expenses only. An emergency is defined as an unforeseen occurrence or combination of circumstances which necessitated immediate action. Requests for reimbursements for purchases made by employees after June 15 for those items and services rendered which are not of a routine nature, will be reviewed on an individual basis by the Personnel Department to determine if an emergency existed. Upon approval of emergency requests, reimbursements will be granted. Examples: a. Emergency medical expenses not covered by insurance for an illness that requires the services of a doctor, clinic, or hospital including auxiliary services (emergency transportation, lab tests, prescriptions and so forth) will be covered. b. Emergency Vision Expenses-Repair of broken eyeglasses or replacement of lost contact lenses will be approved. (Not: routine eye exam, spare glasses, etc.) c. Emergency Dental Expenses-Reimbursements for expenses associated with toothaches, broken teeth, impacted wisdom teeth, root canals, etc. will be covered. (Not: routine dental work performed as a result of an examination made alter June 1.) d. Non-medical items considered routine and not covered include: conference expenses, books, memberships, subscriptions, extra insurance (except authorized payroll deductions). 4. Employees who are on an. unpaid Leave of Absence for more than one month, including suspension for disciplinary reasons, may not utilize their Flex Plan benefits during the absence. If an employee is on a Leave of Absence as a result of being ill or disabled, however, the Flex Plan may be used for health and life insurance premiums.. 5. Employees may not utilize their Flex Plan benefits to pre-pay retiree or continuation health/dental insurance premiums for periods after retirement or other type of separation. C. Optional Selections under Flexible Benefit Plan Page 10 POUCE MOU FY 1994195 (Rev. November 3. 1995) 9-M ~, j iL. An employee may spend any balance remaining in his/her Flex Plan (after any deductions for health insurance premiums as described in Section LB. above on any of the following optional selections. 1. Other City Group Insurance Premiums In accordance with IRS Section 1.06, the Flex Plan may be used to pay the premiums for group health and welfare plans only if such plans are sponsored by the City. a. Supplemental Group Life Insurance Employees may apply for and purchase through the Flex Plan up to the maximum amount of non-taxable group life insurance allowed by Section 79 of the Internal Revenue Code (currently $40,000) in addition to the $10,000 group life insurance provided by the City (see Section III. below). b. Group Dental Insurance Employees (and qualified dependents) participating in a group dental plan arranged by the City may pay the premiums through the Flex Plan. c. Group Vision Care If a group vision care plan is offered by the City, participating employees may pay the premiums through the Flex Plan. d. Group Psychological Health Plan If a group psychological health plan is offered by the City, participating employees may pay the premiums through the Flex Plan. 2. Reimbursable Programs A represented employee may elect to receive reimbursement through the Flex Plan for the following types of expenditures. The descriptions below are general in nature. Specific rules for allowable reimbursements will be based on applicable Internal Revenue Code sections or City administrative policies. a. Vision, Dental and Medical Expenses An employee may apply any remaining Flex Plan balances to out-of- pocket vision, dental and medical costs on a reimbursement basis. Employees remain free to be attended by the professional personnel or pharmacy of their own choosing. b. Educational Assistance Page 11 POLICE MOU FY 1994195 (Rev. November 3. 1995) 9-~3 ~"}r Vo., CL,.... Employees may elect to receive reimbursement for expenses incurred for education directly related to career development. Allowable expenses include tuition, fees, and similar payments, books, supplies, and equipment. Expenses not allowed for reimbursement include tools or supplies which are retained by an employee after completion of a course of instruction, meals, or lodging. Employees must obtain approval of the department head and the Director of Personnel prior to enrollment in the desired course. To be reimbursable under this section, educational assistance must be considered non-taxable in accordance with State and Federal laws. To receive funds in advance, employees must complete and sign the Flexible Benefit Plan Form available in the Personnel Department and have it approved by their Department Head and Training Committee. Upon completion of a course of instruction, employees must submit evidence of a C grade or better, or advanced funds must be returned immediately. c. Physical Exam Employees may elect to receive reimbursement for the cost of a voluntary physical exam from the physician of their choice. d. Miscellaneous Health Plan Costs Employees may be reimbursed for deductible and out-of-pocket health plan costs. e. Dependent Care Employees may receive reimbursement for dependent care expenses incurred in order to allow the employee to work for the City. Dependent care reimbursement from the Flexible Benefit plan, alone or in combination with a Dependent Care F.S.A., cannot exceed $5,000 per calendar year (refer to Section 2.07 V.B). f. Supplemental Health Insurance Employees may receive reimbursement for the costs of health insurance plans which supplement the existing City-offered health plans. Examples of such insurance may include cancer insurance or intensive care insurance. 3. Deferred Compensation An employee will be eligible to deposit a maximum of 20 % of the beginning Flex Plan balance into the deferred compensation plan at the end of a fiscal year if the POueE MOD FY 1994195 (Rev. November 3. 1995) Page 12 <7-,;1-'1 It! ":"lO employee has matched the deposit with a like contribution from his/her paycheck during the fiscal year. . The allowability of this provision is conditioned on approval by the IRS. Employees are responsible for completing the appropriate forms to make Flex Plan deposits to deferred compensation. III. Life Insurance - The City agrees to contribute the amount necessary to provide each employee with $10,000 group term life insurance. Represented employees may apply for and purchase from $30,000 to $300,000 of supplemental group term life insurance in $10,000 increments through the City's group insurance plan, with said employees paying the additional cost through payroll deductions and/or the Flexible Benefit Plan. (See Section 2.10 regarding payment for health and life insurance during an unpaid Leave of Absence of more than one month.) IV. Flexible Spending Accounts for Health Care and Dependent Care Two Flexible Spending Accounts (FSA's), under Sections 125,105,129 and 213 of the Internal Revenue Code, will be offered to all represented employees. Employees may elect to budget (through salary reduction) part of their wages for certain health care and dependent care reimbursements on a pre-tax basis. It is the intent of the parties that participating employees receive the maximum benefit allowable in accordance with the IRS regulations, at no expense to the City. If the City does not meet IRS regulations or if the IRS regulations change for any reason, this benefit may be discontinued. A. Health and Welfare FSA Before the start of the FSA plan year (January I to December 31), represented employees ulay elect to reduce their salary up to $2,500 to pay for eligible health and welfare expenses. Salary reductions will accrue bi-weekly during the plan year and reimbursements will be made on a schedule to be determined by the City. Health and welfare expenses must qualify under IRS regulations. This is a reimbursement program. Participating employees must submit documentation of payment on the appropriate forms to receive reimbursement. Salary reductions not spent by the end of the plan year, by law, are forfeited to the City. B. Dependent Care FSA Before the start of the FSA plan year (January 1 to December 31) represented employees may elect to reduce their salary up to $5,000 to pay for eligible dependent care. In no event can dependent care pre-tax dollars, whether reimbursed through an FSA, the City Flexible Benefit Plan or a combination of both, exceed $5,000 per calendar year (refer to Section 2.07 II.C.Z.e.). Salary reductions will accrue bi-weekly during the plan year and reimbursements will be made on a schedule to be determined by the City. Dependent care must qualify under all pertinent IRS regulations. This is a reimbursement program. Participating employees must submit documentation of payment and other information related to dependent care arrangements to receive reimbursement. Salary reductions not spent by the end of the plan year, by law, are forfeited to the City. C. FSA Administration POLlCE MOU FY 1994195 (Rev. Novembe, 3. 1995) Page 13 9 -z~s (- ('j (. I The City reserves the right to contract with a Third Party Administrator for administration of both FSA's. The City will pay the start-up costs associated with third party administration. Participating employees will pay monthly, per employee, or per transaction administration fees, if any. VI. Health Payroll Deductions Treated as Pre-Tax (Premium Only Plan) Under Sections 125, 105 and 213 of the Internal Revenue Code, the City will treat al; payroll deductions for health and dental care premiums on a pre-tax basis, unless an affected employee requests that such deductions be treated as taxable income and taxed. If the City does not meet IRS regulations or if the IRS regulations change for any reason, this benefit may be discontinued. VII. Medical Premium Retirement Benefit Plan The City will offer a medical premium retirement benefit plan, under Section 457(f) of the Internal Revenue Code, to all represented employees through the JPEBA, Joint Powers Employee Benefit Authority (or an equivalent plan). This program will provide employees the option of making unlimited pre-tax contributions from their wages to pre-fund post-retirement health insurance premium costs for themselves and their dependents. Since IRC Section 457(f) requires restrictions on the program that can result in forfeiture of the contributions to the City for specified reasons, employees are advised to carefully review the information that will be provided on the program prior to deciding whether or when to participate. The City will pay the start-up costs associated with third party administration. Participating employees will pay the participant costs (currently $24 per year). If the City does not meet IRS regulations or if the IRS regulations change for any reason, this benefit may be discontinued. 2.11 RETIREMENT I. The City will provide the 2 % at 50 retirement plan for classifications represented by the Association as provided for under the Public Employees Retirement System. Retirement benefits shall be based on the single highest year as provided under the Public Employees Retirement System. The retirement benefits shall further include the "widows and survivors benefit." known officially as the Post Retirement Survivors Benefit Act (PRSA) and the Third Level of the 1959 Survivors Benefit will be provided. II. The City will provide represented employees with the option of purchasing MILITARY SERVICE CREDIT AS PUBLIC SERVICE under PERS Section 20930.3. As provided in Section 20930.3, eligible employees who decide to exercise the option to purchase up to four years of prior military service credit would pay the amount calculated by PERS for both the employer's and the employee's contribution. 2.12 HOLIDAYS I. "Hard Holidays" - During the term of this agreement, the following are the recognized holidays: Independence Day July 4 Page 14 I'OUCE MOV FY 1994,\)5 (Rev. Novembe, 3, 1995) c?-.::<~ Memorial Day Labor Day Thanksgiving Christmas New Year's Day Last Monday in May First Monday in September Fourth Thursday in November December 25 January 1 II. Holiday Pay A. Association Members Who Cannot Observe a Normal Holiday Schedule 1. If an officer does not work a hard holiday, he/she will receive 8 hours pay. 2. If an officer works a hard holiday on an 8-hour shift, he/she will receive 8 hours pay plus time and one-half for each hour worked. 3. If an officer works a hard holiday on a lO-hour shift, he/she will receive 10 hours pay plus time and one-half for each hour worked. For payment purposes, if a hard holiday falls on a Saturday or Sunday, the day of observance shall be the actual day of the holiday. B. Association Members Who Can Observe a Normal Holiday Schedule and Who Work a 5/8 Shift 1. If the hard holiday falls on a scheduled work day, the officer shall be granted time-off, except as otherwise directed by the Department Head and/or supervisor. 2. If the hard holiday falls on a scheduled day off, the officer shall receive an extra day off. 3. If an officer works a hard holiday, he/she will receive 8 hours pay plus time and one-half for each hour worked. For payment purposes, if a hard holiday falls on a Saturday or Sunday, the day of observance shall be the day observed by general City employees. C. Association Members Who Can Observe a Normal Holiday Schedule and Who Work a 4/10 Shift 1. If the hard holiday falls on a scheduled work day, the officer shall be granted time-off, except as otherwise directed by the Department Head and/or supervisor. Holiday time-off shall be granted for the full 10 hour shift. 2. If the hard holiday falls on a scheduled day off, the officer shall receive an extra day off, for the full lO-hour shift. 3. If an officer works a hard holiday, he/she will receive 10 hours pay plus time and one-half for each hour worked. POUCE MOV FY 1994195 (Rev. Novembe, 3. 1995) Page 15 -<J - ..:< 7 For payment pUfPOses, if a hard holiday falls on a Saturday or Sunday, the day of observance shall be the actual day of the holiday. III. Floating Holidays Employees shall be credited with forty (40) hours floating holiday time each year of this MOU, 8 hours each for: LineelB's Birthday, WashiBgteB's Birthday Martin Luther Kin!! Dav. Presidents Dav, Admission Day, Columbus Day and Veterans Day. . Employees may take floating holiday time at their discretion with the approval of the Chief of Police or his/her designee. A. Floating Holiday Use - If an employee uses floating holiday time before the holiday passes and subsequently leaves City service, he/she will be charged for such time. If an employee does not use his/her floating holiday time before June 30 of a fiscal year, he/she will lose such time. The smallest unit of time chargeable to floating holiday time is one half (1/2) hour. 2.13 V ACA TION AND SICK LEAVE I. Definition - For the purpose of this section, the following definitions shall apply: A. "Continuous service" means City service uninterrupted by separation. B. "Intermittent service" means City service interrupted by separation. C. "Time worked" includes actual time worked, holidays with pay, and leave of absence without pay (not to exceed one year) for which Workers Compensation is paid. It shall also include Saturdays, Sundays, or other regular days off which are immediately preceded or immediately followed by other time worked. D. "Active service" includes time worked, leave of absence without pay not to exceed fourteen (14) calendar days and leave of absence not to exceed one (1) year for which Workers Compensation is paid. II. Vacation A. Vacation Accrual - Continuous service: Each employee paid at a biweekly rate who has had continuous full-time active service throughout the year previous to that in which the vacation is requested shall be entitled to an annual vacation with pay. The following provisions shall apply: (1) Employees shall accrue IO working days during the first year of service. This benefit will be accumulated at the rate of 3.07 working hours for each full biweekly pay period of service performed. Eligibility to apply for accrued vacation will be effective on the employee's six month anniversary date. POueE MOU FY 1994195 (Rev. November 3. 1995) Page 16 9-~g' qD (2) Employees will accrue and be eligible to receive IO working days annually (cumulative to a total leave balance of 20 working days) during the second through fourth year of service. This benefit will be accumulated at the rate of 3.07 working hours for each full biweekly pay period of service performed. (3) Employees will accrue and be eligible to receive 15 working days annually (cumulative to a total leave balance of 30 working days) during the fifth through fifteenth year of service. The benefit will be accumulated at the rate of 4.60 working hours for each full biweekly pay period of service performed. (4) Employees will accrue and be eligible to receive 20 working days annually (cumulative to a total leave balance of 40 working days) during the sixteenth and succeeding years of service. This benefit will be accumulated at the rate of 6.14 working hours for each full biweekly pay period of service performed. B. Vacation Payback - All members of represented classifications earning three weeks or more vacation annually will have the option of selling forty (40) hours of said vacation back to the City. The accumulated vacation balance will be reduced accordingly. Payment of vacation hours will be made the first payday of each month provided that the Finance Department has received ten working days advance notice of the request prior to the payday. C. Payment Upon Separation - At the time an employee is separated from the City service, whether voluntarily or involuntarily, he/she shall be granted all of the unused vacation to which he/she is entitled based upon his/her active service in prior years, and in addition, he/she shall be granted vacation based upoa the length of his/her active service during the year in which the separation occurs and computed on the basis set forth in Section (A)(I). Payment shall be made hour for hour with any portion of an hour being considered a full hour. D. Vacation Use - Vacation balances shall be reduced by the actual time not worked to the nearest quarter hour. Absence may not be charged to vacation not already accumulated. III. SICK LEAVE A. Accumulated paid sick leave credit is to be used for the sole purpose of protecting the employee's wages in the event absence is made necessary because of disability, injury or illness of the employee or serious illness or death in his/her immediate family. B. Sick Leave Accrual - Computation of sick leave: sick leave with pay is cumulative at the rate of 3.68 working hours for each biweekly pay period of service, 96 hours annually, beginning at the time of full-time probationary employment. A person who has held a position with temporary or interim status and is appointed to a position with probationary status, without a break in service, may have such time credited to sick leave upon the recommendation of the Chief of Police and Director of Personnel, and the approval of the City Manager. POUCE MOU FY 1994195 (Rev. November 3. 1995) Page 17 '7-.:11 )\ W'l [ C. Maximum Sick Leave Accumulation - Unused sick leave may be accumulated in an unlimited amount. D. Sick Leave Use - Sick leave balances shall be reduced by the actual time not worked to the nearest quarter hour. Absence for illness may not be charged to sick leave not already accumulated. E. Sick Leave Verification - The City may require a doctor's certificate and/or a personal sworil affidavit verifying the nature, severity and cause of the disabling injury or illness of the employee to determine eligibility of sick leave. If an employee is required to furnish a doctor's certificate for absences of three days or less, the employee must have been. notified of such requirement by the Chief of Police or his/her designee, with the approval of the City Manager or his/her designee, within 24 hours of the time the employee notifies the department that he/she will be absent because of illness or disability. F. Bereavement Leave - When an employee with permanent status is compelled to be absent from' work because of the death of an immediate family member, an immediate family member of the employee's spouse, or any other person defined by the Internal Revenue Service as a dependent, and after such employee makes written request and receives written approval from the Chief of Police or his/her designee, such employee may be allowed the privilege to be absent from work with full pay up to five (5) days, plus reasqnable travel time. Travel time will be actual time used not to exceed three (3) cale~dar days. Paid leave of absence for family death shall be charged to sick leave. Immediate family includes husband, wife, child, stepchild, brother, stepbrother, sister, stepsister, parent, step-parent or any other person serving as d parent, grandmother, grandfather, or any other person living in the same household as the employee. G. Sick Leave Reimbursement (1) Employees who are unit employees on and before June 30, 1979, shall be entitled to sick leave reimbursement of 20.83% for up to 120 days (maximum 25 days) of unused sick leave upon honorable separation. Unit employees covered by this paragraph (1) are not eligible for benefits under paragraph (2). (2) Employees who are not unit employees on June 30, 1979, and who become unit employees thereafter, shall be entitled to sick leave reimbursement as follows (to the exclusion and in lieu of any benefits under paragraph (I): a. Such employees using four (4) days or less of sick leave during the fiscal year shall have the option of converting twenty-five percent (25 %) of their remaining yearly sick leave pay. Page 18 POllCE MOU FY 1994,95 ~Rev. November 3. 1995) 9-30 !Y" b. Pay shall be computed based on the following schedule and all computations shall be rounded to the nearest whole hour: Remaining Yearly Sick Leave Pay 12 days 3 11 days 2 days, 6 hrs. 10 days 2 days, 4 hrs. 9 days 2 days, 2 hrs. 8 days 2 7 days or less 0 c. If the pay option is selected, the paid sick leave hours shall be subtracted from the employee's accumulated yearly sick leave balance. The remaining sick leave hours shall be carried over and accumulated. (Example: Employee uses 4 days sick leave. He/she then elects to receive pay for 25% of remaining days, or 2 days. The 2 days are subtracted from his/her remaining yearly sick leave and the other 6 days are added to the employee's accumulated sick leave balance.) d. Payment will be made during the month of July of each year. Pay will be computed based on the employee's salary step on June 15, and will only be calculated for employees who have been on the payroll for one full year at the time calculations are made. e. Permanent employees covered by this paragraph (0)(2) who retire during the fiscal year will be compensated under this plan based on their formal retirement date. Prorated payment also will be made to an employee who terminates during the fiscal year. In the event of the death of an individual while employed by the City, 50% of the employee's unused, accumulated sick leave will be paid to the appropriate beneficiary. H. The City is proposing a Sick Leave Abuse Policy. Parties agree to meet and confer on this item as a separate process. 2.14 LEAVE OF ABSENCE Employees who are mentally or physically incapacitated to perform their duties, or who desire to engage in a course of study that will, in the judgment of the City, increase their usefulness on their return to the classified service, or who, for any reason considered to be in the best interest of the City government by th(l appointing authority and the Director of Personnel, desires to secure leave from their regular duties may, on written request, subject to the recommendation of the Chief of Police and the Director of Personnel, and with the approval of the City Manager, be granted leave of absence without pay for a period not to exceed one year. Employees asking for leave of absence without pay Page 19 POLICE MOU FY 1994,115 ~. N""ember 3. 1995) 1-3/ \! , shall submit their request in writing stating the reasons why, in their opinion the request should be granted, the date when they desire the leave to begin, and the probable date of their return. For each leave without pay, the Director of Personnel shall determine whether the employee granted such leave shall be entitled to their former position on their return from such leave or whether their name shall be placed on a reinstatement list for the class as provided for in the Civil Service Rules. If a request for leave is denied, the employee may appeal the denial to the Civil Service Commission. Any employee who is on an unpaid leave of absence for more than one month for any reason including a leave for disciplinary purposes, shall pay the cost of their health and life insurance premiums as well as their dependents' for the entire period of unpaid leave of absence; provided, however, that this provision shall not apply if the leave of absence is a result of the employee being ill or disabled. 2.15 MILITARY LEAVE Military leave shall be granted in accordance with the provisions of applicable State and Federal laws (California Military and Veterans Code). 2.16 JURY DUTY AND COURT LEAVE A. JURY DUTY Permanent and probationary employees who are called to serve on jury duty for any county, state or federal court within the San Diego area shall be entitled to paid leave under the following circumstances: 1. They must present to their supervisor the court order to appear for jury duty at least three weeks prior to their date to report. 2. All fees received by the employee for jury duty for days when schedule for work, excluding mileage, shall be paid over to the City. 3. The employee must submit a daily court authorized, stamped time card accounting for all hpurs of required service ordered by the court. 4. If jury service and travel time from court to work is less than five hours in a work day, the employee is expected to return to work unless a justification is provided and approved or pre-authorized leave is approved. 5. Employees who are required to serve jury duty on their scheduled days off will not be compensated for this time and may keep any fees paid by the court. 6. If the employee is not required to report for jury duty on any particular day(s) they are then expected to be at work as per their normal schedule. 7. It is the employee's responsibility to inform his or her supervisor on a daily basis if they are required to report for jury duty the following day. This may include calling the supervisor after or before normal working hours. POUCE MOV FY 1994195 (Rev. November 3. 1995) Page 20 9.- .3:l 8. Absence due to jury duty will be submitted on the City leave form. B. COURT LEAVE Court leave is paid leave granted by the City to enable an employee to fulfill his/her duty as a citizen to serve as a witness in a court action to which the employee is not a party, before a federal, Superior, or Municipal Court located within San Diego County. Court leave shall be limited to: 1. Required attendance before Federal, Superior, Municipal, and Justice Courts located within San Diego County. 2. Time in attendance at court together with reasonable travel time between court and work if the employee can reasonably be expected to return to work. 3. Court leave shall not be granted when the employee is paid an expert witness fee. 4. The employee must submit to the City any payment received, except travel and subsistence pay, for court duty. 5. Court leave will only be granted to employees who are not litigants in a civil case, related to litigants in a civil case, or defendants in a criminal case. 6. Employees shall provide their supervisor with a copy of the legal subpoena and provide other documentary evidence of service. 2.17 RATE OF PAY FOLLOWING PROMOTION When a unit employee is promoted, the new rate of pay will be the lowest step in the new range which will result in the employee receiving at least 5 % more than the actual rate in the old classification. The actual rate will also include Motorcycle, Dog Handler, or Agent pay if these differentials will be lost as a result of the promotion. It will not include Education Incentive or Bilingual Pay. Employees previously receiving Bilingual Pay will continue to receive it if the new position requires the use of approved bilingual skills. This determination will be made by the Director of Personnel upon the written request of the Chief of Police. 2.18 OUT OF CLASSIFICATION ASSIGNMENT I. Sworn personnel who are assigned duty as an Acting Agent, Acting Sergeant, or Acting Lieutenant in the Patrol Division for a period of at least one full regularly scheduled continuous work shift (excluding shift overlap(s) shall receive compensation at a rate of five percent (5 %) above his/her base pay. Payment will be retroactive to the time the out-of-classification assignment commenced and will continue until the out-of-classification assignment ends, provided the above full-shift minimum is met. Personnel assigned duty as an Acting Agent, Acting Sergeant or Acting Lieutenant in the Patrol Division during any shift overlap period will Page 21 POLlCE MOU FY 1994195 (Rev. November 3. 1995) 9-33 receive out-of-classification compensation for that overlap period provided the above full-shift minimum is met. II. Sworn personnel who are assigned duty as an Acting Agent, Acting Sergeant, or Acting Lieutenant in a division other than Patrol for a period of at least one continuous week (40 consecutive hours) shall receive compensation at a rate of five percent (5 %) above his/her base pay. Payment will be retroactive to the time the out-of-classification assignment commenced and will continue until the out-of-classification assignment ends, provided the above full week minimum is met. III. The assignment of Acting Agent, Acting Sergeant, or Acting Lieutenant shall be made in writing and shall indicate the day and time the assignment begins. Out-of-classification assignment pay shall be calculated to the nearest quarter hour. IV. The decision as to whether a vacant position shall be filled and, if filled, whether it shall be fIlled by an out-of-class assignment or through overtime on a rank-for-rank basis shall be at the sole discretion of the Chief or his/her designee. 3.01 PAYROLL DEDUCTION Upon the receipt ofa written request and authorization from an employee for deduction of Association dues the City shall withhold such dues from the salary of the employee and remit the withholdings to the Association. The City shall continue to withhold such deductions unless the employee files a statement with the City withdrawing authorization for the continued withholding of the deductions. The effective date of withholding to the Association, and the effective date of discontinuance and all procedural matters ,shall be determined in accordance with the Rules and Regulations of the Finance Director. 3.02 PROBATIONARY PERIOD Peace Officers shall serve an eighteen-month probationary period. Upon completion of the eighteen months, said empl9yee shall be a permanent employee, unless the probationary period is extended by the appointing authority as provided in the Civil Service Rules. Agents, Sergeants, and Lieutenants shall serve a twelve-month probationary period as per the Civil Service Rules. 3.03 ADVANCE NOTICE The City shall give reasonable advance written notice to the Association on any proposed change or new ordinance, resolution, departmental rule or regulation relating to the matters within the scope of representation propOsed to be adopted by the City or the Department and the Association shall be given the opportunity to meet and confer with City or Department representatives prior to adoption. POUCE MOU FY 1994,95 (Rev. November 3. 1995) Page 22 'f'- 3-'/ " ,I i .>!-l 3.04 GRIEVANCE PROCEDURE This grievance procedure shall be in effect during the full term of this Memorandum of Understanding. Section 1. PURPOSE. The purposes and objectives of the Grievance Procedure are to: (1) Resolve disputes arising from the interpretation, application or enforcement of specific terms of this agreement. (2) Encourage the settlement of disagreements informally at the employee-supervisor level and provide an orderly procedure to handle grievances through the several supervisory levels where necessary. (3) Resolve grievances as quickly as possible and correct, if possible, the causes of grievances thereby reducing the number of grievances and future similar disputes. Section II. DEFINITIONS. For the purpose of this grievance procedure the following definitions shall apply: (1) Manilger: The City Manager or his/her authorized representative. (2) Working Day: A calendar day, excluding Saturdays, Sundays and hard holidays as described by this agreement. (3) Department head or head of a department: The chief executive officer of a department. (4) Director of Personnel: The Director of Personnel or his/her authorized representative. (5) Employee: Any officer or regular (not temporary) employee of the City, except an elected official. (6) Employee representative: An individual who speaks on behalf of the employee. (7) Grievance: A complaint of an employee, group of employees, or the Association arising out of the application or interpretation of a specific clause in this agreement. (8) Immediate supervisor: The individual who assigns, reviews, or directs the work of an employee. (9) Sup~rior: The individual to whom an immediate supervisor reports. Page 23 POLlCE MOU FY 1994195 ,(Rev. November 3. 1995) 9-.35 Ir,c \/:.J Section III. REVIEWABLE AND NON-REVIEW ABLE GRIEVANCES. (1) To be reviewable under this procedure a grievance must: (a) Concern matters or incidents that have occurred in alleged violation of a specific clause in this agreement; and (b) Specify the relief sought, which relief must be within the power of the City to grant in whole or in part. (2) A grievance is not reviewable under this procedure if it is a matter which: (a) Is subject to those reserved City Management Rights as stipulated under Section 4 of the Employer-Employee Relations Policy for the City of Chula Vista or under management rights as specified in this agreement. (b) Is reviewable under some other administrative procedure and/or rules of the Civil Service Commission such as: 1. Applications for changes in title, job classification or salary. 2. Appeals from formal disciplinary proceeding. 3. Appeals arising out of Civil Service examinations. 4. Appeals from work performance evaluations. 5. Appeals that have Affirmative Action or civil rights remedy. (c) General complaints not dirertly related to specific clauses of this agreement. (d) Would require the modification of a policy established by the City Council or by law. (e) Relates to any City group insurance or retirement programs. Section IV. GENERAL PROVISIONS OF THE GRIEVANCE PROCEDURE. (1) Grievances may be initiated only by the employee or employees concerned or by the Association on behalf of itself regarding an otherwise grievable incident. The Association cannot grieve for itself an incident already grieved by an employee or group of employees. Conversely, an employee or group of employees cannot grieve an incident already grieved by the Association. (2) Procedure for Presentation. In presenting the grievance, the employee (or Association) shall follow the sequence and the procedure outlined in Section V. Page 24 POUCE MOU FY 199419.5 (Rev. November 3. 1995) 9-36 :"if\ --"'''" v (3) Prompt Presentation. The employee (or Association) shall discuss his/her grievance with his/her immediate supervisor within ten (10) working days after the act or omission of management causing the grievance, or within ten (10) working days of when the employee (or Association), with the exercise of reasonable diligence, should have discovered the act or omission being grieved. (4) Prescribed Form. The written grievance shall be submitted on a form prescribed by the Director of Personnel for this purpose. (5) Statement of Grievance. The grievance shall contain a statement of: (a) The specific situation, act or acts complained of as an agreement violation; (b) The inequity or damage suffered by the employee or an employee in an Association-represented class (if an Association grievance); and (c) The relief sought. (6) Employee Representative. The employee may choose someone to represent him/her at any step in the procedure. No person hearing a grievance need recognize more than one representative for any employee at anyone time, unless he/she so desires. (7) Handled During Working Hours. Whenever possible, grievances will be handled during the regularly scheduled working hours of the plllties involved. (8) Extension of Time. The time limits within which action must be taken or a decision made as specified in this procedure may be extended by mutual written consent of the parties involved. A statement of the duration of such extension of time must be signed by both parties involved at the step to be extended. (9) Consolidation of Grievances. If the grievance involves a group of employees or if a number of employees file separate grievances on the same matter, the grievances shall, whenever possible, be handled as a single grievance. (10) Settlement. Any complaint shall be considered settled without prejudice at the completion of any step if all parties are satisfied or if neither party presents the matter to a higher authority within the prescribed period of time. (11) Reprisal. The grievance procedure is intended to assure a grieving employee the right to present his/her grievance without fear of disciplinary action or reprisal by his/her supervisor, superior or department head, provided he/she observes the provisions of this grievance procedure. (12) Back pay. The resolution of a grievance shall not include provisions for back pay retroactive further than twenty (20) working days prior to the date the grievance is filed. However, if with the exercise of reasonable diligence the act or omission being grieved was not discovered within 10 working days of its occurrence, and the grievance is subsequently timely filed pursuant to Section IV (3), then the resolution of the grievance POUCE MOU FY 1994195 (Rev. November 3. 1995) Page 25 '7-37' (J -.:;, . '1_, may include provision for back pay for a maximum period of one year from the date the grievance was filed. Section V. GRIEVANCE PROCEDURE STEPS. The following procedure shall be followed by an employee (or Association) submitting a grievance pursuant to policy: Step 1 Discussion with Supervisor. The employee (or Association) shall discuss the grievance with the immediate supervisor informally. Within three (3) working days, the supervisor shall give his/her decision to the employee (or Association) orally. Step 2 Written Grievance to Superior. If the employee (or Association) and supervisor cannot reach an agreement as to a solution of the grievance or the employee (or Association) has not received a decision within the three (3) working days' limit, the employee (or Association) may within seven (7) working days present the grievance in writing to the supervisor who shall endorse his/her comments thereon and present it to his/her superior within seven (7) working days. The superior shall hear the grievance and give his/her written decision to the employee (or Association) within seven (7) working days after receiving the grievance. Step 3 Grievance to Department Head. If the employee (or Association) and superior cannot reach an agreement as to a solution of the grievance or the employee (or Association) has not received a written decision within the seven (7) working days' limit, the employee may within seven (7) working days present the grievance in writing to his/her department head. The department head shall hear the grievance and give his/her written decision to the employee (or Association) within seven (7) working days after receiving the grievance. Step 4 Grievance to Director and Manager. If the grievance is not settled at the department head level, it may be submitted by the Association Representative within twenty (20) working days to the Personnel Director, who shall investigate and report his/her findings and recommendations to the City Manager within ten (10) working days. The City Manager shall provide his/her answer within ten (10) additional working days. The times indicated may be extended by mutual agreement. Any Employee grievance will be filed with the Association Representative at Step 4. Following the submission of the City Manager's answer, and before going to Section VI, Advisory Arbitration, matters which are unresolved shall be discussed at a meeting between the parties during which all pertinent facts and information will be reviewed in an effort to resolve the matter through conciliation. Section VI. ADVISORY ARBITRATION. Any dispute or grievance which has not been resolved by the Grievance Procedure may be submitted to advisory arbitration by the Association Representative or the City without the consent of the other party providing it is submitted within ten (10) working days, following its termination in the Grievance Procedure. The following advisory arbitration procedures shall be followed. 1. The requesting party will notify the other party in writing of the matter to be arbitrated and the contract provision(s) allegedly violated. Within five (5) working days of the POUCE MOV FY 1994195 (Rev. November 3. 1995) Page 26 9-31 qLi ," receipt of this notice, the parties may agree upon an arbitrator, or panel of three arbitrators, trained in conducting grievance hearings, If agreement on an arbitrator cannot be reached, the State Department of Industrial Relations shall be requested by either or both parties to provide a list of five arbitrators, Both the City and the Association shall have the right to strike two names from the list. The party requesting the arbitration shall strike the first name; the other party shall then strike one name, The process will be repeated and the remaining person shall be the arbitrator. 2. The arbitrator shall hear the case within twenty (20) working days after the arbitrator has been selected. The arbitrator may make a written report of their findings to the ASSOCiation and the City within fifteen (15) working days after the hearing is concluded. The arbitrator shall make rules of procedure. The decision of the arbitrator shall be advisory to the City Manager who shall render a final decision within ten (10) working days. The arbitrator shall have no authority to amend, alter or modify this agreement or its terms and shall limit recommendations solely to the interpretation and application of this agreement. The above time limits of this provision may be extended by mutual agreement. 3. Each grievance or dispute will be submitted to a separately convened arbitration proceeding except when the City and the Association mutually agree to have more than one grievance or dispute submitted to the same arbitrator. 4. The City and the Associ:'.tion shall share the expense of arbitrators and witnesses and shall share equally any other expenses, including those of a stenographer, if required by either party. If either party elects not to follow the advisory decision rendered by the arbitrator, that party shall pay the entire cost of the arbitration process, including the expense of the arbitrator, witnesses and/or stenographer. 3.05 PROHmITED PRACTICES I. The Association shall not condone or counsel its members, or unit members, or any of them, to strike, fail to fully and faithfully perform duties, slow down, disrupt, impede or otherwise impair the normal functions and procedures of the Department except that nothing shall be construed in this agreement to prevent the Association or its unit members from exercising any legal rights or remedies they may presently possess to redress a wrong. II. Should any unit employees during the term of this Memorandum of Understanding, and until such time that it is expressly or legally rescinded, breach the obligations of Paragraph I, the Chief of Police or his/her designee in conjunction with the City Manager or his/her designee shall immediately notify the Association that in his/her opinion a prohibited action is in progress. III. The Association shall promptly disavow prohibited actions and shall order such members either orally or in writing to immediately cease the prohibited activity, and provide the Chief of Police POUCE MOU FY 1994195 (Rev. November 3. 1995) Page 27 9~3? C-'I t ~-' ' I - or his/her designee and the City Manager or his/her designee with a copy of that which they have orally stated or served upon its members to comply with Paragraph I herein. IV. If the Association disavows the alleged prohibited activity and takes all possible actions hereunder in good faith, the City shall not hold the Association responsible for imposition of such penalties or sanctions as the City may assess against the participants. V. Should the Association during the term of this Memorandum of Understanding and until such time that it is expressly and legally rescinded, breach its obligations, or any of them under this section, it is agreed that the City may pursue all legal and administrative remedies available to the City that it in its discretion may elect to pursue, provided such is presently provided for by law. VI. The agreements contained in Paragraphs I and V are in addition to and do not constitute a waiver of rights currently existing under the law. 3.06 DRIVING ELIGmlLITY Whenever an employee drives a vehicle for City business, he or she shall have a valid California driver's license. In order to ascertain the validity of the employees' licenses, employees must present their driver's license to their supervisor upon request. If an employee's driver's license is revoked, suspended, or otherwise made invalid, the employee must immediately inform his or her supervisor. Failure to notify the supervisor may result in immediate disciplinary action. The City reserves the right to check with the Department of Motor Vehicles to investigate an employee's driving record and to determine if the employee's driver's license is valid. An employee who does not possess a California driver's license will be considered for a non-driving position, if one is available in the employee's classification. The non-driving assignment will continue for a maximum of six (6) months if there is a reasonable expectation the employee will have a valid California driver's license at the expiration of that time. Extensions to the six (6) month limit will be considered on a case-by-case basis; however, in no case shall an employee receive more than one non-driving assignment in any three year period. When no non-driving assignment is available, employees may request a leave of absence without pay for six (6) months or until such time as their license is once again valid, whichever is shorter. In order to assure that non-driving assignments are provided on a fair and equitable basis, the following procedures shall be observed: 1. Each department will determine whether or not it has any non-driving assignments that can be filled by employees who would otherwise have driving assignments. 2. Non-driving assignments will be given on a first come, first served basis. For example, if two employees in a department have non-valid drivers licenses and there is only one non-driving assignment, the first employee who comes forward will be given the non-driving assignment. The other employee may apply for a leave of absence as described above. Page 28 POLICE MOU FY 1994,95 (Rev. Novembe, 3. 1995) q - /,/t) 110 3.07 SUBSTANCE ABUSE Represented employees are subject to the current substance abuse policy as stated in Resolution No. 13971, as adopted and approved by the City Council of the City of Chula Vista on February 21, 1989. 4.01 HEALTII FITNESS PROGRAM A. Program Description The City of Chula Vista along with the Police Officers Association agree that for the safety of the employee as weIl as the public, those employees who are represented by the P.O.A. should maintain a minimum level of physical fitness. The physical fitness of the employee wiII be assessed in two manners. The first wiII be a physical assessment and the second a physical agility test. B. AIl represented employees shaIl participate in an annual physical fitness assessment unless they request and receive an exemption from the Chief of Police. The initial assessment wiII generally consist of a physical conditioning assessment. C. Physical Agility Test Employees shall be required to take an annual physical agility test, in accordance with the standards and tests established as part of the physical agility program, unless they request and receive an exemption from the Chief of Police. 4.02 AMERICANS WITII DISABILITIES ACT The parties recognize that the City must comply with the statutory provisions of the Americans With Disabilities Act (ADA). The ADA requires accommodations for individuals protected under the Act, and these accommodations must be determined on an individual, case-by-case basis. The parties agree that, in order to comply with the provisions of the ADA, the City may need to make exceptions to this MOU and/or to an existing policy, practice or procedure of the City relating to the terms and conditions of employment not covered by this MOD. The parties agree that the City has the right to make such exceptions on an individual case-by-case basis, in order for the City to accomplish reasonable accommodation to avoid discrimination relative to hiring, promotion, granting permanency, transfer, layoff, reassignment, termination, rehire, rates of pay, job and duty classification, seniority, leaves, fringe benefits, training opportunities, hours of work or other terms and privileges of employment. The Association recognizes that the City has the legal obligation to meet with the individual employr.e to be accommodated before any adjustment is made in working conditions. The City wiII notify the Association of these proposed accommodations prior to implementation by the City if the accommodations require the City to make an exception to this MOD; the City will not, however, share medical records or violate the privacy rights of the individual with a disability. Any accommodation provided to an individual protected by the ADA shaIl not establish a past practice, nor shaIl it be cited or used as evidence of a past practice, such as in the grievance procedure. POllCE MOU FY 1994195 (Rev. November 3. 1995) Page 29 <?-q i1 '1 " 5.01 TERM AND EFFECT OF THIS MEMORANDUM OF UNDERSTANDING I. This Memorandum of Understanding shall remain in full force and effect from July 8, 1994 tkr8uglt July 4, 1995 Julv 5. 1995 throul!h Julv 3. 1997 (the date closest to July I that is the end of a pay period) and it is understood and agreed that the terms and conditions, wages, and all provisions of this Memorandum of Understanding shall continue in effect until a new Memorandum of Understanding is negotiated and subsequently ratified by the Association and the City Council. Said terms and conditions as outlined in this Memorandum of Understanding shall remain in effect from July 7, 1995 Julv 4. 1997 until the first pay period in July t99(j J.22B., unless one of the parties notifies the other in writing no later than .....pril1, 199-S Februarv 1. 1997, of its desire to modify or terminate the agreement and provides written proposals for such modifications no later than May IS, 1995 Februarv 20. 1997. City al!rees that if said written nronosals are received from the Association bv Februarv 20. 1997. that the City will be nrenared to commence nel!otiations on those nronosals bv March 1. 1997. II. The provisions of this Memorandum of Understanding shall be subject to Federal, State and local law . III. This MOU fully and completely incorporates the understandings of the parties hereto for the full term of this agreement, constituting the sole and entire understanding between the parties. It is further understood, however, that nothing herein prohibits the parties from changing and amending the terms of this MOU during the period of its effectiveness by further meet and confer sessions by mutual agreement. Nothing contained herein shall affect rights and privileges of parties as established by the laws of the State of California, as contained in the Government Code of the State of California under those provisions known as the Meyers-Milias-Brown Act, unless specifically referred to herein. IV. If at any time during the term of this M.O.U., through causes beyond the control of the City, the City is required to increase the operating budget by 5% or more -OR- 5% or more revenues that contributed to the operating budget become unavailable, then, in such event, the City may, with mutual agreement of the Police Officers Association, reopen this M.O. U. and meet and confer on employment benefits. This section, however, in no way affects the existing right of the City to layoff employees. 5.02 RETENTION OF BENEFITS The represented employees covered by this agreement shall retain all benefits provided herein for the full term of this agreement and for any such additional period of time as provided in Section 5.01; provided, however, benefits, rights, or privileges not specifically covered by this MOU, but subject to the Meyers Milias Brown Act, may be acted upon by the City without mutual consent after meeting and conferring with the Association. 5.03 SAVINGS CLAUSE If any article or section of this Memorandum of Understanding should be held invalid by operation of law or by a final judgment of any tribunal of competent jurisdiction, or if compliance with or enforcement of any article or section should be restrained by such tribunal, the remainder of this Memorandum of Understanding shall not be affected thereby. POLICE MOV FY 1994195 (Rev. November 3. 1995) Page 30 9'- /;< In the event of the invalidation of any article or section, the City and Association agree to meet within sixty (60) days after the expiration of any administrative or judicial appeal period/process for the purpose of meeting and conferring over said invalidated section or article. For the City: For the Association: Cheryl Fruchter City of Chula Vista Richard H. Castle, Jr., Chief Negotiator POA Gerald Young Michael Miller Dan Beintema Jim Zoll Page 31 POLICE MOU FY 1994195 (Rev. November 3. 1995) tJ'-j2 T:;> :(~ COUNCIL AGENDA STATEMENT Item / ,tJ Meeting Date 11-07-95 ITEM TITLE: / 3'.:J7 J Resolution Approving Agreement with Calgis, Inc. for a GIS Based Traffic Accident Record Sy, tern (TF23 1 ) SUBMITTED BY: (4/5ths Vote: Yes_ NolO REVIEWED BY: ..., In November 1994, the City Council approved Resolution 17733 (Exhibit 1) which added Project TF23l (Accident Record System) to the CIP Budget and appropriated funds for the Consultant and hardware costs for the project. On March 17, 1995, the Director of Public Works received proposals from eight (8) Consultants for the development of a GIS based Traffic Accident Record System. After the proposals were evaluated, four (4) Consultants were selected for interviews which were held on April 14, 1995. As a result of the interview and evaluation process, staff has selected Calgis, Inc. as the most qualified firm for the project. This project is a federally grant funded project administered through the State of California, Office of Traffic Safety (OTS). The City has received OTS approval of Calgis, Inc. as the Consultant selected for this project (OTS Project #TR9503). RECOMMENDATION: That Council adopt the Resolution approving an agreement between the City and Calgis, Inc. for a GIS based Traffic Accident Record System (TF -231). BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: In April 1994, the City Council authorized the City Engineer to file an application with the OTS for a grant to develop a Traffic Accident Record System which would interface with and operate through the City's Geographic Information System (GIS). This new system would replace the City's existing outdated system with a state of the art GIS based Accident Record System with graphics capabilities. Subsequent to approval of this grant, a Request for Proposals for development of the required software was prepared, advertised and sent out to forty-five (45) companies in the Traffic Engineering and GIS fields. A total of eight (8) proposals were received from the following Consultants: /iJ -! 1;\: . . .11 Page 2, Item / {) Meeting Date 11-07-95 Consultant Cost Proposal Ani! Verma Association, Inc. Complete costs not provided Calgis, Inc. $35,000.00 Crossroads Software 43,831.15 Engineering Systems 47,460.00 Geospatial Technologies 76,500.00 GIS/Trans, Ltd. 120,724.00 Hank Mohle and Associates 47,885.00 Sierra Cybernetics 58,878.00 The proposals were evaluated for cost, completeness, qualifications of personnel, adequacy of proposed system design, experience with traffic engineering and GIS software, and Consultant's previous work experience with the City and with OTS. The OTS grant has approved consultant services in an amount not to exceed $48,750. After evaluating the proposals, Calgis, Inc., Crossroads Software, Engineering Systems, and Hank Mohle and Associates were selected for interview. The Consultant Selection Committee consisted of the following five staff members: Fred Wong (GIS Manager), Harold Rosenberg (Traffic Engineer), Frank Rivera (Associate Traffic Engineer), Susan Mihalka (Engineering Technician II) and Steve McCarthy (GIS Specialist). Based on the submitted proposals, the system design concept and the results of the interview process, the Consultant Selection Committee selected Calgis, Inc. as the best firm for the project. The City has received OTS approval for the selection of Calgis, Inc. as the Consultant for this grant funded project. OTS has also reviewed and approved the proposed contract between the City and Calgis, Inc. for this work. As a result of negotiations with Calgis, Inc. the agreement amount was increased from $35,000 to $38,645 to include the cost of Errors and Omissions (E & 0) insurance required by the City's Risk Manager. This insurance coverage was required in the Request for Proposal. Calgis, Inc. requested that the E & 0 insurance requirement be waived because the cost of obtaining this insurance from an admitted carrier for the State of California was prohibitive due to the land surveying work that their company does in addition to their software development work. The City's Risk Manager did not waive the E & 0 insurance requirement but did allow this insurance to be provided by a non- admitted carrier which lowered the cost of the required coverage. The additional cost of this insurance was added to the original cost of the contract upon notification from OTS that this additional expense would be reimbursable from the State under the terms of the grant agreement. Staff feels that the system proposed by Calgis, Inc. will be a more powerful and more flexible system than the systems proposed by other Consultants. Since the adjusted cost of the contract remains /~,,Z ,)F"l Page 3, Item / tJ Meeting Date 11-07-95 substantially lower than the other proposals submitted, staff recommends that the City enter into a agreement with Calgis, Inc. for this work. Project Summary Overall, this $56,750 grant provides for accident record system software development, software, and and a complete computer workstation. Under the general terms of this agreement, the Consultant will design and develop a software system for the City which will provide a fully functional GIS based Traffic Accident Record Computer System. This system will provide all the record management and report generating capabilities of the City's existing outdated Record System as well as providing the graphics capabilities and expandability of a GIS based system. The Consultant will provide the City with specifications and costs for computer hardware and peripherals necessary for the operation of the proposed system. The OTS has approved an expenditure of up to $6,200 in grant funds for the computer system and hardware. The new system will be installed and tested on equipment obtained by the City for this project. Existing computer database files will be converted over to function within the City's GIS attribute database. Complete documentation for the new system will be provided. The Consultant will train staff in all aspects of the operation of the new system and will provide technical support to the City during the warranty period for the system software and hardware. The project is to be completed by June 1996. The hardware will be a separate purchase which will occur during the first quarter of 1996. Contract Scope of Work Consultant shall furnish all services as required to provide a fully functional GIS based and IBM PC/Windows compatible Traffic Accident Record/Road Register computer system. The Scope of Work shall, in general, consist ofthe following tasks: 1. System Definition Consultant shall collect and analyze information necessary to define the functional requirements of the proposed system and shall develop a detailed description of the proposed system (software and procedures) which is adequate for the system design. 2. System Design Consultant shall design the data base, develop detailed program schematics for the proposed system, develop user interfaces and produce the final detailed design for all software programs for coding. /t:l~J Page 4, Item / tJ Meeting Date 11-07-95 3. System Development Consultant shall write the source code for all required programs for the proposed system. Consultant shall test and debug the software to insure that all objectives established for the system are met. 4. System Support Development Consultant shall produce and provide comprehensive documentation for the accident record system software provided. Consultant shall perform extended certification testing of all functions within the application software, documenting test results and making any necessary modifications to the source code required for the system to function as intended. 5. System Evaluation and Translation of Existing Dahv Consultant shall convert the most current copy of the City's existing Collision History and Road Register computer database files over to function within the City's GIS attribute database. Consultant shall resolve all problems encountered during the data translation to the City's satisfaction. Consultant shall perform on-site testing of the application software and database files to insure that the system functions as intended. Consultant shall evaluate the system's performance and software and shall provide said evaluation to the City as part of the project final report. 6. System Installation Consultant shall deliver and install the completed software system, ensuring that the software interfaces with the City's existing GIS system software and functions as intended. Consultant shall provide on-site training for City staff in all phases of the operation of the system. Consultant shall prepare a project final report. Said final report shall satisfy all requirements for format and content as contained in the latest version of the OTS Grant Program Manual. Deliverables I. System Definition Document, Detailed Project Schedule and Hardware Specifications. 2. Complete Accident Record System Software Package, including ArcView/2 Software. //,1 ")1 : ~, - I Page 5, Item I tJ Meeting Date 11-07-95 3. Complete Software Documentation. 4. Interim Quarterly Reports for submittal to OTS. 5. Final Project Report. Payment Schedule City agrees to compensate Consultant for performance of all defined services at the times or milestones or for the Deliverables set forth below: MilestonelEventlDeliverable Amount of Fixed Fee 10% Retention Amount less Retention Completion of: Provide City with proof of payment for Errors and Ommissions Insurance $ 3,645 $ 365 $ 3,280 System Defmition, including the following approved deliverables: System Defmition Document, Detailed Project Schedule, Hardware Specifications 3,000 300 2,700 System Design 6,000 600 5,400 System Development, including the following deliverables: complete accident record system software package, including ArcView/2 and any other necessary software 14,000 1,400 12,600 System Support Development, including the following deliverables: complete software documentation 6,000 600 5,400 System Evaluation and Translation of Existing Data 3,000 300 2,700 System Installation, training of City staff, and preparation of final report 3,000 300 2,700 TOTAL $38,645 $3,865 $34,780 /cJ-f lID Page 6, Item / tJ Meeting Date 11-07-95 FISCAL IMP ACT: Upon project approval by the OTS, federal grant funds in the amount of$56,750 were approved for this project. Upon completion of the project, 100% of the project's Consultant and hardware costs will be reimbursed to the City by OTS from these federal funds. The City's stafftime costs for the project, which include administration, coordination and project evaluation, were estimated to be $15,000. This staff time was proposed to be part of the normal staff services included in the Traffic Engineering operating budget. These staff time costs are not reimbursable by the State under the OTS grant for the project. On-going staff costs for operation and maintenance of the new system will be part of the normal staff services included in the Traffic Engineering operating budget. Exhibit:-r~""Resofiitioii17733andt1ieassociatedC6uncil Agenda -d .AU'~ Statement Exhibit 2 - Agreement with Calgis, Inc. SM:sm File: 0735-1O-TF231 (M:\HOME\ENGINEERIAGENDA IA.ARSG 1.8M) /?J-~ ~ i ~ " RESOLUTION NO. /~~1~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT WITH CALGIS, INC. FOR A GIS BASED TRAFFIC ACCIDENT RECORD SYSTEM (TF231) WHEREAS, in November 1994, the city Council approved Resolution 17733 which added Project TF231 (Accident Record System) to the CIP Budget and appropriated funds for the Consultant and hardware costs for the project; and WHEREAS, on March 17, 1995, the Director of Public Works received proposals from eight (8) Consultants for the development of a GIS based Traffic Accident Record System; and WHEREAS, after the proposals were evaluated, four (4) Consultants were selected for interviews which were held on April 14, 1995; and WHEREAS, as a result of the interview and evaluation process, staff has selected Calgis, Inc. as the most qualified firm for the project; and WHEREAS, this project is a federally grant funded project administered through the State of California, Office of Traffic Safety (OTS); and WHEREAS, the city has received OTS approval of Calgis, Inc. as the Consultant selected for this project (OTS Project #TR9503). NOW, THEREFORE, BE IT RESOLVED the city Council of the city of Chula vista does hereby approve an Agreement with Calgis, Inc. for a GIS Based Traffic Accident Record System (TF231), 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 of Chula vista. Presented by Approved as to form by John P. Lippitt, Director of Public Works Bruce M. Boogaard, city Attorney C:\rs\calgis / /~~ 7 //0 -NI I c:'"- ". ~, , ~ TF.- 2 3t ' tI . EXHIBIT :1- . RESOLUTION NO. 17733 RE$OLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADDING PROJECTTF231 -ACCIDENT RECORD SYSTEM TO THE CIP BUOGET AND APPROPRIATING $56,750 FROM FUND 219 FOR A COMPUTERIZED ACCIDENT INFORMATION RETRIEVAL SYSTEM WHEREAS, the State Office of Traffic Safety has approved a grant of $56,750 to upgrade the City's accident record retrieval system; and,' WHEREAS, the proposed system will integrate with the city's newly implemented Geographic Information System (GIS) and will allow the city to retain an information systems consultant to provide the City with a state-of-the-art computer software accident record retrieval system that is compatible with our GIS; and, WHEREAS, the grant will also allow the city to purchase a GIS hardware station. NOW, THEREFORE. BE IT RESOLVED the City Council of the City of Chula Vista does hereby add Project TF231 - Accident Record System to the CIP Budget. BE IT FURTHER RESOLVED that the amount of $56,750 is hereby appropriated from Fund 219-0TS-Accident Record System into Account 219-2192-TF231. Presented by ~ I . Bruce M. Boogaaf. City Attorney hn P. Lippitt irector of Public Works J,!)' 1 , t . t I { . t f ] i 1 I . , '1- .$ , . .~n. ~-,TP .",,'nt~~T::.~-If.'~ nV;::iUIUUUII I'IU.--rl -, ~w Page 2 _ " " PASSED, APPROVED and ADOPTED by the City Council of the City of Chula Vista, California, this 22nd day of November, 1994, by the following vote: . YES: Councilmembers: Fox, Horton, Moore, Rindone, Nader NOES: Councilmembers: None ABSENT: Councifmembers: None ABSTAIN: Councilmembers: None ~ ~.I- w.L,u J~.J Shir, y Horton Mayor Pro-Tempore ( ATTEST: " \ ~ . ,",,' \'\ '. \ " \ ','.l\..t')"~ \ ~..tJ~UJ.,.,\ Vicki C. Soderquist, De9~~ City Clerk STATE OF CALIFORNIA I COUNTY OF SAN DIEGO I ss. CITY OF CHULA VISTA I I. Vicki C. Soderquist. Deputy City Clerk of the City of Chula Vista. California. do hereby ( certify that the foregoing Resolution No. 17733 was duly passed, approved, and adopted by I the City Council at a regular meeting of the Chula Vista City Council held on the 22nd day of It November. 1994. Executed this 22nd day of November. 1994. ":t /tfJ,,/t? , . COUNCll. AGENDA STATEMENT ITEM TITLE: Item 13 MeetiDg Date 11/21/94 ResolutioD' ", 33 Adding project TF231 - Accident Record System to the CIP Budget and appropriating $56,750 from Fund 219 for a Computerized ACCideD;?InfOrma' D Retrieval System Director of Public Works . City Manager (4/Sths Vote: Yes_No..K.) SUBl\U 11 t;D BY: REVIEWED BY: The State Office of Traffic Safety has approved a grant of $56,750 to upgrade the city's accident record retrieval system. The proposed system will integrate with the city's Dewly implemented Geographic Information System (GIS). The grant will allow the city to retain an information systems consultant to provide the City with a state-of-the-art computer software accident record retrieval system that is compatible with our GIS. The grant will also allow the city to purchase a GIS hardware station. RECOMMENDATION: that Council approve the resolution adding project TF231 - Accident Record System to the CIP Budget and accept funds, deposit into fund 219-0TS-Accident Record System and appropriate $56,750 from Fund 219-0TS-Accident Record System for a computerized Accident Record Information Retrieval System subject to fmal grant approval. BOARDS/COMMISSIONS RECOMMENDA nON: Not applicable. DISCUSSION: On April 5, 1994, City Council adopted Resolution 17440 (Exhibit I) authorizing the City Engineer to file an application with the State Office of Traffic Safety (OTS) for a grant to develop a Computerized Accident Record Information Retrieval System. The grant has been approved at the staff level by the State and should receive formal approval within one month. The grant will allow the City to develop a computerized accident record information retrieval program that is compatible with our GIS. The compatibility of the program is important to staff in order to oHmin..... double data entries and, most importantly, expedite the process with less staff time. A computerized accident record information retrieval system provides statistical information regarding accidents in the city through the use of two data bases; a) accident information and b) accident location. Through the proposed accident system, staff will no longer have to enter the accideDtlocation information. The accident location information on any accident will be retrieved from the GIS data base. This process will save an inordinate staff time. Currently staff speDds a lot of time entering accidents and locations information and preparing accident information and diagrams manually. The proposed system will make use of our GIS location data base to generate accident diagrams electronically. /tJ~ /1 . " Page 2. Item \ 3 Meeting Date 11/22/94 The $56,750 grant will provide the city with $49,000 for software development and $8,000 for GIS hardware station. The program schedule is November 1994 to September 1995. FISCAL IMPACI': The City's contribution for implementation of the program, which includes coordination, supervision, administration and evaluation, will require approximately 500 hours of City staff time at a cost of $15,000 (salaries and benefits only). This staff time will be a part of normal staff services included in the Traffic Engineering operating budget. Funds for the purchase of the computerized system will be available in ac:tount 219-2192- TF231 as a result of this action and are from a Federal grant. Implementation of this program will reduce the amount of staff time now devoted to the existing Accident Record System by approximately 50%. Presently we are expending approximately 550 staff hours annually, equivalent to an operating expenditure of $16,500, on the existing labor intensive, manually operated program. The annual savings of approximately 275 person hours or $8,250 per year wiIl allow the Traffic Engineering Section to absorb work assignments associated with transportation forecasting for proposed land development and to perform critical traffic engineering assignments in a more timely manner. It should be noted that the staff savings is equivalent to a twenty two month payback. ZAO:rb File :TF-231 .' Exhibit 1 - Resolution 17440 and Minutes of Council meeting (excerpt) (M:\H~\AGENDA\11'23I2.AO) J,?J ,./.,.). IF23/ THE CITY OF CHULA. nSTA PAR7Y DISCLOSURE STATEMENT Statement of disclosure of certain ownership interests, payments, or campaign contnbutions, 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 contract, ie., contractor, subcontractor, material supplier. Calgis, Inc. Contracter 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. Gerald Dildine Riadh Muniy ,1pffTp.v Seib Mushtaq Hussain 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? Yes_ No!.- If yes, please indicate person(s): 5. Please identify each and every person, including any agents, employees, consultants or independent contractors ~ho you have assigned to represent you before the City in this matter. Gerald Dlldlne Marty Hartwi9 Jeffrey Seib ' Chris Bohan 6. Have you and/or your officers or agents, in the aggregate, contributed more than '$1,000 to a Council member in the current or preceding election period? Yes _ No -L If yes, state which Councilmember(s): Pcrson is defined as: "Any individual,Jim~ co-partnership,joint ven1U~, association, social club,frntmull orgnnizntion, corporation, eSltlle, /nISI, ~cei\'er, syndicate, this and any other county, city and counll)1 city, nwnicipnlity, district or other political subdivisioll, or <lilY other group or combination acting as a unit." (NOTE: Attach additional pages as necessary) Date: October 23, 1995 /~~;;> contractor/applicant Jeffrey Seib, Vice President Print or type name of contractor/applicant . IJ{eovi"cd: It/Jf)J'JOJ 1,\'III.\;OISCLOSE.1Xl1 '1'H15 PAGE BLANK : /tJ-Jf Agreement between City of Chula Vista and Calgis, Inc. for a G.I.S. Based Traffic Accident Record System Agreement Number THIS AGREEMENT, made and entered into this day of November, 1995, in the City of Chula Vista, County of San Diego, State of California, is by and between the City of Chula Vista (City), a municipal Chartered corporation of the State of California, through its duly elected or appointed, qualified and acting Deputy Public Works Director/City Engineer (Administrator), and Calgis, Inc. (Consultant), a Corporation, whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6. This Agreement, dated for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is made with reference to the following facts: Recitals Whereas, the City of Chula Vista has advertised for Request For Proposals for a consultant to develop a GoI.S. Based Traffic Accident Record System under a grant from the State of California, Office of Traffic Safety (OTS); and, Whereas, after having received and reoliewed Proposals from eight (8) licensed firms, qualified to provide such services, the City of Chula Vista has chosen, and OTS has approved, Calgis, Inc. as the most qualified and desirable firm with which to enter into agreement with to fulfill the requirements of this contract; and, Whereas, the Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the products and services required of the Consultant to the Administrator within the time frames herein provided all in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, BE IT RESOLVED that the Administrator and the Consultant do hereby mutually agree that the Consultant for and in consideration of the covenants, conditions, agreements, and stipulations of the Administrator herein expressed, does hereby agree to furnish to the Administrator services and materials, as follows: 1 /fl-/f I' .-... ;' '"""' ; ,~_.) Article 1 - statement of Work/Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services as del;cribed in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to the City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional..services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. Such Additional Services, if they are to be funded under grant from the OTS, shall be approved by the OTS prior to the Consultant receiving a Notice to Proceed from the City for the performance of such Additional Services. 2 /kJ~/~ 114 E. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar situations. F. Insurance Consultant represents that it and its agents, staff and subconsu1tants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: statutory Worker's Compensation Insurance Liabili ty Insurance coverage in the amount set attached Exhibit A, Paragraph 9. and Employer's forth in the Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names the City and Applicant as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City and Applicant in the same manner as members of the general public ("Cross-Liability Coverage"). Errors and Omissions Insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage is included in the Generai Liability Policy. G. Proof of Insurance Coverage . / (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-Liability Coverage required under Consultant's Commercial General Liability Insurance Policy, 3 /f)/I? Ii r-". Ii:; Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. H. Security for Performance. (1) Performance Bond In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. (2) Letter of Credit In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The Letter of Credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A. (3) Other Security In the event that Exhibit A, Paragraph 19, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney which type and amount is indicated in the spaces beneath the term, "Other Security", in said Paragraph 19, Exhibit A. I. Business License Consultant agrees to obtain a business license from the City for each calendar year that the Consultant performs work for the City and/or performs work within the City limits and to otherwise comply with Title 5 of the Chula Vista Municipal Code. Consultant shall pay the City's Business License Tax ($10S/year) as part of obtaining the required business license. 4 /,tj-/f ito Article 2 - Pro;ect Costs Pursuant to satisfactory completion of this Agreement, a single fixed fee' payment of $ 38.645 (which includes all expenses incurred by the Consultant) will be made to the Consultant. The above single fixed fee payment for satisfactory performance, includes salary, fringe benefits, overhead, profit and all other expenses incurred by the Consultant. Article 3 - Cost Limitation Total expenditures made under this contract shall in no case exceed the sum of $ 38.645 Article 4 - Method of pavment A. The Consultant will be compensated for performance of the Defined Services herein described as are allowable under the provisions of Part 1-15 of the Federal Procurement Regulations. B. Consultant shall be reimbursed as provided in Exhibit A, Paragraph 11 in arrears. Consultant shall submit all invoices in triplicate and addressed to the Administrator. C. The Administrator shall retain ten percent of the billings, which retention shall be paid to the Consultant together with the final payment, upon acceptance by the Administrator and the California Office of Traffic Safety of the satisfactory Final Report. D. Compensation - Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period "indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Article 4, Paragraph C, and in Exhibit A, Paragraph 19, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated 5 /tJ--/f .r-I l' J on Exhibit A, paragraph 18 (C) to be charged upon making such payment. Article 5 - Subcontractina Consultant shall not be permitted to subcontract any portion of this Contract without the express written consent of the City and the OTS. Article 6 - Completion Date Consultant shall complete the following portions of the work within the following time frames from the issuance by the City of a "Notice to Proceed" for this project: Portion of Work Time Frame 1. 2. 3. 4. 5. 6. 7. System Definition System Design System Development System Support Development System Evaluation System Installation Final Report Preparation 1 month 2 months 4 months 5 months 5 1/2 months 6 months 7 months This Agreement shall terminate when the Parties have complied with all executory provisions hereof, and in no case after the date of June 30. 1996 . Article 7 - Reports Consultant shall furnish interim reports quarterly as to the progress of the project or upon demand by the City or the OTS. A Final Report in draft form shall be provided to the City and the OTS thirty (30) days prior to contract termination' tor review, recommendations and approval by both parties prior to the Consultant furnishing twelve (12) printed copies of the approved final report. The approved Final Report is due to OTS thirty days after project completion. Costs incidental to the report 's preparation or delivery that are incurred subsequent. to the termination date of the project are not allowable. For any report or document that the Consultant prepares or participates in the preparation of in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 6 /!J~e:2Cl I In I, \ (::~ Article 8 - Publication A. Consultant shall not be authorized to copyright the final report, any papers, interim reports, forms, or other material which is ~ part of the work under the Agreement, without written approval from the City and the OTS. B. Publication rights to any documents produced are to be reserved to the City and the OTS. Oral and written releases of information are subject to prior written approval of the Administrator and OTS. C. All reports published by the Consultant shall contain the following statement on the credit sheet: "The opinions, findings, and conclusions expressed in this publication are those of the authors and not necessarily those of the Office of Traffic Safety, the National Highway Traffic Safety Administration, the Federal Highway Administration or the City of Chula Vista." D. Both written and oral releases are considered to be within the context of publication. However, there is no intention to limit discussion of the project with small technical groups or lectures to employees or students. Lectures to other groups which describe the project but disclose neither data nor results are permissible without advance written approval. E. All reports shall contain the following credit line: "In cooperation with the State of California, Business, Transportation and Housing Agency, Office of Traffic Safety, the U.S. Department of Transportation, National Highway Traffic Safety Administration and Federal Highway Administration." Article 9 - Pro;ect Inspection The Office of Traffic Safety, the National Highway Traffic Safety Administration, the Federal Highway Administration, and the Administrator may review and inspect the Consultant's activities as to this contract during the progress of the project. Article 10 - Accountina Records Consultant must maintain accounting records and other evidence pertaining to costs incurred. All records and documents shall be kept available at the Consultant's California office during the Contract period and thereafter for three years from the date of final payment of Federal funds. 7 /0-02 / ii'1 Article 11 - Ownershio of Data. Reoroduction and Use of Material All reports, studies, information, data, maps, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced, collected, created or prepared under this Agreement shall become the joint property of the City and the OTS. No such matr,rials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United states or in any other country without the express written consent of the City and the OTS. City and the OTS shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. Article 12 - Warrantv Consultant warrants that the software programs for the GIS Based Traffic Accident Record System will function as intended and described in the Detailed Scope of Work (Exhibit B). This warranty shall be effective for one year from the acceptance of the project by the City. Article 13 - Termination of Aareement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City and the OTS, become the joint property of the City and the OTS, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. Article 14 - Termination of Aareement for Convenience of Citv City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least 8 /C'cJ..:2- laD I - thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City and the OTS, become the joint property of the City and the OTS. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. Article 15 - Assiqnabilitv The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without the prior written consent of the City and the OTS, which the City and theOTS may not unreasonably deny. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants". Article 16 - Amendment It is mutually understood and agreed that no alteration or varia"tion of the terms of this Agreement, or any subcontract requiring the approval of the Administrator and/or the Office of Traffic Safety, shall be valid unless made in writing, signed by the parties hereto, and approved by all necessary parties. Article 17 - Non-Solicitation Clause "The Consultant warrants that he/she has not" ~mployed or retained any company or persons, other than a bona fide employee working solely for the Consultant, or paid any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the State shall have the right to annul this Agreement without liability, or, in its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee." Article 18 - Equal Oooortunitv Assurance During the performance of this Agreement, the Consultant agrees as follows: 9 JtJ~,)} A. The Consultant will not discriminate against any employee or applicant for employment because of race, sex, creed, color or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, sex, creed, color or national origin. Such act~on shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoffs or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. . B. The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, sex, creed, color or national origin. C. The Consultant will send to each labor union or representative of workers with which he/she has a collective bargaining agreement or contract or understanding, a notice advising the labor union or worker's representative of the Consultant's commitments under this nondiscrimination clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment. D. The Consultant will permit access to books, records and accounts by the applicant agency, the State, the Federal Highway Administration and/or the National Highway Traffic Safety Administration for purposes of investigation to ascertain compliance with this nondiscrimination clause. E. In the event of the Consultant's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated or suspended in whole or in parE: Article 19 - Minoritv. Women and Disabled Veterans Business Enterorise Proaram (M/W/DVBE) During the performance of this Agreement, the Consultant agrees to insure that minority, disabled and women business enterprises as defined in 49 CFR Part 23 and California Code of Regulations, Title 2 shall have the maximum opportunity to participate in its performance. The Consultant will take all necessary and reasonable steps in accordance wjth these regulations to insure that M/W/DVBE's have the maximum opportunity to compete for and perform any subcontracts for materials, services or supplies procured under this Agreement. 10 Jj}~~1 i r. /"i__ I ,f' r' Article 20 - Druq-Free Workplace Certification During the performance of this Agreement, the Consultant agrees to provide a drug-free workplace as outlined in the Government Code Section 8355 by: A. Publishing a statement notifying employees that company policy prohibits the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance, and defining actions to be taken for violation of the policy. B. Establishing a drug-free awareness program to inform employees about the dangers of drug abuse in the workplace, the organization's policy of maintaining a drug-free workplace, any available counseling, rehabilitation and employee assistance programs and penalties that may be imposed upon employees for drug abuse violations. C. Providing that every employee who works on the proposed contract will receive a copy of the company's drug-free policy statement and requiring that these employees agree to abide by the terms of the company's statement as a condition of employment on the contract. Article 21 - Consultation and Cooperation The City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files, and records by Consultant throughout the term of tr.e Agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitFte a basis for the justifiable delay in the Consultant's performance of this Agreement. Article 22 - Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this Agreement. 11 /cJ--~f ......, ";to, -'::".-- Article 23 - Liauidated Damaaes The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgement to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the 5um of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate"). Time extensions for delays beyond the Consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. Article 24 - Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer If the Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC Filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. 12 /j)~~? '':)l~ C. Search to Determine Economic Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this Agreement. D. Promise Not to Acquire Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in' JExhibit A, Paragraph 15. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant's Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of the City. 13 /j)-,) 7 (:..\L I . .~.~ .,,,.! Consultant may not conduct or solicit any business for any party to this Agreement, or for. any third party which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of the City. Article 25 - Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City of Chula Vista, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorney's fees) arising out of the conduct of the Consultant, or any agent or employee, subcontractors, or others in connection with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the Ci ty, its officers, or employees. Consul tant' s indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City, its officers, agents, or employees in defending against such claims, whether the same proceed to judgement or not. Further, Consultant at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consultant's indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. Article 26 - Errors and Omissions In the event that the City Administrator determines that the Consultant's negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the Ci ty . Nothing herein is intended to limit the City's rights under other provisions of this agreement. . , Article 27 - Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City 14 /tJ'pZY will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. Article 28 - Administrative Claims Reauirements and Procedures No suit or arbitration shall be brought arising out of this Agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the prQcedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. Article 29 - Attornev's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred in the defense of the claim, including costs and attorney's fees. Article 30 - Miscellaneous A. Consultant not Authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. . , B. Consultant is Real Estate Broker and/or Salesman I f the box on Exhibi t A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be 15 /&';Lf I"', ,- \'.?~ i deemed to have been properly given or served if personally served or deposited in the United states mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the state of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in the County of San Diego, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. G. Consultant subject to OTS Grant Program Manual (Vol. II). Consultant understands and agrees that its obligat.~ons, rights and duties under this agreement are further subject to any requirements that may be imposed upon the project or the City, or both, by the OTS Grant Program Manual (Volume II). [End of Page. Next Page is Signature Page.] 16 /t/-:> tJ ,">, Ide"; Signature Page to Agreement between City of Chula Vista and Calgis, Inc. for a GIS Based Traffic Accident Record System IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ,19_ City of Chula Vista By: Shirley Horton, Mayor Attest: Beverly Authelet, City Clerk Approved as to form: Bruce M. Boogaard, City Attorney Dated: Calgis, Inc. By :~de1.e.,. President . era 1 1ne, By: Exhibit List to Agreement (xl Exhibit A (xl Exhibit B: (xl Exhibit C: Detailed Scope of Work Cost/Price Proposal tk\HOHE\ENGINEER\TRAFFIC\ARSGCONT.SM 17 /;)~J / 1'\ t1 (;:1' Exhibi t A to Agreement between City of Chula Vista and Calgis, Inc. 1. Effective Date of Agreement: 2. City-Related Entity: (x) City of Chula vista, a municipal Charted corporation of the state of California ("City") 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: Calgis, Inc. 5. Business Form of Consultant: (x) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 1477 E. Shaw Ave., Suite 110 Fresno, California 93710 Phone: (209) 298-1816 Fax: (209) 298-1815 7. General Duties: Consultant shall furnish all services as required to provide a fully functional GIS based and IBM PC/Windows compatible Traffic Accident Record/Road Register computer system. Services provided shall, in general, consist of the following: Svstem Definition Consultant shall collect and analyze information necessary to define the functional requirements of the proposed system. Consultant shall develop a detailed description of the proposed system (software and procedures) which is adequate for the system design and shall produce a System Definition Document and a Detailed Project Schedule which meet with the City's approval. Said proposed system shall include user friendly features and time saving features which fully utilize the capabilities of ArcView/2. Examples of these types of features are as follows: 1 /t?~3;L ! './) : .....-'< The ability to graphically display a location (at a preset scale) and/or to automatically zoom/pan to that area of the map by typing in the name of the location (intersection, segment, street etc.) instead of repeatedly panning and zooming on a map of the City. The ability to zoom in/out on an area and to pan across an area displayed graphically. The ability to jump to a part of a list (for example, a street name list) by typing in the first letters or number of the name instead of scrolling through the entire list. Consultant shall provide the City with specifications and costs for computer hardware and peripherals (including printers, plotters and other necessary output devices) required for the operation of the proposed system. Examples of graphic and text output for printers and plotters considered adequate by the Consultant for the system proposed shall be submitted as part of the hardware specifications provided. Approximately ten percent of the Consultant I s efforts shall be expended on these tasks. ($3,000) System Desiqn Consultant shall design the data base, develop detailed program schematics for the proposed system, develop user interfaces and produce the final detailed design for all software programs for coding. Consultant shall spend approximately fifteen percent of their time on this task. ($6,000) System Develooment Consultant shall write the source code for all required programs for the proposed system. Consultant shall test and debug the software to insure that all objectiyes establi~l)ed for the system are met. Consultant shall deliver the completed software system to the City, including ArcView/2 and all other software and any necessary licenses required for interface with the Ci,ty I S existing GIS system and for the proposed accident record system to function as intended. Costs for all necessary licenses for the operation of the system shall be included in the total compensation for this project and no additional compensation shall be due from the City for these items. Consultant shall spend approximately forty percent of their effort on this portion of the work. ($14,000) System Suooort Develooment Consultant shall produce and provide comprehensive documentation for the accident record system software provided. 2 /.tJ' J) --I j ""'~ , ..._~ Consultant shall also provide all documentation (manuals, warranties, etc.) for all other software provided for this project. Consultant shall perform extended certification testing of all functions within the application software, documenting test results and making any necessary modifications to the source code required for the system to function as intended. Approximately fifteen percent of the Consultant's efforts shall be expended on these tasks. ($6,000) System Evaluation and Translation of Existinq Data Consultant shall convert the most current copy of the City's existing Collision History and Road Register computer database files over to function within the City's GIS attribute database. Consultant shall resolve all problems encountered during the data translation to the City's satisfaction. Consultant shall perform on-site testing of the application software and database files to insure that the system functions as intended. Consultant shall evaluate the system's performance and software and shall provide said evaluation to the City as part of the project final report. Approximately ten percent of the Consultant's efforts shall be expended on these tasks. ($3,000) System Installation Consultant shall complete all aspects of the system installation and shall insure that the entire system functions as intended. Consultant shall provide on-site training for City staff in all phases of the operation of the system. Consultant shall prepare a project final report. Said final report shall satisfy all requirements for format and content as contained in the latest version of the OTS Grant Program Manual. .~ In addition to the installed system, Consultant shall deliver one backup copy of the complete software system (excluding ArcView/2) and system documentation to the City. Consultant shall also provide one copy of the complete software system (excluding ArcView/2) and system documentation for forwarding to OTS with the approved Final Report. The remaining approximately ten percent of the Consultant's efforts shall be expended on these tasks. ($3,000) 8. Scope of Work and Schedule: A. Detailed Scope of Work: As defined in Exhibit B. 3 /t:?~ 3( !.~3) B. Date for Commencement of Consultant Services: (x) Same as Effective Date of Agreement ( ) Other: C. General Schedule Time Limits (from issuance by the City of a Notice to Proceed for this project) for Delivery of Each of the Following Deliverables: Deliverable Time Limit 1. System Definition Document, Detailed Project Schedule and Hardware Specifications 2. Complete Accident Record System Software Package, including ArcView/2 Software 3. Complete Software Documentation 4. Interim Reports. 1 month 5 months 5. Final Report 6 months Quarterly (or on demand by the City or the OTS) 7 months The Detailed Project Schedule provided as part of Deliverable Number 1 shall be in general accordance wi th the General Schedule Time Lines provided herein. D. Date for completion of all Consultant services: June 30. 1996 9. Insurance Requirements: (x) Statutory worker's Compensation Insurance (x) Employer's Liability Insurance coverage: $1,000,000. (x) Commercial General Liability Insurance: $1,000,000. ( ) Errors and Omissions Insurance: None Required (included in Commercial General Liability coverage). (x) Errors and Omissions Insurance: $500,000 (not included in Commercial General Liability coverage). 10. Materials Required to be supplied by City to Consultant: The City will furnish the Consultant, upon request and to the extent that it is available, information on the City's existing Accident Record/Road Register System and database, and the data dictionary of the GIS street base map. 4 /tJ~J/ I::> :? ..,;....., 11. Compensation: A. (xl Single Fixed Fee Arrangement. City agrees to compensate Consultant as per Exhibit C for performance of all defined services by Consultant. 1. 2. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $38.645, payable as follows: Milestone or Event or Deliverable Amount of Fixed Fee 10% Retention Amount less Retention Completion of: Provide City with proof $ 3,645 of payment for Errors and Omissions Insurance $ 365 $ 3,280 System Definition, 3,000 including the following approved deliverables: System Definition Document Detailed Project Schedule Hardware Specifications 300 2,700 3. 4. System Design 6,000 600 5,400 1,400 12,600 System Development, 14,000 including the following deliverables: Complete Accident Record System Software package, including ArcView/2 and any other necessary software .J' 5. System Support Development, 6,000 including the following deliverables: Complete Software Documentation 600 5,400 6. System Evaluation and 3,000 Translation of Existing Data 300 2,700 5 /i/-;Z? i3~ Milestone or Event Amount of 10% Amount less or Deliverable Fixed Fee Retention Retention Completion of: 7. System Installation, 3,000 300 2,700 Training of City Staff and Preparation of Final Report B. ( ) Phased Fixed Fee Arrangement C. ( ) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said services, at the rates or amounts set forth in the Rate Schedule hereinbelow according to the following terms and conditions: 1. () Not-to-Exceed Limitation of Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). 2. () Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the Ci ty . Nothing herein shail preclude Consultant from providing additional Services at Consultant's own cost and expense. 6 /t/~ J? r ..?...--- ',-__.-1 _'~) RATE SCHEDULE Category of Employee of Consultant Name Hourly Rate Project Manager Team Leader Sr. GIS Specialist Programmer/Analyst Clerical G. Dildine C. Bohan R. Munjy K. Myer $80 $65 $80 $60 $35 () Hourly rates after [month], 19 by City. may increase by 6% for services rendered , if delay in providing services is caused 12. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (x) None, the compensation includes all costs. 13. Contract Administrators: City: Frank Rivera, Associate Traffic Engineer, Public Services Building, 276 Fourth Ave., Chula Vista, CA 91910, (619) 691-5237 Consultant: Gerald Dildine, President, Calgis, Inc., 1477 E. Shaw Ave., Suite 110, Fresno, CA 93710, (209) 298-1816 14. Liquidated Damages Rate: ,/ ( ) $ per day. (x) Other: In the event Consultant fails to deliver the GIS Based Traffic Accident Record System and all deliverables specified in this Agreement by June 30, 1996, and OTS exercises any rights pursuant to Sections 3.8 and 7.3.1 of the OTS Grant Program Manual (volume II), whereby City is obligated to reimburse OTS for funds advanced by OTS to City, City may require Consultant to reimburse City for that amount, unless City elects to continue. 7 / tfJ <> ff" I :> ' \ ~d,'\,;51 15. statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (x) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.1. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in property and sources of income subject to regulatory, permit or licensing authority department. real those of the ( ) Category No.4. Investments in business entities and sources of income which engage in land development, construction or the acquisi tion or sale of real property. ( ) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee I s department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 16. () Consultant is Real Estate Broker and/or Salesman 17. Permitted Subconsultants: None 8 Jp-3; /'---1 ,.,,"') :' 18. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly (x) other: Upon completion of each milestone or event or deliverable as specified in Exhibit A, Paragraph 11 (A). B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (x) End of the Month ( ) Other: C. City's Account Number: 219-2192-TF231 19. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ (x) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage: or "Retention Amount" until the City determines that the Retention Release Event, listed Below, has occurred: ._.f (x) Retention Percentage: ( ) Retention Amount: $ 10 % Retention Release Event: (x) Completion of All Consultant Services, including acceptance by the City and the OTS of the satisfactory Final Report (all required copies). ( ) Other: M:\HOME\ENGlNEER\TRAFFIC\ARSGC-A.SM 9 /,t:/' ~t7 1-:> ,j -.,"" () Exhibit B to Agreement between City of Chula Vista and Calgis, Inc. DETAILED SCOPE OF WORK Consultant shall furnish all services as required to provide a fully functional GIS based Accident Record/Road Register computer system. Said system shall have all the record management and report/printout generating capabilities of the City's existing system plus the additional benefits to be gained from a GIS based software system. The system shall consist of computer software programs (including source code), all necessary database management or report generating software, and complete and professional documentation on the installation and use of the system. The GIS based Accident Record System'shall be developed on ESRI's Arcview2 software operating on an IBM compatible PC and MS Windows. Access to the GIS databases shall be from the City's Novell network. No direct linkage to the City's ARC/Info workstations are anticipated. However, a process that includes supportive or special databases that are processed and generated by the ARC/Info workstations is acceptable. Except for currently standard GIS databases, all direct o~ non-direct links to new or special GIS databases shall be identified for City appr"val during the Design task of this project. All software necessary for the proposed system to interface with the City's GIS system and to operate as intended shall be provided by the Consultant. Consultant shall utilize the geographic databases of the City's existing GIS system in the development and implementation of the new GIS based accident record system. Consultant shall install all equipment and software acquired by the City as part of this project. Consultant shall insure that all hardware and software shall interface (and operate successfully) with the City's existing GIS system hardware, programs and database and will function as intended. The existing GIS system is networked on the citywide Novell (version 3.1) server with 10 base- T network cards and connectors. City 'staff access the GIS databases on this server using IBM compatible PCs and Arcview2 which is a windows based product. Local networked printers (generally HP Laserjets) are used for report printing; or the printer may be non-networked. Problems with system hardware or software shall be resolved by the Consultant to the City's satisfaction before final system acceptance. Consul tant shall furnish an interim report quarterly as to the progress of the project or upon demand by the City or the OTS. 1 / fJ~11 J "':>~} ., ,...~ ! These interim reports sh~ll satisfy all requirements for format and content as contained in the latest version of the OTS Grant Program Manual. Consultant shall provide these reports to the City with sufficient lead time for the City to review and forward these reports to OTS in order to meet OTS deadlines specified in the latest version of the OTS Grant Program Manual. Consultant shall provide three copies of a comprehensive user's manual on the new system, in addition to three copies of the software. Consultant shall provide one full week of training for City staff in all aspects of the operation of the Accident Record/Road Register System provided. Consultant shall commit to providing addi tional training for City staff as needed (at the City's request). Consultant shall provide software upgrades and on-going technical support, both on-site and telephone support as needed, throughout the warranty period for the software at no additional cost to the City. The warranty period shall not begin until the system installation and all system software have been accepted by the City. The Road Register portion of the system shall be designed to accommodate other systems such as Pavement Management and infrastructure inventories as well ~s the Accident Record System. Consultant shall convert the most current copy of the City's existing Collision History and Road Register computer database files over to function within the City's GIS attribute database. Consultant shall incorporate additional data files from the existing Accident Record/Road Register system into the new system (as needed) to maintain the quality of the data currently provided . by the existing programs and reports. All problems encountered during the data translation shall be resolved by the Consultant to the City's satisfaction. ./ The system shall allow data to be accessed, updated and manipulated, as well as reports and printouts to be generated, directly from the database as well as through the GIS system. Information resident in the GIS database (such as street names and segment lengths) shall be provided by the system programs rather than input. Where possible, necessary fields of information (such as cumulative distances) shall be calculated by the programs instead of being input by the user. The new system shall be designed to accommodate future growth in the City up to at least doubling the number of accidents and 2 /p~ (e7- IUD accident locations that make up the current accident record/road register database. All programs provided shall be able to handle the change in dates in the year 2000 so that no problems will occur in the inputting of data or in the generation of reports and printouts for data which spans the turn of the century. Programs provided shall be able to handle both standard (imperial) and metric units of measurement at the users discretion. Programs that output reports and printouts to the printer shall have the option of sending the information to a file in the computer in printer ready ASCII format and in WordPerfect format (WP version 6.0 or latest version). The format of all reports and printouts shall be approved by the City prior to final acceptance of the system. Required features of accident record system programs (especially those using existing look-up tables) may be designed by the Consultant to function in some other way as long as the required features are provided and the existing quality of input and output data is maintained. The system supplied by the Consultant shall provide as a minimum the following programs, reports and system capabilities: Collision Historv Database Maintenance Proaram This program shall add, modify, and delete accident reports to/from the collision history database file (which will be tied to the GIS system). Inputting errors shall be flagged to allow error correction at the input stage rather than after update of the data file has been completed. Provision shall be made for the removal of data from the active file and for the archiving of this historical data for later use. Information input shall'be from the standard California Highway Patrol (CHP) Traffic Collision Report Form 555 with additional fields of information added (i.e. location codes, etc.). Road Reaister Database Maintenance Proaram This program shall add, modify, and delete intersection and segment records to/from the road register database file (which will be tied to the GIS system). Information resident in the GIS database (such as street names and segment lengths) shall be provided by the program rather than input. 3 Jf)~ '/;J !~! The following three monthly reports (for high accident intersection and segment locations and for the Collision Statistics Summary) shall be generated by one program or batch file for the month/year and area specified by the user. Monthly Summary Report of Hiah Accident Locations - Intersections This program shall produce a report on high accident locations (with a user specified minimum number of accidents during the reporting period) for a user specified area up to and including City-wide. Statistics for each location shall include number of total collisions (current and previous month), number of collisions (current month) by category (fatal/injury/PDO), intersection ranking, location code, approach volume for each entering leg of the intersection and a notation if the intersection is signalized. Monthly Summary Report of Hiah Accident Locations - Seaments This program shall generate a report on high accident segment locations which provides the same information as noted above for the high accident intersection locations report. Monthly Summary Report of Collision Statistics This program shall generate a report which provides statistics (for a user specified area up to and including City-wide) on collisions occurring during the reporting period for collision type, primary causative violation group, number of collisions (by extent of injury), and number of victims (by extent of injury). Statistics for each of these categories shall be provided for number of collisions (current month and same month last year) and percent change, number of collisions (12 months to date and previous 12 months) and percent change, and percent of this month's total collisions. ,/ Route Street Collision Summary Report For each of two user specified time periods, this program shall generate a report which provides statistics on number of collisions (by collision type and total collisions) for each intersection and segment along a route street (starting and ending at user specified intersections). This information shall be organized geographically by survey direction. Additional information shall be provided on segment and route lengths, total intersection and segment collisions along the route for each time period, traffic volumes (user specified) and collision rates for each time period, and percent change in collision rates between the two time periods. 4 /.&~Ii ( 4'). Traffic Collision Detail Report The program shall output information on each individual accident occurring at any user specified location (intersection or segment), for any user specified time period. Accident report data shall be sorted by collision date and time and shall contain the information input from the CHP Traffic Collision Report Form 555. The program shall prompt for additional locations so that multiple reports may be run without exiting and restarting the software. Traffic Collision Detail Report (On-Screen Version) This program shall be an on-screen version of the Traffic Collision Detail Report described above. Multiple screens of data shall be displayed sequentially (when prompted by the user) when the amount of data in the report requires more than one screen. The program shall prompt for additional locations so that multiple reports may be displayed without exiting and restarting the software. Traffic Collision Detail Report (Summarv) This program shall output a summary of the Traffic Collision Detail Report described above providing statistical data on collision type, motor vehicle involved with, lighting conditions, and injury/property damage information. This report shall be generated by the same program or batch file that produces the hardcopy Traffic Collision Detail Report. Collision Cateqorv Location Report For any user specified time period and area (up to and including city-wide), this program shall search the database for accidents matching any user specified set of search parameters. For every accident record found which matches the criteria bein9 tested, a copy of the record is to be sent to a file on a floppy disk drive. A (printer ready) report shall be sent to the floppy disk which lists each location where an accident occurred which matches the search criteria, and (for each location) the total number of collisions during the reporting period and the number of collisions matching the search criteria. Additional information shall be provided on the total number of records in the time period being searched, and the total number of accidents (and the percentage) found matching the search criteria. The program shall also provide the option of printing or plotting a map of the locations found in addition to or instead of printing the described report. The program shall allow previewing of said map prior to printing or plotting and shall allow portions of the map to be printed or plotted as well as plotting the entire map. 5 --- /j)' f".-? 1-, , ~-e' . ..... ~ ......J Report on Missina/Duplicate Accident Records This program shall search the accident record data and output a report listing the lowest accident report number in the file, missing report numbers, duplicate report numbers (including the location codes where each duplicate report occurs), and report numbers (including the location codes where the report occurs and the year of the report) where the year of the report does not match the report number series used for that year. Collision History File Print Proaram From user specified line numbers in the file, this program shall print out the contents of any record or series of records from the Traffic Accident Collision History file. Vehicle Code Violation Groups Proaram This program shall update and print out the existing computer file containing the list of vehicle code violations (and their associated group numbers) which are recognized by the program used to input accident records into the system. Road Reaister Distance Check Proaram This program shall check the road register computer file for faulty record (location code) sequences and errors in cumulative distances. A report shall be generated which lists Road Register record number, location code, street names, incorrect cumulative distance listed and correct cumulative distance (where the error occurs in the cumulative distances along the route); and range of record numbers, location code and street name (where the error is a faulty record sequence). .f Road Reaister Intersection Print Proaram This program shall generate a printout of the road register I s intersection records containing the information input into this record type. The records in this report shall be sorted alphabetically by route street and then geographically (within the route street) by survey direction. The program must be able to start the printout at any user specified point in the file as well as starting the printout at the beginning of the file. 6 /tJ--(~ :44 Road Reqister Seqment Print Proqram This program shall generate a printout of the road register's segment records containing the information input into this record type. The records in this report shall be sorted alphabetically by route street and then geographically (within the route street) by survey direction. The program must be able to start the printout at any user specified point in the file as well as starting the printout at the beginning of the file. Report on Location Codes Used to Date This program shall check the road register computer file generating a printout (listed numerically) of all the location codes used to date, leaving spaces in the listing (for unused location codes) where codes are available for assignment to new intersections. Inverse Intersection Print Proqram This program shall generate a printout which lists each location code used in the accident record system database (sorted numerically) and the street names of each street at that intersection (up to four street names). The program must be able to start the printout at any user specified point in the file as well as starting the printout at the beginning of the file. Siqnalized Intersection Listinq This program shall update and print out a listing (sorted alphabetically) of the signalized intersections (and their location codes) in the city. street Mileaqe Listinq .~ This program shall print out a street listing (alphabetically) which lists the mileage for each classification along each street (and the total mileage) for each street in the City. Additional information shall be provided listing the total mileage for each street classification city-wide and the total mileage for all streets city-wide. The program shall differentiate between public streets, private streets and streets not yet accepted by the City. Collision Diaqrams The system provided shall be capable of producing on-screen and printing or plotting presentation qualitv collision diagrams (for both intersections and segments) for accidents occurring during a 7 J~--17 "I~ i, "1' I,~, , ,.....,; user specified time period. The system shall use standard symbols (used in completing the CHP Form 555 traffic accident report form) and any additional special symbols specified by the City. Preview and editing of collision diagrams and data prior to printing or plotting shall be provided. Time, date, number injured and primary collision factor shall be provided for each accident. Said data shall be labeled on the symbol of the vehicle responsible for the collision or shall be shown in an attached table with the responsible vehicles appropriately referenced on the collision diagram. Accident rates for the data used to produce the collision diagram shall be provided along with a summary of included accidents (showing numbers and totals of accidents for each type of collision and each extent of injury). The time period for the accidents included in the collision diagram shall be user specified. Comouterized Pin Maos The system provided shall be capable of producing on-screen and printing or plotting an electronic pin map for a user specified area (up to and including City-wide) which shows all accidents occurring within a user specified time period. The accidents shown shall, as a minimum, be differentiated by intersection accident, segment accident, and severity of injury (property damage only, injury, and fatality). Seament ADT and Intersection Turnina Volumes The system shall provide attribute records for segment average daily traffic (ADT) volumes and for intersection turning movement volumes. These records shall be separate from the road register intersection and segment records. The segment ADT record shall include the traffic volume for each direction, total (non- . directional) volume and the date of the count. The intersection turning movement volume record shall include the date 0; the count, the (vehicle) approach volume for each entering 'leg of the intersection, and traffic volumes for left turn, through, right turn, right turn on red, and pedestrian movements for each entering leg of the intersection. The system shall be capable of inputting, modifying and deleting these records, displaying graphically and printing or plotting selected data, and generating reports on these record types. Strio Mao of Accident Events The system shall be capable of producing on-screen and printing or plotting a strip map or plot showing accident events with other selected data (i.e., number of lanes, etc.). 8 /~~'/r 111.' ''1", . . Map or plot of Accidents with Traffic Volume The system shall be capable of producing on-screen and printing or plotting a map or plot of accidents with traffic volume data along a selected route. Displav of Ad Hoc Accident Analvsis The system shall be capable of performing ad hoc accident analysis and displaying graphically and printing or plotting the selected data. For example, map a selected route with speed zones delineated and accidents sorted by time of day and/or with alcohol related accidents broken out. Siqn Records The system shall provide attribute records for traffic signs. The system shall be capable of inputting, modifying and deleting these records, displaying graphically and printing or plotting maps of sign locations (by sign type), and generating reports on sign locations, sign types, sign sizes and sign age. Stripinq Records The system shall provide attribute records for traffic striping. The system shall be capable of inputting, modifying and deleting these records, displaying graphically and printing or plotting maps of striping locations (by striping type), and generating reports on striping location, color, type and age. .~ M:\HOME\ENGlNEER\TRAFFIC\ARSGC-B.SM 9 /&-~! /;.j r \ . Exhibit C to Agreement between City of Chula Vista and Calgis, Inc. COST/PRICE PROPOSAL DIRECT LABOR Hourly Emplovee Cateqorv ~ Hours Rate TOTAL Project Manager G. Dildine 60 @ 36.06 2,163 Team Leader C. Bohan 280 @ 15.26 4,273 Sr. GIS Specialist R. Munjy 60 @ 36.06 2,164 Programmer/Analyst K. Myer 200 @ 12.12 2,424 Clerical 60 @ 9.81 589 $ 11.613 EMPLOYEE BENEFITS 20 % $ 2.322 DIRECT COSTS OUANTITY Equipment/Supplies (Itemize) Other Direct Costs (Itemize) Arcview/2 Software 1 COST PER UNIT TOTAL 2,000 2,000 $ 2.000 INDIRECT COSTS (Overhead) Approved Overhead Rate 119.64 % .J' . $ 19.065 INSURANCE COST (Not Subiect to Overhead Rate) Errors and Omissions Insurance $ 3.645 TOTAL COST $ 38.645 M:\HOME\ENGlNEER\TRAFFIC\ARSGC-C.SM /fJfcJ IY6 COUNCIL AGENDA STATEMENT Item / / Meeting Date 11/07/95 ITEM TITLE: Resolution / ffCl'1Y Accepting bids and awarding contract for "Resurfacing of Tennis Courts and Multipurpose Courts at Various Locations in the City of Chula Vista, California (PR-205)" SUBMITTED BY: Director of Public wor~k~ rp/ Director of Parks & Re e i REVIEWED BY: City Manager ~ ~ /' (4/5ths Vote: Yes_NoXJ At 2:00 p.m. on October 4, 1995 in Conference Rooms 2 & 3 of the Public Services Building, the Director of Public Works received bids for the "Resurfacing of Tennis Courts and Multipurpose Courts at Various Locations in the City of Chula Vista, California (PR-205)" The work includes the resurfacing of 15 tennis courts at five different locations and the resurfacing of multi-purpose courts at 6 different locations as well as other miscellaneous work as described in the specifications. RECOMMENDATION: That Council accept bids and award contract to Eastwood Tennis Surface, Inc - San Diego in the amount of $37,458.00. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Funds for this project were included in FY 1995-96 Capital Improvement Program (CIP) budget. The work to be done includes resurfacing a total of 15 tennis courts located at Eucalyptus Park, Chula Vista Tennis Center, Terra Nova Park, Sunbow Park, and EI Rancho del Rey Park. The work also includes the replacement of deteriorated windscreens at Eucalyptus Park and Buena Vista Courts. These items of work were listed as the contract Base Bid. In addition, six added alternatives were included to resurface multi-purpose courts at Los Nifios, Valle Lindo, Lauderbach, Sunridge, Terra Nova, and Rohr Parks. The added alternatives were structured to give the City the flexibility to include as many alternatives as the available funding would allow. The sum of the base bid plus all additive alternatives is the amount shown in the "Grand Total" column of the table listed below. Bids were received from Two contractors as follows: I Contractor I Base Bid I Grand Total I l. Eastwood Tennis Surface, Inc., San Diego $ 29,163.00 $ 37,458.00 2. Ferandell Tennis Courts, Inc., San Diego. $ 42,543.20 $ 55,093.20 //-/ ! ! ! :-J-;~ Page 2, Item / / Meeting Date 11/07/95 Eastwood Tennis Surface, Inc. was the low bidder on both, base bid and the grand total. Staff recommends awarding contract to Eastwood Tennis Surface, Inc. for the grand total amount of $37,458.00. Eastwood Tennis Surface, Inc. has performed excellent work for the City in our previous two tennis court resurfacing contracts. The low Base bid by Eastwood Tennis Surface, Inc. was below the Engineer's Estimate of $37,290.00 by $8,127.00 or 21.8%. Disclosure Statement Attached is a copy of the contractor's disclosure statement (Exhibit A). Environmental Status The Environmental Review Coordinator has reviewed the work involved in this project and has determined that the project is a Class I exemption under Section 1530 I (d) of the California Environmental Quality Act (Minor Alterations of Existing Public or Public Structures). Prevailing Wage Statement The source of funding for this project is The Park Acquisition and Development (PAD) Fund. Contractors bidding this project were not required to pay prevailing wages to persons employed by them for the work under this contract. No special minority or women business owned requirements were necessary as a part of the bid documents. Disadvantaged businesses were encouraged to bid through the sending of the Notice of Contractors to various minority trade publications. Financial Statement FUNDS REQUIRED FOR CONSTRUCTION A. Contract Amount $37,458.00 B. Contingencies (Approximately 10%) 3,771.00 C. Staff (10%) 3,771.00 TOTAL FUNDS REQUIRED FOR CONSTRUCTION $45,000.00 FUNDS AVAILABLE FOR CONSTRUCTION 1. Tennis Courts Resurfacing (PR-205) $45,000.00 TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $45,000.00 FISCAL IMPACT: This action will authorize the expenditure of $45,000.00 of appropriated PAD funds. After construction, only routine city maintenance will be required. SA:PR-205 (M:\home\engineer\agenda\ Tennis.sa) J /-;2 t J-- t-, " _, ~ l RESOLUTION NO. ) 8' ?91~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR "RESURFACING OF TENNIS COURTS AND MULTIPURPOSE COURTS AT VARIOUS LOCATIONS IN THE CITY OF CHULA VISTA, CALIFORNIA (PR-205)" WHEREAS, at 2:00 p.m. on October 4, 1995 in Conference Rooms 2 & 3 in the Public Services Building, the Director of Public Works received the following sealed bids for "resurfacing of tennis courts and multipurpose courts at various locations in the city of Chula Vista, CA (PR-205)": I Bid 1. Eastwood Tennis Surface, Inc., San Diego $37,458.00 2. Ferandell Tennis Courts, Inc., San Diego $55,093.20 WHEREAS, Eastwood Tennis Surface, Inc. was the low bidder and staff recommends awarding the contract to Eastwood Tennis Surface, Inc., who has performed excellent work for the city in two previous two tennis court resurfacing contracts; and WHEREAS, the City's Environmental Review Coordinator has determined that this project is categorically exempt under Class 1, section 15301 (d) "Minor Alterations of Existing Facilities or Public Structures" of the California Environmental Quality Act. WHEREAS, the source of funding for this project is Park Acquisition and Development (PAD) funds; and WHEREAS, contractors bidding this project were not required to pay prevailing wages and no special minority or women business owned requirements were necessary as a part of the bid documents. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY FIND, DETERMINE, ORDER AND RESOLVE AS FOLLOWS: section 1. That the City Council concurs in the determination that this project is categorically exempt under Class 1, section 15301(d) "Minor Alteration of Existing Facilities or Public Structures" of the California Environmental Quality Act, and directs the Environmental Review Coordinator to file, or ratifies the filing of, a notice of exemption for this project. section 2. That the city Council does hereby accept the bid of Eastwood Tennis Surface, Inc. as responsive. section 3. The City Council awards the contract for the resurfacing of tennis courts and multipurpose courts at various 1/'3 ; .~. \ ' --- locations in the City of Chula Vista, California to Eastwood Tennis Surface, Inc. in the amount of $37,458.00, the lowest responsible bidder which submitted a responsive bid to the approved specifications. section 4. The Mayor of the City of Chula vista is hereby authorized and directed to execute said contract for and on behalf of the City of Chula vista. Bruce M. Boogaa City Attorney Presented by John P. Lippitt Director of Public Works C:\rs\tennis.bid //-( !::'d From EASTWOOD TENNIS SURFRCE INC. EXHIBIT THE CITY 0' (HULA VISTA DISCLOSURE STA'J'ItMENT "A" Y<>u arc required 10 file a SlalClllClll of Oiscln.<W'C of cerlain owDel'Sbip or financial inte....IO. paymenl.. or .amp.is" ,,,-,,j' ',,"", on allmaners which will require dillcn,tiollHlY lIl..tion on lhc pan of dIe Cily Council, PlalUliog COlPmi"ioll. an~ all ('''., " c !><ldics. The following infMllation wu.<t be discloscd; ) J. IJSI thellHmcs of all JlCl1'OI~ baying a IiJWlcial iRlCRSl in the property which i~ lhc Il\lbje.t of the application 0", i. e.g.. owner. applicanl. ConlIlletor. subcontractor, malerial .upplier. 'f'Vfln.e- 2. If any JlCl1'On'ldeDlili~ pursuant 10 (1) above is a corporation or partnership, Ii.t the llIlDes of 81\ in~ivjdurt'" ',' than 10% of !be shares in lbe l:(IlpOration or owning any partnership illleresl in lbe f"Irtnership. ~ 3. If any person' identified purauanllO (1) above i. non-profit organiulion or I tru.t. list the DlIIl'IeS of any""", director of dIe non.prolit organiZltinn or u trustee or bellelicilry or ItUstor ..f Ibe IruSt. ~/ 4. Have you bad more than $250 worth of bll5ineas IrallAcled wilb any nlClllber of Ibe City slaff, Boed., Committee.. and CIJuncil withitl the pllStlwclve monlh? Ve. _ No ~ If yes. plea.. indicate p'''''>n(s):__. 5. PI...... idelllify each and every pen;ou. iocludi", any asents. employ.... COD>"Ullanla. or independenl ('''(>!ll..:. have assigned 1<> rep",sent you bef..r. tho Cily in this mallor. ~ ./ 6. Have you andlor your officers or agents. ill the acgregale, colltributed 1II0re than $1 ,000 III a Coullcil roem"" i.. .:. . , or Jlre~ing election pcrilld'l Yes _ No /::.If YCl'. 5l&te which Council members(s):.._.... .. . · . · (NOTE: Att.mecl.~p8Je5 as n~ry~' ~ Dale;~f~jpr: II>) 11f.1' 1// I~ , Signature of r.onlraclor/Applicalll t.),U?IJ,J./) -r; k;qS/HJPLl.D . Prillt or Iype llIlIlIe of COlltraClor/Applica., . I'er.mn is dffin,,d as: "Any IlIdlvidual. firm, (:o-partner.hip, joint mlture, (U.fO(:iation. social c/ul>. frOle""': corpora/l<lIi. l'.,(ate. tTIL't. "uiwr. syndicart. thiJ and any othlT COUllf)', dry or Cfllln/ry. (:ity municipality, disrrict. 0'" s.!>division, or ony other grollI' or con/Una/Ion acting as Q U1Iit. IS //~ Page 19. Item_ Meeting Date 11/07/95 Continued from 10/17/95 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 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 (m:\shared\commdev\mca-.2. fin) rev: November 3,1995 11 :45am /1-/1 ( CITY COUNCIL AGENDA STATEMENT Item /.:2. Meeting Date 11/07/95 ITEM TITLE: /}. Resolution /8"& 9f Approving a Stipulation for Judgement for Acquisition of Right-of-Way from SDG&E and SNMB, L.P. (United Enterprises) for the widening of Otay Valley Road and authorizing payment thereof. 1J. Resolution /!rtJ 1(, Authorizing Payment to H. G. Fenton Material Company, a Corporation, and Nelson & Sloan, a Co-Partnership, for Acquisition of Right-of-Way for the Widening of Otay Valley Road C I Resolution /2' t' f 1 Clarifying City Right-of-Way Policy in regards to the City Manager's or his designee's authority to sign acquisition agreement(s) and to make payment for right-of-way of up to $25,000 for each parcel acquired for construction of budgeted projects SUBMITTED BY: City Attorney REVIEWED BY: City ManagerJ"t ~ .--z. (4/5ths Vote: Yes NoX-) BACKGROUND: On September 6, 1994 Council by Resolution 17649 declared the public necessity to acquire certain right-of-way for Otay Valley Road and authorized the commencement of condemnation proceedings by outside counsel to acquired said right-of-way (Exhibit 1). Staff, special counsel and the property owner have reached agreement on the acquisition price for approximately one acre of right-of-way easement from SDG&E and SNMB, L.P. (United Enterprises) for the widening of Otay Valley Road (Assessment District 90-2) pursuant to a pre-condemnation settlement conference held in Judge's Chambers on October 2, 1995. Council is requested to approve the Settlement Agreement. In addition, staff is also requesting Council to authorize payment for acquisition of right-of-way and drainage easements to H. G. Fenton Material Company, a Corporation, and Nelson & Sloan, a Co-Partnership, for an easement that was secured for the widening of Otay Valley Road, but for which payment has yet to be made. Finally, Council is requested to clarify the City Right-of-Way Acquisition Policy in regards to the City Manager's or his designee's authority to sign acquisition agreement(s) and to make payment for right-of-way of up to $25,000 for each parcel acquired for construction of budgeted projects. RECOMMENDATION: That Council approve the resolutions: 1) approving a stipulation for judgement for acquisition of right-of-way and authorize payment there of; 2) authorizing payment to H. G. Fenton Material Company, a Corporation and Nelson & Sloan, a Co- Partnership for right-of-way acquIred for the widening of Otay Valley Road; and 3) clarifying the City's right-of-way acquisition procedures. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. /01 -/ I::"',;> I ~ ,-.) Page 2, Item / :2- Meeting Date 11/07/95 DISCUSSION: Stipulation for Judgement Assessment District 90-2 was formed for the widening and improvement of Otay Valley Road Phases I & II (See map - Exhibit 2). This district included the acquisition of right-of-way to construct the ultimate six lane prime arterial standard. The project is progressing in phases. Phase I includes the widening of the roadway from two to six lanes from 1-805 to Nirvana Avenue. Phase 2 included the construction of four lanes east of Nirvana Avenue to the Otay River crossing (interim standard). This later section is now being widened one additional lane (to five lanes) to accommodate the anticipated MCA amphitheater project. When completed, Phase 2 will have three lanes in the westbound direction and two lanes in the eastbound direction. Phase 3 includes the widening of the bridge over the Otay River to 52 feet and the installation of roadway approaches that will accommodate the anticipated traffic needs for the MCA project. On September 6, 1994, by Resolution 17649, Council authorized the use of eminent domain proceedings to acquire a portion of a property owned by SNMB, L.P. (United Enterprises) located at the easterly end of the project (See Exhibit 2). The process culminated in a pre- condemnation hearing settlement conference held in Judge's chambers on October 2, 1995. At this hearing, attended by City staff, special acquisition counsel (Daley & Heft) and counsel for SNMB, a settlement amount of $20,000 was agreed to. This amount is close to the $16,390 appraised amount, which was offered to the owner and deposited with the Court. A copy of the stipulation for judgement is attached as Exhibit 3. It should be noted that SDG&E has a real interest in this property, but waived its right to any compensation. Staff considers the $20,000 settlement amount to be satisfactory as it would preclude any additional legal expenses to defend the condemnation action. Sufficient funds are available for payment of this amount in CIP ST-123. H. G. Fenton Materials and Nelson & Sloan Parcel To construct the project, several separate easements were needed across the property owned by H. G. Fenton Material Co. and Nelson & Sloan. These easements included a road easement, drainage easements, slope easements, and temporary construction easements. The City's right-of-way acquisition consultant, Rick Ryals and Associates negotiated an agreement for the purchase of these easements, which vary in area from a few hundred square feet to 2.34 acres in size, for a grand total of $57,960. The individual easements range in value from $700 to $51,480. Therefore, even on a per parcel basis, the amount to be paid to the owners clearly exceeded the $25,000 acquisition authority granted to the City Manager. Council is requested to authorize payment of $57,960 to H. G. Fenton Material Company, a Corporation and Nelson & Sloan, a Co-Partnership. Clarification in Citv Right-of-Wav Acquisition Policv The City Council and the Redevelopment Agency by Resolution 17413 and 1394, respectively, approved an agreement with Ryals and Associates for property acquisition services in connection with various capital improvement, economic development, and redevelopment projects and authorized the City Manager/Executive Director or his designee to sign the J.2-C:< j-. I I f :;1 '1 Page 3, Item Meeting Date 11/07/95 acquisition agreements and make payments for right-of-way up to $25,000 for construction of budgeted projects. A copy of the agenda statement and resolutions are attached as Exhibit 4. The joint Council/Redevelopment Agency agenda statement, read in part: "Today, however, staff is requesting that Council/Redevelopment Agency authorize the City ManagerlExecutive Director, or his designee, to sign and execute acquisition agreements for property necessary for approved, CIP budget items, where the cost of acquisition is $25,000 or less and the acquisition process is in accordance with City/Redevelopment Agency property acquisition guidelines/resolution. The amount is consistent with authority given by the City Charter to the City Manager for public works contracts." The enabling resolutions, however, read in part as follows: "Be it further resolved that the City ManagerlExecutive Director or his designee is hereby authorized to sign the acquisition agreement(s) and make payments for right-of- way needed for projects approved in the City's current CIP budget, where the cost of each right-of-way is less than $25,000 for construction of budgeted projects." (Underlining added to highlight the difference between the agenda statement and resolution language.) The anomaly between the agenda statement and the enabling resolutions was presented to the City Attorney's Office. It is their opinion that clarification of Council's intent be obtained in order to assure that Council's direction is accurately carried out. To facilitate deliberations on this matter, we would like to point out that Council, at the time of approval of the CIP, is approving a budget which includes right-of-way expenses. Sometimes, there are several parcels of property involved and the total right-of-way expenses may be well in excess of $25,000; however, each individual parcel of property, could be acquired for less than $25,000. This is generally the case in large projects such as Otay Valley Road, Broadway and Main Street where we have or will be acquiring rights-of-way from numerous property owners. It is staff's recommendation, therefore, that the City ManagerlExecutive Director be authorized to approve acquisition agreements and payment for each parcel of property which is less than $25,000 in value. By approving this resolution, Council will be approving this clarification In regards to acquisition of right-of-way for budgeted CIP projects. FISCAL IMPACT: Council is requested to authorize the payments listed below: Owner SNMB, L.P. (United Enterprises) H. G. Fenton Material Company and Nelson & Sloan Total Amount $20,000 57.960 77,960 Funds are available in CIP STl23 and/or have been deposited with the Court for these right-of- way expenses and were anticipated in the award of the contract for the construction of Otay Valley Road. M:\home\ent.il>8Oll.ar:...da\OVll.STIP.U3 /;2<;> !.;-;'T;'- , '-<""__/ RESOLUTION NO. / B"d 95' RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A STIPULATION FOR JUDGMENT FOR ACQUISITION OF RIGHT-OF-WAY FROM SDG&E AND SNMB, L.P. (UNITED ENTERPRISES) FOR THE WIDENING OF OTAY VALLEY ROAD AND AUTHORIZING PAYMENT THEREOF WHEREAS, on September 6, 1994 Council by Resolution 17649 declared the public necessity to acquire certain right-of-way for Otay Valley Road and authorized the commencement of condemnation proceedings by outside counsel to acquired said right-of-way; and WHEREAS, staff, special counsel and the property owner have reached agreement on the acquisition price for approximately one acre of right-of-way easement from SDG&E and SNMB, L.P. (United Enterprises) for the widening of Otay Valley Road (Assessment District 90-2) pursuant to a pre-condemnation settlement conference held in JUdge's Chambers on October 2, 1995; and WHEREAS, Council is requested to approve the Settlement. Agreement. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve a Stipulation for Judgment for Acquisition of Right-of-Way from SDG&E and SNMB, L.P. (United Enterprises) for the widening of Otay Valle oad a d authorizing payment of $20,000 therefor. Presented by John P. Lippitt, Director of Public Works J:<Il-! ISb RESOLUTION NO. Jgvt7f~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING PAYMENT TO H. G. FENTON MATERIAL COMPANY, A CORPORATION, AND NELSON & SLOAN, A CO-PARTNERSHIP, FOR ACQUISITION OF RIGHT-OF-WAY FOR THE WIDENING OF OTAY VALLEY ROAD WHEREAS, the City's right-of-way acquisition consultant, Rick Ryals and Associates, negotiated the acquisition of a right- of-way easement from H. G. Fenton Material Company, a Corporation and Nelson & Sloan, a Co-Partnership across their parcel east of Nirvana Avenue; and WHEREAS, Council is requested to authorize payment of $57,960 to H. G. Fenton Material Company, a Corporation and Nelson & Sloan, a Co-Partnership. NOW, THEREFORE, BE IT RESOLVED the City Council of the city of Chula vista does hereby authorize payment of $57,960 to H. G. Fenton Material Company, a corporation and Nelson & Sloan, a co- partnership, for acquisition of right-of-way for the idening of Otay Valley Road. ':q Presented by John P. Lippitt, Director of Public Works 1c2/J-/ I':J 7 RESOLUTION NO. /8"tJ9? RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CLARIFYING CITY RIGHT-OF-WAY POLICY IN REGARDS TO THE CITY MANAGER'S OR HIS DESIGNEE'S AUTHORITY TO SIGN ACQUISITION AGREEMENT(S) AND TO MAKE PAYMENT FOR RIGHT OF WAY OF UP TO $25,000 FOR EACH PARCEL ACQUIRED FOR CONSTRUCTION OF BUDGETED PROJECTS WHEREAS, the City Council and the Redevelopment Agency by Resolution 17413 and 1394, respectively, approved an agreement with Ryals and Associates for property acquisition services in connection with various capital improvement, economic development, and redevelopment projects and authorized the City Manager/ Executive Director or his designee to sign the acquisition agreements and make payments for right-of-way up to $25,000 for construction of budgeted projects; and WHEREAS, the joint Council/Redevelopment Agency statement, read in part: "Today, however, staff is requesting that Council/Redevelopment Agency authorize the City Manager /Executi ve Director, or his designee, to sign and execute acquisition agreements for' property necessary for approved, CIP budget items, where the cost of acquisition is $25,000 or less and the acquisition process is in accordance with city/Redevelopment Agency property acquisition guidelines/resolution. The amount is consistent with authority given by the city Charter to the City Manager for public works contracts." WHEREAS, the enabling resolutions, however, read in part as follows: "Be it further resolved that the city Manager/Executive Director or his designee is hereby authorized to sign the acquisition agreement(s) and make payments for right-of-way needed for projects approved in the City's current CIP budget, where the cost of each right-of-way is less than $25,000 for construction of budgeted projects." (Underlining added to highlight the difference between the agenda statement and resolution language.) WHEREAS, the anomaly between the agenda statement and the enabling resolutions was presented to the City Attorney's Office who opined that clarification of Council's intent be obtained in order to assure that Council's direction is accurately carried out; and WHEREAS, to facilitate deliberations on this matter, staff would like to point out that Council, at the time of approval /e2..C-/ '1- /1 iQ (; of the CIP, is approving a budget which includes right-of-way expenses; and WHEREAS, sometimes, there are several parcels of property involved and the total right-of-way expenses may be well in excess of $25,000; however, each individual parcel of property, could be acquired for less than $25,000 which is generally the case in large projects such as Otay Valley Road, Broadway and Main Street where we have or will be acquiring rights-of-way from numerous property owners; and WHEREAS, it is staff's recommendation, therefore, that the city Manager/Executive Director be authorized to approve acquisition agreements and payment for each parcel of property which is less than $25,000 in value. NOW, THEREFORE, BE IT RESOLVED the city council of the City of Chula vista does hereby clarifying City Right-of-Way Policy in regard to the City Manager's or his designee's authority to sign acquisition agreement(s) and to make payment for right-of-way of up to $25,000 for each parcel acquired for con ruction of budgeted projects. of 0] Presented by John P. Lippitt, Director of Public Works r , City c: \l"s\olJrstip /;2.C-~ 'I " i COUNCIL AGENDA STATEMENT Item /:3 Meeting Date 11/7/95 ITEM TITLE: rj, Resolution /8'& 98'" Approving Final Map and Subdivision Improvement Agreement for Chula Vista Tract 88-3A, Eastlake South Greens, Phase 2 and 3. {]. Resolution l;r~ j ~ Approving Supplemental Subdivision Improvement Agreement Requiring Developer to Comply with Certain Unfulfilled Conditions of Resolutions No. 15200 and 17618 Approving a Tentative Subdivision Map for Eastlake Greens, and Authorizing the Mayor to Execute Same. C. Resolution /8"ltrO Approving the acceptance by the City of a portion Silverado Drive on behalf of the public. SUBMITTED BY: Director of Public Y REVIEWED BY: City Manage~ (4/5ths Vote: Yes_NoX) On July 18,1989, by Resolution 15200 (E ibit A), the City Council approved the Tentative Subdivision Map for Chula Vista Tract 88-3, Eastlake Greens. On August 16, 1994, by Resolution 17618 (Exhibit B), the City Council approved the amended tentative map for Eastlake South Greens, Tentative Map 88-3A, and imposed additional conditions of approval. The amendment to the tentative map covers the area south of Clubhouse Drive which is designated as Eastlake South Greens. The final map before Council creates super block lots for phase 2 and 3 of Eastlake South Greens. Subsequent final maps will be required to create residential lots. RECOMMENDATION: That Council adopt the resolutions approving the final map, subdivision improvement agreement, supplemental subdivision improvement agreement and acceptance of a portion of Silverado Drive. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Phase 2 and 3 of the Eastlake South Greens development are generally located southerly of Clubhouse Drive, easterly of Eastlake Parkway and westerly of Hunte Parkway. The map now before Council which represents these second and third phases of development creates eleven super block lots to be further subdivided for residential development by subsequent final maps, two lots for future street dedication and two lots for open space and other public purposes totaling approximately 207.1 acres. The final map for Eastlake South Greens Phase 2 and 3 of Chula Vista Tract 88-3A, has been )3-/ !! '\ Ib'.) Page 2, Item /3 Meeting Date 11/7/95 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 a portion of South Greensview Drive, a portion of Silverado Drive, tree planting and maintenance easements, and a sewer and storm drain facility construction and maintenance easement, all as shown on the final map. Approval of this fmal map also constitutes abandonment of a portion of existing Hunte Parkway. At this time, the City is rejecting the dedication of Lots A and B for open space and other utility purposes and Lots C and D for street dedication. However, under Section 66477.2 of the Subdivision Map Act these offers of dedication remain open and subject to future acceptance by the City. Lots A and B will be maintained by the Eastlake Homeowners' Association unless the City determines that the level of maintenance does not meet City standards. If/when the determination is made that the maintenance of the open space lots need to be taken over by the City, Council would be requested to accept, on behalf of the City, the offer of dedication. This is standard procedure on all of Eastlake's final maps because the Eastlake homeowners' association maintains the open space instead of the City. Lots C and D represent the right of way for future East Orange Avenue within Eastlake South Greens. Right of way dedication is being rejected at this time but will be accepted when the construction of the street improvements is complete. A small portion of Hunte Parkway right of way, dedicated per document No. 91-0398486, Chula Vista drawing No. 91-339 recorded August 7, 1991, is to be vacated as shown on Exhibit D. This portion of Hunte Parkway was realigned after the dedication was made but before road construction began. The realignment was required for environmental reasons in order to avoid sensitive gnatcatcher habitat. The portion proposed for abandonment does not contain public utilities and may be abandoned. The property will revert to the developer as owner of the adjacent property and will be merged and re-subdivided with approval of this final map. The offsite portion of Silverado Drive proposed to be accepted by the City on behalf of the public was previously offered for dedication but rejected by the City subject to future acceptance on the final map for Eastlake Greens Phase lID, Map No. 12831. This portion of Silverado Drive, as shown on sheet 4 of the Phase 2 and 3 fmal map, was originally rejected because at the time the offer of dedication was made construction of Silverado Drive was not required. Dedication and construction of this portion of Silverado Drive is now required for Phase 2 and 3 of Eastlake South Greens. The map now before Council creates only super block lots for future development and does not contain any residential lots. PAD fees are payable at the time of final map approval and are determined by the number of residential lots created with a final map. Since the final number of residential lots to be created within this area is not known at this time, payment of PAD fees will be required prior to approval of subsequent final maps creating residential lots. /3r.2 , inl Page 3, Item / J Meeting Date 11/7/95 The developer has executed a Supplemental Subdivision Improvement Agreement (SSIA) to satisfy the following conditions: I. Condition No. 30 of Resolution No. 15200 requires the Developer to enter into an agreement whereby the developer agrees that the City may withhold building permits for any units in the subject subdivision if traffic on Otay Lakes Road, Telegraph Canyon Road, Eastlake Parkway, or East "H" Street exceed the levels of service identified in the City's adopted thresholds. 2. Condition No. 32 of Resolution No. 17618 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 subject subdivision. 3. Condition No. 33 of Resolution No. 17618 requires the Developer to enter into an agreement to indemnify and hold harmless the City from any liability for erosion, siltation, or increased flow of drainage resulting from the subject subdivision. 4. Condition No. 34 of Resolution No. 17618 requires the developer to enter into an agreement with the City relating to the provision of franchise cable television services. The SSIA also includes a provision wherein the developer agrees to comply with all unfullfilled conditions of the tentative map, and amendments thereto, applicable to this property prior to approval of subsequent final maps. The developer has also executed a Subdivision Improvement Agreement for this map and provided bonds to guarantee construction of the required public improvements (CV drawings 95-137 through 95-141 and 95-205 through 95- 214) 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 final map will be reimbursed from developer deposits. Attachments: Exhibit A - Plat - Eastlake South Greens Phase 2 and 3 Exhibit B - Plat - Portion of Hunte Parkway to be vacated Exhibit C - Disclosure Statement Exhibit D - Minutes of 7/18/89 (Reso 15200) & Minutes of 8/16/94 (Reso 17618) (f:lhome\engineer\agenda\Ph2&3.SE) File: 0600-80-ELGOIA JJ- J It5-~ I ) (\ 10(7 CHULA VISTA TRACT NO.I8-IA EASTLAKE SOUTH GREENS, PHASE 2 & I CHULA VISTA TRACT '9l5-03 EASTLAKE ecUTH 8REEIIS UN I T 20 MAP 13198 1lH11 :I E sOU'TH ~ pS1'\..AK()lOR1H ~I"I ....... )10. FRAC 8E. J/4 OF SEC. 3 T.18 S. RIIlI. 8..S..M.. MAP 862 .,.J' OTAY RANCH N RHO JAIW. MAP NO.9.' e'XH I BI,.. B RIcK~C<MPANY iii =-==__ --- #lA" SCALE. r . 800' VICINITY J1AP tlDK: /:J~S f,' -'I '.i.:)""" . ......' LEGEND v / / / J PORTION TO BE VICATED LLLLLI AREA . 01J2/ICRES SUBDN/S/ON BOUNDAFrf HUNTE PARI&AY DED/CATED PER DOC.9/-D398486 REC.8-7-/99/ OR. (CITY DNG.NO.9/-339J I I CHULA VJSTA TRACT EAsTLAKE: SOUTH PHASE 2 .& < NO. 88-3A GREENs 3 VICINITY MAP NO SCALE EXHIBI ~ RICK~:~RINGCOMPANY &;~ =:,.-=.... -..... o /IIi ~~ j;"~ ~o :i-:S o . t..- ~ ~t- ..D ORANGE AVE. JOB NO. 1682 CHULA V/STA TRICT NO. 88-3A EASTLME SOUTH GREENS PHASE 2 & 3 VICATON OF A PORT/ON OF HUNTE PARKWAY 13- ; .~ ~1 -pkl3.~ 2+3 F}1 EXHIBIT C THE CI1Y OF CHUU VISTA PAR1Y DISCLOSURE STATEMENT ..5~\~ Statement of disclosure of certain ownership interests, payments, or campaign contributions, on all matters wh ich 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 contract, i.e., contractor, subcontractor, material supplier. EastLake Development Company 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. Boswell Properties Incorporated The Tulago Company ~ 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 Oty staff, Boards, Commissions, Committees and Council within the past twelve months? Yes_ No...!!.. If yes, please indicate person(s): 5. Please identify each and every person, including any agents, employees, consultants or independent contractors who you have assigned to represent you before the City in this matter. Gary Cinti-Cinti Land Planni~ Bill Ostrem-EastLake Develonment Co. R02er Bhatia-Rick F.n~inpPTing Tom Adler-EastLake DeveloPment Co. 6. Have you and/or your officers or agents, in the aggregate, contributed more than .$1,000 to a Council member in the current or preceding election period? Yes No ~ If yes, state which Councilmember( s): Person is defjn~ as: "Any individual,jiml, co-pannership,joint venture, association, social club,fraternal organization, corporation, eSlil/t', mISt, receiver, S)'tldicate, this and any other counl)l city and countr}', cil)', mUllicipality, district or other political subdivision, or allY other group or combinatioll acting as a unil." (NOTE: Attach additional pages as necessary) 11"-- Date: "l..> ~ 'E, ~~r Signature of contractor/applicant 1.\.II3.\;DISClOSE.TX11 /3;/ Thomas E. Adler, Project Mana2er Print or type name of contractor/applicant .. (Ilcvil.cd; )1/3(WOI illnuteS - 0 - vUIY 10, 1::/0;:1 ORDINANCE OFFERED BY MAYOR COX, as amended, the reading of the text was waived by unanimous consent, passed and approved with EXHIBIT 0 Councilman Malcolm abstaining on the Country Club portion of the zoning ordinance. 15 PUBLIC HEARING a. RESOLUTION 15197 PUBLIC HEARING b. RESOLUTION 15198 c. ORDINANCE 2317 d. RESOLUTION 15199 e. RESOLUTION 15200 f. RESOLUTION 15201 g. RESOLUTION 15202 CONSIDERATION OF FINAL EIR-86-4 - EASTLAKE GREENS (Director of Planning) EASTLAKE CERTIFYING FINAL EIR-86-4 GREENS PCM-87-7 - CONSIDERATION OF EASTLAKE II GENERAL DEVELOPMENT PLAN, PLANNED COMMUNITY DISTRICT REGULATIONS( EASTLAKE GREENS SECTIONAL PLANNING AREA SPA) PLAN, EASTLAKE GREENS PUBLIC FACILITIES FINANCING PLAN, EASTLAKE. GREENS DESIGN MANUAL; EASTLAKE DEVELOPMENT COMPANY APPROVING THE DEVELOPMENT PLAN GENERAL EASTLAKE I I ADOPTING AN AMENDMENT TO THE EASTLAKE I PLANNED COMMUNITY DISTRICT REGULATIONS TO ADD EASTLAKE II TO SAID REGULATIONS FIRST READING APPROVING THE EASTLAKE GREENS SPA PLAN, PUBLIC FACILITIES FINANCING PLAN, AND DESIGN MANUAL MAP APPROVING TENTATIVE SUBDIVISION PCS-88-3 FOR EASTLAKE GREENS ADOPTING CEQA FINDINGS AND STATEMENT OF OVERRIDING CONSIDERATIONS FOR EASTLAKE GREENS . ADOPTING THE MITIGATION MONITORING REPORT FOR EASTLAKE GREENS, EIR-86-4 This being the time and place as advertised, Mayor Cox declared the public hearing open. Planning Consultant Doug Reid explained that a Master EIR for all the EastLake development (including EastLake Greens/Trails) was completed in February of 1982. In addition, 392.1 acres of EastLake Greens were reviewed in an EIR prepared for EastLake I in January 1985. This presentation contains additional information, and covers effects on the environment which are not specific to the EastLake Greens/Trails site and those that were not previously addressed as significant effects. /3-~ f',ir.utt!s - 9 - July 18, 1989 r-tr. Reid then introduceo Jeanne Munoz, ERC Environmental and Energy Services, who presented conclusions in the final EIR and also the findings on the CEQA related documents. Ms. Munoz noted essentially, the one significant unmitigable impact would be on paper only: air Quality. The reason being that it is in non-conformance. In the San Diego area, a project is considered to have a significant cumulative air .Quality impact if the project has not been i ncl uded in the SANDAG Series 5 and 6 Growth Forecast. EastLake Greens and EastLake Trail s were not included in those forecasts. At the time at which they become included the project will be in compliance and conformance and it will no longer be an unmitigable air Quality impact. Councilman Nader noted the unmiti gabl e impact on air Qual ity (on paper) is a real air Qual ity impact and it is only on paper that impact will di sappear if SANDAG revi ses it projects and the implementation plan for meeting Quality air standards is revised. He Questioned the existing inadequate implementation plan and the need to revise it to be stricter and asked how it is that we anticipate the implementation plan and the SANDAG forecast will be revised and therefore, on paper, the air Qual ity impacts unmitigated will go away and somehow remove the same amount of air pollution that was an unmitigated impact on the EIR. Ms. Munoz responded that it is confusing, but that what it is, is that once the SANDAG Series 5 & 6 forecasts are incorporated into the revi sed Air Qual i ty Management Pl an, thi s project will be in compliance with the predictions made in that plan. It will not change air Qual ity at all, but it will be in compl fance and performance. The point needs to made however, that in large part, the problems with air Quality in San Diego County are a result of the air Qual ity problems in Los Angeles and there is nothing we can do about that. Mr. Bud Gray, Ci ty Consul tant, noted he woul d be d;scussing the EastLake II General Development Plan and the EastLake Greens SPA Plan; Tom Bandy from Willdan would be presenting the EastLake Greens Public Facilities and Financing Plan and Principal Planner Ken Lee from the Planning Department would be presenting the Tentative Map. Tom Bandy reported on the Eastlake Greens Public Facilities Financing Plan. He noted that the plan has four key features. It describes the public facilities needed to serve the project, on-site and off-side, the estimated costs. the method of financing, and the phasing of facilities. /;J~1 EXHIBIT D !,!",i !\i.Jf{' Principal Planner .ne presented his report o.the project, noting the proposed subdivision encompasses 830 acres of land located in the eastern portion of the City east of 1-805 and south of Otay Lakes Road. He noted the General lotting of the area including; standard lots, small lots, attached product lots, townhouse product lots, condominium product lots, high density condominium lots. Mr. Lee also noted a letter from Kent Aden of EastLake referring to proposed cl arifications to conditions for EastLake Greens. EXHIBIT D Council discussion followed regarding lot sizes, density, family ~izes; affordabilty of the homes; possibly imposing a moratorium lf development came to outstrip public facilities, water management plans, and land use patterns. Bob Santos, President, EastLake Development Company, 900 Lane Avenue, addressed the issues about the General Pl an policy as it relates to achieving density higher than target density shown in the General Plan. He noted that EastLake, before the Planning Commission, voluntarily reduced the density of the EastLake Greens, EastLake II proposal that was before Council this evening. They will only request density above that level if the City's newly adopted policies are revised and situated to provide for EastLake's ability to do that. Katie Wright, Project Manager, EastLake Development presented slides and transparencies on the EastLake Neighborhood and family characteristics associated with the EastLake Project. She noted stati sti cs on buyers, famil ies, needs and househol d si zes. Al so noted were the percentages of first time buyers, move up buyers and chief reasons why those buyers selected EastLake. Kent Aden from EastLake noted that there were now over 90 conditions imposed on the SPA Plan and tentative map. He noted that in the spirit of cooperation EastLake would live up to the majority those conditions. He requested consideration of alternative wording and modification to six of those conditions: 1. Tentative Map #37: requires equal access to Cable TV franchises. This issue is best dealt on a City-wide basis. They will be applying for a Cable TV franchise and because of this they request that Council modify the condition to make EastLake subject to any nel~ City-wide ordinance or resolution of this issue. They will be subject to this at the time at which it is adopted. 2. Tentative Map #64/SPA #2: in regard to the pedestrian bridge. They don't know if the bridge is warranted or not, it will require substantial public money to maintain and EastLake believes it should be included in the Public Facilities Financing Plan, not as a Tentative Map condition. JJ~/tJ I/~? Minutes - 11 - ,1y 18, 1989 \. 3. Tentative Map #38G: Currently states that residential construction tax may be waived for excess park improvements. EXHIBIT D EastLake is commi tti ng to excess park improvements, therefore would like a commitment from Council to waive the RCT accordingly. 4. Tentative Map #46/SPA 6: Conflicting conditions regarding church sites. EastLake would like to clarify they are currently showing a 4.8 acre site in EastLake Greens for churches. In addition, there are 12.3 acres in EastLake I and II. In total, 22 acres will eventually be planned for the EastLake community. 5. Tentative ~lap #44/SPA #9: relating to low/moderate income housing. These items must be deferred at this time if Council accepts the Planning Commission recommendation. EastLake cannot meet these guide1 ines until the effect of the analysis on the General Plan Pol icy Section 6.2 and 6.3 as they relate to the final density of the five high density parcels is determined. 6. Planning Commission Item SPA Condition 13: regarding the deferral of the density. EastLake supports this condition but is asking that Council adopt this with a 30 day time frame in mind with the Task Force to come back with recommendations to be adopted by Council. With this in mind, EastLake asked that the project be adopted with the General Plan Policies as they were adopted last week. Speaking in favor of the EastLake project were: Richard Esslinger, Postmaster, Chula Vista, 2134 Northshore Drive; Jackie r~etcalf, 546 Port Harwick; Larry Rehlander, Victory Lutheran Church; Peter Watry, speaking for CROSSROADS, 81 Second Avenue; Fran 0 Meara, 1858 Gamay Terrace; uosepn lI.ownack, 1891 Gamay Terrace; Scott Ullmann, 2134-C Northshore Drive; Bob O'Connell; 2072 \~aterbury Circle; Joseph Cummings, 1848 Ithaca Street; Richard Stahley, 30 Woodlawn Avenue. Collectively, their remarks included the following: Crossroads does not intend to concede one additional unit to EastLake Greens and EastLake Trails; should stick to target density and approve condition #13, which embodies the Planning Commission's recommendation and EastLake's proposal; Post Office in process of negotiation budget, if project is put off for any length of time it may detrimentally affect abil i ty to procure funds necessary to construct EastLake Project; EastLake is the best community ever seen; has distinctive neighborhood and lifestyle; courteous corporation to work with for land site for churches; EastLake has changed Chula Vista's poor image; increased City revenue and increased number of businesses; various amenities are offered; homes are affordable; large yards; many of the neighbors have grown up in Chu1 a Vi sta and moved to Cottage because they cou1 d afford them and still are near their families; pleased that EastLake has vol untarily chosen to reduce the density; insul ated community - can give back to community in the form of good neighbors and citizens; EastLake good project but there is some concern over private v. fUb1ic parks; would like to give density transfer to keep from pay ng upkeep of parks. /3-// I' ,. V~IJ IU, I..?'U.... Speaking against \ Joe Garcia, 484 Fifth lenue, Chula Vista. He stated that he was concerned about the water situation. He asked if the water situation has been addressed. Mayor Cox responded that it would be addressed on an incremental basis because a certification would have to be done by the Otay Water District that they would be able to provide the water service for thi s project. The Mayor al so noted that Councilman Moore has put together a Water Task Force and that all property owners are working with the water districts; the Task Force meets on a monthly basis. The Otay Water District is coming out this week with water allocations so that the developers know that they have certain restriction and cannot go beyond that with guaranteed water rights. . There being no further public testimony, the public hearing was closed. EXHIBIT D RESOLUTION A OFFERED BY MAYOR COX, the reading of the text was waived by unanimous consent, passed and approved by the follow'ing vote to wit: AYES: NO: Cox, Moore, McCandliss Malcolm, Nader RESOLUTION B OFFERED BY MAYOR COX, the reading of the text was waived by unanimous consent. Councilwoman 11cCandl iss asked if since the bulk of her concerns were on the Tentative Map, would it be possible to adopt the General Development Plan then possibly, with removing the actual targ~t number for the area, continue the Tentative Map until after the Task Force reviews that section and bring it back within 30 days. Or, if there was a desire to amend the tentative map, would they have to go back and amend the SPA Plan, Facilities Financing. Director Kremfl responded that they could consider the General Development P an and the SPA Plan and reserve decision on the Tentative Map. He noted that if the Tentative Map changed, as far as density or location of product types, for the most part the structure woul d sti 11 be rel evant. The Task Force coul d revi ew the Land Use Element of the General Plan within a 60 day period of time. The Resolution B passed by the following vote: AYES: NO: Cox, Moore, McCandliss Nader, Malcolm ORDINANCE C OFFERED BY MAYOR COX, the reading of the text was waived by unanimous consent, passed and approved by the following vote to wit: AYES: NO: Cox, Moore, McCandliss, Nader Malcolm, / J'-- /.2. 1/, ,-<" t-l ,$ II I ,IU ""C.::. - I.... - v U I)' I U, 1..11.),;7 RESOLUTION D OFFERED 3Y MA" 1 COX MOTION Nader/ to amend the resol ution to incl ude an agreement that the development will conform with the Growth Management Element to eventually be adopted as part of the Chula Vista General Plan. Mayor Cox asked if this would be more suitable under Item E - the Tentati ve Map Director Krempl responded that it could be placed under whatever action they felt comfortable with. EXHIBIT 0 MOTION RESTATED 10 amend the resolution to state that EastLake would agree with whatever Growth Management Element is added into the General Plan; it would become part of the agreement that the development will conform with the Growth Management Element that will eventually be adopted as part of the General Plan. Council member Moore qllestioneli-the --re;;~ used; "a-gree" as opposed to "conform. II ~ ... vv-" ~'Y\... i:~ d Councilman Nader clarified that EastLake could decline the agreement but then the project woul d not go ahead, so in effect, it is a requirement that EastLake conform. Discussion ensued regarding the agreement. Mr. Santos noted that this is the appropriate legal document to make that kind of commitment, but suggested it be addressed at that point in time. In answer to Councilman Nader's question, Mr. Santos responded they did have a problem in that Council is asking them to take a considerable risk, as they have done in the past. Councilman Nader withdrew his motion as to Item D and noted he would resubmit it as to Item E, but that it should be make clear at some point tonight that Council is doing this. VOTE ON THE MOTION, Item D The motion carried with Councilman Malcolm voting no. RESOLUTION E OFFERED BY MAYOR COX as read. MOTION (McCandlissl Nader) that the resolution be continued and returned at the Council meeting with the report on the General Plan. Councilman Nader asked for a clarification of the motion. J'J ~/J 110 .............oJ OJ" IJ I V t I,JV,J Councilwoman McCa.. liss state~ that what Ie would like the committee to deal with transfers and bonuses and come back to EXHIBIT D Council before approval of the tentative map Mr. Santos stated they were interested in moving ahead, but concerned about the feelings that EastLake had a lack of commitment. He suggested that the provision of a tract map condition that requires the development agreement for the project make EastLake subJect to the Growth Management Policy that will be adopted by the City in the future. Secondly, that a track map condition on the project requires that EastLake cannot exceed on a cumulative basis in the eastern territories 7,426 dwelling units until such time as the City has updated their Transportation Phasing Plan, or the Growth Management Plan. VOTE ON THE MOTION The motion to continue failed by the following vote, to wit: AYES: NOES: McCandliss, Nader Cox, Malcolm, Moore Mayor Cox noted there was one amendment he would like to make. MSUC (Cox/Malcolm) that before recording of the final map there would have to be an agreement executed by the City and by EastLake resolving the outstanding issues on the public v. private parks as they relate to EastLake I and EastLake II. MSUC (Nader/McCandliss) Condition 79 - the development be subject to the Growth Management Element of the General Plan in the Transportation Phasing Plan to be adopted by the City. Councilman Malcolm noted that he had no problem with item 37 where EastLake is subject to any new City-wi de resol utions regarding cable television and no problem with item 44 - that conditions related to low and moderate income housing shall be deferred and evaluated as a factor in the analysis of the General Plan policies 6.2 and 6.3 as they relate to parcels R-24, R-25, R-26, R-27 and R-28. MOTION (Malcolm/Moore) to amend 37 and 44 as per EastLake's request. Director of Public Works Lippitt noted that Item 37 was put in because of Council's concern of equal access - it could be changed - he recommended taking out the word "City-wide" because we don't know what the ultimate solution is going to be and it may be different from the western portion of the City in EastLake. 13~J( ('71 1:1 nu teS - I:;' - J IJ I Y I /j, I ~/j~ AMENDMENT TO MOTION Councilman Malcolm amended his motion to delete the word "City-wide" EXHIBIT D The motion carried unanimously. Councilman Malcolm also stated he had a problem with the golf course. He spoke to EastLake and they agreed- to do something other than a private golf course; the general publ ic ought to have a right to use the open space; EastLake has an obligation to the public. He asked the City Attorney if Council could leave a condition where EastLake has to be willing to open up to some type of public use, to be determined by the City of Chula Vista at a later date by the Parks & Recreation staff and other gOlfing facilities in EastLake to come back with some type of recommendation. Assi stant Ci ty Attorney Rudol f, in response to Counci 1 man Malcolm's question noted that if that condition would be consistent with what was already approved in Resolutions B, C, and D; if that issue is not al ready addressed in those provi sions, then this condition would be inconsistent. It was noted by Mr. Gray that this would not be inconsistent with anythi ng Council has acted upon thus far because nothing in the plans really speak to the private v. public nature of the golf course. Mr. Santos noted that EastLake Country Club is envisioned to be a privately owned and operated Club; it is not a municipal course. When it is opened in 1991, it will be open for public play for a period of time which has not yet been determined. The community has expressed a desire to have this available for a community-at-l arge use. There will be a CUP for the gol f course permit and at that time the whole concept of the public v. private play can be addressed. MOTION MSUC (Malcolm/Nader) to add this as Condition #80 - prior to any operation of the Golf Course that an agreement between the City of Chula Vista and EastLake regarding public play be entered into, to be considered as part of the procedure with the Conditional Use Permit. MSUC (Nader/Moore) Condition #81 Commission's recommendations. to incorporate the Pl anni ng VOTE ON MAP RESOLUTION E OFFERED BY MAYOR COX, as amended, the reading of the text was waived by unanimous consent, passed and approved with Councilman Nader and Councilwoman McCandliss voting no. /3 --If ,"'-"/ '0:0'" ......., - I U - -.)UI~ IU. I~O;1 RESOLUTION F OFFl .0 BY MAYOR COX, the re, 'ng of the text was waived by unanimous consent, passed and afProved with Councilman Malcolm voting no and Councilman Nader vot ng no on the Statement EXHIBIT D of Overriding Considerations. RESOLUTION G OFFERED BY MAYOR COX, the reading of the text was waived by unanimous consent passed and approved with Councilman Malcolm voting no. Councilman Moore questioned the Council policy on traffic studies in future developments. Director of Public Works Lippitt responded that a traffic study was done for this plan in the EIR and one will be done when ~unbow and other major developments come in. The City is automatically following through on its policy. Mr. Kremp1 noted that on the Task Force, while indicating that it may take 60 days, they wou1 d be tryi ng to get the group together as soon as it was authorized by Council and proceed to do it in the shortest time possible. Mayor Cox noted the Counci 1 shou1 d try to make a commitment to have this issue resolved in the next 60 days. 16. ORAL COMMUNICATIONS - Opportunity for the public to speak to the City Councll on any subject matter within the Council's juriSdiction but not an item on today's agenda. Each speaker's presentation may not exceed five minutes. a. Mr. Wade R. Guiliani, s214 J Street, Chu1a Vista addressed the issue of the 706 and 706A buses, the Chula Vista Trolley. He noted that seniors and handicapped individuals that are having difficulties accessing those buses. He suggested that perhaps a study be done to correct these buses to be adequately used by these individuals. MSUC (Cox/I~oore) to refer this petition to staff for a report and evaluation to come back to Council. b. Joseph Garcia, 484 Fifth Avenue, Chula Vista, suggested City invest in a 54 or 60 inch television monitor with a VCR to be installed in the Council Chamber. City Manager Goss noted the City has that capability and equipment ready. to be used when neelled. c. Paul Green, 141 Lotus Drive, Chu1a Vista, addressed concerns regarding an informational item dated February 15, 1989. The City Manager noted he will send another copy of the response to his letter that had been sent. d. Rick Short Tan, 55 Oxford Street, Chula Vista, requested that Chu1a Vista Historical Society consider trees as part of Chula Vista's history. He cannot get information on certain trees in the area. J3--j? i -)"'" 1 ~':.) Minutes August 16, 1994 Page 4 EXHI BIT D parcels of the EastLake Greens General Plan Amendment which take access from the internal cin:ulatiCD of the EastLake Greens Planned Community (northeast of the SDG&E transmission lines); (2) Improve the spatial and functional relatioll5hip of residential density/product distribution within the EastLake Greens Planned Community area; and (3) Update the EastLake Greens SPA Plan and supplementary documents to reflect cumnt ~stics and technical refinements based OD site plan approvals and marlcet coosiderations. Staff recommends Council place the ordinance& CD lint radin, and approve the resolution. (Oi_tor of Plannin,) A: ORDINANCE 2600 APPROVING TIlE PREZONlNG OF 22.7 ACRES OF UNINCORPORATED LAND TO P-C PLANNED COMMUNITY AND ADOPTING MITIGATED NEGATIVE DECLARATION ON 1S-!I4-1' AND MITIGATION MONITORING AND REPORTING PROGRAM THERETO lfint readiM) B. ORDINANCE 2601 APPROVING AMENDMENTS TO THE EASTLAKE II (EASTLAKE I EXPANSION) PLANNED COMMUNITY DISTRICT REGULATIONS (LAND USE DISTRICT MAP ONLY) AND ADOPTING MITIGATED NEGATIVE DECLARATION ON 1S-!I4-1' AND MITIGATION MONITORING AND REPORTING PROGRAM THERETO (fint readin,,) C. RESOLUTION 17618 APPROVING AND IMPOSING AMENDMENTS AND CONDITIONS ON THE EASTLAKE II (EASTLAKE I EXPANSION) GENERAL DEVELOPMENT PLAN, EASTLAKE GREENS SECTIONAL PLANNING AREA PLAN, EASTLAKE GREENS AIR QUALITY IMPROVEMENT PLAN, EASTLAKE GREENS WATER CONSERVATION PLAN AND EASTLAKE GREENS MASTER TENTATIVE SUBDMSION MAP AND ADOPTING MITIGATED NEGATIVE DECLARATION OF 1S-!14- l' AND MITIGATION MONITORING AND REPORTING PROGRAM THERETO Ken Lee, Aasistant DiNCtor of Planning, summarized the issues involved with the project. ConditiCD 8C of the ordinance referred to the north side of parcel R27 (trail system) and should be corrected to read the north side of Clubhouse Drive. . . . Councllmember Horton arrived at ,:26 p.m. · · · Mayor Nader stated the Resource Conservation Commission minutes should have been included in the packet. He JwI read the minutes which reflected a 5-0 vote for the mitigated negative declaration. This bein, the time and place as advertised, the public hearing was declared open. . Bruce Sloan, 900 Lane Avenue, '100, Chula Vista, CA, representing EastLake Development Company, concurred with the staff recommendations. There being no further public testimony, the public hearing was closed. ORDINANCES 2'00 AND 2601 PLACED ON FIRST READING AND RESOLUTION 1"18 OFFERED BY COUNCn..MEMBER HORTON, readillll of the text WlIS waived, passed and IIpproved unanimotl5ly. 13. PUBLIC HEARING CONSIDERATION OF PROGRAM CHANGES OF RESIDENTIAL YARD WASTE RECYCLING SERVICES FROM AN OPTIONS PROGRAM 10 A UNIVERSAL MANDATORY RATE STRUCTURE - The City's residential yard waste collection pro,ram began 1/1/94 as a unique 'optiOO5' program which allows D,le-family residents the choice of how they will participate, based on their own a",'W'r-n1 of their yard waste needs. A review of the participation, costs, and revenue of the first silt months of the voluntary .optioo5' program show thai costs are far eltceedin, revenue and continuatioo of the program is dependeot upon a nte adjustment to cover collectioo and proceaain, costs. Letters _re received from Laidlaw req-m, COIISideratioo of an ameadment to the yard waste fee stnICture effective 9/1/94 which would involve a chan,e to a univaul mandatory nte _lUre to be spread to all M,le-family residents. Staff recommends approval of the IellOIUtiOD. (Deputy City Manaaer Klempl) RESOLUTION 1761' APPROVING A UNIVERSAL RESIDENTIAL YARD WASTE COLLECTION RATE CHANGE TO $1.48 PER SINGLE-FAMILY HOME /3-/7 , , , RESOLUTION NO. 18"tf't~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING FINAL MAP OF CHULA VISTA TRACT 88-3A, EASTLAKE SOUTH GREENS PHASE 2 AND 3, 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 AND THE FUTURE STREET LOTS GRANTED ON SAID MAP, ACCEPTING THE EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, APPROVING THE STREET VACATION AS SHOWN ON SAID MAP, AND APPROVING SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula vista does hereby resolve as follows: NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that that certain map survey entitled CHULA VISTA TRACT 88-3A, EASTLAKE SOUTH GREENS PHASE 2 AND 3, and more particularly described as follows: Chula vista Tract No. 88-3A, Eastlake South Greens, Phases 2 & 3, being a subdivision of portions of section 3, Township 18 South RAnge 1 West, San Bernardino Meridian, and Portions of Lots 10 and 11 of Otay Ranch, according to Map thereof No. 862, and Parcels 1 and 2 of Parcel Map No. 17476 filed in the office of the County Recorder of San Diego County, Janaury 26, 1995 all being in the County of San Diego, portions in the City of Chula Vista, State of California. Area: 207.068 acres Numbered Lots: 11 No. of Lots: 15 Lettered Lots: 4 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: portions of Silverado Drive and South Greensview Drive, and said streets are hereby declared to be public streets and dedicated to the public use. BE IT FURTHER RESOLVED that Lots A and B are hereby rejected for Open Space and that Lots C and D are rejected for future street dedicatione. 1 JJA-/ i -1,'" I ", , -' 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, sewer and drainage facility maintenance and construction and future street reservation along Hunte Parkway, all 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 she 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 said lots dedicated for future street dedication are rejected on behalf of the City of Chula vista and that those certain easements with the right of ingress and egress for the construction and maintenance of street tree planting, sewer and drainage facilities and future street reservation along Hunte Parkway 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 she 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 that certain Subdivision Improvement Agreement dated the day of , 1995, for the completion of improvements in said subdivision, a copy of which is attached hereto and by reference made a part hereof, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula vista. / J I I Presented by John P. Lippitt, Director of Public Works C:\rs\phase2&3.esg 2 J5-1~~ lr":! ".. i / ~ .... " Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this , 199__, by and between THE CITY OF CHULA municipal corporation, hereinafter called "City", and Development company, a general partnership day of VISTA, a Eastlake hereinafter called "Subdivider"; :hT1.:r!i~~~~T!!.... WHEREAS, Subdivider is about to p~esent to the City Council of the City of Chula vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as Eastlake South Greens Phase 2 and 3 pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and, WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the county Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with city, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite periOd of time prescribed by said Council, and WHEREAS, Subdivider is willing in consideration J:J~;J of the. -1- ,I-It/" \ ! r , '. ,;..;. approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the city Attorney, and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 17618, approved on the ~ day of Auaust, 19l1 ("Tentative Map Resolution"); and WHEREAS, complete plans and specif.ications for the construction, installation and completion of said public improve- ment work have been prepared and submitted to the City Engineer, as shown on Drawings Nos.95-137 through 95-141 and 95-205 through 95-214, on file in the office of the City Engineer, and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of One million eight hundred twenty-one thousand dollars ($1,821,000). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself.and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to city, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the pUblic improvement and/or land development work required to be done in and adjoining said subdivision ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the city Engineer and by this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the third anniversary date of Council approval of the Subdivision Improvement Agreement. -2- /3~-Y ns 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement W~rk, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of Nine hundred ten thousand five hundred dollars ($ 910,500) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further aqrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a 'Sufficient surety, whose sufficiency has been approved by the City in the sum' of Nine hundred ten thousand five hundred dollars ($ 910,500) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of Twenty-five thousand dollars ($25,000) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all -3- /J#5 /7'1 costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the city of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, h~s sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by city in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and str",et trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the city, its officers and employees, harmlesr from any and all claims, demands, causes of action, liability or ioss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or -4- /;J~-t- Ibe) employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by city of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14 . Subdivider agrees to defend, indemnify, and hold harmless the city or its agents, officers, and employees from any claim, action, or proceeding against the city or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period .provided for in Section 66499.37 of the Government Code of the State of California. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA * SUBDIVIDER: ATTEST Mayor of the City of Chula Vista Awt. * Please see attached signature page (Attach Notary Aclmowledqrnent) -5- 134-7 /6/ Signature Page For SUBDIVISION IMPROVEMENT AGREEMENT I By: EASTLAKE DEVELOPMENT COMPANY, a California general partnership By: Boswell Properties, Inc., a general partner By: The Tulago Company, a general partner By: ~~ Paul G. Nieto, Vice President ~~ By: Paul G. Nieto, Vice President By: By: /]>9 -r~3y:} J( I (3 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT No. 5907 State of ~ County of t<1l1M.. Di "<:r' On tc(3()/9.:f before me, li!M6'\ e.4,~-_IJ~ rU.... fJ,/,-, , . DATE --;) NAME, TITLE OF OFFICER. E.~'JANE DOE. NOTAR\:kuellC' personally appeared .f..d.ul nu,il; Li.J ~.n-r t!~a-..J , NAME(S) OF SIGNER( ~SOnaIlY known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. l@".SIlVANAC'BRAZElL f R! . . NOm~p~eJgm~NIA n tI, SAN DIEGO COUNTY (') I M~ Commission Expires - - ". FEBRUARY 12, 1998 f WITNESS my hand and official seal. ,;/Ju~Gf~E~~ OPTIONAL Though the date below is not required by law. it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER o INDIVIDUAL o CORPORATE OFFICER DESCRIPTIDN OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT TIll.E(S) o PARTNER(S) o LIMITED o GENERAL o ATTORNEY.IN.FACT o TRUSTEE(S) o GUARDIAN/CONSERVATOR o OTHER: NUMBER OF PAGES DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSONIS)fR ENTITY~ ~J~.tr .;< SIGNER(S) OTHER THAN NAMED ABOVE C1993 NATIONAL NOTARY ASSOCIATION. 8236 Remmet Ave.. P.O. Box 7184. Canoga Park, CA 91309-7184 /3.LJ - '7 .. ~, LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount:$ 910,500 Exhibit "B" Improvement Security -,Material and Labor: Form: Bond Amount:$ 910,500 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount:$ 25,000 Securities approved as to form and amount by City Attorney Improvement Completion Date: c: 'ag'eaotlake -6- J 5-1 'it:? I ,"";-~ I Y: .. '-'1,_,... RESOLUTION NO. /fftJ'l/ 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. 15200 AND 17618 APPROVING A TENTATIVE SUBDIVISION MAP FOR EASTLAKE GREENS, AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, the developer of Eastlake South Greens, Phase 2 and 3, 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 whereby the developer agrees that the City may withhold building permits for any units in the subject subdivision if traffic on Otay Lakes Road, Telegraph Canyon Road, Eastlake Parkway, or East "H" Street exceed the levels of service identified in the City's adopted thresholds. 2. Condition No. 32 of Resolution No. 17618 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 subject subdivision. 3. Condition No. 33 of Resolution No. 17618 requires the Developer to enter into an agreement to indemnify and hold harmless the City from any liability for erosion, siltation, or increased flow of drainage resulting from the subject subdivision. 4. Condition No. 34 of Resolution No. 17618 requires the developer to enter into an agreement with the City relating to the provision of franchise cable television services. WHEREAS, all other conditions of approval relative to this final map have been satisfied. NOW, THEREFORE, BE IT RESOLVED the city Council of the City of Chula vista does hereby approve Supplemental Subdivision Improvement Agreement requiring developer to comply with certain unfulfilled conditions of Resolutions No. 15200 and 17618 approving a tentative subdivision map for Eastlake Greens, a copy of which is on file in the office of the City Clerk as Document Noo____ (to be completed by the Clerk in the final document). IJ/l-/ 191' 't/ ""I BE IT FURTHER authorized to execute said of Chula vista. RESOLVED that the Mayor is hereby Agreement for and on behalf of the City Presented by John P. Lippitt, Director of Public Works JJfJ-eJ.. 1""':'" f V "'I . l)~ RECORDING REQUESTED BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer ) Above Space for Recorder's Use SUPPLENENTAL SUBDIVISION IMPROVEMENT AGHEEMENT (Conditions 30, 32, 33, 34, ) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this _ day of , 199_, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and EASTLAKE DEVELOPMENT COMPANY, a general partnership ("Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of a project commonly known as 1 /38-3 19b EastLake South Greens Phase 2 and 3. For purposes of this Agreement the term "Project" shall mean "Property". B. Developer is the owner of the Property. C. Developer has applied for and the city has approved a Tentative Subdivision Map commonly referred to as EastLake Greens, Tract 88-3 ("Tentative Subdivision Map") for the subdivision of the Property. D. The City has adopted Resolution No. 15200 and subsequent Resolution No. 17618 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. The description of the conditions in this recital section of this Agreement is intended only to summarize and paraphrase such conditions in the Resolution, and is not intended herein to modify or explain them, and is not intended as a basis for interpreting them. E. Condition No. 30 of Resolution No. 15200 requires Developer to enter into an agreement whereby the developer agrees that the City may withhold building permits for any units in the subject subdivision if traffic on Otay Lakes Road, Telegraph Canyon Road, EastLake Parkway, or East "H" Street exceed the levels of service identified in the City's adopted thresholds. F. Condition No. 32 of Resolution No. 17618 requires Developer to defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees to attach, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Councilor 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. G. Developer siltation Condition No. 33 of Resolution No. 17618 requires the to hold the City harmless from any liability for erosion, or increase flow of drainage resulting from this project. H. Condition No. 34 of Resolution No. 17618 requires the Developer to insure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the 2 /38-( '.' Ie:'] 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. I. There are certain other unperformed and unfulfilled conditions of said Tentative Map. J. City is willing, on the premises, security, terms and condi tions herein contained to approve the final map for which Developer has applied as being in substantial 'conformance with the Tentative Subdivision Map described in this Agreement. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. II. Agreement Applicable to Subsequent Owners. A. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. B. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the land owned by the City adjacent to the Property, described as EastLake Community Park, more particularly described as Lot 2 of Map No. 12544, recorded January 26, 1990. The Burden touches and concerns the Property. It is the intent of the parties, and the parties agree, that this covenant shal-l be binding upon, and run with, the ownership of the land which it burdens. The Burden of this Agreement shall be released from title, as to an individual lot or unit within the Property upon the sale of any lot improved with a residence, provided however, the City determinEi!s that the effect of such release, or in conjunction with previous releases, will not jeopardize the completion of the improvements or other obligations remaining under this Agreement. If the City determines that the release will not jeopardize said obligations, the City shall execute a quitClaim releasing the Burden of this Agreement from the title to any such lots. As to any lots which have not been released, the Burden of this Agreement shall continue to encumber such lots and shall be binding upon, and run with, the ownership of such lots until such lots are released. 3 /33-:3 168 a. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project, Developer may have the right to obtain a release of any of Developer's obligations under this Agreement, provided Developer obtains the prior written consent of the city to such release. Such assignment shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the reasonable satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. b. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied wi th the requirements of this Agreement and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remaindei of the Burden will not be completed. III. Condition No. 30 of Resolution No. 15200 - Building Permits Not to Issue While Thresholds Deficient. In satisfaction of Condition No. 30 of Resolution No. 15200, Developer agrees that the City has the right to withhold building permits for any dwelling units on the Property at such time as the traffic volumes 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. IV. Condition No. 32 - Subdivision Map Indemnity. In satisfaction of Condition No. 32 of Resolution No. 17618, the Developer agrees that, on the condition that City shal~ promptly notify the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense, the Developer shall 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 approvals by its Planning Commission, City Council, or any approval by its agents, officers, or employees with regard to this Project. 4 /3!J-~ I '.J if' ( V. Condition No. 33 of Resolution No. 17618 - Erosion and Drainage Indemnity. In satisfaction of Condition No. 33 of Resolution No. 17618, the Developer agrees that, on the condition that City shall promptly notify the Developer of any claim, action or proceeding, Developer shall 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, related to erosion, siltation or increased flow of drainage resulting from the Property. City agrees to reasonably cooperate with Developer in the defense of any such action, claim or proceeding. VI. Condition No. 34 Cable Television Easements. In satisfaction of Condition No. 34 of Resolution No. 17618, the Developer agrees to permit all cable television companies franchised by the City of Chula Vista equal opportunity to place conduit to and provide cable television service for each lot or unit within the Project. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the Project only to those cable television companies franchised by the City of Chula Vista the condition of such grant being that (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate the placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with, the terms and conditions of the franchise and 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. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon a determination by the City of Chula Vista that they have violated the conditions of the grant. 4. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction of Developer's obligation of Conditions 30, of the Resolution No. 15200 and Conditions 32, 33, 34 of the Resolution No. 17618. 5 /}1J~ ? lq D 5. Compliance With Unfulfilled Conditions. Developer agrees to comply with all conditions of the Tentative Subdivision Map applicable to the Property which remain unperformed or unfulfilled at the time of the filing of the Final Maps. 6. prepared party. Recording. This Agreement, or an abstract hereof by either or both parties, may be recorded by either 7. No Waiver of Park Obligations. The signing of this Agreement and the approval of this Final Map shall not be considered a waiver of the positions both parties may hold with respect to the park improvement obligations of the Developer, including but not limited to, the dedication of parkland, the construction of the Community Center and Gym or such other park improvements, as set forth in Condition No. 39 of Resolution 15200, the EastLake Park Agreement, EastLake Greens Development Agreement, EastLake Greens III Development Agreement and such other agreements that Developer may have assumed the obligations thereof. VII. Miscellaneous. A. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. Facsimile transmission shall constitute personal delivery. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 92010 Attn: Director of Public Works 6 /3!J-r !C(I Developer: EASTLAKE DEVELOPMENT COMPANY 900 Lane Avenue Suite #100 Chula Vista, California 91914 Attn: William T. Ostrem Vice President A party may change such address for the purpose of this paragraph by giving written notice of such changp. to the other party in the manner provided in this paragraph. Facsimile transmission shall constitute personal delivery. B. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. C. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or stat2ments shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. D. Preparation of Agree..nent. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. E. Recitals; Exhibits. Any recitals set forth above are incorporated by reference into this Agreement. F. Attorneys' Fees. In the event of any dispute ar~s~ng out of this Agreement, the prevailing party in any action shall be entitled to reasonable attorneys' fees in addition to any other costs, damages, or remedies. 7 Jy[Ti la." ( 1 c:"""~ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be execute the day and year first hereinabove set forth. By: City of Chula Vista Mayor Attest: Authelet,/~:i ty Clerk oedaa~4 ' Bruce M. Boogaard, Ci * EASTLAKE.DEVELOPMENT COMPANY By: Name: Title: Date: By: Name: Title: * PLEASE SEE ATTACHED SIGNATURE PAGE 8 /3[f'ltfJ i,p~ ,--' Signature Page For SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT .(Conditions 30, 32, 33, 34) , By: EASTLAKE DEVELOPMENT COMPANY, a California general partnership By: Boswell Properties, Inc., By: The Tulago Company, a general partner a general partner By: ~~ By: ~~ Paul G. Nieto, Vice President Paul G. Nieto, Vice President By: By: J3fJ~// /(3E~'J. iq4 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT No. 5907 . State of ~,0 County of ,~ OJ e (f> On fo/3~/q.5"'" before me, DATE NAME, TITLE OF OFFIC E.G., -JANE DOE, NO A personally appeared ~,.o 11~",-k IL4. J Cw:t ).J"l1~~ , ___ ./ NAME(S) ~R(S) Wpersonally known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) isfare subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. l@"SILVANAC'BRAZELL I M COMM. #1011951 . . NOT AAY PUBLIC-CAlFORNIA n SAN DIEGO COUNlY (') I My Commisston Expires - .. . ' FEBRUARY 12, 1998 f WITNESS my hand and official seal. ./~~fLEtf.~ OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER o INDIVIDUAL o CORPORATE OFFICER DESCRIPTIDN OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT T1TlE(S) o PARTNER(S) o LIMITED o GENERAL o ATTORNEY-IN-FACT o TRUSTEE(S) o GUARDIAN/CONSERVATOR o OTHER: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION. 8236 Remmel Ave., P.O. Box 7184. Canoga Park. CA 91309-7184 /Jf]~/eJ- EXHIBIT "A" Property Description CHULA VISTA TRACT NO. 88-3A, EASTLAKE SOUTH GREENS, PHASES 2 & 3, BEING A SUBDIVISION OF PORTIONS OF SECTION 3, TOWNSHIP 18 SOUTH RANGE 1 WEST, SAN BERNARDINO MERIDIAN, AND PORTIONS OF LOTS 10 AND 11 OF OTAY RANCH, ACCORDING TO MAP THEREOF NO. 862, AND PARCELS 1 AND 2 OF PARCEL MAP NO. 17476 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 26, 1995 ALL BEING IN THE COUNTY OF SAN DIEGO, PORTIONS IN THE CITY OF CHULA VISTA, STATE OF CALIFORNIA. EXHIBIT "A" /J.!1~13 \'1-' ......'1 ~'\ '-< RESOLUTION NO. /~/~t? RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE ACCEPTANCE BY THE CITY OF A PORTION OF SILVERADO DRIVE ON BEHALF OF THE PUBLIC WHEREAS, the offsite portion of Silverado Drive proposed to be accepted by the City on behalf of the public was previously offered for dedication but rejected by the City subject to future acceptance on the final map for Eastlake Greens Phase l/D,Map No. 12831; and WHEREAS, this portion of Silverado Drive was originally rejected because at the time the offer of dedication was made, construction of silverado Drive was not required; and WHEREAS, dedication and contraction of this portion of Silverado Drive is now required for Phase 2 and 3 of Eastlake South Greens. City of a NOW, THEREFORE, BE IT RESOLVED the city Council of the of Chula vista does hereby approve the acceptance by the City portion of Silverado Drive on behalf of- he public. , fofbY I City Presented by John P. Lippitt, Director of Public Works Attorney C:\rs\ph2&3.EL /3C-/ I~h COUNCIL AGENDA STATEMENT Item PI Meeting Date 11/7/95 ITEM TITLE: Public Hearing - Various requests for waiver of Planning Department application fees. Resolution /0/ tl / Granting a waiver of Planning Department application fees for: St Johns Episcopal Church; Bonita Country Day School; Church of Joy- Lutheran; Chula Vista Moose Lodge; and First United Methodist Church. SUBMITTED BY: Director of Planning ~ REVIEWED BY: City ManagerJ~ ~ ~ (4/5ths Vote: Yes_NolO The following nonprofit organizations have submitted requests for a waiver of Planning Department application fees as provided under Section 3.45.010 of the Chula Vista Municipal Code: I) St. Johns Episcopal Church, 760 First Avenue. . 2) Bonita Country Day School, 625 Otay Lakes Road. 3) Church of Joy Lutheran, 1398 Nacion Avenue. 4) Chula Vista Moose Lodge, 2638 Main Street, Suite L. 5) First United Methodist Church, 915 Paseo Ranchero. The Municipal Code sets forth a process for the waiver of City fees, allowing requests of less than $2,500 to be approved by the City Manager, while requests greater than $2,500 require Council approval. In order to grant such a waiver, the Waiving Authority must find that "... a peculiar economic hardship or other injustice would result to the applicant which outweighs, when balanced against, the need of the City revenue and the need for a uniform method of recovering same from those against whom it is imposed. " In addition, City Council Policy No. 267-05 (attached) provides that for non-profit community service organizations, fees may be waived where the City Council determines that the value of the public service performed by the organization merits the waiver of fees. RECOMMENDATION: That Council accept the report and approve the fee waiver requests as submitted. Staff bases this recommendation on its review of each request, and its finding that each organization provides a significant level of public service to the community, and has substantially conformed with established fee waiver criteria. Additional rationale for the approval of each request is included in the Discussion portion of this report. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. /'1-/ I err. "0"' / , , Page 2, Item / tf Meeting Date 11/7/95 DISCUSSION: Since October, 1992, a total of 21 fee waiver requests have been approved administratively, with an average fee waiver amount of $1,019 per request. Past recipients of these waivers have included such organizations as: The Salvation Army; Covenant Christian School; Chula Vista Connection "Neighbors Helping Neighbors"; and South Bay Baptist Church. Of the five current fee waiver requests, three are from religious organizations involved in expansion or new construction of their facilities. The remaining requests include the construction of a day school on existing church property, and renovation/construction of a new lodge facility for a local fraternal organization. In each case, applicants have asked for a waiver of all project fees, and a refund of all deposits. The following will describe each request in greater detail: St. Johns EDiscoDaI Church: In 1993, fire destroyed the former St. Johns Episcopal Church located at 760 First Avenue, Chula Vista. As a result of this fire, the church submitted the required applications to rebuild their church at this same location. The Planning Department application process required the completion of an Initial Study and a Design Review Application for this construction. As with all applicants, the church was also required to pay a $1,000 deposit toward the cost of an Initial Study, and $2,000 toward the cost of a Design Review application. In this case, the amount the church deposited ($3,000) was more than sufficient to cover the actual cost to the department to process both the Design Review application and Initial Study ($2,661.10). The following is a list of their deposits: Initial Study: Design Review Application: Total: $2,082.67 $ 578.43 $2,661.10 (The requested full waiver would result in a refund of the $3,000 deposits) [Total deposit= $3,000.00] In addition to its nonprofit status, this organization supports a number of local community cultural events, and has also established a local scholarship program, a "share basket" program providing food to the needy, a child care program, and also makes its facilities available to adult support organizations and local youth groups. In consideration of the public service it provides to the community, and the hardship it has experienced due to the recent fire, staff is recommending approval of this fee waiver request, and a refund of all deposits. Bonita Country Dav School: In June, 1994, the Bonita Coul)try Day School made application to the Planning Departtnent to establish a Kindergarten-through-6th-grade school on the existing church property at 625 Otay Lakes Road. They were required to obtain a Conditional Use Permit, and Design Review approval for their project, and also pay a $2,000 deposit toward the cost of these permits. Planning Department costs to process their Conditional Use Permit total $4,078.60, while the costs to process their Design Review application are $1,789.37. The combined costs to the Department to process this project total $5,867.67. Bonita Country Day School has deposited $2,000.00 which would be returned to them if their fee waiver request is approved. If their waiver is denied however, they will be required to forfeit their $2,000 deposit and pay an additional $3,867.67 to cover total costs to the Department ($5,867.67) to process their application. The following is a breakdown of total fee amounts: pJ ~~ t Page 3, Item / 'I Meeting Date 11/7/95 Conditional Use Permit: Design Review Application: Total: $4,078.60 $1.789.37 $5,867.97 (The requested full waiver would result in a refund of the $2,000 deposit and no billing for the $3,867.97 outstanding) [Total deposit= $2,000.00] Based on information provided by the applicant, the forfeiture of their deposit and the payment of additional fees would place a peculiar economic hardship on Bonita Country Day School. Staff feels that consideration should be given to the valuable level of public service provided by this organization (in addition to academic instruction) which includes: community workshops to teach parenting skills, food drives for the needy, use of their facility for community cultural events, and before and after-school child care. Based on these factors, and the fact that this organization depends on tuition paid by parents to cover the operating expenses of the school, staff is recommending approval of this fee waiver request, and a full refund of their deposit. Church of Jov-Lutheran: In June, 1994, the Church of Joy-Lutheran applied to the Planning Department to establish a church at the northwest corner Buena Vista Way and East "H" Street (their small congregation had been meeting in temporary, rented facilities). They were required to obtain an Initial Study, Design Review approval, and a Coastal Sage Scrub loss permit for this project. A $1,000 deposit was collected toward their Initial Study, but was insufficient to cover actual Department costs of $2,571.98. A $2,000 deposit was also collected toward their Design Review approval, which was more than sufficient to cover Planning Department costs of $1,971.03. Similarly, the $2,500 deposit collected toward their Coastal Sage Scrub loss permit was also sufficient to cover actual Department costs of $2185.16. Although a total of $5,500 in deposits have been received from this organization, the actual costs to the Department to process this project total $6,728.13. Accordingly, if their waiver request is denied, this organization will be required to forfeit their $5,500 deposit and pay an additional $1,228.13 to cover total costs to the Department to process their application. The following is a breakdown of total fee amounts: Initial Study: Design Review Application: Coastal Sage Permit: Total: $2,571.98 $1,971.03 $2.185.16 $6,728.17 (The requested full waiver would result in a refund of the $5,500 deposit and no billing for the $1,228.17 outstanding) [Total deposit= $5,500.00] Staff feels that forfeiture of such a large deposit and payment of additional fees would place an undue economic hardship on Church of Joy-Lutheran Church. In addition to a variety of public service programs offered by this organization, it is also supportive of Lutheran Social Services which offers a number of community programs including, a volunteer assistance program for seniors, a nutritional meals program, and collection drives throughout the year for charitable programs. Given the impact these fees would have on such services, staff is recommending approval of this fee waiver request, and a full refund of their deposit. Chula Vista Moose Lodl!:e: In November, 1994, the Chula Vista Chapter of the Loyal Order of Moose made application to the Planning Department to establish a new lodge facility based on renovation and / tj-.3 R"1 Page 4, Item d Meeting Date 11/7/95 expansion of an existing structure at 25 and 33 Naples Street, Chula Vista. They were required to obtain an Initial Study, Design Review approval, and a Conditional Use Permit for this project. A deposit of $1,835.45 was collected toward their Initial Study, but was insufficient to cover actual Department costs of $3,029.61. A $2,000 deposit collected toward their Design Review approval was more than sufficient to cover Planning Department costs of $1,243.21. A second $2,000 deposit collected toward their Conditional Use permit was also sufficient to cover the actual processing costs to the Department of $1,425. A total of $5,835.45 in deposits has been received from this organization, while actual costs to the Department to process their project were slightly less at $5,697.87. If their waiver request is approved, this organization would be entitled to a refund of their full deposit amount. If their request is denied however, they would forfeit $5,697.87 of their deposit, and only be entitled to a return of the $137.58 that remains. The following is a breakdown of total fee amounts: Initial Study: Design Review Application: Conditional Use Permit: TotaJ: $3,029.61 $1,243.21 $1.425.05 $5,697.87 (The requested full waiver would result in a refund of the $5,835.45 deposits). [Total deposits = $5,835.45] Public service activities provided by this organization are well known throughout the community and include, support for local sports activities (including school programs), the Youth Drug Awareness Program, support for Special Olympics, volunteers for the Hospice Society, a "Meals on Wheels' program, and an annual fund drive to support local charities. Given this level of public service involvement, staff feels that forfeiture of their deposit would constitute an undue economic hardship with potential impact to the community. Staff is therefore recommending approval of this fee waiver request, and a full refund of their deposit. First United Methodist Church: In October, 1992, the First United Methodist Church completed an application to construct a church at 915 Paseo Ranchero, Chula Vista. The application involved an Initial Study, Design Review approval, and a Conditional Use Permit, and they subsequently received a waiver of said fees in the amount of $1,955.00). In June, 1994, the First United Methodist Church chose to aooeal the findings of the Design Review Commission, and paid the required deposit amount of $2,000. With the appeal having been decided in their favor, First United Methodist Church is now requesting a refund of their $2,000 deposit. The actual cost to the Department to process this appeal was $1,200.61 as shown below: Design Review (appeal): Total: $1.200.61 $1,200.61 (The requested full waiver would result in a refund of the $2,000 deposit) (Total deposits = $2,000.00] Among the public service activities provided by this organization include: a two-week shelter program for the homeless (inclement weather), a 'Mothers Day Out' program to allow mothers to do shopping, and use of their facilities by YMCA and other organizations to conduct an at-risk youth program. Given J'/- 'I (jJ'.. (\7) ~).\. Page 5, Item -!.i Meeting Date 11/7/95 this level of public service, and prior action taken to waive their fees, staff is recommending approval of this fee waiver request, and a refund of all deposits. It should be noted that, while staff is recommending approval of these requests, based on compliance with required findings under the Municipal Code and City Council policy, it is recognized that these requests have a significant fiscal impact on the City. Therefore, staff is currently reevaluating the current Code provisions and policy regarding processing fee waivers, and will be returning to City Council in early 1996 with a report recommending alternative approaches to this matter. FISCAL IMPACT: The combined costs to the City to process these applications total $22,155.72, and will directly impact on the General Fund as reduced revenues (this includes a total of $18,335.45 in deposits to be returned to applicants). Attachments: 1) Section 3.45.010 of Chula Vista Municipal Code (Master Fee Schedule) 1) City Council Policy #267-05 2) Applications for Waiver of Fees (m:\Shared\ Waivers\OOWVOO) PI-5/ILf-G j RESOLUTION / 8"'/ t7 / RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING PLANNING DEPARTMENT APPLICATION FEES FOR: ST. JOHNS EPISCOPAL CHURCH; BONITA COUNTRY DAY SCHOOL; CHURCH OF JOY-LUTHERAN; CHULA VISTA MOOSE LODGE; AND FIRST UNITED METHODIST CHURCH WHEREAS, current Council Policy and Chapter 3.45 of the Chula vista Municipal Code provides for the waiver of fees for nonprofit organizations, and WHEREAS, the aforementioned organizations have requested a waiver of Planning Department application fees, and WHEREAS, these organizations have established their non- profit status and provide a valuable level of public service to our community, and WHEREAS, the City Council has found that the payment of fees by these organizations would pose an economic hardship that would impact this level of community. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula vista does hereby grant a waiver of Planning Department application fees, and return of all deposits to these organizations. Presented by y Attorney Robert A. Leiter, Director of Planning M:\SHARED\WAIVERS\RESOOO J /,/-7/fy-'if Chapter 3.45 '""' ~TERFEESCHEDULE Sections: 3.45.010 Established-Purpose. 3.45.010 Established-Purpose. A. The city council shall adopt, by resolution, a master fee schedule, indicating therein the fees for all services, administrative acts and other legally required fees, which resolution may be amended from time to time and shall be effective upon first reading and approval; provided, however, such resolutions may specify therein their applicability, if any, to applications currently in the process of review. B. A copy of the master fee schedule shall be maintained in the office of the city clerk and in each department of the city. C. The fees set forth in the master fee schedule may be waived by the Waiving Authority, as defined hereinbelow in Subsection D, in accordance with the following procedures: 1. Any person requesting an abatement of a fee herein charged shall request said abatement in writing, addressed to the WaiVIng Authority, and shall set forth herein, with specificity, the reasons for requesting said abatement of all or any portion of the fees. 2. The Waiving Authority shall conduct a public hearing, notice of which is not required to be published. Notice of said public hearing shall be given to the applicant and to any parry or parties requesting notice of same. 3. Prior to abating all or any portion of a fee established in the master fee schedule, the Waiving Authority shall find a peculiar economic hardship or other injustice would result to the applicant which outweighs, when balanced against, the need of the City revenue and the need for a uniform method of recovering same from those against whom it is imposed. D. Waiving Authority, as the term is used herein, shall mean the City Manager, or his designee, if the amount of such waiver is less than or equal to the greater of (1) $2,500 or (2) 25% of the fee imposed by the master fee schedule. If the amount of the waiver is greater than the greater of $2,500 or 25% of the original fee imposed by the master fee schedule, the Waiving Authority, as used herein, shall mean the City Council. E. If the Waiving Authority in a particular fee waiver matter is the City Manager, or his designee, the decision of the City Manager, or his designee, may be appealed to the City Council by any person, including, but not limited to, the members of the City Council. If the Waiving Authority is not the City Council, then the Waiving Authority shall provide notice of his dtcislOil to waive the fee set forth in the master fee schedule by distnbutmg a copy of said notice of decision to each member of the City Council and to the City Clerk. Said notice of decision shall be deemed a public record. (Ord. 2506 ~1 (part), 1992; Ord. 2375 ~1, 1990; Ord. 2373 ~1, 1990; Ord. 2066 H, 1984; Ord. 1818 ~1. 1978). ) 261 /J/-1 (R 6/92) ~\ 1\::- C?,_,_1 F<' COUNCn.. POliCY CITY OF CHUlA VISTA SUBJECf: WAIVER OF FEES FOR COMMUNI1Y SERVICE ORGANIZATIONS POliCY NUMBER EFFECTIVE DATE PAGE ADOPTED BY: Resolution No. 13360 267-05 11-24-87 1 OF 1 I DATED: 11-24-87 BACKGROUND The lack of an established Council Policy delineating the criteria for waiver of fees by nonprofit entities has raised the need for a policy that will govern such waivers requested by nonprofit organizatiol's. It is considered appropriate to waive fees imposed by the City for those organizations which meet the criteria established by this policy. PURPOSE To establish a standard policy by which nonprofit organization may be exempt from those fees established and imposed by the City. POUCY Fees established and imposed by the City may be waived for nonprofit organizations where the City Council determines that the value of the public service performed by the organization merits the waiver of fees. /1/- /~ , '''',(1 .;;...,$.:'..... , l.. City of Chula Vista Planning Department Case No: Filing Date: APPLICATION FOR WAIVER OF FEES Name of Applicant: ST. JOHN'S EPISGOPAL GHURGH Mailing Address: 760 1ST AVENUE GHULA VISTA, GA 91910 Phone: (619)422-4141 Project Location and Description: 160 1ST AVENUE - BETWEEN KEARNEY STREET AND "K" STREET. GONSTRUGTION OF NEW SINGLE STORY CHURGH (9,006 S.F.), PARISH HALL (3,999 S.F.) AND ADMINISTRATION BLDG. (1,444 S.F.). EXISTING SCHOOL BUILDINGS TO REMAIN AND EXISTING CHURCH BUILDING (2,160 S.F.) TO BE RELOCATED ON SITE. Assessor's Parcel Number/s: 573 - 410 - 06 Please list all the fees requested for waiver and amount. TYPE OF APPLICATION CASE NO. AMOUNT 1. INITIAL STUDY IS 95-24 $ 1, 000.00 2. DESIGN REVIEW DRC 95-39 $ 2.000.00 3. C.U.P. PCG 95-43 $ 350.00 4. $ TOTAL: $ 3,350.00 Non Profit Status: Yes X No - If yes, please provide documentation. Please explain why the payment of the above fees would place a peculiar economic hardship on you or the organization. THE PARISHONERS ARE ATTEMPTING TO REBUILD THEIR CHURCH BUILDING AFTER A TRAGIC 141c')II-( / {, Print Name NOT BEEN DESIGNATED f! d~ i1!/' AND FUNDS HAD ARSONIST FIRE. IN THE v All J~ {/t te /J-l y/ (wvnppl) ;) - Case No: fce. C;'I- 1./"8 Filing Date: dr.::(O' 'If e6-/75" . City of Chula Vista Planning Department ~ APPLICA nON FOR WAIVER OF FEES Name of Applicant: Bonita Country Day School C<" ~ Mailing Address: P.O. Box 1226 Bonita, CA 91908 Phone: 656-0141 Project Location and Description: .625 Otay Lakes Road, Chula Vista A non profit academic school for qrades Pre-Kinderqarten throuqh sixth operating 8:30am to 2:30pm, Mondays through Fridays. Assessor's Parcel Numberls: 594-130-51 (L"'~n; CI/r...,cl. ~J() ." Please list all the fees requested for waiver and amount. G; TYPE OF APPLICATION CASE NO. AMOUNT J. Conditional Use permit"") fa - '14-48 . . 1}f2.( .7~--O 2. .Q J A -'1"'<" ;(J 1/11.....0 M,........., 1)(,)'1 il J, <!' 3. $ $ $ $ 2.000.00 D90 "17 ~La)<! ~ ~ I. flttJ.IJO ----7> ~_ 4. ~(",I...d ("?~"':l VICe '97 -oS" ~/e. - 131-0'2.6, Non Profit Status: Yes xx If yes, please provide documentation. TOTAL: $ .2.r-G60.00 3}"'M,OO No Please explain why the payment of the above fees would place a peculiar economic hardship on you or the organization. Payment of the above fees would place a pecular hardShip on Bonita Country Day School because we are funded solely by tuition paid by parents enrolling their children in the school. L' Tuition just covers operating costs of the school; teachers salaries, facility lease, school ate Paul Catanzaro 06/16/94 Print Name Date . ('"""flPI) ;'1-/2- ........ t "",[);;J . City of Chula Vista Planning Department Case No: /.5 -7f/-~7cP Filing Date: (;, -/ 7-FY E6175 APPLICA TION FOR WAIVER OF FEES Name of Applicant: Church of Joy-Lutheran Mailing Address: 11gB Nadon Ave. Chula Vista, CA 91911 Chula Vista, CA 91911 Phone: 427-1020 Project Location and Description: T\V")r+-hwp~t mrnpr of East URn street and Buena Vista Way, Chula Vista. Four phase church property developrent with multi- pUrpOse building as first phase. Gymnasium, classrooms and church sanctuary to follow. '" </2- - 3"1 ;2..-/0 Assessor's Parcel Nwnberls: Please list all the fees requested for waiver and amount TYPE OF APPLICATION CASE NO. AMOUNT -'<0 - I:j -0/1-28 $ 1,000 I. Environrrental Initial Study / ,-/' / I ' 2. Desiqn Review Fee ( ,")' f/ Ir' ,pc , , $ ~ ~,e>co 3. $ 4. $ " '~'rs t'te -&1- (t, 1-_,;- '"J TOTAL: $ -2,888 J eo. . Non Profit Status: Yes -X- No If yes, please provide docwnentation_ Please explain why the payment of the above fees would place a pecul.iar economic hardship on you or the organization. Our non-profit. church orqanization is comprised of a srrall congregation now rreetinq in temporary, rented facilities. Our caoacity to pay planning fees is limited by our budget and can impact our ability to fund construction expenses. Lance Becker Print Name / ~ ~-c~L--- Signature /'1"1.3 6/2/94 Date {wvrappl} City of Chula Vista Planning Department Case No: Filing Date: 11-:'; \ '1- APPLICATION FOR WAIVER OF FEES Name of Applicant: / ~YA-L /:U:?Oe::l' rJ.c .A1PttJ,S..e- Mailing Address: Cl7L1'~;<7 kP;,u;P6c ~7 26311" ~~,.CJ S'r .5'(J,,~ 'L. /' C/./PLA ~.S'n1.,C9, "1/9// . Phone(~I'tJ~E-~?,33 Project Location and Description: 2 3 BAr,/] 2 S- A4-,O/.-rs S"r- Ck'H~t4 0~rA . en, 9/'9/1 I Assessor's Parcel Numberls: 6/9-1()(!j -29 ~ ~/9-/oo-3o .lf4A;P ~ ~~~ Please list all the fees requested for waiver and amount. TYPE OF APPLICATION 1. {JaDe l/eAR/If./G- 2.pE-r'16A) ftEVlcPi/ 3.EAli/II?~/JM,,=,AlmL, ff;t//caJ 4. CASE NO. AMOUNT $2.~.o OC /' .dO $2,oao - , I oc $ .ooa- -" $ TOTAL: $~0r70 ~ Non Profit Status: Yes $ If yes, please provide documentation. No Please explain why the payment of the above fees would place a peculiar economic hardship on you or the organization. M- t4RF -4 Aku/P/?t::JP'IT J7j;//7F7?AI'A-L OR6t!'Ul/Z/9-7/'&'A...J. M-- /-}<;:<)/5;r- UA/7?-/ ~~..c:/2,4-L c;?~Av.lu,v/,7r,:;;::;pJ.-1rcE~ ,4-,vL? 5/,pp/,cr ,l(dtJs",___"'-"T..t4- ~. AA/P,{79f./J;2~AA/'rl('" a /~/7/T'? Print Name Sig ture Date /'/-/1'" ('"""!'PI) .. -- \... City of Chula Vista Planning Department Case No; Filing Date; \ \- l -'14 APPLICATION FOR WAIVER OF FEES , Name of Applicant: Cltl/IA V/'rj;, - nrsf afJJ~d tf1p1Jaltst CIJ(lYOh Mailing Address; 7/0 1J; /Y. -I ~e'11 fie.- C1J(jJ.;J I/t5f~ I (~ Cf('i/o Phone; er2.2 - tr"l-r Project Location and Description; . '1/5" Pt1r~o f.t::1I1C1reyo I/ew t. sfor'rf /!!J2xJsp 5tf111dv~" J n-ew 2s1lJv'j /1, 7tJrJSF li/lcWSh/~ t/A~>>d AM ls1tJvu 5,d(Jsr dJ//JVt'ffls: 11J/f;is'fiir~s bl/I /rhF'q. . ./ .. Assessor's Parcel Number/s; 642 -010 - 32>_ ~9-2 - 01/- ()/, tJZ, ZtP, ~8 , ~ ,. , Please list all the fees requested for waiver and amount. TYPE OF APPLICATION CASE NO. AMOUNT ( l.~refl !3{,.- ()9/ -t,OOO. Do 11& r>{;. p, $ t:JP.<:. If 9- ZJ 2. $ 3. $ 4. $ TOTAL; $ Non Profit Status: Yes ~ No If yes, please provide documentation. ~e ,4.fkrcl1ed Please explain why the payment of the above fees would place a peculiar economic hardship on you or the organization. 1/011 p'0fil o(J~1(ycff7dJ1- Heivrts /' I / 1f, '- i'tCi r b e Print Name (]k-4UZ:C-~~ Signature P/'13 /0-31- 9i Date (WYrOjlpI) ~"<) ~. COUNCIL AGENDA STATEMENT Page 1, Item /5 Meeting Date 11/07/95 Continued from 10/17/95 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; 2) To consider the vacation of various streets in Otay Rio Business Park; and 3) to consider a deferment of City permit and development fees due for the project Resolution 18057 Certifying Final Environmental Impact Report EIR-95-03, MCA Chula Vista Amphitheater Resolution 18058 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., 3) A Sublease by and between the City of Chula Vista and MCA Concerts, Inc., and 4) Authorizing the modification and deferment of certain City permit and development impact fees due for development of the project Resolution 18059 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 18060 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 18061 Ordering the vacation of various streets in Otay Rio Business Park SUBMITTED BY: Director of Community Development G:; . Director of Planning Director of Public Works REVIEWED BY: City Managerj? (4/5ths Vote: Yes_No_XJ BACKGROUND: On October 3, 1995, the Council held a public hearing to consider a proposal by MCA Concerts, Inc., to construct a 20,000 seat capacity Amphitheater in the Otay River Valley. The project, which may include Kobey's Swap Meet, requires Council certification of an EIR, approval of lease agreements, granting of Conditional Use Permits (for the lm:\shered\commdev\mca-2. fin) rev: November 3,' 995 1 :35pm If-I /"'1" \,) Page 2, Item /5 Meeting Date 11/07/95 Continued from 10/17/95 Amphitheater and Kobey'sl. vacation of various streets on the project site and modification and deferment of certain City fees. At the October 3, 1995 hearing, Council requested staff provide, at the October 17, 1995 meeting, additional information on a number of environmental and financial questions. Council also requested that the Nederlander group and the Port District conduct sound tests for the proposed Bayfront Amphitheater similar to sound tests carried out by MCA, prior to the November 7, 1995 Council meeting at which the Council would further consider the MCA proposal. As of November 2, 1995, the Port District had not received signed agreements or payment from Nederlander to carry out the sound tests. At the October 17, 1995 meeting, Council considered additional public testimony and reviewed staff responses to Council questions. At the conclusion of the meeting, additional information was requested to be provided for the November 7 meeting. This additonal information is provided as the first item under the "Discussion" section below. The Council is requested to reopen the public hearing on the MCA proposal, consider the additional information provided by staff and take action on the EIR, Conditional Use Permits, lease agreements, street vacations and the modifications and deferment of City fees. The notice of public hearing mailed to residents on October 12, 1995, and also published in the Star News, included consideration of the modification and deferment of fees. 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 the meetings of August 22, October 3 and 17, Council continued the Public Hearing to November 7, 1995, 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 approve a ground lease between landowner and MCA. These documents include provisions for City construction of necessary public improvements, deferred payment and financing of development fees by MCA, and rent payments to the City measured by a percentage of ticket and parking revenues. Since the Im:\lhared\commdev\mce-2. fin) rev: November 3,1995 11 :45em / f~,2- (1\ \ j ';::"'4-,,\\ Page 3. Item_ Meeting Date 11/07/95 Continued from 10/17/95 developer has requested modification of certain City fees in light of the unique nature of the project, and a deferment of certain fees as part of the business deal for the project, the Council is also requested to consider these issues during the public hearing. The Environmental Review Coordinator (ERC) determined that an Environmental Impact Report was required for the project. Pursuant to the ERe'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. the proposed street vacations, modification and deferment of certain development fees, 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 AJisos 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.; and 4) adopt the attached Resolution authorizing the modification and deferment of certain City development fees; and 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; and 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. (m:\shared\commdev\mca-2. fin) rev: November 3,1995 11 :45am )5~3 ?"\! f'. ~~: lfJ" Page 4, Item_ Meeting Date 11/07/95 Continued from 10/17/95 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. 5. On October 3, 1995, the City Council held a public hearing on the MCA Amphitheater and continued the hearing to October 17, 1995 and November 7, 1995. 6. On October 17, 1995, the City Council reopened the public hearing on the MCA Amphitheater, considered additional information on the project, and continued the public hearing to November 7, 1995. DISCUSSION: At the October 17 meeting, the Council reviewed staff's response to previous questions on the impacts of the Amphitheater and requested additional information which is provided below: 1 . Soccer Fields Staff has discussed the possibility of providing soccer fields as an auxiliary use on the grassed overflow parking area on the north side of the Amphitheater. Issues which require further discussions between staff, MCA and possible local sponsors include: Construction: type of turf that can accommodate both recreational and parking needs; Liability: MCA will not assume liability for recreational facilities; Maintenance; preliminary estimates indicate that potential cost to the City in additional equipment and labor could be high. There is the need to explore alternatives with MCA and potential local sponsors such as the Youth Soccer League. It is recommended that MCA provide a conceptual site plan which City staff can use to negotiate liability, maintenance and other related issues with the potential sponsors. The addition of soccer fields will eventually require a separate Conditional Use Permit in order for it to be appropriately reviewed. To attempt to do a separate use permit at this time for the proposed soccer fields would unduly delay consideration of the Amphitheater. Therefore, a Im:\.hared\commdev\mea-2. fin) rev: November 3,1995 11 :45am /s~'i .;\ ,-~) (;-..1-\::0; Page 5. Item_ Meeting Date 11/07/95 Continued from 10/17/95 condition is included requiring the Applicant to cooperate with the City and any interested party in developing soccer fields in the northern-most parking lot. If, at the end of two years, it is not possible to reach satisfactory resolution on all issues. MCA will be required to provide the approved landscaping improvements. 2. City to Receive Share of Parkina Revenues In recent meetings between City and MCA officials, the issue of the City sharing in parking and/or other revenues was discussed. MCA has agreed to provide, in addition to the 3% ticket assessment, 3% of all parking fees received. The City will receive 3.5% of those parking revenues for parking attributable to tickets sold in any year over 400,000. and 4% of these revenues for parking attributable to tickets sold over 500,000. Keyser Marston Associates estimates total parking revenue to the City over 20 years of operation at $315,000. 3. Priority for Local Hirina MCA will enter into a Statement of Intent with the South County Career Center which will initiate the process for local hiring preference. Through this process, all participating entities, including Sweetwater Union High School District and Southwestern College will be notified and have the opportunity to participate in the hiring process. 4. Controllina Traffic on Brandywine Brandywine Avenue is a major circulation street which provides a connection between Otay Valley Road and Orange Avenue. Brandywine will remain open during concert nights. However. every effort will be made to preclude concert traffic from going through residential neighborhoods to the east and west of Brandywine. This will be done pursuant to a traffic control plan that will be a part of the Events Management Plan. 5. Staffina Needs to Operate the City's Sound Eauipment In 1976, the City purchased two hand-held noise meters and in 1984, a noise meter with a logging device was also purchased. None of this equipment is currently operable, nor does the City have staff trained to use the equipment. The proposed Conditions of Approval for the project require that, whenever noise monitoring is deemed to be necessary by the City, the applicant is required to fund a contract for an expert consultant to conduct the monitoring. That consultant will report directly to the City. This offers the advantage of not only saving the City costs in obtaining (or repairing) and maintaining equipment, as well as training staff to operate the equipment, but also provides for a higher level of technical expertise than current City staff can offer. In the event of a dispute over noise measurements, having a third party will also provide a measure of objectivity. (m:\shared\commdev\mca-2. fin) rev: November 3,1995 11 :45am IY~ ~JI~ Page 6, Item_ Meeting Date 11/07/95 Continued from 10/17/95 6. Curfew MCA has agreed to a curfew of 11 :00 p.m. during the week and 11 :30 on the weekends. Five events will be allowed each year to exceed the curfew with prior permission of the Events Planning and Coordination Task Force. If noise and existing traffic become a problem after those hours, the City has the authority to amend the Events Management Plan to provide stricter traffic control or, ultimately, to enforce a more strict curfew pursuant to the CUP. 7. Off-Site Cleanup MCA will clean up off-site concert related garbage and debris along Otay Valley Road and other impacted areas to the satisfaction of the City The details will be worked out in the Events Management Plan. 8. Limit on the Heiqht of Liqhts in the Parkinq Areas The City of Chula Vista currently does not maintain any standards regarding night lighting in rural areas or specific protection of "Dark Sky" resources. Controls relating to dark sky protection are typically imposed in areas where night illumination impedes celestial monitoring activities, such as in the vicinity of an observatory. The Chula Vista Municipal Code does provide for glare protection and all project lighting is subject to review under the provisions of the Code. The project will be required to demonstrate that lighting is directed at buildings and parking areas and shielded to maximize security while minimizing light spillover, regardless of the height of the light standards. The Applicant is currently proposing the use of approximately 19 light standards from 30 to 100 feet in height in order to obtain the proper volume of lighting for security. If a maximum height of 30 feet were imposed on the standards, proper lighting of the lot would require approximately 180 light standards, resulting in substantial additional costs (Applicant estimates over $100,000 in additional costs) and added potential for off-site glare resulting from the large numbers of additional lights. Staff does not feel that imposition of a maximum height standard would materially affect the City's ability to control light and glare impacts from the project. Staff would like to retain full discretion over this issue and defer a decision until all issues have been analyzed. 9. Sound Mitiqation Levying of fines for noise ordinance violations can be imposed. However, it is not recommended that a fine system be adopted in lieu of the currently proposed remedies that are provided through the conditions placed on the Conditional Use Permit. The objective of the mitigation is to ensure that violations do not occur. This approach is required by the Environmental Impact Report. When it becomes apparent that concert noise will exceed thresholds, monitoring of sound in the community is required at the Applicant's expense. If it is determined that concert noise threatens to exceed noise ordinance standards in the Im:\snared\commdev\mca-2. fin) rev: November 3,1995 11 :45am /5~? /" cJ Page 7. Item_ Meeting Date 11/07/95 Continued from 10/17/95 surrounding community, mitigation is required so that impacts are avoided before they are experienced by existing or future residents. Adopting a fine system for violations that occur during the monitoring period would be consistent with the EIR mitigation. However, the EIR has committed to the effectiveness of the mitigation, and staff does not believe that violations of the noise ordinance are likely to occur. It is therefore not expected that any fines would ever be imposed or collected. In addition, if noise standards are exceeded and not remedied, the City has the option of revoking the Conditional Use Permit. 10. Events Plannina and Coordination Task Force and Events Manaaement Plan As a condition of approval in the Conditional Use Permit, the Applicant is required to form a specialized group that will oversee the operational aspects of the amphitheater's event-by- event functioning. This group is to be called the Events Planning and Coordination Task Force (Task Force) and will be composed of the Applicant and the following City departments: Police. Fire, Public Works. Planning, Building and Housing and Community Development and any other City department (or outside agencies) having a direct interest in Amphitheater operations. This Task Force will oversee such operational aspects as traffic control, security, emergency response, on- and off-site clean-up, special effects, curfew, facility maintenance and any other function/issue which it feels falls within its purview. The Events Management Plan (EMPI must be developed by the Applicant, reviewed by the Task Force and then approved by Council. It will be overseen by the Task Force which will be authorized to modify the EMP if it deems the modification necessary in order to accommodate any situation not addressed in the EMP. The EMP will actually be a combination of several subplans and conditions contained in the Resolution of Approval, including a special effects plan; a traffic control management and event security plan addressing such aspects as the placement of cones, barricades, signs, traffic control and security personnel; an off-site clean-up plan to cover primary rights-of-way; and any other operational aspects deemed appropriate by the Events Planning and Coordination Task Force. The Events Management Plan will incorporate all the relevant and appropriate issues outlined in the memo dated October 18, 1995 from Scott Alevy, Council Member, to Chris Salomone, Director of Community Development. 11. Otav Vallev Road/I-805 Intersection In discussing the proposed project mitigation required for the southbound ramps, the EIR references a Project Study Report (PSRl that has been prepared by Caltrans for the entire interchanges. What was not made clear in the EIR is that the PSR does not propose physical improvements to the southbound off-ramp. Rather, the PSR indicates lane striping that utilizes the three existing lanes in the following manner; two lanes are dedicated to exclusive right turns and one provides for both through and left turning movements. The EIR recommends that the ramp be restriped to provide for one exclusive left turn lane, one left/through/right turn lane and one exclusive right turn lane. This mitigation does not require (m:\shared\commdev\mc&-l. fin) rev: November 3,1995 11 :458m J5' 7 , . c;:/. \ ~ Page 8, Item_ Meeting Date 11/07/95 Continued from 10/17/95 any widening of the ramp by Caltrans but would require their approval of the striping plan. Preliminary discussions with Caltrans have indicated that they would not object to such a restriping plan. 12. Citv Charaes for Emeraencv Police and Fire Services The CUP requires MCA to pay all city costs associated with the operations of the Amphitheater including traffic control, police and fire department personnel assistance. The details of how MCA will be charged will be worked out in the Events Management Plan. ENVIRONMENTAL IMPACT REPORT EIR-95-03 The City has prepared an Environmental Impact Report for the project, Final EIR-95-03. The Final EIR (FEIR) 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 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. (m:\shared\commdev\mca.2. fin) rev: November 3.1995 11 :45am /5-6' d\'f Page 9, Item_ Meeting Date 11/07/95 Continued from 10/17/95 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 Planning Commission 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 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. (m:\shared\commdev\mca-2. fin) rev: November 3,1995 11 :45am /YI :) C;R'" \ L Page 10,ltem_ Meeting Date 11/07/95 Continued from 10/17195 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. There would need to be a determination if a separate organization like CYSA or AYSO would be willing to run and maintain such a facility. It is recommended that MCA provide a conceptual site plan which City staff can use to negotiate liability, maintenance and other related issues with the potential sponsors. If, at the end of two years, the City is unable to reach satisfactory resolution on all issues, MCA will be required to provide the approved landscaping improvements. In this manner, the provision of soccer fields can be pursued without delaying approval of the project. MCA has agreed to provide a site plan. Desian 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. Zonina. Land Use and Development Status SURROUNDING ZONING, LAND USES & DEVELOPMENT STATUS Compass Direction Site North So uth East West Current Zonina IL-P (Limited Industrial) F1 (Flood way) A8 (Agricultural) S-80 (Open Space)(County) A8 (Agricultural) Land Usel 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 Otay Valley 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 northlnorthwest along Energy Way across Otay River where heavy industrial uses are located, such as auto dismantling and storage, A (m:\shllred\commdllv\mca-2. fin) rev: November 3,1995 11 :45am J5-/tP "i 1;# .:,"J"'..\ \ Page 11. Item_ Meeting Date 11/07/95 Continued from 10/17/95 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 Y, 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 project, there has been consideration given to a joint City/School District 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 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. 3. Prooosal Amohitheater: 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. Ooen 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 Im:\shared\commdev\mca-2. fin) fev: November 3,1995 11 :45am /5-// /,'" ") ,:?-"- Page 12, Item_ Meeting Date 11/07/95 Continued from 10/17/95 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 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 11 parking will go into the southern parking lot, Area .0. 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 11 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. (m:\shared\commdev\mcl!I.2. fin) rev: November 3,1995 11 :45am /5'''/,.,2. <::~:,~J Page 13, Item_ Meeting Date 11/07/95 Continued from 10/17/95 6. Analvsis MCA 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 MeA 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: (m:\.hared\commdev\mca-2. finl fev: November 3,1995 11 :45am /S'/J r' ~')"" Page 14, Item_ Meeting Date 11/07/95 Continued from 10/17/95 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. 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 Swap Meet is optional and will not materially impact the overall viability of the Amphitheater. 7. General Plan Conformance and Implementation 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 128 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 128 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, Fire, Public Works, Planning and Community Development Departments, any traffic-related impacts can be identified and addressed. The Events Planning and (m:\.hared\commdev\mea-2. fin) fBV: November 3,1995 11 :45am ;5- /11 "\ ~,,"'2 Q~~""<-) Page 15, Item_ Meeting Date 11/07/95 Continued from 10/17/95 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. 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 proposed 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." Im:\8hered\commdev\mce.2.fin) rev: November 3,1995 11 :45am /y/~ I' ,....;.;:)..",. ....,..." Page 16. Item_ Meeting Date 11/07/95 Continued from 10/17/95 . "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 attenuation wall. reducing the noise volume from the control room, and redirecting andlor 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 Im:\shared\commdev\mca.2. finl rev; November 3,1995 11 :45am /ylf _. i, ..,~ ~,,,"., (';." n_ Page 17, Item_ Meeting Date 11/07/95 Continued from 10/17/95 thresholds have been exceeded, the City will impose permanent noise controls as set forth in the EIR. Any failure by MCA to comply with these requirements would give the City the right to revoke the Conditional Use Permit. 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, 10b). 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, submitted to the Council on October 3, 1995, supported earlier conclusions based upon the May 14, 1995 sound test. 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. Im:\shared\commdev\mca-2. fin) rev: November 3,1995 11 :45sm ;5'-/7 -;;;~~ b Page 18. Item_ Meeting Date 11/07/95 Continued from 10/17/95 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. 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. Parkina . 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. (m:\shared\commdev\mca-2. fin) rev: November 3,1995 11 :45am /5'- /r C cJ'~:~ I Page 20,ltem_ Meeting Date 11/07/95 Continued from 10/17/95 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. Much of the foregoing is discussed in the EIR and the Traffic Study. Please refer to the Mitigation Measures and Event Monitoring Program (EMP) on pages 3.2-23 to 3.2-27 for details in the EIR. Accessibility . 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. Otay Valley ReQional 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. Im:\shared\commdev\mca-2. fin} rev: November 3,1995 11 :45am /y';?'cJ :1 I Page 21. Item_ Meeting Date 11/07/95 Continued from 10/17/95 . 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. . Alcoholic beverages will be sold at MCA-sponsored events. However, to control the amount of drinking and ensure that there will be few drinking related incidents. the Applicant is conditioned to allow a maximum of two drinks per customer per purchase. In addition, alcohol sales will be suspended one hour after the start of the final "headline" act. . The curfew is conditioned at 11 :00 p.m. weekdays and 11 :30 weekends. The Applicant may request deviation from the curfew a maximum of five times per year from the Events Planning and Coordination Task Force. . 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. Securitv/Emeraencv Resoonse . 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 contract with the Police Department for police services to help with security at no additional cost to the City. Details will be worked out as part of a security plan in (m:\shared\commdev\mca-2. fin) rev: November 3,1995 4:49pm 8--~/ Page 22, Item_ Meeting Date 11/07/95 Continued from 10/17/95 the EMP. All security, traffic control and law enforcement activities related to the Amphitheater must be to the satisfaction of the Chief of Police. . 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 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. (m:\shared\commdev\mca.2. fin) rev: November 3,1995 4:49pm /..5--,),;2- Page 23, Item_ Meeting Date 11/07/95 Continued from 10/17/95 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 granted, 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, Keyser Marston Associates (KMA), a prominent economic consulting firm 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 have been negotiated by staff with MCA and have the concurrence of MCA. 1. 3-4% Share of Net Ticket Receiots and Parkinq Fees MCA has agreed to pay the City 3% to 4% of net ticket sales and parking fees which, by KMA's estimate, will average approximately $290,000 annually over twenty years of operation. The initial assessment will be 3% of net ticket sales and parking revenue. If ticket sales exceed 400,000 in any year, the City's percentage of ticket and parking revenue will increase (m:\shared\commdev\mca-2.fin) rev: November 3,1995 4;49pm l~~J ~. c.;,I., ~~, Page 24. Item_ Meeting Date 11/07/95 Continued from 10/17/95 to 3.5% for sales and related parking fees over 400,000 only. If ticket sales exceed 500,000 in any year, the City's share increases to 4% of ticket sales and related parking over 500,000. The 3% ticket assessment amount was originally envisioned as a ticket tax. However, the concept of a ticket tax was 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 ticket assessment will 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 11). 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 under the ground lease directly to the property owner plus 3 % (or greater) of net ticket sales to the City as rent to the City under the sublease. 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 ongoing 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. Revised versions of these documents including the new business terms have been reviewed by the City Attorney's office and are attached hereto. 2. Recapture of Permit/Development Fees The MCA Amphitheater project faces exceptionally high development fees. Project fees are currently estimated as follows: City of Chula Vista permit fees School District fees Otay Water District City of Chula Vista Public Facilities DIF City of San Diego FBA' TOTAL FEES $310,000 11,000 450,000 425,000 2.100.000 $3,296.000 In order to recapture project fees, including interest, MCA has proposed an up to 2 % surcharge on tickets for the period of years necessary to recapture the fees. MCA intends to 'City of San Diego Facilities Benefit Assessment based upon City of San Diego staff estimates. Chula Vista staff has requested that San Diego consider a reduction in fee based upon the traffic generation from the project and road improvements already completed by the City of Chula Vista. (m:\shared\commdev\mca-2. fin) rev: November 3,1995 4:49pm / 5''-~ '/ ~ .~;' cf..-<.... Page 25, Item_ Meeting Date 11/07/95 Continued from 10/17/95 collect this surcharge, along with the City's percentage rent, as a "City Special Assessment" on a ticket by ticket basis. Based on the current estimate of project fees and MCA's projected revenue figures, more than 20 years will be necessary to amortize the fees and interest at prime rate. If the San Diego benefit assessment fee is 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. 3. Deferment of City Permit/Development Fees To further assist in reducing front end development costs, MCA has requested that of the City of Chula Vista fees (approximately $750,000), fees in an amouint equal to the City's Public Facilities DIF (approximately $425,000), be deferred and paid in equal installments over ten years. The City will thus receive approximately $42,500/year until the fees are paid in full. If MCA cancels their lease before the fees are paid, then all unpaid fees will be due to the City. Since the DIF is a trust fund where funds are held for future construction of public facilities, the City Attorney has advised that deferred funds must be paid back with interest at rates that the funds would have earned on deposit (prevailing government interest rates). MCA has indicated that the payment of interest, even at lower government rates, would almost double the payback to the City over ten years. Consequently, company officials have indicated that they cannot pay interest on the deferred fees on an ongoing basis in addition to revenues which have been pledged to the City (these revenues are further discussed below). MCA has agreed, however, to pay the City interest on deferred fees in the event that MCA terminates the sublease and the City has not otherwise received such interest (at 6 % per annum) from its share of net revenues Interest payment on a deferment of $425,000 at 5.6% would total $23,800 after one year. This amount would decline each year by approximately $2,380, since the outstanding principal would be reduced by $42,500 per year. It is proposed that the City consider payment of interest from revenues accruing to the City from ticket sales and parking fees. According to analysis by KMA, yearly revenues to the City from these two sources alone should average $241,000 for each of the first ten years of operation. 4. Modification of the City Development Impact Fees Because of the unique nature of this project in terms of land usage and limited use of the site during the course of a year, staff has made adjustments in the calculation of the City's Development Impact Fee, Traffic Signal, and Sewer Capacity Fees as described below. a. Development Impact Fee The Public Facilities DIF was set up to finance public facilities needed to accommodate increased population created by new development. According to the Public Facilities DIF (m:\shared\commdev\mca-Z. finl rev: November 3,1995 4:49pm /y,;25 , , ~; ,,-', ..., (..,.0....... ~ I Page 26. Item_ Meeting Date 11/07/95 Continued from 10/17/95 Ordinance No. 2554, "new development contributes to the cumulative burden on these public facilities in direct relationship to the amount of population generated by the development or the gross acreage of the commercial or industrial land in the development." The current Public Facilities DIF fee for commercial and industrial development is $10,750 per acre. For the MCA project, this fee would be $10,750 x 72.5 acres = $779,375. Section 3.50.160 of the PFIDF Ordinance allows for modification or reduction of the fee by the City Council if a Developer contends that, because of the nature or type of uses proposed for a development project, the application of the fee "is unconstitutional or unrelated to mitigation of the burdens of the Development." MCA has requested a modification of the fee because of the unique nature of the project (see attached letter). The developer believes imposition of the full fee would be "unreasonable and overly burdensome since the size. demand for services and burdens created by the Amphitheater are much smaller than those created by commercial and industrial developments." Moreover, the developer believes the facility will generate fewer impacts than commercial and industrial facilities because the Amphitheater will be operating limited hours and days. Public Facilities DIF for MCA Amphitheater Project The City Council has, in the past, granted modifications of the Public Facilities DIF for particular projects. The EastLake Greens golf course and the proposed Marina Golf Center at "J" Street and Marina Parkway were granted modifications such that the fee was based on the size of their operational areas (e.g. clubhouse, pro shop, parking lot, practice greens) as opposed to the size of their entire sites, because a majority of the area consisted of open land. The operational area approach provided a method to assess those land-intensive facilities that require passive use of large land areas in proportion to their adverse impacts on public facilities. The City also created a separate Public Facilities DIF for the Olympic Training Center, recognizing the quasi-residential and commercial nature of the facility, in that athletes live on site, but employees and visitors are also on site. In addition, the fee was also based on the fact that the facility has few employees and volunteers relative to the size of the project area, and a large number of athletes living in a concentrated area. The MCA project has a number of unique characteristics. It does not neatly fit into a typical commercial or industrial category. Commercial uses are customarily in operation 5-7 days per week, while industrial uses are mainly a 5 day per week operation. While the MCA offices and box office will be open 5 or 7 days per week on site, the Amphitheater will only be used for a maximum of 60 nights per year plus additional days for set up and tear down of stage sets. The site will also have a dual purpose, providing 30 acres for the operation of a proposed open air market. The market will operate a maximum of two days per week under the proposed (m:\shared\commdev\mca-2.finl rev; November 3,1995 4:49pm /y,.,). ? - ."J./"- d,--- .' Page 27, Item_ Meeting Date 11/07/95 Continued from 10/17/95 Conditional Use Permit, with a possible expansion to four days per week if a future modified CUP is sought and subsequently approved. The project area is very land-intensive, as most of the site will be made up of parking areas to accommodate the large crowds attending the concerts and open air market. The facility will also employ fewer than the 1,000 + employees that would be suggested by the PFDIF's 15 employee per acre factor for commercial/industrial uses. This project will also provide some quasi-public uses, with the possible construction of a soccer field and provision of 18 nights of use of the Amphitheater for civic events, which is atypical for most commercial and industrial projects. Based on the unique characteristics of this project, as stated above, staff recommends assessing a modified Public Facilities DIF for this project, that takes into account these unique operational aspects and the proportional impact on public facilities. Staff recommends that the DIF fee be made up of separate calculations that take into account the different uses and the operational aspects of the site. The part of the site that houses the buildings is similar to typical commercial and industrial facilities and should be assessed the full DIF fee. The entire site is used for concerts that have limited days of operation and should thus be assessed a modified fee that takes this limited operation into account. Thirty acres of the site was proposed to be used as an open air market with limited days of operation and should be assessed a modified fee based on this acreage and limited operation. The calculations are based on a typical five day work week. 1. Tvoical Commercial Use: Since employees are on site daily to handle ticket sales and other administrative functions, the building area of the site should be charged the full DIF fee, since this one area does function as a typical commercial facility. The size of this area is 41,500 square feet. .95 acres x $10,750 = $10,213 2. Concert Use: Since the Amphitheater is only in operation for concerts for a maximum 60 nights per year, with the equivalent of another 60 days/nights for set-up and take- down of the concert stage sets, these operational times are made a factor in modifying the DIF for the entire site. [(60 days + 60 days)/(5 days per week x 52 weeks)] x 72.5 acres x $10, 750/acre = $359,712 Therefore, the amount of the Public Facilities DIF owed by MCA would be $10,213 + $359,712 = $369,925 (m:\shared\commdev\mca-2. fin) rev; November 3.1995 4:49pm /5-02 ? Page 28, Item_ Meeting Date 11/07/95 Continued from 10/17/95 3. aDen Air Market Use: Since the open air market will operate two days per week for the entire year on only 30 acres of the site, this limited operational time and area should be a factor in calculating the DIF for the open air market operator. In addition, the calculation will take into account the overlap days with MCA. [(2 days/week x 52 weeks) - (2 days/week x 30 weeks)]/(5 days per week x 52 weeks) x $10,750 x 30 acres = $54,576 The total Public Facilities DIF for this project is then $424,501. It is recommended that should the scope of MCA's actual operations exceed the operational profile upon which this calculation is based or should the open air market operator seek a modified CUP to expand the days of operation to four days per week and increase the number of vendors and thus the acreage, that MCA and the open air market operator pay additional DIF fees at the time modified CUPs are issued, using the same basis for calculating the current fees. b. Traffic Imoact Fee Traffic impact fees are normally calculated on the basis of average daily trips generated throughout the year. However, the Amphitheater will only be operational 40-60 nights, from May through October. The addition of Kobey's open-air market will increase trips generated, but only weekends initially, and ultimately, no more than four days a week throughout the year. Consequently, trip generation was computed on a weighted average basis rather than projecting the maximum ADTs throughout the year. This resulted in a weighted traffic signal fee of $63,245 rather than a maximum fee of $156,000. If MCA is required to install a traffic signal they may be eligible for a rebate of fees, depending upon the cost of signal installation. c. Sewer Caoacitv Fee MCA will pay the full sewer capacity fee estimated at $159,840. However, after the first four seasons of operation, actual usage will be measured. MCA will receive a rebate (and lower future rate) if actual usage is lower than anticipated, or pay additional fees if usage is greater. The deferment of fees requires the Council to hold a public hearing which has been noticed as part of the public hearing for the MCA Amphitheater project. 4. Performina Arts Fee MCA has agreed to provide the City $.15 to $.50 for every ticket sold towards a Performing Arts Fund which can be used City-wide (as well as at the Amphitheater) to fund cultural performances. Funds will accrue on a yearly basis as follows: First 100,000 tickets sold - Next 100,000 tickets sold - Next 100,000 tickets sold - Next 100,000 tickets sold - $.15/ticket $ .25/ticket $.35/ticket $.50/ticket (m:\shared\commdev\mca-2.fin) rev: November 3,1995 4:49pm /5~~g'" -. :.on d.--<-) I Page 29, Item_ Meeting Date 11/07/95 Continued from 10/17/95 If 350,000 tickets are sold in the first year, this formula will provide $100,000 to the fund. It is staff's preliminary recommendation that the Performing Arts Fund be administered by a seven member advisory board comprised as follows: 1 City Councilperson 1 Representative from MCA 2 Representatives from the School Districts 1 Representative from the Cultural Arts Commission 1 Representative from City staff 1 Member-at-Iarge selected by the City Council The Performing Arts Board will make recommendations to the Council concerning performance/events to be funded. These events may be City-wide throughout the year, and may also be held at the Amphitheater with promotional assistance from MCA. A detailed proposal for the establishment of the committee will be submitted at a later date. MCA has agreed with the proposed structure of the committee so long as there are no more than 7 members and MCA has 1 vote. 4. Citv Use of the Amphitheater The City will have use of the Amphitheater for a minimum of 18 days per year (6 during the "season" and 12 "off-season"). 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. MCA will provide the City with a good faith estimate of operational costs well in advance of the date of the City's event. 5. Citv Box/Tickets The City will have use of a box comprising 12 seats for all concerts at no cost in a prime location. MCA will also provide 12 additional seats in the best third of the audience for City use. Although these additional seats may be scattered, they will at least be in pairs. 6. 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. Although Otay Valley Road was originally to be widened to four lanes eat of Nirvana, the EIR traffic analysis indicated that five lanes (two going east and three going west) would be required by the Amphitheater. The additional work, currently estimated to cost $388,000, was previously authorized by the Council on the basis that the contractor was already set up on site and widening the road two lanes now would save considerable future costs in terms of inflation and contractor set up fees. The project is (m:\shared\commdev\mca-2. fin) rev: November 3,1995 4:49pm Jf~2/ -'::;>r" ~~""""(""I Page 30, Item_ Meeting Date 11/07/95 Continued from 10/17/95 currently under construction. Ultimately, one more lane will be added, but this will not occur until Otay Ranch builds out. 7. Indemnification MCA agrees to indemnify the City against any CEQA litigation or other liabilities arising from its operation of the Amphitheater. MCA will be responsible for any future noise mitigation costs. 8 OoeratinCl 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. Obviously, MCA will operate the facility as long as it is financially practical to do so. MCA has rejected the City's proposal but has agreed, alternatively to do two things. First, if MCA stopped operating the Amphitheater, they have agreed to (a) pay the City the entire amount of still outstanding fees, if any, and (b), reimburse the City of the City's up front road improvement costs if the City has not otherwise recovered them pursuant to its share of ticket and parking revenues. Staff is proposing that this figure total $500,000 to cover staff and consulting expenses. Second, MCA has agreed to give the City the right of reasonable approval of any proposed sale/assignment by MCA of the Amphitheater business during the first five years of operation. 9. Full Pavment for Citv Staff Services MCA agrees to pay the full cost of City services required to operate the Amphitheater. These costs include police, fire and emergency rescue personnel who will be assigned to the Amphitheater on performance nights. Estimates of staff costs have been provided to MCA. MCA will also pay related costs for City services including arrests, bookings, fire prevention, etc., as may be required. In addition, MCA will designate a location in the facility for a police operations center. The Applicant is also conditioned to pay all costs associated with the staffing of the Events Planning and Coordination Task Force, as well as the processing, reviews and implementation of the Events Management Plan. 10. Additional ParkinCl Parcel If the City acquires the Otay Rio Phase II property for a public works yard site, then the five acres of Phase II directly south of the Amphitheater will be provided to MCA or their assignee for overflow parking at a nominal rent. (m:\shared\commdev\mca-2.1in) rev: November 3,1995 4:49pm /5'~ .JiJ "", ";';',. ~\,:'J"f Page 31. Item_ Meeting Date 11/07/95 Continued from 10/17/95 Kobev's Swap Meet MCA is negotiating with Kobey's Swap Meet to allow Kobey's to sublease a portion of the Amphitheater parking lot site for weekend swap meet operations. In addition to lease revenue to MCA, Kobey's will provide 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 fees to the City totalling $240,000 over ten yearS of the swap meet operation. Kevser Marston Study 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 has been previously provided to the Council. Based on the revised deal points discussed above and a comparison of the proposed project with similar theaters across the country, the consultant evaluated the revenue projections by MCA for the Amphitheater and projections prepared by Kobey's for the proposed swap meet operation. Alternative revenue projections were prepared by Keyser Marston for comparison purposes including: . 3% to 4% of net ticket receipts and parking fees (per the proposed formula) . sales tax revenues (food and beverage, merchandise, swap meet sales) . property tax . business license fees . Performing Arts Fund In order to assess City costs and financial returns, the following was analyzed: City expenses include off-site road improvements (Otay Valley Road) staff and consulting costs - $500,000. Proiected City Revenue According to the Keyser Marston Financial Analysis, the City will realize estimated revenue between $13,536,661 (based on MCA/Kobey projections) and $10.423, 572 (based on Keyser Marston projections) over 20 years of operation 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 and parking assessment; Amphitheater food, beverage, and merchandise sales tax; swap meet sales tax; business license fees; and property taxes. They do not include the performing arts fund. The incremental revenue streams for the 20 year period appear in revised Tables 9b and 10b prepared by KMA which are attached to the back of the staff report.) (m:\shared\commdev\mca-2. fin) rev: November 3,1995 4:49pm ;yJ; :.. LI D Projected City Revenue Over 10 Years Page 32. Item_ Meeting Date 11/07/95 Continued from 10/17/95 Projected City Revenues Over 20 Years Revenue Sources MCA/Kobey Projections Keyser Marston Proiections 3%-4% Ticket and parking Assessment $3.795.559 $2.411.131 Amphitheater: Food, Beverage Sales Tax 361,112 191,187 Amphitheater: Merchandise Sales Tax 232,145 140,875 Amphitheater Subtotal $4.388.816 $2.743.193 Swap Meet Sales Tax 1,087,500 870,000 239,800 Swap Meet: Business License Fees 239,800 Swap Meet Subtotal $1.327.300 $1,109,800 Property Tax 503.098 503.098 (Amphitheater + Swap Meet + Property Taxi: Total Revenue Projected MCA/Kobey Proiection Keyser Marston Proiections $7.771.594 $5.802.516 846.417 459,070 544,125 338,262 $9,162.136 $6.599.848 3,301.462 671,965 2,641,169 671.965 $3.973.427 $3.313.134 503.098 503.098 $6.219.214 $4.356.091 $13.638.661 $10.416.080 Performino Arts Fund In addition to the revenues cited above, the City will receive an estimated $2.1 million (KMA estimate) to $3 million (MCA estimate) for the performing arts over 20 years of operation of the Amphitheater. Amortization of City 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 $500.000 to widen a portion of Otay Valley Road to accommodate the Amphitheater project. and widening, staff and consulting expenses. Keyser Marston used a 7% interest rate to Im:\shared\commdev\mca-2. fin) /y J;L. rev: November 3,1995 4:49pm I I: ;__i; , Page 33, Item_ Meeting Date 11/07/95 Continued from 10/17/95 amortize the cost which reflects the City's assumed investment rate on available money. Based 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 four years following the start of construction with a one year construction period. Beginning Ending Balance Interest Revenues Balance Year 1 (Under const.) $500,000 $35,000 $0 $535,000 Year 2 535,000 37,450 247,643 324,807 Year 3 324,807 22,736 281,334 66,209 Year 4 66,209 4,635 70,843 0 Environmental Impact Report/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. (m:\shared\commdev\mca-2.fin) rev: November 3,1995 4:49pm /~}) ; :r Page 34, Item_ Meeting Date 11/07/95 Continued from 10/17/95 ATTACHMENTS 1 . Letter from Marguerite Perkins 2. Revised Lease Agreements 3. City CounCil Minutes (10/17/95) 4. Keyser Marston Associates revised Income Estimates - October 31, 1995 For all attachment and exhibits previously listed please refer to your Agenda Statement from the meeting of October 3, 1995. (m:\shared\commdev\mca-2. fin) rev: November 3,1995 4:49pm /5- J( );5'- 3t ,." -...- n . G?l.- - If; .., .. '- c.."t ~ t ,I... ,0'.. o .~, l.. Ot . '/' .t . , ~. C.. 0.<1. ,L 0'.:', Ot ,C 0.. C.cr. f". O~ ~. '.: ~.,.., '-'''-7....,... - . .- - -. -- --- (Jif;; /9 PO' /~ 3) c:Pm ~~~ ~ ~L -d- /'?U>!~ &r 3, /~;1S-: ~ t2-~ ';C~ !~~ ~::z ~ f ttnt;.ffy ~A1~ ~~, \( a.A,Ai -~~~ {}l~ !z: ~-~ ~. tlA ~ '7/'~~~ ) - C/ a / - ~~d/Z~ ?J?J.24~ tf /g51 ::Z:YIIAC'A ST ~d~ Qcv 9'/1/3 --~ ,- : o. ',( (' (;;..(;. . 0..1;. (( 0:.' 00 (O(~,c.. D ~&~DW~ o . ~ . (( C. I n ( ~..I ~ ' ( ( co... OCT - 6 I!IIi ~ u . ~ ,-,. ..; L ~. I COUNCil OffiCES CHUlA VISTA CA IS- -.3 5 MEMORANDUM November 3, 1995 FROM: The Honorable Mayor and City Council ,(ll John D. Goss, City Manager~ hw~i U / ~. Chris Salomone, Community Development Director l-'- TO: VIA: SUBJECT: MCA Lease Documents The lease documents were finalized after intense review and discussion on Thursday, November 2, 1995. Jon Demorest, Esq., of Latham & Watkins had the documents revised overnight and forward to the City on Friday, November 3, 1995. The revised documents were reviewed by staff but may be subject to minor revisions by the City Manager and City Attorney. /5- 37//5- 5'8' I ';;;"Li- SUBLEASE THIS SUBLEASE is made as of this ("Effective Date") by and between the City ( "Sublandlord"), and MCA Concerts, Inc., a (" Subtenant") . day of ,199 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 and the Tri-Party Agreement. 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 t:\jdemores\mca\sublease, 006 /5'r37 ~4s without Subtenant's prior written consent, which consent may be withheld in Subtenant's sole and absolute 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. Notwithstanding the foregoing, the parties understand and agree that Sublandlord cannot contract away its lawful exercise of the police power. Such lawful exercise of Sublandlord's police power shall not be prohibited by the terms of this Sublease. 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. t:\jdemores\mca\sublease.006 2 /5' -it) :..L./~ ARTr'CLE 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 Participation Rent. In addition to the Sublease Minimum Rent payable by Subtenant pursuant to Section 3.2 above and the "City Special Assessment" 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 Citv Special Assessment. In addition to Sublease Minimum Rent and Sublease Participation Rent, Subtenant agrees to collect a "City Special Assessment" in an amount determined by Subtenant from time to time, but not less than three percent (3%) or more than six percent (6%) of the "Net Ticket Revenues" generated from the operation of an amphitheater at the Leased Premises, and to pay a portion of such City Special Assessment to Sublandlord as additional rent, all as provided in this paragraph 3.4. 3.4.1 Subtenant shall endeavor to charge and collect the City Special Assessment on a per-ticket basis, but if Subtenant determines, due to market constraints or artist t:\jdemores\mca\sublease.Q06 ~ 15-11 " 11M .,,1 Y ; complaints, that it is unable to charge and collect such amount on a per-ticket basis, Subtenant shall nonetheless remain obligated to pay Sublandlord the amount described in paragraph 3.4.5, below as additional rent. If Subtenant is precluded from collecting the portion of the City Special Assessment payable to Sublandlord hereunder as a result of legal proceedings initiated by a third party or a statutory prohibition, then the provisions of paragraph 11.1 of the Tri-Party Agreement shall apply. 3.4.2 For purposes of this Sublease, the term "Net Ticket Revenues" means (a) the gross cash receipts from all paid admissions from ticket sales or entry fees, including parking charges, minus (b) ticket returns, commissions on sales, credit card charges on sales, credit card charge-backs, discounts from face value, and rebates, and minus (c) excise, sales, ticket or other forms of taxes, assessments (including the City Special Assessment), facility fees or surcharges. 3.4.3 For purposes of this Sublease, the term "Subtenant's Development Fees" means all development impact fees, traffic signal fees, sewer capacity fees, water district fees, public facilities development impact fees, building permit fees, permit fees, inspection fees, application fees, school fees and other similar fees paid by Subtenant to the City of Chula Vista, the City of San Diego (including without limitation Otay Mesa Development Impact fees), or any school district, water district or other governmental or quasi-governmental agency in connection with Subtenant's construction of an amphitheater and associated improvements on the Leased Premises. 3.4.4 For purposes of this Sublease, the term "Prime Rate" means the rate published from time to time in the Western Edition of the Wall Street Journal under the heading "Prime Rate" in the section entitled "Money Rate," and if more than one rate is listed under the heading "Prime Rate," then the highest rate listed. 3.4.5 A portion of the City Special Assessment collected by Subtenant shall be paid to Sublandlord as additional rent, and a portion shall be credited to Subtenant, as follows: 3.4.5.1 Until such time as Subtenant has recovered, pursuant to this paragraph, an amount equal to all of Subtenant's Development Fees, together with interest thereon from the date paid at the Prime Rate plus two percent per annum, the portion of the City Special Assessment payable to Sublandlord shall be: (a) 3.0% of Net Ticket Revenues with respect to the first 400,000 paid admissions in any calendar year; (b) 3.5% of Net Ticket Revenues with respect to the next 100,000 paid admissions in any calendar year; and (c) 4.0% of Net Ticket Revenues with respect to paid admissions in excess of 500,000 in any calendar year. The balance of the City Special Assessment (if any) shall be retained by Subtenant. t:\jdemores\mca\sublease.006 / 15 ~ qr- YZ 3.4.5.2 Thereafter, subject to the provisions of paragraph 3.4.5.3, the City Special Assessment shall be reduced to: (a) 3.0% of Net Ticket Revenues with respect to the first 400,000 paid admissions in any calendar year; (b) 3.5% of Net Ticket Revenues with respect to the next 100,000 paid admissions in any calendar year; and (c) 4.0% of Net Ticket Revenues with respect to paid admissions in excess of 500,000 in any calendar year, and the entire City Special Assessment shall be payable to Sublandlord. 3.4.5.3 In addition to the foregoing provisions of this paragraph 3.4, if at any time Subtenant is required to pay, pursuant to the provisions of Conditional Use Permit No. PCC-95-47, costs related to monitoring or mitigation of sound impacts of the amphitheater, the City Special Assessment may be as much as six percent (6.0%) of Net Ticket Revenues, and the portion (if any) of the City Special Assessment collected by Subtenant that exceeds the portion thereof payable to Sublandlord as provided in paragraphs 3.4.5.1 and 3.4.5.2 may be retained by Subtenant until such time as Subtenant has recovered an amount equal to such monitoring and mitigation expenses, together with interest thereon from the date paid at the Prime Rate plus two percent per annum. 3.4.5.4 The portion of the City Special Assessment that may be retained by Subtenant shall not exceed 3.0% of Net Ticket Revenues for any single artist or event, and in any calendar year shall not exceed an average of 2.0% of Net Ticket Revenues. 3.4.6 On or before December 31 of each calendar year during the term of this Sublease, Subtenant shall pay to . Sublandlord the portion of the City Special Assessment for such calendar year that is payable to Sublandlord. Said payment shall be accompanied by a written statement certified by a financial officer of Subtenant showing in reasonable detail the Net Ticket Revenues derived from amphitheater operations at the Leased Premises for the preceding calendar year, the calculation of the City Special Assessment based thereon, and the calculation of the portion of the City Special Assessment to be paid to Sublandlord and the portion thereof to be retained by Subtenant. In addition, Subtenant shall submit to Sublandlord, on or before April 30, July 31 and October 31 of each calendar year, a report estimating the portion of the City Special Assessment that will be payable to Sublandlord with respect to the preceding calendar quarter. 3.4.7 Subtenant shall keep complete and accurate books of account and records from which Subtenant's Development Fees and Subtenant's Net Ticket Revenues from the Leased Premises can be determined. Subtenant shall keep for at least three years following the end of each calendar year all pertinent original books and records. t: \jdemores\mca\sublease. 006 ~ /5..,13 ;). L{ '1 3.4.8 The acceptance by Sublandlord of payments of the City Special Assessment shall be without prejudice to Sublandlord's right to an examination of Subtenant's books and records maintained with respect to the calculation thereof in order to verify the amount of Subtenant's Net Ticket Revenues. At any reasonable time within three year~ after receipt of any statement furnished it by Subtenant as provided in paragraph 3.4.5, above, and upon ten (10) days' prior written notice to Subtenant, Sublandlord may cause a special audit to be made of Subtenant's books and records relating to the calculation of the City Special Assessment for the period covered by such statement. Such audit shall be conducted during regular business hours and otherwise in such a manner as to avoid disruption of Subtenant's operations. Except as provided in paragraph 3.4.9, below, the cost of such audit shall be paid by Sublandlord. 3.4.9 If it shall be determined that there has been an error in the payment of the portion of the City Special Assessment payable to Sublandlord, then a reconciling payment or credit shall be made. If it is determined that the error exceeded three percent (3.0%) of the City Special Assessment for the period covered by the audit, and if such error was to the disadvantage of Sublandlord, then Subtenant shall also pay to Sublandlord the cost of the audit. Each statement of Net Ticket Revenues submitted by Subtenant shall become binding upon Sublandlord one year after delivery thereof to Sublandlord unless within such year Sublandlord shall cause such special audit to be commenced. 3.5 Net Charqes. 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 or the Tri-party Agreement, the covenants, agreements, terms, provisions, representations, warranties and 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 t:\jdemores\mca\sublease.006 ~ /5 -l{-1 ...-...". f".;7 ..) 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 "Expiration Date" Sublease Term. All references in the Master Lease to the shall mean and refer to the last day of the 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," "City Special Assessment" 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 Subject to the provisions of paragraph 24 of the Tri-Party Agreement and to Article 12 of this Sublease, 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 ~efer to "Master Landlord or Sublandlord." 4.3 Provisions of Master Lease Not Incorporated into Sublease. Notwithstanding any contrary provision of this Article 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); t: \jdemores\mca\sublease. 006 -r /5-tf5 ",,-: I rCJI"",v\ 4.3.5 Article 14 (Cooperation); 4.3.6 Article 21 (Notices); 4.3.7 Article 34 (Brokers); and 4.3.8 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 Obliqations 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 or the Tri-party Agreement. ' 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, 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 or the Tri-Party Agreement. 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 or the Tri-Party Agreement, and t: \jdemores\mca\sublease. 006 ~ /5~~b (ii) Sublandlord's default hereunder is caused by a default by Master Landlord of its obligations under the Master Lease or the Tri-Party Agreement. 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 Approvals 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 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 the corresponding payment due under this Sublease shall likewise be abated during the period and to the extent of such abatement under the Master Lease. To the extent requested in writing by Subtenant, and at Subtenant's sole cost, Sublandlord agrees to preserve, pursue and enforce all of its rights under the Master Lease to abate Rent. Notwithstanding the foregoing, in no event shall any abatement of rent under this paragraph have the effect of abating any City Special Assessment payable to Sublandlord pursuant to paragraph 3.4.5 hereof. 5.6 Sublandlord's Riaht 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 t:\jdemores\mca\sublease.006 ..-9- IS~t.f7 ...-..... r.......,. ~'.).:' 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. In the event Subtenant terminates this Sublease prior to the earlier to occur of (a) the tenth anniversary of the commencement of the Initial Term of the Master Lease, or (b) the date on which Sublandlord has been paid $500,000 in City Special Assessments pursuant to paragraph 3.4 hereof, Subtenant shall pay to Sublandlord a termination fee in an amount equal to the difference between $500,000 and the amount of City Special Assessments that have been paid to Sublandlord. In addition, upon termination of this Sublease by Subtenant, Subtenant shall pay to Sublandlord any outstanding installments of the portion of Subtenant's Development Fees the payment of which has been deferred pursuant to paragraph 11.6, below, together with interest in an amount equal to (i) 6.0% per annum on the deferred portion of Subtenant's Development Fees from time to time remaining unpaid, minus (ii) the amount of City Special Assessments in excess of $500,000 that have been paid to Sublandlord (but in no event less than zero) . 5.7 Notices. Sublandlord agrees to immediately give Subtenant a copy of each and every notice, statement and other written communication that 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. t:\jdemores\mca\sublease.006 ~o ,5~~~ _-,I d~~ 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. 7.2.3 Neither Sublease nor the incurrence hereunder, conflict with or the execution and delivery of this by the Subtenant of its obligations result in a breach of any terms, t:\jdemores\mca\sublease.006 ~ 1~~~9 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: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Manager with a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Attorney With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: Director of Community Development 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. t:\jdemores\mca\aublease, 006 ~ /5-5t> Notices shall be effective on the next business day following its actual delivery to the address specified above. 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 PURCHASE OPTION AND RIGHT OF FIRST REFUSAL 10.1 Exercise of Riqhts. Sublandlord and Subtenant agree that all of the 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 may be exercised by either Sublandlord or Subtenant, subject to the terms and conditions set forth in this Article 10. 10.2 Exercise bv Sublandlord. In the event that Sub landlord exercises its rights under either Article 44 or 45 of the Master Lease prior to Subtenant's exercise of such rights, the Master Lease shall not merge into the fee but, rather, Sublandlord shall be deemed to have concurrently assigned all of its rights under the Master Lease to Subtenant. In that event, the Master Lease shall be deemed to have been amended so that Subtenant's obligation to pay the City Special Assessment under Section 3.4 of the Sublease shall then apply to Subtenant as the Tenant under the Master Lease and Sublandlord's duties under Article 11 of the Sublease shall then be deemed to apply to the Sublandlord as the Landlord under the Master Lease. From and after that event, all of Subtenant's rights as the Tenant under the Master Lease, as amended, including its rights under Articles 44 and 45 of the Master Lease shall be in full force and effect, the Sublease shall be deemed to have merged out of existence and be of no further force and effect and the Tri-Party Agreement shall become null and void. t;\jdemores\mca\sublease.006 ..-3:-3'"' /5-5/ ?;''5 ? 10.3 Exercise bv Subtenant. In the event that Subtenant exercises its rights under either Article 44 or 45 of the Master Lease prior to Sublandlord's exercise of such rights, the Master Lease and the Sublease shall continue in full force and effect, except that from and after that event Sublandlord shall not longer have any rights under Articles 44 and 45 of the Master Lease. ARTICLE 11 ADDITIONAL AGREEMENTS 11.1 Sublandlord's Construction. Sublandlord shall, at its sole expense, construct improvements to Otay Valley Road to provide for the following: 11.1.1 Three westbound travel lanes and two eastbound travel lanes separated by a raised center median from the intersection of Nirvana Avenue to the point where the road curves to the south. At that point the improvements shall provide for four travel lanes, two northbound and two southbound. 11.1.2 Improvements to the bridge over the Otay River to an ultimate width of 52 feet. The bridge and the approaches to the bridge shall be striped to accommodate one permanent travel lane in each direction, with a painted center median that would provide sufficient width to accommodate two additional lanes that can be used in a reversible operation. sublandlord shall cause such construction to be completed by not later than the later to occur of (a) May 1, 1996, or (b) the date falling fifteen days after the date on which the project improvements being constructed by Subtenant have been completed such that a certificate of occupancy would be issuable but for failure to complete such offsite road improvements. 11.1.3 The deadline for Sublandlord's completion of the work described in paragraph 11.1, above, shall be extended for such additional periods of time as Sublandlord's performance is prevented or delayed due to strikes, lockouts, unavailability of materials, acts of governmental agencies or delays in the granting of governmental permits (other than acts or delays of Sublandlord), acts of God, riots, civil insurrection, abnormal force of elements or any other similar event which is beyond the control of Sublandlord or actual delays caused by the installation of Subtenant's improvements at or around the project site; provided, however, that in no event shall any extension be deemed to have occurred unless Sublandlord shall have given notice to Subtenant, within ten (10) days after the occurrence of the event, setting forth the facts giving rise to such extension. Sublandlord shall give prompt written notice to Subtenant of the cessation of the event or condition giving rise to such delay. For purposes of this Sublease, the phrase "abnormal force of t:\jdemores\mca\sublease.006 ~ /5~~')... ~ "',) o<~:;L elements" shall include, without limitation, greater than fifteen (15) days per calendar year (pro-rated for portions of a calendar year) of rain delay. For purposes of this Sublease, unavailability of funds or other fiscal restraints encountered by Sublandlord shall not constitute an event or condition that extends the deadline for Sublandlord's completion of the work described in paragraph 11.1, above. 11.2 Sublandlord's Use of the Amphitheater. On up to eighteen (18) days per calendar year, Subtenant shall grant Sublandlord a license to use the amphitheater facility to be constructed on the Leased Premises for civic events, such as graduation and award ceremonies and religious services. Sublandlord shall not use the amphitheater facility for events or activities that are similar to or competitive with the types of activities normally conducted at the amphitheater by Subtenant. 11.2.1 Sublandlord must notify Subtenant at least sixty (60) days in advance of its desire to use the amphitheater facility. Promptly following receipt of such a request, Subtenant will notify Sublandlord whether the amphitheater facility is available on the requested date(s), it being agreed that Subtenant shall at all times have the paramount right to use and schedule events for the amphitheater, and that the paramount rights of Subtenant are necessary to allow Subtenant to maximize its revenues, which in turn will benefit Sublandlord by maximizing the amount of Sublease Participation Rent and City Special Assessment that will be payable to Sublandlord. Notwithstanding the foregoing, once Subtenant grants a request for a license, it may not revoke that license without Sublandlord's prior consent, which Sublandlord agrees not to withhold if Subtenant is able to provide a reasonable substitute date and is willing to compensate Sublandlord for reasonable unrecouped costs incurred by Sublandlord as a proximate result of the cancellation or rescheduling of Sublandlord's event. Subtenant affirms the expectation of the parties that licenses for up to one event per month during each of the months May through October would normally be available to Sublandlord. 11.2-.2 Sublandlord shall not be required to pay rent for use of the amphitheater facility pursuant to licenses granted as provided herein. However, Sublandlord shall pay, or reimburse Subtenant on demand, for all out-of-pocket costs incurred by Subtenant in connection with Sublandlord's use of the amphitheater facility, including without limitation costs for security, medical and supervisory personnel, ushers, janitorial service, and utilities. Subtenant agrees to cooperate with Sublandlord, or its designee, in developing a good faith estimate of out-of-pocket costs likely to be incurred for each such event or use proposed by Sublandlord. 11.2.3 Sublandlord shall execute a license agreement for each event conducted by Sublandlord at the amphitheater. The form of such license agreement shall be substantially the same as t:\jdemores\mca\sublease.006 --3:"s-' 15-~.3 <""" 4"~"c-l "..~L~ ,)~t j i the standard form license agreement Subtenant uses with respect to the Leased Premises, as the same may be revised from time to time by Subtenant. The current form of such standard license agreement is attached hereto as Exhibit "A." The parties will negotiate in good faith on an event-by-event basis concerning appropriate modifications to the standard form license agreement, but Sublandlord acknowledges that the provisions of the standard form license agreement concerning insurance, indemnification and cost recovery are not subject to modification. 11.3 Event Seatinq. Sublandlord shall provide Subtenant with (a) a twelve-seat box, plus (b) an additional twelve seats, to each event promoted and presented at the amphitheater facility by Subtenant, free of charge. Subtenant shall have the right to determine, and from time to time to change, the precise location of such box and seats, but agrees that the twelve-seat box shall at all times be in a prime location, and that the additional twelve seats shall be at least in pairs and in the best third of the fixed seating area. None of the tickets provided to Sublandlord pursuant to this paragraph may be resold. 11.4 Future Lease. Although Sublandlord is not required to do so hereby, in the event that Sublandlord acquires fee title or a leasehold estate in the real property more particularly described in Exhibit "B" attached hereto, said real property shall, upon Subtenant's request, be leased by Sublandlord to Subtenant for use as surface parking for the amphitheater facility. The term of said lease shall be coterminous with the term of the Master Lease, and the other terms and conditions of said lease shall be substantially identical to the terms and conditions of the Master Lease, except that the parties thereto shall be Sublandlord and Subtenant, the "Minimum Rent" payable by Subtenant shall be $100 per year, no "Participation Rent" shall be payable by Subtenant, and said lease shall be assignable to the landlord under the Master Lease on the terms and subject to the conditions set forth in Article 47 of the Master Lease. 11.5 Non-Comoetition. Sublandlord agrees that when and if it acquires fee title or a leasehold estate in the real property adjacent to the Leased Premises that presently is owned by Otay Rio Business Park II, a California limited partnership, such other real property shall not be used for: 11.5.1 The construction or operation of an amphitheater or similar facility or live entertainment project which is primarily utilized for the promotion of concerts or live stage events; 11.5.2 Any concert performance or other live entertainment performance, except for performing fine arts presentations (i.e. orchestral, symphonic or chamber music, opera, live theater and dance); t: \jdemores\mca\sublease. 006 ~ /5-5'1 ) b::J 11. 5.3 Leased Premises, Subtenant; Parking to serve events taking place at the except with the prior written consent of 11.5.4 Events or activities that are similar to or competitive with the types of activities normally conducted at the amphitheater by Subtenant, except for performing fine arts presentations (i.e. orchestral, symphonic or chamber music, opera, live theater and dance) . 11.5.5 During times when public performances are being conducted at the amphitheater, and for twenty-four hours before and six hours after such performances, (a) the sale of merchandise relating to the activities conducted at the amphitheater, including without limitation souvenirs or other similar merchandise identified with the activities at the amphitheater, or (b) commercial activities principally directed at patrons of the amphitheater. This Sublease shall not confer any license or consent to sell merchandise or engage in services bearing or utilizing the name, logo, trademark or other identification of the Leased Premises, Subtenant, any artist, or any other third person. In addition, when and if Sublandlord acquires fee title or a leasehold estate in such adjacent real property, Sublandlord will use its best efforts to conduct its activities on such adjacent real property in such a manner as to minimize interference with Subtenant's use of the Leased Premises and any audible, visual or other sensory interference with concerts or other performances on the Leased Premises. 11.6 Subtenant's Development Fees. 11.6.1 Sublandlord agrees that Subtenant's Development Fees, excluding (a) the Otay Mesa Development Impact Fees payable to the City of San Diego, (b) water capacity charges payable to the Otay Water District, and (c) school fees payable to the Chula Vista and Sweetwater School Districts, shall not exceed $820,000, and that such portion of Subtenant's Development Fees may be less. Sublandlord agrees to work diligently and in good faith to reduce the Otay Mesa Development Impact Fees payable by Subtenant to the City of San Diego and the balance of Subtenant's Development Fees to the lowest amount possible. 11.6.2 The $820,000 maximum amount referred to in paragraph 11.6.1 relates to all of Subtenant's Development Fees that are'payable to the City of Chula Vista, and is comprised of (a) not more than $470,000 for the Chula Vista Public Facilities Development Impact Fee, and (b) not more than $350,000 for all other Development Fees payable to the City of Chula Vista. An amount equal to all of the portion of Subtenant's Development Fees that is payable to the City of Chula Vista, excluding the Chula Vista Public Facilities Development Impact Fee, shall be payable upon the issuance of building permits for the t: \jdemores\mca\sublease. 006 ..J..?-- 1'5-~5 ':4 G~i ",. amphitheater. The remainder of Subtenant's Development Fees payable to the City of Chula Vista 'shall be paid in ten equal annual installments, without interest (except as provided in paragraph 5.6), commencing on the first anniversary of the issuance of building permits for the amphitheater. 11.7 Performina Arts Fund. For each ticket sold to an event promoted and presented at the Leased Premises by Subtenant, Subtenant will assess and collect a performing arts fund fee, as follows: (a) for the first 100,000 tickets sold in each calendar year, the fee would be $0.15 per ticket; (b) for the next 100,000 tickets sold in each calendar year, the fee would be $0.25 per ticket; (c) for the next 100,000 tickets sold in each calendar year, the fee would be $0.35 per ticket; and (d) for each additional ticket sold in each calendar year, the fee would be $0.50 per ticket. 11.7.1 The performing arts fund fee assessed and collected by Subtenant will be deposited with Sublandlord on or before February 1 of each calendar year, in arrears. 11.7.2 Funds from time to time deposited with Sublandlord as provided above would be administered by an advisory commission having no more than seven members established and appointed by the Chula Vista City Council. At least one member of the commission shall be a designee of Subtenant. Final decisions concerning the use of such funds would be made by the Chula Vista City Council, based upon the recommendations of the commission. 11.7.3 The commission established to administer the performing arts fund would be permitted to use the funds only to underwrite the cost of performing fine arts presentations (i.e. orchestral, symphonic or chamber music, opera, live theater and dance, as opposed to visual arts, pop music or other purposes) conducted within the boundaries of the City of Chula Vista (including events conducted at the Leased Premises) . ARTICLE 12 INDEMNITY 12.1 Subtenant's Indemnitv. Subtenant hereby agrees that all indemnifications of the Master Landlord by the Tenant pursuant to the terms of the Master Lease are hereby made to Sublandlord by Subtenant as if those indemnities were set forth in full in this Sublease. Subtenant hereby indemnifies, and agrees to protect, defend and hold harmless Sublandlord, its officers, agents, employees and representatives from and against any claims, damages, liabilities, costs and expenses, including reasonable attorneys' fees incurred by or brought against Sublandlord, its officers, agents, employees and representatives which arise out of or relate to Tenant's indemnities of the Landlord which are set forth in the Master Lease. Subtenant further agrees to indemnify, protect, defend and hold harmless t:\jdemores\mca\sublease.006 -3:-e- /5 - 5~ "~-I /, -:-\ c,~-.~r..'" Sublandlord, its officers, agents, employees and representatives from and against any and all claims, damages, liabilities, costs and expenses, including reasonable attorneys' fees, arising directly or indirectly from (a) Sublandlord's approval of the CEQA documents or entitlements for the amphitheater project to be developed by Subtenant on the Leased Premises (the "Project"), (b) Subtenant's installation of the improvements required for the Project, and (c) Subtenant's operation of the Project. 12.2 Sublandlord's Indemnitv. Notwithstanding the provisions of paragraph 12.1, Sublandlord shall indemnify, defend (or, at Subtenant's option, pay for Subtenant's defense) and hold Subtenant harmless from and against, and the Subtenant shall not be required to indemnify Sublandlord against, claims, damages, liabilities, costs and expenses caused by (a) the willful misconduct or grossly negligent acts or omissions of Sublandlord and/or its agents, employees or contractors in the exercise of Sublandlord's rights or the performance of Sublandlord's obligations under this Sublease or the Master Lease, or (b) any breach or nonperformance by Sublandlord of any of its covenants, obligations, representations or warranties under this Sublease, except in each case to the extent covered by insurance. ARTICLE 13 MISCELLANEOUS 13.1 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. 13.2 Counteroarts. This Sublease may be executed in counterparts, each of which shall be deemed an original hereof'. 13.3 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 intended to or may be deemed to create any rights in favor of third parties. 13.4 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 nor the creation of a partnership or joint venture, nor the imposition of any tax or assessment by Sublandlord against Subtenant. 13.5 Further Assurances. Sublandlord and Subtenant hereby covenant that each will, at any time and from time to time upon request by another party hereto execute and deliver such further t:\jdemores\mca\sublease.006 ~ /5-57 - : ;;. (7~.t~",,) documents and do such further acts as may be reasonably requested to fully effectuate the purpose of this Sublease. 13.6 Assianabilitv. provisions governing the assignability of this Sublease and sub-subleasing are contained in the Master Lease and the Tri-Party Agreement. 13.7 Successors and Assians. Subject to any restrictions on assignment and sub-subletting set forth in the Master Lease, the Tri-Party Agreement or this Sublease, the rights and obligations of Sublandlord and Subtenant shall bind and inure to the benefit of their respective successors and assigns. 13.8 Memorandum. At the request of either Sublandlord or Subtenant, the parties will execute and acknowledge a short-form memorandum of this Sublease, and record the same in the Official Records of San Diego County, California. 13.9 Insurance. In the event Subtenant assigns or sub- subleases its interest in this Sublease and the Leased Premises in the manner and subject to the conditions contained herein, in the Master Lease and in the Tri-Party Agreement, or grants a license to use a substantial portion of the Leased Premises (e.g. a license to operate an open air market as opposed to a license to operate a small concession), Subtenant shall require the assignee, sub-sublessee or licensee to name Sublessor as an additional insured on all casualty and liability insurance maintained by such assignee, sublessee or licensee with respect to the Leased Premises. IN WITNESS WHEREOF, the parties have entered into this Sublease as of the day and year first above written. SUBLANDLORD: CITY OF CHULA VISTA By: Its: APPROVED AS TO FORM: SUBTENANT: MCA CONCERTS, INC., a California corporation By: Jay Marciano, President t:\jdemores\mca\sublease.006 -z-e. /5-58' .. ,..1 ,;;) ,;~::)~ TRI-PARTY AGREEMENT THIS TRI-PARTY AGREEMENT ("Agreement") is made and entered into as of this day of , 199 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. Assianment to and Assumotion bv the Citv. 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, t:\jdemores\mca\tri-party.OOs ~ /5 - 59 whether. express or implied, as to the condition of the Leased Premises. 2. Consent to Assiqnment to the City. 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, subject to the provisions of paragraph 4.1, below, such assignment shall not relieve MCA of its obligations and liabilities under the Master Lease. Notwithstanding the foregoing, MCA shall 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 bv the City to MCA. 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. Future Transfers bv MCA: Release of MCA. The parties hereby agree that MCA may assign, conveyor encumber its interest in the Sublease and the Improvements, or sub-sublease the Leased Premises or any part thereof, upon the following terms and conditions: 4.1 Approval bv Los Alisos. MCA may freely assign or encumber its interest in the Sublease and the Improvements, or sub-sublease the Leased Premises or any part thereof, without obtaining Los Alisos' approval. However, MCA shall not be released or relieved of its obligations or liabilities under the Sublease or the Master Lease, vis a vis Los Alisos, (a) as a result of such an assignment unless the assignee is approved by Los Alisos, or (b) as a result of such an encumbrance or sub-sublease. If MCA desires to be released from its obligations and liabilities under both the Sublease and the Master Lease, vis a vis Los Alisos, based upon an assignment of its rights under the Sublease, then 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 a proposed assignee of MCA's rights under the Sublease 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 t:\jdemores\mca\tri-party.oOs ~ /5~bD denies its approval of a proposed assignee of MCA's rights under the Sublease, then MCA shall nonetheless have the right to consummate the proposed assignment, but MCA shall not thereby be released, vis a vis Los Alisos, from its obligations and liabilities under the Master Lease or the Sublease. In the event MCA assigns or encumbers its interest in the Sublease and the Improvements, or sub-subleases the Leased Premises or any part thereof, MCA shall provide prompt written notice thereof to Los Alisos. 4.2 Approval bv the Citv. 4.2.1 Notwithstanding the provisions of paragraph 4.1, which are intended to govern only the rights and obligations of MCA vis a vis Los Alisos, prior to the fifth anniversary of the commencement of the Initial Term under the Master Lease, MCA may not assign or sub-sublease its interest under the Sublease without the City's prior written consent, which consent shall not be unreasonably withheld if the proposed assignee or sub-sublessee is a reputable operator of amphitheater facilities with substantial experience in operating similar venues and with the financial capacity to reliably satisfy MCA's obligations under the Master Lease, the Sublease, this Agreement and the terms, conditions and obligations imposed by the conditional use permit for the amphitheater. MCA may freely encumber its interest in the Sublease and the Improvements at any time, without obtaining the City's approval. After the fifth anniversary of the commencement of the Initial Term under the Master Lease, MCA may freely assign its interest in the Sublease and the Improvements, or sub-sublease the Leased Premises or any part thereof, without obtaining the City's approval. 4.2.2 MCA shall not be released or relieved of its obligations or liabilities under the Sublease or the Master Lease, vis a vis the City, (a) as a result of an assignment of its rights under the Sublease, unless the assignee is approved by the City, or (b) as a result of an encumbrance or sub-sublease. If MCA desires to assign or sub-sublease its interest under the Sublease prior to the fifth anniversary of the commencement of the Initial Term under the Master Lease, or to be released from its obligations and liabilities under the Sublease, vis a vis the City, based upon an assignment of its rights under the Sublease, then MCA shall submit the identity of such assignee to the City for its approval, which approval shall not be unreasonably conditioned, withheld or delayed if the proposed assignee or sub-sublessee is a highly qualified operator of amphitheater facilities with substantial experience in operating similar venues and with the financial capacity to reliably satisfy MCA's obligations under the Master Lease, the Sublease, this Agreement and the terms, conditions and obligations imposed by the conditional use permit for the amphitheater. If the City reasonably denies its approval of a proposed assignee of MCA's rights under the Sublease after the fifth anniversary of the commencement of the Initial Term under the Master Lease, then MCA shall nonetheless have the right to consummate the proposed t:\jdemores\mca\tri-party.OOS ~ /5 -/PI assignment, but MCA shall not thereby be released from its obligations and liabilities under the Sublease. In the event MCA assigns or encumbers its interest in the Sublease and the Improvements, or sub-subleases the Leased Premises or any part thereof, under circumstances where the City's consent is not required, MCA shall provide prompt written notice thereof to the City. 4.3 General Provisions Concerninq Assiqnments and Sub-Subleases. Any assignee of MCA's rights under the Sublease or any Sub-Sublessee thereunder shall agree to perform all of the terms, Covenants and conditions to be performed by MCA under the Tri-Party Agreement and the Sublease, so far as applicable to the portion of the Leased Premises which is the subject of such transaction. All Sub-Subleases shall provide that they shall be subject and subordinate to the provisions of the Master Lease, the Sublease and the Tri-party Agreement. 5. Approvals 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 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. 6. 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. 7. 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 t:\jdemores\mca\tri-party.OOs ...-.r- / ~ ~,,'t-- -.!_) .._Jl'-'" "'...;.....""..; 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: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Manager with a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: Director of Community Development 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. Notices shall be effective on the next business day following its actual delivery to the address specified above. 8. 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. 9. 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. t:\jdemores\mca\tri-party.OOS ~ /:;~t".3 10. Purchase Ootion/Riqht of First Refusal. The parties understand and agree that all of the 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 may be exercised by either Sublandlord or Subtenant, subject to the terms and conditions set forth in this Article 10 and in Article 10 of the Sublease. In the event that City exercises its rights under either Article 44 or 45 of the Master Lease during the term of the Sublease, the Master Lease shall not merge into the fee but, rather, the City shall be deemed to have concurrently assigned all of its rights under the Master Lease to MCA. In that event, the Master Lease shall be deemed to have been amended so that MCA's obligation to pay the City Special Assessment under Section 3.4 of the Sublease shall then apply to MCA as the Tenant under the Master Lease and the City's duties under Article 11 of the Sublease shall then be deemed to apply to the City as the Landlord under the Master Lease. From and after that event, all of MCA's rights as the Tenant under the Master Lease, as amended, including its rights under Articles 44 and 45 of the Master Lease shall be in full force and effect, the Sublease shall be deemed to have merged out of existence and be of no further force and effect and this Agreement shall become null and void. 11. Termination: Recoqnition Aqreement. 11.1 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. If such invalidity, unenforceability or termination of the Master Lease, this Agreement or the Sublease, or any material provision thereof, results from legal proceedings initiated by third parties or a statutory prohibition and is over the objections of the City, then Los Alisos, the City and MCA will cooperate in good faith to devise an alternative arrangement whereby the City will receive substantially the same net economic benefits as the City receives pursuant to the Master Lease in tandem with the Sublease, provided that such alternative structure shall in no way (a) impair MCA's rights or increase MCA's obligations compared to those set forth in the Master Lease, the Sublease and this Agreement, (b) interrupt MCA's operation of an amphitheater at the Leased Premises, or (c) impose upon MCA an obligation to make rent payments to the City with respect to the period between the date of such t:\jdemores\mca\tri-party.OOS ~ /5-tot(- ~r"]C invalidity, unenforceability or termination and the date on which the alternative structure is implemented. Los Alisos and MCA hereby agree not to challenge or support a challenge to the legal validity of this Agreement, the Master Lease, the Sublease or any material provision thereof (but do not waive any claims that may hereafter arise with respect to the parties' performance of their obligations under the Master Lease, the Sublease and this Agreement), and agree to cooperate with the City in defending any third party challenge thereto. In the event the City's right to receive rent under the Sublease is invalidated, and the City elects to impose a host fee or other charge with respect to the operation of an amphitheater on the Leased Premises, provided that (i) such fee or charge is substantially similar to the City Special Assessment payable to the City as rent under the Sublease and the performing arts fund fee payable under the Sublease, (ii) MCA's rights are in no way impaired and MCA's obligations are in no way increased compared to those set forth in the Master Lease, the Sublease and this Agreement, (iii) MCA's operation of an amphitheater at the Leased Premises is not interrupted, and (iv) no obligation is imposed upon MCA to make such payments to the City with respect to the period between the date of such invalidity and the date on which such host fee or other charge is implemented, Los Alisos and MCA hereby agree not to challenge or support a challenge to the City's imposition of such fee or charge. 11.2 Notwithstanding the provisions of Article 2 of the Sublease, in the event MCA exercises its right to terminate the Sublease Term in accordance with the terms and provisions of Sections 2.2 and 2.3 of the Master Lease, as incorporated into the Sublease, Los Alisos hereby agrees that City shall have a period of one year within which to identify a new operator for the Improvements. Such operator shall be subject to the approval of Los Alisos in the exercise of its sole and absolute discretion but, in the event Los Alisos does so approve, the City shall execute a new Sublease with such operator on terms no less favorable to the City and Los Alisos than the terms set forth in the Sublease and the Master Lease shall remain in full force and effect. 12. City 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. 13. 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. Los Alisos and MCA each agree that they shall have the City named as an additional insured on t:\jdemores\mca\tri-party.oos ~ IS - ~S el) r"?- ' all insurance policies which they maintain pursuant to their respective duties under the Master Lease and/or the Sublease. 14. Third Party 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. 15. 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. 16. 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. 17. Attornevs' 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. 18. 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. t:\jdemores\rnca\tri-party.005 ~ /5 - ~0 d> ~';J 19. 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. 20. Counterparts. 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. 21. 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. 22. 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. 23. Prioritv of Aqreements. The parties to this Agreement agree that in the event of a conflict among the terms of the Master Lease, the terms of the Sublease and/or the terms of this Agreement, this Agreement shall control over both the Master Lease and the Sublease and the Sublease shall control over the terms of the Master Lease. 24. Indemnities. The parties hereby understand and agree that at no time shall Los Alisos make any claim or demand against the City which arises out of or based on the Tenant's indemnities of the Landlord which are set forth in the Master Lease. Rather, Los Alisos shall, in all such events, look solely to MCA to satisfy any obligations based upon any indemnification of the Landlord by the Tenant pursuant to the terms of the Master Lease. The parties hereby understand and agree that at no time shall MCA make any claim or demand against the City which arises out of or based on the Landlord's indemnities of the Tenant which are set forth in the Master Lease. Rather, MCA shall, in all such events, look solely to Los Alisos to satisfy any obligations based upon any indemnification of the Tenant by the Landlord pursuant to the terms of the Master Lease. Notwithstanding the foregoing, the City shall indemnify, defend (or, at MCA's option, pay for MCA's defense) and hold MCA harmless from and against, and MCA shall not be required to indemnify the City against, claims, damages, liabilities, costs and expenses caused by (a) the willful or actively negligent acts or omissions of the City and/or its agents, employees or contractors in the exercise of t: \jdemores\mca\tri-party. 005 ~ /5 -07 rlC ';} I~ the City's rights or the performance of the City's obligations under the Master Lease or the Sublease, or (b) any breach or' nonperformance by the City of any of its covenants, obligations, representations or warranties under the Sublease, except in each case to the extent covered by insurance. 25. Gross Revenues. The parties hereby agree that all sums paid by MCA in satisfaction of its obligation to pay the City Special Assessment pursuant to the provisions of the Section 3.4 of the Sublease shall be deducted from all cash receipts actually received by MCA for the purposes of calculating Gross Revenues in accordance with provisions of Section 3.3 of the Master Lease. Similarly, the City's receipt of the City Special Assessment shall not result in any obligation on the part of the City to pay Percentage Rent to Los Alisos pursuant to the terms of the Master Lease. 26. Citv Reserves Discretion/Authoritv. Notwithstanding any provision in this Agreement, the Master Lease or the Sublease to the contrary, the City reserves the right to exercise its police powers as a city in conformance with applicable law, and any such exercise shall not constitute a t:\jdemores\mca\tri-party.OOS ~ /5 -ti? ...,~ ..........., /' c:,;;J" , breach of its obligations under the Master Lease, this Agreement, or the Sublease.' IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first set 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: 't:\jdemores\mca\tri.party.005 -;;-/. f;~- 70 I ..-, IJ/ """ ,-, Robert Leiter, Director of PI , informed Council that a letter from Sweetwate bad been placed on the dais. While traffic signal at EastLake Parkway and b House Drive. Staff had an relevant to the PFFP or SPA Plan Amend request. C I TV CO~~ct.lL- fY\ \ tJL\."T e- S. \0-\1-,,\5 Minutes October 17, 1995 Page 6 ved, the Public Facilities Financing Plan was not modified to reflecl the changes. lution. (Director of Planning and Director of Public Works) L 1 77 APPROVING AN AMENDMENT TO THE EASTLAKE GREENS PLANNING PUBLIC FACILITIES FINANCING PLAN AND ADOPTING DECLARATION IS- nion High School District of the future installation of a that and did not feel it directly g staff would be responding to their Councilmember Rindone stated he had served time there were two issues that came forwar . projects proposed by EastLak . which additional parklands were owed to the City. He questioned if the were any plans for the credits owed t coming due. Mr. Leiter stated a portion 0 t would be developed with the EastLake Greens project and at E.....' Jl!ce III project to east. That was consistent with the development agreements that bad Staff would have to rt back with specific dates for installation of facilities. Rindone stated an informational memo would be sufficient. UTION 18077 OFFERED BY MAYOR HORTON, reading of the text was waived, passed and ved unanimously. 20.A. PUBLIC HEARING CONSIDERING A 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-BRlCE DEVELOPMENT PARTNERS FOR MCA CONCERTS, INC. AND KOBEY'S CHOLA VISTA MARKET PLACE, LLC; CONSIDERING THE VACATION OF VARIOUS STREETS IN OTAY RIO BUSINESS PARK; AND CONSIDERING THE PROPOSED MODIFICATION OR DEFERRAL OF CERTAIN PROJECT FEES - Bitlerlin-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 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 this item be motinued to 11/7/95. (Director of Community Development, Director of Planning and Director of Public Works) Continued from the meeting of 10/3/95. B. PUBLIC HEARING ZONING TEXT AMENDMENT PCA-96-01; REQUEST TO ADD WORDING TO SECTION lU8.020 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 TIIAN NUISANCE NOISE _ BITTERLIN-BRlCEDEVELOPMENT 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 15061(b)(3) of the California Environmental Quality Act. Staff recommends this item be continued to llnt95. (Director of Planning) Continued from the meeting of 10/3/95. This being the time and place as advertised, the public hearings were declared opec-. (The public hearings were held concurrently.) Those speaking in opposition to the MCA amphitheater were: / S -11 r.....\ ~7! d>i;: Minutes October 17,1995 Page 7 . Clayton Wolf, 467 Rivera Court, Chula Vista, CA, stated as a past law enforcement officer he was familiar with problems associated with concerts and how sound traveled. He felt property values would.be severely impacted. . Gale Moriarity, 1672 Ocala Avenue, Chula Vista, CA, slated an on-going concern seemed to be that Chula Vista needed to make a name for itself. Council had done a wonderful job with the Olympic Training Center which brought in community friendly businesses. Disney Company was looking for a site in San Diego County and she felt they may be interested in the proposed site for an enclosed ice skating arena. She reviewed sales tax revenues from major retailers in the City and did not feel that the revenues received from an amphitheater were comparable. . Robert J. Moriarity, 1672 OcaJa Avenue, Chula Vista, CA, stated their homes, property, and persons would be subjected to increased drug crime, trespass, prowling, etc. due to the elements historically attracted to such events. He further felt that police, fire, and ambulance services would be drawn away from the community in order to cover the events. If the City had to pay for additional coverage the City would not realize the promised profits, if it was paid for out of taxes the residents would be taxed to subsidize MCA. He referred to his comment at the 10/3 hearing regarding his perception of a similarity regarding the mindset of some Counci1members and the con game "gypsy switch". Councilmember Padilla had requested proof that M CA' s assurances of high income, no crime, no noise, no traffic, no parking problems, no lawsuits were anything than 100% reliable. The citizens report to Council was the response. He felt Councilmember Padilla was in a clear conflict of interest situation and should excuse himself from further discussions and votes involving MCA. He did not impugn Councilmember Padilla's motives or ethics, nor did he infer any wrongdoing or wrongful intent on the part of his employer, the City of Coronado. His vote for MCA stood to gain Coronado's protection from a waterfront agency. Councilmember Padilla stated he reserved his right to respond to Mr. Moriarity's comments once the public hearing was closed. . Kim Kilkenny, 11975 EI Camino Real, San Diego, CA, representing the Baldwin Company, hoped Council would have the opportunity to review all the materials distributed prior to voting on 1117. He referred to the MCA letter regarding the Bayfront amphitheater and felt if the same crireria that MCA wanted applied to the Bayfront be applied to their own project, MCA's application would survive. MCA had two proposed mitigations for noise, i.e. reduce volume at the source on the stage and the other was to build a sound harrier. The 95 dBA had been referred to as the mitigated noise levellhroughout the EIR. MCA's noise consultant, Jack Wrightson, had stated that 95 dBA would be highly objectionable and rejected as overly restrictive by musicians and would seriously impact the bookings and economic viability of the facility. He questioned if the Bayfront amphitheater could not survive with 95 dBA, how the MCA facility could survive with it. He was confident that MCA would respond that it was in conjunction with a sound barrier, but under an inversion condition the sound would bounce off the inversion at points past the sound barrier and, therefore, the sound harrier would have no impact which had been acknowledged by MCA's consultants as well as other jurisdictions. He presented an overhead showing the noise levels recorded by staff on Otay Ranch which were several decibels higher than recorded by MCA. They had been told that Village III would have the noise impacts and Villages II and IV should be able to build out. If the noise proved to be higher than projected by MCA Olay Ranch would be seriously injured. If the Bayfront amphitheater location was placed on top of Otay Ranch, the residents of Village II and IV would be "singing along" with the residents of Village III. That was at 95 dBA's and that was what they feared for Olay Ranch. On 9/30 Baldwin took actual ambient levels in eastern territories which would be similar to Otay Ranch and those levels were substantially below 60-70 dBA which was suggested by MCA at the last hearing. If an amphitheater was approved anywhere in Chula Vista the mitigation standard should be measured on the peak because MCA asserted that the difference between average and peak levels could be quite small. The current ordinance distinguished sound before and after 10:00 p.m. If MCA asserted that the amphitheater would have to enforce the 45 dBA standard before 10:00 p.m. the City should make 4S dBA the applicable standard at all times. Baldwin provided a draft Mountain View ordinance which regulated peak noise, regulated low range noise, provided constant monitoring, and enforcement with tangible penalties. Baldwin recommended the City hire an independent consultant to prepare effective noise standards and mitigation which would absolutely ensure enforcement of City standards. Councilmember Rindone requested clarification regarding the information presented on the annoyance level. Mr. Kilkenny responded that annoyance occurred when the noise exceeded the ambient level by X decibel or X percent. It was their fear that in the lower octave bands, regardless of the absolu,; dBA within Olay Ranch and elsewhere, that the bands would be exceeded, annoyance would occur, and compla'nts would result which had been the experience in other communities. It was also suggested by MCA regarding the Bayfront amphitheater. /5,1-;- ~.r7' .,) , ! Minutes October 17, 1995 Page 8 Councilmember Rindone stated the U factor was below that and with less than 5 % annoyance from that distance it did not seem that it would create a distraction. Every time the distance doubled the sound noise was decreased six fold and that was not reflected in the information presented by Baldwin. Mr. Kilkenny stated he was not a noise expert, but all the literature strongly suggested that when there was an inversion condition noise traveled a much greater distance and the rules that would apply absent an inversion condition would not apply. Baldwin's criticism of the MCA EIR was that it did not discuss weather, wind, inversion, or the impact of a noise barrier. Councilmember Rindone referred to page 7 of the Baldwin information regarding vacant areas and requested clarification. Mr. Kilkenny responded that MCA requested an amendment to the City's noise ordinance and the letter from Latham & Watkins stated they were afraid they would get nuisance lawsuits from vacant areas. 11 was Baldwin's position that that was nqnsense, they would not get nuisance lawsuits from vacant areas and, therefore, it was not a legitimate reason for Ihe City to amend it's ordinance. He suggested if it was a concern that the ordinance be clarified so that the nuisance definition did not apply to vacant land. Baldwin would accept that as they did not want to protect vacant land but future residents of Chula Vista. Councilmember Padilla questioned what data Baldwin had to respond to the proposed mitigation measures for the undeveloped areas regarding the differential between the ambient noise level and the regulated noise level. Mr. Kilkenny replied that their concern was not the noise impact on vacant land, their concern was noise impacts on future residents of Otay Ranch. They feared that once the residents moved in the regulations imposed on the MCA amphitheater would be inadequate to protect those residents. The assertion was based upon noise tests done to date and MCA's own comments regarding the impacts of the Bayfront amphitheater on Coronado. If you applied the same rationale to Otay Ranch, Village II and IV could "sing along" with the amphitheater acts. Councilmember Padilla questioned if Baldwin factored in to their estimates, when comparing them to the same distance in Coronado, the different geological conditions and the presence of the bay. They had measurements of the impact of noise levels at that location and Council understood that there would be other factors, i.e. ambient noise levels at that location. There was a proposed mitigation plan and he questioned what data Baldwin had to show what the impact would be on the mitigation on those future levels. Mr. Kilkenny responded that Baldwin felt it reasonable to believe that the ambient levels within Otay Ranch would be substantially similar to the ambient levels experienced in EastLake and Rancho del Rey as they were similar types of communities. Therefore, Baldwin used the existing ambient noise levels in those communities, i.e. ranging in Ihe high 30 dBA and low 40 dBA. The results of the noise test in the data provided by City staff stated mid 40 dBA to low 50 dBA in Villages II, IV, and VII which was clearly above what was being experienced in the eastern territories communities. As a consequence, Baldwin felt if those levels were experienced in Otay Ranch in the future, those residents would be complaining because they would be annoyed. Councilmember Padilla questioned if the noise levels incorporated the mitigation measures or analysis of impact of the mitigation measures proposed by the applicant. Mr. Kilkenny responded that they were the 105 dBA levels done on 9/10 and were not 95 dBA levels. If he could believe that the 95 dBA levels would be operated at the amphitheater in the future he would be far less concerned. But, MeA's own noise expert stated that amphitheaters could not be operated at 95 dBA and be successful. It appeared that there was a contradiction. The EIR was at the 95 dBA noise level, the noise test was at the 95 dBA noise level, but they stated that the Bayfront could not operate at 95 dBA and, therefore, he questioned how the MCA amphitheater could operate at 95 dBA. Councilmember Padilla stated it was his understanding that as a potential mitigation measure, administrative control, i.e. whether to drop it to 95 dBA from 105 dBA or that in combination with some other environmental mitigation was a different question than stating that it would be mitigated at the board to 95 dBA. He questioned if Baldwin had addressed a combination of all the mitigation measures proposed by the applicant, including potential examination of the impacts of a sound wall, as an example. /5-13 ,:)'It: Minutes October 17, 1995 Page 9 Mr. Kilkenny replied that the EIR listed noise mitigation measures, i.e. administrative controls and a sound barrier, and reorientation of the lawn speakers. It was his understanding that reorientation of lawn speakers did not have much of an impact one way or the other. That left turning down the volume and building a sound wall. The problem with an inversion condition, when noise traveled furthest, the sound barrier would have no impact. That only left turning down the volume and if it was turned down to 95 dBA, MCA stated that it could not be a commercially successful. They were being inconsistent. It was Baldwin's fear that the amphitheater would be constructed and there would not be sufficient regulations to enforce the standards. . James Foch, 152 Castelford Circle, Danville, CA, noise consultant for Baldwin Company, stated Caltrans did not claim benefits from a sound wall over several hundred feel. The proponents also stated that barriers were of no value when a temperature inversion was present. The EIR had to provide data to decision makers and the public to make an informed judgement. In several respects the EIR did not provide that information. The measured sound during the sound test on 9/18 was weak regarding those parts of the sound most objectionable to people several miles away, i.e. the 250 hertz octave band. The Poway EIR produced similar results. They could have compensated for that by putting more power into that part of the sound, but they did not and as a result all of the contours were pushed out further and, in particular, the 50 dBA contour was pushed out an additional 42%. One of the most conspicuous problems regarding amphitheater noise for people in the community began at approximately 10:00 p.m. when there was an appreciable decrease in the sounds of human activities and ambient noise dropped appreciably. Also, the temperature inversion, if present, became more and more pronounced as the evening progressed. That did not seem to be taken into account as to whether a curfew would be desirable. He had been involved in Shoreline issues for three years and could confidently state that no one knew exactly what was going on there and noted that a body of water was not involved. Water was not an issue as sound was not propagated over water. The configuration of the speakers for the 9/8 sound test would have an impact on the noise levels. There were two aspects of temperature inversions: I) the type that produced the sound levels as measured for the test on 9/18, which were not unusual for temperature inversions; and 2) the really had conditions in which the temperature inversion focused the sound and made it 20 dBA higher than what was measured on 9/18. The conditioas on 9/18 were not worse case. . Don Bridwell, 1545 Olive, Chula Vista, CA, stated he had talked to a lot of residents, many of which lived on Olay Lakes Road and they did not know anything about the project. He questioned what would happen if the amphitheater was built JlDd no one knew about it. . Kimberley Marshall, 1621 Oleander Avenue, Chula Vista, CA, submitted a petition with over 250 signatures against the MCA amphitheater. . Beverly Berwick, 1063 Waterville Lake Road, Chula Vista, CA, spoke in opposition to the MCA amphitheater. . Teresa Berwick, 1063 Waterville Lake Road, Chula Vista, CA, spoke in opposition to the MCA amphitheater. . Luis Pella, 1668 Point Reyes Court, Chula Vista, CA, expressed his concern regarding the type of penple that the concerts would draw, traffic, pollution, impact on property values, etc. He was concerned regarding the future of his lhnle oons. . Mary Ann DeLaHunt, 1704 Harvard Street, Chula Vista, CA, stated the homeowners were there first. She questioned why the speakers were aimed at them which appeared the City was sacrificing the citizens for a developer in San Diego. She also questioned why no one had addressed the fire works and lasers. M CA was owned by Seagrams and she expressed her concern regarding the promotion of alcohol. She felt the reference to "living in tents" was insulting. The concerts would be during the warmest months and homeowners had to open their windowa and doors. She expressed concern regarding the noise impacts. Those speaking in support of the MCA amphitheater were: . Chris Bitterlin, 525 "B" Street, San Diego, CA, Bitterlin Brice Development Partners, representing MCA, noted that the speakers at the 10/3 meeting in support of the project had volunteered to appear at the present public hearing to show their support, but due to time constraints they had refrained from doing so. . Jack Wrightson, Dallas, Texas, Johnson, Haddon, & Williams, Inc., stated their job was to keep the develop"t out of trouble, i.e. within the laws and to conform to the general standards, i.e. the intent of the law and bein!, a good neighbor. MCA had expressed an extreme desire to be a good neighbor and did not want to get 1oo's of j5-7i ,:~l' t:? Minutes October 17,1995 Page 10 phones calls a night even if they were within the law. They looked at about a dozen amphitheater sites a year for various companies, including MCA, and less than one of those were built. The proposed site was the only one in the general metropolitan San Diego area that they felt they could endorse as meeting the standards. Amphitheater sites were rejected by th"ir firm at about a 15: 1 ratio. They did their best to be technically objective regarding the issues of noise. He was not at the meeting on behalf of MCA to push the project through but to give Council their best professional judgement as to what they felt wonld happen. That was based primarily on measurement on-site and under actual conditions and not by calculations. He stated he would respond point by point to Mr. Fooh's and Mr. Kilkenny's (10/12/95) letters. There was no doubt that sound was more annoying at night than in the day. The City's noise ordinance put a higher standard on the noise someone could make at night, but it was not equivalent to 10 dBA higher, it was just that the ataodard treated it as more annoying and, therefore, put a more rigorous ataodard on it. The calculations for reduction of noise by noise harriers took into account the height of the projected sound walls and the topography, elevation of the noise source, elevation of the listener at the base and mid-base frequencies cited by Mr. Kilkenny. In their analysis of the mitigation in order to be conservative, they took into account an inversion affect and assumed only a 5~ dBA of attenuation would be available at those locations through the wall. The differential due to unusual conditions was built in. Councilmember Moot requested that Mr. Wrightson address the issue of the noise barrier not being affective because sound would bounce off an inversion layer and come down and make a noise barrier a non-factor as far as mitigation. Mr. Wrightson stated that for very distant properties Mr. Fooh was right, the walls had a decreasing impact due to both the natore of the barrier as well as the inversion affect. Fortunately. at those grest distances due to normal propagation effects they projected they were within the noise regulations. They felt the wall would have the grestest Ur;>act on Village IV. Because that was the property closest to the site it would be the property that would receive the grestest noise levels. They expected the levels in Village I to be within the law even under the inversion situation. The EIR did not discuss audibility of noise other than to say that when noise was audible there would be complaints. In noise terms, about 10% of the public would not be happy no matter what was done and slightly less than 10% that reslly did not care. They expected the noise from the amphitheater. as confirmed by the two noise tests in Village IV, under the mitigated conditions in locations where the ambience was very low. to be audible but within the law of the City of Chula Vista. Councilmember Moot questioned if mitigated to 95 dBA with a sound wall if it was done without turning down the sound to 95 dBA. He further questioned if the noise that left the amphitbeater and hit the inversion layer came come down would violate the ordinance and if it was two separate issues. Mr. Wrightson stated that no one from MCA stated they would mitigate the noise level down to 95 dBA. What they said was that economically viable mitigation, including turning it down and building sound control walls would be equivalent to playing at the referenced 100 ft. distance at 95 dBA. The modeling had been done at 100 dBA which was significantly louder from a conceptual ataodpoint. Perceptual studies on loudness stated that differences, either minus or plus. of 6-10 dBA resulted in either halving or doubling of loudness. The rule of thumb, to be conservative, the standard was 10 dBA. Therefore, if they lowered it from 105 by 10 dBA inside the facility the patron would perceive it as half as loud. He had informed MCA that they may have to lower the sound at the 100 ft. distance, in conjunction with the walls, down to as low as 100 dBA in order to meet the noise level at Village IV. M CA realized that there would be an economic impact but it would not be the same impact of reducing the source level to 95 dBA. It was MCA's professional judgement that the number of acts that they would lose would still allow the amphitheater to be economically viable. M CA felt that the condition of the CUP was such that if they did not observe the City of Chula Vista's noise ordinance they could be shut down and the CUP revoked. CounciImember Padilla questioned the relationship of bringing the 100ft. distance to 95 dBA. Mr. Wrightson stated the relationship was linear. Controlling noise at the source was the most effective mitigation which was contrary to what MCA wanted to do from a business standpoint so they looked at sound walls and other issues to take care nf it as well. Couoci1member A1evy referred to Mr. Kilkenny's chart which indicated that there were locations considerably further away from the SODice of sound that had a higher dBA level than closer locations. Mr. Wrightson stated in the case of the test on 9/18 it was topographical and weather related. The data from the City staff was operated at the wrong range and the device was bottoming out and giving inaccurate numbers. He /5 ~15 deD Minutes October 17, 1995 Page 11 did not trust that data. Their measurements confirmed the contours provided in the EIR. The comment regarding the impacts on residents sleep did not take into account the insulation from the outside of the house to the inside of the house. Many cities had noise ordinances and they varied. Most had different noise levels for different types of zoning and had more restrictive noise levels after 10:00 p.m. The City's noise ordinance was tougher than San Diego's in that when ;my residential property abutted a non-residential use they could average the two noise levels at the property line. The proposed Mountain View ordinance and all the issues included were due to a unique situation. Of the 35 + amphitheaters in North America there were none that had the same conditions placed on the Shoreline amphitheater. It was misleading to bring a unique situation to bear that was inconsistent with the rest of the amphitheaters on the continent and did not have similar topographical or climatic conditions to the Chula Vista site. Councilmember Moot stated there had been a suggestion that the reference to Shoreline did not include a body of water. Mr. Wrightson utilized a transparency which showed that the noise appeared to project over water at Shoreline. Councilmember Rindone requested Mr. Wrightson explain the two reasons why Shoreline was not typical. Mr. Wrightson stated that was getting out of his area of expertise, but it was his understanding the water temperatures off the coast of the San Francisco Bay were considerably colder than they were off the Southbay and the daytime temperatures, especially in-land areas relative to the San Francisco Bay area were much higher than the San Diego/Southbay area, that the inversion that was created. His experience with many amphitheaters indicated that Chula Vista was more typical of other locations than Shoreline. Councilmember Moot stated looking toward east Palo Alto the noise would go over water but the other part of Palo Alto would not go over water. He questioned which section of Palo Alto the residents were complaining about. Mr. Wrightson stated there were complaints from several areas because the inversion layer shifted due to wind conditions, changing of air masses, etc. It was his understanding that the impacted area was a 4 mile radius from the amphitheater. All of MCA's comments regarding the Bayfront project were based on the noise data contained within the Notice Of Preparation. They made no calculations of their own in preparing the letter. They had reviewed the Bayfront and flats area in the neighborhood three times for three different amphitheater developers AS far back as 6-7 years and in each of those locations they had informed their customer that they believed the site unsuitable for noise reasons. That was their opinion then and was their opinion at the present time. The Bayfront NOP stated the noise at the counsel would be restricted to 95 dBA and he believed based on his discussion with amphitheater operators and input from MCA that 95 dBA was economically not viable. 105 dBA was economically viable, 100 dBA was viable, but less so, and 95 dBA was less viable. The contours were based on source levels of 95 dBA. Councilmember Moot stated that if Village IV was being built out and it became necessary to mitigate, the actual sound in the amphitheater would be 100 dBA with the sound wall absorbing another 5 dBA creating the "mitigated effect of 95 dBA". Mr. Wrightson stated that was correct. If the sound wall was more effective than 5 dBA they could play at louder than 100 dBA, if the sound wall was less affective than 5 dBA it would have to be reduced by a like amount. Councilmember Moot stated Otay Ranch would not be built for approximately ten years and he questioned if there was any reason to believe that technology to absorb sound or other advances in controlling sound would be better or more sophisticated at that time. Mr. Wrightson did not feel that Council should anticipate any advances and they had not assumed any advances in their projections. Based on trend lines, performers were hiring sound companies that had gone to more directional loudspeaker systems which could result in a small benefit. As the concert going population aged, as noise issues for amphitheaters became more defmed, acts matured in their professionalism, he felt they would play at a lower dBA.. He assumed a 5 dBA reduction for the noise barriers. The Bayfront NOP assumed 17 dBA for noise barriers and he felt that 17 dBA was very optimistic. One of the issues in the Bayfront NOP was the projects noise levels. Even with the 17 dB wall and 95 dB source levels it woo in excess of the Chula Vista noise ordinance after 10:00 p.m. The fact that they were in excess of the noise ordinance was excused by stating that the ambient noise levels in those communities were higher. It was possible in any residential neighborhood to find areas or pockets where /5-7(, ) (I Minutes October 17, 1995 Page 12 the ambient noise levels were lower than in other areas. The primary determining factor outside of relatively rare events such as airports, military bases, etc. was roadway noise. Counci1member Alevy stated at another concert venue in town as the sun went down it became cooler with stronger breezes, but about 1/2 hour after sunset it was slightly warmer with less breeze. He questioned if that was just a waterfront phenomenon or if there would be the same effect 5-6 miles inland. Mr. Wrightson responded that if there was no breeze at the shoreline there probably would not be a breeze at Olay Valley. The times he had been on the site it was a little longer after sunset before the breeze died off. He had no doubt that the ambient noise levels performed by Mr. Kilkenny were accurate for the other Baldwin neighborhoods, but they were dramatically inconsistent with his own EIR. Noise levels in residential areas were determined primarily by vehicular traffic. The lowest level rrojected in Baldwin's EIR was 65-60 dBA which was the equivalent average, 24 hours a day, 365 days a year. If he overlaid the one hour averages of the amphitheater MCA would have less of an impact on the vil1ages than Baldwin. The assessment of noise on the Coronado Cayes was based on the ambient noise levels he had measured in the Cayes which were not near the freeway and, therefore, lower. In the Bayfront NOP the contour that was shown was projected to be 7 dBA higher with the wind. When the proposed site of the amphitheater was moved to the east it changed the relationship of the sound directly to the south of the site, i. e. the Robinhood Ridge area. They brought out a small number of loud speakers and pointed them straight at the south. The primary goal of the test was to find out the reduction of sound between point A and point B in another area as they had made no measurements in that area. The fmgers of the contour extending into the canyons was because where there was not a barrier of the bluff and the noise protruded up the canyon into those areas. The test did not assume that the source level would be 95 dBA but was only to collect more data to put into the contour. That had been misrepresented and he wanted to clarify that the second sound test was conducted only to find out what the attenuation was between the new site and relocated and various points. It was his professional judgement, on behalf of MCA, that if MCA was held to a non-objective noise standard they had a business risk as to knowing whether or not they were complying with the law. It was his understanding that MCA's counsel and City staff agreed that the interpretation of the environmental versus the nuisance noise in the Chula Vista ordinance was a function of whether or not the noise was in conjunction with the intended purpose of the land. Staff had stated that the intended purpose of the land under the CUP would be for an amphitheater and, therefore, would fall under that jurisdiction. MCA was asking for clarification to make sure that interpretation was codified. Counciimember Moot stated it was his understanding that the difference between environmental noise and nuisance noise was that one measured a poak and one measured an average. He questioned if that was correct and, if true, why they would not measure the peak as opposed to the average. Mr. Wrightson responded that Co\lJlcilmember Moot's understanding was not wrong. The nuisance ordinance allowed complaints regarding objectionable noisy activities in an area which was not anticipated. Because it wa was noise that was not normally associated with that land use, it imposed a slightly more stringent standard because it was out of the ordinary. Under the terms of the ordinance the appropriate standard was the average standard. Average was more common and typical and there was ample scientific literature to support the fact that average noise levels were more predictable of long term annoyance than long term peak levels. There was a small advantage to the noise maker with the average rather than the peak. For the test the sound company brought out a rig and set it up as they would for Jimmy Buffell and utilized music with a law dynamic range which he felt was objectionable. He did not accept Dr. Fooh's explanation regarding the horizontal versus vertical placement of speakers. They took the directivity of real sound system products into account and plugged them into a computer program which took the interference affects into account. When there were multiple sound sources, the sound that was projected from each of them added, combined, and subtracted. Sound radiation to the rear of the speakers would be mitigated by a concrete stagehouse. The speakers were also more directional than the point sources in Dr. Foch's model. There could be a 5-8 dBA variation not the 23 dBA variation when utilizing actual products that had been used in the real world. When looking at the measurements made at Baldwin's request on the property, they\ined up with the peak of the directivity plot furnished by Dr. Fooh. The reason they utilized horizontal speakera was a matter of convenience and not designed to bias the sound test in any way. The cost of rigging the speakers vertically was extreme and did not provide any useful benefit in addressing what the noise was. Dr. Fooh stated that the music reproduced for the noise test was conspicuously weaker in the 250 Hertz band. His company did not control that and they had asked the sound company to use their judgement to do it as they would for one of their performers. There was no conspiracy. In Dr. Pooh's comments he stated the number of times the noise test was audible but did not include the noise levels, he assumed that if it had been in violation of the noise ordinance it would be a point that Baldwin would WllIlt to bring out. He had not seen any data that suggested that ChuIa Vista's climate was identical to Mountain View and Palo Alto. There were inversions at almost every /5-77 Minutes October 17, 1995 Page 13 location em the planet and it did have an affect on sound but it did vary. They felt Chula Vista was more typical of amphilhelder sites and less typical of Shoreline. They had decreased the "standard harrier loss" hased for adverse conditions. At great distances the harrier had a lesser effect and they expected to be within the noise ordinance at all pointa. .. Rod Davis, 233 Fourth Avenue, Chula Vista, CA, representing Chula Vista Chamber of Commerce, stated it was importIIDt to remember that the amphitheater would bring a great deal of good to the business community. Councilluld full control over the regulating the facility and he urged Council support. . Bob Thomas, 650 Floyd Avenue, Chula Vista, CA, member Board of Directors for Chula Vista Chamber of Commerce _ Planning Commissioner, stated there was one EIR and the City would have complete control of the project _ revenues. If the amphitheater was on the Bayfront there was a possibility of having four EIR's and the City would have to deal with the Port District, City of San Diego, and City of Coronado. He reminded Council of Plaza Boaita in which the City lost all control, gained all the traffic and maintenance of the streets, with all the revenues JOing to National City. He was opposed to a Bayfront proposal and encouraged Council support MCA. Mayor Hmfml informed the public that the public hearing would be continued to November 7, 1995 at 6:00 p.m. Councilmcmber Rindone referred to page 2OC-6, #11, and stated he did not feel that the issue of soccer fields had been dealt with. If Council decided to move forward it was an opportunity that should not be missed. He felt the fields could be mitigated depending on how they were prepared which would allow an extra amenity. All aspects needed to be considered. There needed to be resolution regarding parking fee revenues and he felt that needed to be included in the renumerations to the City. There were other opportunities available for priority in hiring Chula Vista resideut., i.e. the Career Awareness Center. Counc;J.._..~_. Alevy questioned whether traffic would be allowed on Brandywine before and after concert events. Joe MOIIlICO, Environmental Projects Manager, responded that traffic would be allowed on Brandywine; Oleander was proposed for closure if deemed to be necessary. Councilmember Alevy stated it was his understanding that at one time the City purchased a noise monitoring system but it _ not currently being used because no one was trained to use the equipment. Mr. Goss replied that state-of-the-art noise equipment was purchased in the '80's and the person that utilized the equipment retired. The City currently did not have anyone with the technical ability on staff. It was his understllDding that the equipment was operable. Councilmember Alevy requested that staff look into what equipment the City had and how it functioned as he felt that would belp to address many of the homeowners concerns. He suggested that possibly the concert owner could, on a per diem basis, have someone at the concerts reading the noise levels at strategic areas. He requested that staff discuss it with the applicant. He questioned if there was an updated curfew time. Mr. Salomone replied that the curfew would be 11:30 p.m. on weekdays and midnight on weekends. The City reserved the right in the CUP to impose a more strict curfew after some experience with the facility and review by the Police Department. Councilmcmber Alevy stated he was not aatisfied with those times and wanted to see something cOme back for Council review. He was also concerned that parking revenues were not part of the agreement and wanted that discussed with the developer. He wanted staff to look into removal of debris on the right-of-ways following concerts. He requested that staff research the "dark sky" ordinance in place in Phoenix and include information on the height of the lights in the parking lots, etc. A system of fines needed to be established for violations of the noise ordinance and he would like to see any potential fines go to the Olay gym. He wanted to propose an action plan in which the Council would address all the concerns heard from everyone, form a subcommittee of the Council to work with the operators of the amphitheater, and identify mitigable levels or thresholds on items such as security, sound impacts, liquor, concessions, security, etc. It would also ensure that a broad range of entertainment would be provided. He wanted to see that back to Council 60 days prior to the opening of the venue and on an annual basis for 2-3 years until the facility was well under way. /5 - 7t "'l ,:; Minutes October 17, 1995 Page 14 Counci1member Padilla stated it was his understanding that there would be a six lane roadway extending all the way east and six lanes between I-80S and Nirvana. From Nirvana east bound through the balance of Otay Valley to the entrance of the proposed site it would be four lanes. Mr. Monaco responded that it would be a total of five lanes. Between Nirvana and the bridge it would be three lanes west bound and two lanes east bound. Those would be permanent and non-reversible. On the bridge there would be one lane north bound and one lane south bound in a permanent configuration with a center median that could accommodate two additional lanes that would be a reversible operation. Counci1member Padilla questioned when referring to road revision and widening costs if it included the safety lighting. Mr. Monaco replied that the safety lighting was not included in the City's cost, it was an additional requirement of the applicant. Councilmember Padilla referred to the interchange at I-80S, specifically the south bound ramp, and stated there was a problem there. He questioned how that problem would be mitigated. Mr. Monaco responded that the only improvement proposed for the south bound off-ramp was restriping of the existing road to provide for an exclusive left turn lane. According to the traffic report that was all that was required to maintain acceptable levels of service for that particular approach. Councilmember Padilla requested more commentary from the applicant on how MCA determined the staffing levels for security per event, i.e. a particular methodology. He questioned if the cost of the on-site first aide station was to be paid by the applicant. He further questioned where the mobile emergency response personnel and ambulances would come from, what cost would be incurred, and what the impact was during their presence at performance times on stations that delivered service to other areas. Martin Miller, Associate Planner, stated it would also be to the satisfaction of the Fire Chief. It was anticipated that the Events Plan which was required to be developed prior to the opening of the facility would outline what the additional services and requirements would be and those requirements and costs would be satisfied by the applicant. If additional services were requited beyond what was anticipated in the Events Plan it would be on an as-needed chatge-as-you-go basis. Counci1member Moot felt that should be determined up front and not left untillater. Mr. Salomone stated it had been discussed with the Police Chief and to the degree that they could, they would have it resolved by 11/7. However, the Chiefs concerns were based on his experience in Pasadena for the Rose Bowl where they had a method for billing for services of sworn officers if needed. The Chief would be present on 11/7 to address Council's concerns. Counci1member Padilla stated he was concerned with language in the EIR regarding the relocation of Chula Vista Fire Station #3 to Orange and Oleander and a mutual aide agreement and the ability of a nearby City of San Diego fire unit. He questioned if staff could provide additional comment on how relying on those factors provided mitigation. He questioned how the City could expect to mitigate the impacts on fire delivery. Mr. Monaco responded that the mitigation relied primarily on the additional services provided for the specific facility and less on the mutual aide agreement because of the nature of the facility and the additional requirements it had beyond an industrial land use. Councilmember Moot felt people would use Brandywine after the concert instead of waiting in line to get on the freeway. If that traffic created a problem, he questioned if the City had the ability under the CUP to stop right hand turns on Brandywine after the concert. Mr. Monaco responded that was part of the traffic management plan. It was designed to be flexible so the City could adjust to any p""blems that arose. Councilmember Mooi believed the Council needed to look at a realistic curfew which should be included in the agreement. On a school night and work day an 11:30 p.m. curfew seemed late especially with it taking 111.1-2 hours /5 ~ 79 ."'\ Cj L/ (7 (} Minutes October 17, 1995 Page 15 to empIy the parking lot. Curfew issues were going to be an important matter to him as Cuuncil needed to be extremely sensitive in making the facility as non-intrusive as possible. He thanked MCA, The Baldwin Company, coasultants, staff, and all the residents for their input. C. REPORT RESPONSES TO COUNCIL QUESTIONS REGARDING THE MCA CHULA VISTA AMPHITHEATER PROJECT FROM COUNCIL MEETING OF OCTOBER 3, 1995 - At the public hearing 011 10/3195, Council directed staff to provide clarifying information on certain components of the project and lIIISWers to a number of specific questions. Additionally, business deal points were to be presented for information 8Dd review. Staff recommends Council accept the report. (Director of Community Development) Chris Salomone, Director of Community Development, stated the subject of the public hearing was the response thIIl C<JPIIcit had requested from staff on a number of questions. The business deal was outlined in the responses to Council and staff was in the process of finalizing the legal issues of the business deal and would be prepared to bring it to Council in Closed Session on 10/24 or 11/7. Staff welcomed Council input into those negotiations. The performing arts fund proposed by the applicant at the last meeting. It would be a surcharge on tickets, going from ISC to SOC, to be used for legitimate performing arts in the City of Chula Vista, not exclusively for use at the MCA &cility. Those revenues could be as much as $150,000 the first year and those revenues were not calculated in the Statement of Revenues. It was staff's understanding that a sound test for the Nederlander project was tentatively set for 11/2 which would allow staff to return to Council on 11/7 with the raw data from the study. * * * Council recessed at 8:50 p.m. and reconvened at 9:05 p.m. * * * ORAL COMMUNICATIONS inno, 940 Nolan Way, Chula Vista, CA, representing South Bay Pentecostal Church, informed thIIl they . vited the world's strongest man, Anthony Clark, to visit the church and various City sch s. Mr. Clark's goal w to help the kids of today to be the best they could be without drugs or other crutches' their lives. They were also soring a 'pizza pig-<lut' on Thursday, 10/19 for all youth. They would be aing their first _ua1 Kids Power est Festival on 10/31 at the Memorial Bowl from 5:00 - 8:00 p.m. r the youth of the community. 21. ORDINANCE 2650 ADOFfING AS AN AND EMERGENCY MEASURE FOR A PERIOD OF 90 DAYS, AN ORDINANCE AMENDMENT T CIPAL CODE SECTION 19.54.010TO EXEMPT RESIDENTIAL CARE FACILITIES FOR 7-U FROM OBTAINING A CONDITIONAL USE PERMIT IN RESIDENTIAL ZONES, OM THE OVlSIONS OF CHAFfER 19.54 (uNencv ordinance) _ The Planning Department i reparing amendments the Zoning Code and will be preparing implementing ordinances which will a110 esidential Care Facilities fo -12 residents which are protected by the Federal Fair Housing Act to locate . idential zones as a matter of rigb The purpose of the moratorium is to avoid the risk of the City incurrin netary damages should its actions under e current zoning standards conflict with the rights of individuals tected by the Fair Housing Amendments Act. ff recommends Council adopt the urgency ordinance. . tor of Planning and City Attorney) Councilmember' ne questioned if the loca1land use decisions of a charter city could government. He oted there would be impacts on the rights of the neighborhood and other res if the City any options available. aard staten he could answer the question publicly, but if Council wanted to dwell on the lega ts he ed Cou..cil go into Closed Session. The Council did have an option of trying to create a condi use 't system. A:lland uses the City tried to regulate fell within three categories, i.e. 1) absolutely prohi . 2) allowed as of right; and 3) conditionally permitted. The City had the legal authority to squeeze those types /5 -~() :y~[ r.. ,J l) NOV - 3 I9ll) ADVISORS IN: REAL ESTATE REDEVELOPMENT ECONOMIC DEVELOPMENT FISCAL POLICY 500 SOUTH GRAND AVENUE, SUITE 1480 Los ANGELES, CALIFORNIA 90071 213/622-8095 FAX 213/622-5204 T "'T r COMMUNITY DEVELOPMENT DEPARTMENT KEYSER MARSTON ASSOCIATE Los ANGELES RICHARD L. Barn CALVIN E. HOLLIS, II KATHLEEN H. HEAD MEMORANDUM SAN DIEGO GERALD M. TRIMBLE ROBERT J. WETMORE SAN FRANCISCO A. JERRY KEYSER TIMOTHY C. KELLY KATE EARLE FUNK DENISE E. CONLEY To: Mr. Fred Kassman, Redevelopment Coordinator City of Chula Vista From: Keyser Marston Associates, Inc. Subject: MCA Amphitheater Project -- Revised Income Estimates Date: October 31, 1995 In accordance with your request, Keyser Marston, Inc. has revised the revenue projections for the proposed 20,000 seat amphitheater in the City of Chula Vista. KMA has revised earlier revenue projections to reflect recent changes in the negotiations between the City and MCA. The new projections are presented in the attached tables (Tables 98 and 108) and include the revised property tax estimates included KMA's October 12, 1995 projections (Tables 9A and 10A). ASSUMPTIONS KMA has calculated the revised revenue projections based on the assumptions outlined in KMA's September 18, 1995 memo, with the following changes: TICKETS . The City will receive an annual graduated ticket fee as follows: Number of tickets sold 1 to 400,000 400,0001 to 500,000 500,001+ Percentage of Revenue 3% 3.5% 4% /5' ~ f/ d g-G Page 2 . The graduated ticket rate of revenue will be applied to modified gross ticket revenue which is equal to 95% of gross ticket revenue. PARKING . The City will receive an annual graduated parking payment based on the same schedule as the above ticket fee schedule. . To calculate parking revenues in years 2 through 8, KMA assumes that parking will be $4.00 per car and that there will be 3.5 people per car. . KMA adjusts the parking fee to $5.00, $6.00 and $7.00 in years 9, 15, and 20 respectively. This adjustment is applied in dollar increases and equates to an annual increase of 3%, which is consistent with annual adjustments applied to other revenue streams. PERFORMING ARTS FUND CONTRIBUTION . The City will receive a Performing Arts Fund Contribution. The contribution is calculated at the following rate: Number of Tickets Sold Citv Share per Ticket Sold 1 to 100,000 100,001 to 200,000 200,001 to 300,000 300,001 + $0.15 $0.25 $0.35 $0.50 . As requested, KMA has not totaled revenue from the Performing Arts Fund Contribution with other City income. ADDITIONAL ASSUMPTIONS . Property tax revenues are based on a $16 million increase in property value. . To calculate City revenues under the Alternate Projection scenario (Table 10B), KMA assumes that there will be a three year ramp-up period before the amphitheater reaches stabilization. Accordingly, KMA discounts attendance and revenues in each of the first three years. However, business license fees and property taxes are not discounted. /5"-!~ KEYSER MARSTON ASSOCIATES INC. ';)g'7 Page 3 FINDINGS Based on the above assumptions, KMA presents its revised City revenue projections for MCNKobey (Table 9B) and the Alternate Projection (Table 10B). MCA/KOSEY KMA estimates that under the MCNKobey scenario, the City would receive $13.64 million in total revenue ($4.62 million present value). This compares to an earlier estimate (Table 9A) of $13.48 million ($4.57 million present value). The Performing Arts fund would generate an additional $3.0 million ($1.16 million present value) under the MCNKobey scenario. AL TERNA TE PROJECTION Table 10B, presents the Alternate Projection which is based on the performance of a Select Group of Amphitheaters as presented in the September memo. Under the new assumptions, KMA estimates $10.42 million in total revenue ($3.47 million present value) for the City. This compares to an earlier estimate (Table 10A) of $10.34 million ($3.46 million present value). The Performing Arts Fund would generate $2.09 million in additional revenue ($767,000 present value). JR:jr 95752.CHU 11220.0007 /,~?3 KEYSER MARSTON ASSOCIATES INC. -.'(>..t'.. (''''''(' f) iii w i ti w S Iii " ~ I ! i c >- :I! r.::1 I!! 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Cl 0 - c... ~ ~~;~;~~;E ~"'~~~~~~~ ~rno::wo:::::E~a;i= t5:E~~~~f3~ffi ilio.~Ii;~~lE~o. ~~~t'5~a:~~~ <0oi=o(S<o2 S a: 12: ~\[ ~~a~~~~~~~~~~~~i~~~&~~~~ ~ -ell ~~~~~~~~~~~~~~~~~~~~~ N ~ N ffi ~ ~ i;....a~~~~~~~~~~~~~~~~~~~~~ ~ ~.. ~~~~~$~~~~~~~~~~~~~~~ ~ ~ N ~ ell ~ ffila~~-~~~~~_~~~~N~~~~~_~~~ .... ~N~~~~~~~~~~N~8~~.~~~""N ~~ ~t~~~~~~~~~~~~~~~~~~~~~ ~~ =w~ 0. ~ Z~~;~a~~~~~~~~~~~~~~~i~~~~~ w ~_N...~~~m~~~~~~O__N~ ~ _______________NNNN~ W ~ u: ~~a~~~~~~~~~~~~~~~~~~~~~ ~ ~ ~~~m~OO_NN~..~m~~~mo~ ~ _____NNNNNNNNNNNNNNn~ ~ ~ ~ ~ ~ ,.: - ;; I~OOOOOOOOOOOOOOOOOOOOOO ~~I~ ~ ~~aO"""O"OO""""OO""""""a ~~I"~~~___~......~~~~~o"_ Z~~~N~~~~~______~~~~~..~ 52 .'"": _ _ _ . .~.~_~_~.<<t<<tm.~_~.~.~_-_-_ . ~ ~O_NNNN~~~~~~~C~~~NN~ ~ _________________NN_ ~ ~ a .. ~ ;. ~ o ;; l~aooooooooooooooooooooa a ~oooooooooooooooooooooo 0 ~~~ ~ ~ S ~~aii~~~~~~~~~~~~~~~~~~~ m I ~~~~a~~~~~~~~~~~~~~~: ~ i..~~~~~~~~~~~~~~~~~~~~ ~ ~~~~~~~~~~~~~~~~~~~~ ~iiii~~ii~~~~~ii~ii~i~~! u: "'w ~ 0.::> z ~~> ::> z Li ;:; <Ii ~ ~~ '" .. i1j~ t;~ ~ :-. ~~ ~~ 1;;8) "0. ..0 i;;1!' tt!w ~lE fu~ ~~ /5"'Z5 ;;)q,; ~~f? .- ~~ ~ <~::;....~ --"'~~ CllY OF CHUlA VISTA PLANNING DEPARTMENT NOTICE OF PUBLIC HEARINGS BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA NOTICE IS HEREBY GIVEN THAT PUBLIC HEARINGS WILL BE HELD BY THE CITY COUNCIL of the City ofChu]a Vista, California, for the purpose of considering granting the following: ]. A conditional use permit for the property located at the southwest corner of Otay Valley Road and Otay Rio Road in order to construct and operate a 20,000 seat capacity amphitheater and to operate an open air market on selected days of the week (PCC-9547). 2. A clarifying amendment to the Noise Ordinance, Chapter ]9.68 of the Municipal Code, to specify conditionally permitted uses as well as permitted uses under the definition of Environmental Noise (PCA-96-01). 3. The vacation of various streets in the Otay Rio Business Park. Details are available in the Department of Public Works, Engineering Division (PV -064). 4. Modifications or deferrals of Public Facilities Development Impact Fees, Sewer Capacity Fees, Traffic Signa] Fees and/or related amphitheater project impact and/or processing fees, in light of the unique nature of the project. Public hearings], 2 and 3 above were originally noticed for and held at the City Council meeting of October 3, ] 995 and shall be reopened and held on the dates indicated below. The applications were filed by Bitter]in Starboard Deve]opment Partners for MCA Concerts, Inc. An Environmental Impact Report, EIR-95-03, of possible significant environmental impacts has been conducted by the Environmental Review Coordinator. The Final EIR will be considered for certification by the City Council at the public hearings listed below. EIR-95-03 is on file for public review in the Chula Vista Public Library located at 365 "F" Street. Any written comments or petitions to be submitted to the City Council must be received in the Planning Department no later than noon on the date of the hearing. Please direct any questions or comments to the project planner, Martin Miller, Associate Planner, in the Planning Department, Public Services Building, Chula Vista Civic Center, 276 Fourth Avenue, Chula Vista California 91910, or by calling (619)476-5330. Please include the Case Number noted at the bottom of this notice in all correspondence. If you wish to challenge the City's action on this application in court, you may be limited to raising only those issues you or someone else raised at the public hearings described in this notice, or in written correspondence delivered to the Planning Commission and/or City Council at or prior to the public hearings described in this notice. A copy of the application and accompanying documentation and/or plans are on file and available for inspection and review at the City Planning Department. SAID PUBLIC HEARINGS WILL BE HELD BY THE CITY COUNCIL ON Tuesdav, October 17.1995 AND ON Tuesdav. November 7.1995. at 6:00 n.m. All hearings will be held in the Council Chambers, Public Services Building, Chula Vista Civic Center, 276 Fourth A venue, at which time any person desiring to be heard may appear. Date: October] 0, 1995 CaseIFile No's: EIR-95-03, PCC-9547, PCA-96-01 & PV-064 COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT (ADA) The City of Chula Vista, in complying with the American With Disabilities Act, requests individuals who require special accommodation to access, attend and/or participate in a City meeting, activity or service request such accommodation at least 48 bours in advance for meetings and 5 days for scheduled services and activities. Please contact Nancy Ripley for specific information at (619) 691-5101. California Relay Service is available for the hearing impaired. 276 FOURTH AVE.=;).: ;~ VISTA. CALIFORNIA 91910 . (619) 691-5101 lO/IO/CiS f'rv'--~ ~ fWV_ * ""-...'"":'- IS-" S-7 ~ . J .; It '" .! ;; > '" ~ . . c w . . . ------------r-- -------. ... AIIut:IIA --------------------- ------ ----- I --- --- I --- c:=::::J. 11 s -- ._~~G" -~."1 1"-96-0110 . -.us l"-96-00d .&aI'OIW ) &0-96-1113 I ~')O", II oj\.t\t\oVl Iii ~_-=- t\\ ................-11& --.- ........ ~"'''' I I l- ilt z III 1M ~. ::E =f I- IX ~ st < ll. III I~ Ii Q I.:l !jf z h 1 - z z < ~ ..:I ~ ll. !~ ~ J .J III J ~g ~ - > Jo B < ~ gj ..:I iHI ..2 :;) ~ :: I,J ~8~ ........ ":IN IaI& WIlL -$- ~ i i i ; 1-5' -JYr f: '" BAN AMPHITHEA TERfSWAPMEET NUIS,A.NCE November "1, 1995 The Honorable Mayor and City Council City of Chula Vista 276 Fourth Street Chula Vis~a, Ca 91910 Dear Mayor and Council Members: As you prepare to deliberate at the upcoming Tuesday, November 7, 1995 Chula Vista City Council meeting, this Citizens' Report has been pre- pared to present you with information not seen, reviewed or considered before. This report may represent our last, final and desparate appeal before this upcoming meeting for your candid consideration. The report entitled "Citizens Report No.2, It's a Matter of Life and Death" is appropriately named, as the focus of this report is to discuss the deaths, personal injuries and related law enforcement issues that seem to identify themselves with certain concert venues. You may hear from some advocates, that it will never, ever happen at the Chula Vista MCA amphitheater. We beg to differ with this opinion. From studies conducted, we find that people do die at concerts, like it or not. Consider for a moment, that 11 people died in Cincinnati, Ohio at a Who concert. A city was traumatized as a result of a crowd crush in front of the city's Riverfront Coliseum. This was 11 people d e a d at one concert. You may say, well, well, that was a long time ago. Alas, research as found that in 1994, over 12 people die d at various concert venues. The unfortunate deaths occurred for a variety of reasons, which this report will cover in more detail. With the number of deaths and personal injuries occuring every year at concert venues, it seems that nobody is entirely exempt from the possibility of it happening in their own venue. It's a regretable situation that can strike unexpectantly a~ a result of conditions which seem to foster security, life safety and law enforcemen issues. We only ask that you read and consider this report. effort to share a wealth of information that did not in any of the EIR, Staff Report or public hearings. an important decision. The choice is yours. It is a seem to What to sincere appear do is (}(J -J\ ~{~ l.5'Y'j ~\ .r- t , "CA PROPOSED AMPHITHEATER CHULA VISTAJ CALIFORNIA CITIZENS REPORT NO. 2 NITS A MATTER OF LIFE AND DEATH" PREPARED BY BAN BAN AMPHITHEATERISWAPMEET NUISANCE NOVEMBER L 1995 15--1 tJ '; TABLE OF CONTENTS Introduction 1 Until Death Do Us Part 7 Exhibi ts' 9 Notes 32 /y~/ I NTRODUCTI ON In reviewing the plethora of data available about outdoor, open-air, amplified music, amphitheaters in California and outside of California we have become quite concerned about not only the standard and common issues of parking, traffic and noise but also with the profound issue of public safety. Stated quite simply, we have found that many persons each year while at a concert venue are killed for a variety of reasons. In addition, there are'many, many personal injuries some of which are reported and we suspect many of which are not reported. You may ask: "Why are there so many deaths at concert venues?" This report will attempt to answe~ that question and many more related to this fundamental issue. The main question you should be asking yourself is: How many Chula Vista citizens lives are worth having a locally built, privately owned, for profit, amphi- theater? Is this what we want for BourB community? Folks, we are not talking about people dying of "natural causes." These are not heart attacts,.old age or long term illnesses that coincidently occur in someone dying white they happen to be attending and perhaps even enjoying a concert. These are folks that come "alive and well" to the concert and leave unexpectantly and tragicly d e a d. You may ask: "Why has this information not been provided to you previously by either the applicant, the EIR consultant or by staff"? The answer, quite frankly, is the data is not easily available. Obviously is it not in the best interest of the venue operators to have this sad, unfortunate information become common knowledge. After read ing th i s repor t ~ if:you believe tha t there is a real and true "clear and present danger" associated with some concerts at some venues, we only ask tha.t you delay the decision on Tuesday, November 7, 1995 for a week or more until staff has sufficient time to investigate the allegations presented here. using some imagination, we would assume the applicant would say if confronted with this issue, something like this: 1) Our amphitheate~ will be different. 2) It's not our fault, the fans or performers cause the problems. 3) Accidents happen when you bring large groups of people together. Of course, we can't speak for the applicant anymore than we would want them to speak for us. You certainly should ask them for yourself. 15-1;2.... One of our biggest fears, is that the City listens to their wallet before it listens to its citizens. Yes, there is big money involved and the ante that is being offerred seems to be increasing, or being sweutened, with each passing day. The issu~ is: Will the perception, promises & representations become practice, realty and the truth7 An indication of the answer may be found in the trip report made by two city council members from poway where it.was stated: 1) By A City Council Member:. "How many ways can I tell you not to do it." 2) By a City Attorney: "The revenue you receive will be the most expensive revenue you'll ever get." Councilman Padilla asked "Do you feel we have been dupped?" Well, we will allow you to answer that one. However, when one looks at our last Citizens Report, we found three examples of city's quite upset. You might recall the following from that report's introduction. 1) Fiddler's Green Amphitheater (an MCA venue) The" article was entitled "Commissioners Sold A Bill Of Goods On Noise, Traffic, Volume" The article went on to say: "Commission Chairwoman Betty Ann Dittmore said she now believes she and her colleagues were duped." 2) Great Woods Amphitheater This article entitled "Bill of Goods" about a State of Mass. venue said more specifically: "The towns of Norton and Mansfield have been sold a bill of goods." 1>-1) 2 3) Polaris Amphitheater This article talks about a recently built amphitheater located in Columbus, Ohio. It states, in part, the following: "The financial benefit, from the proposed facility is pure misinformation from a 'net' standpoint! The public cost of controlling these facilties exceeds the income, such as traffic control, ambulance runs, off-s i te trash pickup" (and then goes on to state several examples) . Part of the question becomes, has this project approval process been rushed? Has there been sufficient time for all the important facts to be known? An indication of the answer lies in the following observations: 1) Rushed E'IR Draft Review Process We shall always be resentful that a seldom used provision in the law allowing for a shortened, expedited review period was accepted by the City. For the sake of a lousy 15 days, you have caved in to the wishes of the applicant. This short cut approach has been beneficial to the applicant and perhaps to the city, but it has been a slap in the face to the public. Almost all other Draft EIR reports we have found have utilitized the customary 45 day review period. Who is our master -- money? We think not. It should be the public. 2) Rushed EIR Draft preparation The thinnest, smallest, briefest, shortest EIR corning through the city in a long time has been the MCA project Draft Environmental Draft Report. Who do you think the members of the public are? Comparee to the poway EIR, for instance, the Chula vista EIR looks like "kids play." It mayor may not meet CEQA requirements, but it is so short that an informed, intelligent decision cannot~ and should not, bec made based on its abbreviated text. You can stand up for it and defend it, but we are personally embarrased by it and feel apologetic. Look at it again. Important topics have been glossed over briefly simply touching up the area to be covered, but the "meat" is missing. We feel short changed and you should too. 3 1.>--71 3) Single Source EIR Consultant Whose interest are really being served by settling with the first EIR consultant that comes along? Again, you are rushing the process. With all due respect to the firm that was selected, doesn't a $105,000 + project deserve the normal "Request For Proposal (RFP) process. The City is supposed to be protectoing the public. 4) Applicant's Noise Consultant You have put many people on the defensive. We especially feel sorry.for The Baldwin Company. Mr. Kilkenny has had to spend countless hours at the council meetings and in preparation, along with hiring his own noise consultant, because you perhaps Rcaved inR to the use of the applicant's noise consultant. Where is the objectivity here? Also, where is the City's noise consultant, Giroux and Associates? Mr. Hans Giroux seems conspicious by his absense. Why hasn't he been invited to the Planning Commission and City Council meetings? Since when do you put all your trust in the hands of the applicant when it comes to such a devisive, important, critical issue of noise propagation? We always thought the noise consultant would be Ran independent, objective observer,R with no ax to grind. We feel that MCA has put the City on the defensive where they present the "primary" data and then you have to prove them wrong. Shouldn't it be the other way around? We could go on and on about the process. and has been in the process of trying to for it ever since. Quite frankly, if it the first place, no amount of correction our humble opinion. It simply started off wrong make up for and correcting doesn't start off right in will "cure" this defect in Following these introductory remarks, allow us to go on to the main topic of this report, and .that is the risks associated with the operation of an amphitheater that you Omay have not banked on. Before doing so however, please keep in mind the following two quesitons: 1) City Attorney Have you made a motion directing your city attorney to invitigate the legal risks of having an amphitheater in your back yard? With over 10 lawsuits known to us involving amphitheaters, both built and proposed, shouldn't you have his independent assessment of what you /5" '15' 4 can corne to expect; What is the liklihood of an EIR challenge lawsuit? What is the likelhood of operational lawsuits? Do you wish to invite lawsuits by the passage of this proposal? What does the City attorney say in the cities that poway chose to visit, that is, in the City of Costa Mesa and the City of Palo Alto? What about the other related lawsuits? The EIR does not cover this. Shouldn't you have this information before making such an important decision? 2) Risk Manager We are not talking about simply "trips and fall" insurance claims. Perhaps your risk manager should be consulted on what types of risks are associated with the operation of an amphitheater and where the City may have some legitimate exposure. Wouldn't you want to know this? The City of Burbank was sued for $3,8 million and LOST. How much of your wonderful $500,000 per year will be needed to satisfy this claim? Burbank is not alone. Get out your checkbooks. /y1fr 5 I . -' TIllS PAGE BLANK /5--17 6 UNTIL DEATH DO US PART Below are a few examples of the "best kept secret in town." We did not see anywhere in the information previously provided in the large packets prepared for the benefit of the Planning Commission and the City Council any of the facts below, as follows: 1) January, 1991 (Salt Lake City) Three people died when a crowd attempted to move toward the stage at an AC/DC concert. 2) December, 1991 (New York City) Nine people died when fans tried to get into a charity concert featuring rap stars. 3) July, 1989 (Dominguez Hills) Female high on drugs, denied access to a concert, was speeding through the community and hit a pregnan t women, killing the woman and her baby. 4) Summer, 1990 (Dominguez Hills) At a ragae concert, local gang members opened fire on each other in a near-by parking lot following the concert. One person was wounded. 5) Decmeber, 1994 (San Jose) Security Guard stabbed to death by a person denied access to back stage at a concert. 6) March 17, 1995 (San Jose) Following an "oldies" concert in a nearby parking lot, shots were fired between different rival gang members, wounding one subject. 7) March 30, 1995 (San Jose) During and following a concert, there were over ten arrests, for various drug and alcohol offenses, a strong arm robbery and numerous assults. 8) December, 1979 (Cincinnati, Ohio) Eleven people died when a crowd which had waited for hours to get into the stadium for a concert by the Who, surged forward. This is 11 people at one concert! 9) December, 1987 (Nashville, Tenn) Two people died at a concert featuring Public Enemy when the crowd swelled toward the exits. 10) In 1994, we have been able to identify at least twelve people who came to a concert alive and went home d e a d. Will any of these people be your s/o;~~; ~ghters, neighbors? .;? -1'5 or those of your 7 What we'd like to ask is where has Rick Emerson been during all these important public deliberations? What is his background wit~ large, outdoor rock concerts? We'd like to suggest that he contact the Chief of Police at San Diego State University, or better yet invite him to a council meeting. You might want to ask questions, such as the following: 1) What is a mosh pit? How many people per year die in them or get personally and critically injured? 2) What is known as "crowd crush?" Why have innocent people corne to die in them? 3) Why is there a medical station at the concert venue? you trying to protect, vs. taking these folks to the At Shoreline Amphitheater, there appears to be 800 - medical treatments per 6 month concert season. What of these treatments? Who are hospital? 1,000 is the nature 4) How many problems are in the parki~g lots due to alcohol, drugs, gangs, shootings and stabbings? Folks, we are not talking about a football game "tail gate party". We don't know what your life is worth, but a pocket full of currency in our book only adds insult to injury. Knowing these facts, it is only reasonable to ask the question: Why would anyone knowing the above, in their right mind, want to consider an amphitheater? We are talking about community values. We are also talking about quality of life issues. If you want to know more about quality of life issues, you might want to digress for a moment and give the,City of Pasadena a call. They are experts on the ~ubject. The rush for fame, money and- glory may have tainted your thinking. We say....... s low d 0 w n . Get the facts -- then act. What you have had before you is far short of the full and complete story. We suggest you dig further, then decide. ;5-'1'7 8 EXHIBITS We could write you a thousand page report, but we are not sure you'd read it -- or believe it. Instead, allow us to enclose a few exhibits which will further substantiate our claim. Let it not be on our conscious that if this project is approved for the City of Chula Vista, that if, or when, a death or serious personal ~njury occurs, it was not without our best efforts to first share with you our concerns. Let the history books reflect the decision which the Chula City Council made on the proposed MCA amphitheater for our for our community and for prostierity. Vista citizens, /3/ /I?t/ 9 ./ / ,.....,~ SonJ~ M'"'", N~ · Local. s,..." ""'" 19, 19" \ --.__ __ _........_ . _....,; d"" -..~ . .._0.- Concertgoer wounded in SJS garage Me~;ry .News SwtRepurt An.I8-year-old San Jose man was shot twice late Friday night in a'parking garage at San Jose Sta;e University after attending a concert at the Event Center on campus. The- incident was the second as- sault-in three months related to a concert at the Event Center. In December, a 44-year-old employ- ee of concert promoter Bill Gra- ham Presents was stabbed to death by a fan during a heavy metal: concert at the 5,OOO-seat Event Center. Fired-shots at car UnIVersity police said Saturday that Jose Adame was accosted in his car as he and friends pre- pareiHo leave the Seventh Street garage shortly before midnight. A grO\lP Qf men approached the car, waved a handgun and fired sev- eral shots at the car. Adame was hit in the arm and thigh and taken to a hospital, where he was listed in good con- dition Saturday night. He is not a student at the university: AsSailants at large The gunman and the other as- sailants fled either on foot or in a car . and are still at. large, said. university police, who are being. assisted in their investigation elf; the incident by the San Jose R-o-' lice Department. Adame and his friends had j~lst attendea a concert by Brenton-: wood and the Delphonics, a '50s-' style music group. /y/tJ / /0 T Fa - 'IJ .~ ., Conlf on t whic .. 8 opea: tong lion: . M. i an . \ prot i here I our I a gJ \ nev. ieer T " , 1 hi> lin'~ floo ast low pri: aro I~, ~ ina jec str of wi, lJl, ok .'\ " .-! :.\ an or: :V: m W bi hi ... ( - r !' , " , F~ r":ESDAY. MAY 9. 1995 MORNING REPORT . Arts and emerrainment reportS from The Times, national and . international news services and the natioll:~ pres~. COMEDY LaUglling In Las Vegas: B'lan (Kato)' Kaelin's exposw-e .. a witness in the O.J, Simpson L'ial has earned him a two. week gig at Las Vegas' 1.400 seat CelebrIty Room at Bally's. Kaelin. a recent guest star on UPN's "The Watcher" and Comedy Central's "Politi- cally Incorrect," will perform live from . June 8-21 as the opening aCt for oomedian Louie Anderson. Anderson. \If ho nas been working with Kaelin to prepare hIm for his Las Vegas showroom debut. called America's . most famous house-guest "extremely witty Kaelin and funny." and said. "In addlt,on to his acting. I believe Kato is a natural sl..1nd-up comedian." ~~ ~Z.e::'~. - -"'"-- - '. . ; , ''''"- >~ "',............ " POP/ROCK - - Pearl Jam Ticket Numbers: Tickets to Pearl Jam's June 26.27 concerts at San Diego's Del M.r Fazrgrounds go on sale oJ phone Friday at 8 p.m. Tickets ror the fu-st show may be obtamed by dialIng (800) 225-5069. while ticketS for the second show w1l1 be available through (BOO) 225-5075. Tickets are $24 cacl'l ($15 lor the concert itself, plus a $7 admission to the fau- and a $2 serviee fee) plus a 45-cent h~ndling fee per order. Orders wit! be accepted only from the following area codes: 8o.~. 310. 81B. 213. 619. 714 and 909. Tickets Can be purchased with Visa Or ~ercard. or calI"""S can reserve their tickets and then mail In a cheek or money order. There is a limit 01 two tickets per order; 13.000 seat.~ are ivailable for each show. Three Stabbed at Weekend Shows: Cal State DOr:ti%lguez Hills has no plans to curtail rO<!k concerts in the campus Olympic Velodrome despil.e scattered violence during Saturday and Sun- day's punk-rock and skateboarding festival, featUring bands including Social DiStOrtion, Sublime. L7 and Bad Religion. Campus pailce reported Monday that three maies were stabbed du:ing the concerts and three females were taken uncollaeious to a local hospital. One of the women was kicked in the head while in the mosh pit in front of the stage. A Cal State offici'll said security measures will be reviewed. TELEVISION ABC Versus latinos: The scheduled boycott of ABC last Friday to protest the so-called lack of I:..tlnos on the network did not seem to make a dem in ratings. according to ABC executives. In fact. ratings for two senes, "Family Matters" and "Step by Step," were higher than the previous Friday. while Viewership for ..~. WIth Mr. Cooper" and "20/20" basi"'lIy remained the same. The National HiSPanic Media Coalition, which spearheaded the protest. soid any disappointment about the numbers was offset by a large turnout for the Latino, family drama "My Family:' Which o!>,!ned in lJleaters Friday. The coalition's chairman said that grass-roots efforts against ABC would continue. 'Jurassic;' Ratings: "Jurassic Park" did not disappoint NBC Sunday night. searing up 37% of the TV viewing audience. .. .according to the available uvernight ratings from 33 markets. National numbers will be in thi:i morning. but in the meantime. . NBC Is estimating Ulat 65 millIon people ..atched the roo"'e, .:' which. if the prelimll'.ary ligures hold UP. would become the .. network's highest-rated tlteo:Uic.al mov;e since 19A:.'3 wh~" ill '].. '-' "- /_?/ tfJ-2.. 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Q.. \ e ",a> 0'= ",_=0 o a>lll a .~ "C.. ......9 ::I ~ Q.. .... >. 0 ~ ~.. =~~-~.; ~--~~ ~ '" - ';l M <'l Ul Z ::> .., ,: < o '" '" ::l :t: ... ~ ~ ~ ~. ~ 1 I ! .a I . tl C'4 1&1 . . /p..-/.fJy L? ~1i \SSOClAT!D ;TUDI!NTS , Ki:w:u St'J.dent.~ 5-.u:. Dic~o State Cruvcrsicy San Oicg" Californi" 92182.9100 (619) ;94-65;; . (619) ;++-1092 .' KE.~ORAND1JH Dat.a: 19 .1a~uary 1995 -ro: Lt. Steve Williams Pui::lie Safe y From:, Open Air Roe: Pa~tera surveY Please find attached the phone survey done from my office regarding t:J.E! group Pantera as it relates to a possible open Air Theatre concert on April 1, 1995. The facilities surveyed (with t~e exception of one) all presented tr.e group during the su=e= of 1994. If possible, could you c~:;'l the San Diego Police to see if there were any incidents as it related directly to the sports Arena performance on July 19. This may assist us in tl~e arrest report that ',;as unavailable to us du=inq our research. In reviewir..g the findings, almost half of the facilities had damage, ar.d half of the facilities had arrestS. One facility reported t~e ::tost arrests of any show for 1994 (10). I am not sure we wan';: to take a 50/50 gamble that we'll be OK this early in t~.e season. Please let me ltnow your- thoughts and any other findings you may have. Thank you for your assis-eance. J5, I tJ.>' If( 11'1 ~; r!QQ ;:.... t= ~ ~ ~ ~ ~ ~- \::S ..... ~ ~ :-.. ~ ~ :-.. o ~ ....... ;::s CJ .J::: ....... "..... ~ ~ ~ ~ -~ ..t:J ~ ~ ~ ~ .J::: ~ ;::. \::S .J::: Coo:l ~ "..... ....... " ...... ~ :-.. ~ ...s::: ....... a z <- t;: ... ::: '"' <I), ~ :z: .~ -~ .~ ~.!11= ebi~~e~~~ ~~ =~_. ~ U~a.~aU4.- ~~ "g~= ~ a:.-":l~>._c..'; 1ol.c: c o-u --~- - 0 ~- 0" !I-II 1l~.~-o="=o.;-:;-i .: .5 .; -= = -." fi - " -0 .. WlI 3 \,I u~~~e .~ .~~_c~ -~b ~ t'lI. - ;: ..c .,. !If = . . . 8 .. 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DO i e. 1:.E ':; _ ;::... ~.j ~~I.~~~z~.~e~o~!:"'~u =1 ..~"if i=:')-~~v=~~i ~ Q = ~.~ . - 8 ~ a.e 5 :; 0 Q -s CI'J u.c:UUQU"" I"Q:== 111::! ~-~--=2. _ull~. ~cu - 'i: ::I'i - '::J .!.; = e e . - .- " .. e "':-:0 -.. "_' .. .- 0-0...0:- u-e Q".... ="'=' ....~..='e:!. =~.o "U.9o ..I.IY~,QNuO~ e~=~~~w ~~~~-=..u~~~ ;;~~ay~..8 =~~~-~=o~e o .&;l ClO=... a OOl"l" t:~wu' _uc c- - ~c -g ,.' . 0 ~- .- Copied for: City Council City Clerk JUI/JDF/F1W-a R E C EjVE'o 1995 City Council City of Pcway P.O. Box 789 poway, CA 92074-0789 FES - 2 1995 ClTYOFP~HAY CITY MANAGERS OFFICE Re: Poway Entertainment Center, Bill Silva Presents, and Intent to prepare a Draf1: Envu'o=entaJ. rmpaht Repc=t , Dear Council Member$: ~is letter sets fcrth various concerns :t have which should be evaluated and adcb:essed in the EnvlJ::o.........ta..l Impa.ct Report ("EJ:R"). J: trust these are in keeping with the Council's e~~ort to scope the issues relZlt.i:1g to the proposed lIIIIphitheater project. 1. Law enforcement related costs to police concerts should rece.i ve close s=tiJl.y. I recOIlllllE!l1d .cilei tatJ.= of p:rcposed cost estimates from the Sheriff which reflec1:.s beth beat case lmd WOJ:"St case est=:JDatell of cost related to increased manpower and resources necessary to 1=olice concerts. I lllII confident 'those estimat.e rill reflect a:mual cost.s far .in excess of IU1ticipated revenue 1:0 the city. Ccnsequ.ently, the City'S buclqet fer la-..r enforcement se....-vices will be impactsd:. Although a private securi't"i force wi.ll be employed on the grounds during all concert events, pri.vate security ferces do not have peace officer powezs of arrest. Consequently, ar:::es1:1s made would be by pri.vate citizen security ~le which would necessitate involvement ot the Sheriff to tranaport. and process persons arrested. The impact on ava..1llll:l1e law enf=ement c!urinq such concerts yl-Il be 1:1: emendous. As l!l. cons8qUmlce, the remainder of Pc-..rll.Y will uperienc:e 4elays in law enforcement response times and will lese regular protection during such peri.ods. Ent'orcamen-: of traf:fic laws al.ong ~e routes travelled by concer.: goars is the re~ponsi.bility of the Sheri:ff Ul the Cj,ty of Pmtay. Patrol units as~iqned to the l.:ity d.uring such concerts 1 ).5-iPl /6 - will be pulled f;rcm othm:, areas to p::operly pol.i.ce traff.ic (both vehicular and pedestria:l) activities on all thoroughfuu leadi.nq to and from the concert s.itus. Acc.idents occ=ing d.uring such events w.i.ll in IllOst c:aS1lS require 1nV'.estigatiol'1 which will. involve t:h.e Sheriff's D.;lpartmen~. intersect.i.on cont..~l w1J.l De the rllllpons.iblli t.y of t::l~e Sheriff. Aato burqluies, gang :celated incidents, assaults, ba'i:ter.i.es, pettJr thefts, gJ:'and. thefts, end even ;robber.i.es are poteut.i4l cr1lllescmring concert events. Alcohol sales chu:inq l5uj:h concerts 1dl.1 :1.ncrease the likelihood of personal crimes and ;tlcohol ::elateP. cr.i1lles (drunk driving, public intoxication, indecent II%pOsurtI). All such crillli"'''l , act.i.vities w.i.l1 require not only 'the !p%esence of appropriate law en:forcemant personnel, ~)Ut also will necessitate follow-up activities by .investiqa'i;ors. Po"ilj' wi.ll hAve to pay for these services. All of this ar.:1:ivity vill 1mpa.ct net only the cost related to suc..'1 service: but also the level of service to 'the whole city. 2. Poway's Street OIJld Highway D~t will be impacted by concert activities. Tr.Lsh removal along the thoroughfares followinq each concart ".ill be n8clilssaxy. Damaqe caused. tc vegetation and ground Cr.l~ wi.ll ]:)e in=eased dramatically. Damage to s1::eet liqht tIDIes, street s.i.gns, traffic centrol s;!.qns, firepltlqs, and o~~her 01 ty main.tained i 1:ems situated around the concert situs will J.nc::..-ee.lle sign.i:fj.cantly. One need. only 'to look at the area =ou."ld the stadiUlll in San Diego fol1cw1nq an I event to gain an apprec:.ation of the problems endemic to such activities. calls for service T,rill increase during such concerts because of acciclents wl::ich will oc= requirinq ;........diate ac'tion to overcome traffic hazard~; caused by subh acciclents. The C051: for euch inc:realJed lSeJ:Vices w.i.11 impAct the whole c.i.ty. A byproduct of inc:;:eased usage o-f the thc:roughfares will be increased cost of maintr"nance of the :road surfaces. !l'he projected average of ca::s at 3000 pe:z: l1Lght fa.ils to fairly describ61 the volume. J::: t..'le amph.i.theatar operates at full capacity, the vol'Wll8 of traf:fic would be nearly three 'tilIles greater than projected. !"u....---ther:lllOre, ~ass adequate off street parJdng is provided, on road parldng In.!l add to the burden en the surrounding streets. :2 IS---jIJY 17 .' 3. The q--...ality of the hu:nan env1:onment will be heavily impacted by the alIIphithfiJoitar. liaise will be the major concern. Air pollution will potm:tially increllse. Utter and other hmDan generated waste will poa:e increased probleJll8. Quality of life for those livj.nq wi~ several IIliles of the situs will be impaC1:ed at VlL.""Yinq deq:'ees. careful review of these 1mpacts mnst be under'"..aJcen to pt.otec:1: against anwa.=aJ11:ed an4 u=easonable intrusion ~.n1:o existinq Peace and qu.iet. , 4. Approval of 1:hli' amphitheate:r: will si91lal. a new era in the life and tiJnes of Pc:way. No lonqer will the city be able 1:0 Claim a "count=y" lifeS1:.yle. Acceptance of the amphithea'ter w1ll launch pcway into the lDlI.instream at C1ty life with all of it. inherent problems. Thil!. project, if approved, will send the message of a c:hanqed philosophy - from sub=ban li.ving to ccmmercializati.on. This decision will :be one in principle aboU't future considerations. You must. _igh it carefuJ.l.y. S. Approval of this project will. nolate the general intent of the poway General Phn for clevelopll1ent. Erosion of the general plan by bits anc. pieces through the g:rantinq of conditional use peDllits, variances, and other devia.tion d_ices generate. cUst--ust of gc:-"enunent by the people of Pow&y. People who touqht hard for incc::rporation and adoption of a general. pJ.an for development feel betrayed by act.ion of the Council which undermines their effort and purpose. Council melllbers who chllnqe positions after campaicp:ing on one Sil18 of an issue for election and then voting on the c:thez: side after el.eC1:ion bet:ay the faith ar.d confidence bestowed in them by those who voted theln into office. This project'S negative impact on the general plan overall must be closely evaluated and given careful review. Ii. P'ina.J.l.y, the ~ral.l financial impa~ on Poway taxpayers will c=~te IS siqnifiau:t burden whicl:l will not: be m. tiqllt:ed by the alleged benefit to the c..,......",lty. A handful of __" businesses may benefit from the =owds who attend concerts. The c.:!. ty' s share of sales taxes generated throuqh related sales w.ill not provide the level of supplemental 1%100.11III nacessazy to overcome the shortfall c f t<L't revenu~s from the 8lllphi theater, all of whioh will be consumed tll.rough poway's costs of services attendant to such activities. It has been said that Carlsbad and Chula Vista have 3 /~/tJ'} rr '..... 't . considered this projec1:;,. but. chose to decl.ine. poway could benefit f%'Olll the !nsiqhi~ of those cit:ies' Councila and should lIIeek 1nfcn:mat.1cn from t:!10se cities. 7. Po..A.r should re<[I1ire a very tmcro\1l]h discussion within the SIR of al.ternatives to the proposed. "1Ilphitheater for the development of the 8i tUJI. A good !Je9i nn 1 "g would be a cU.s~sion of factors wh:i.ch favor ,tnd elisfavor 1llbandC'"....nt o:f the pr_ent qeneral plan'S stated alIa of the .italll. , .As you ):now, I -. ()pposed to the proposed amphitheater project. BO'-...n...., I trllst yo= judg1llent in clo.i.ng' what is right for the futUZ"e of Pc.....x' I hope lIlY 1;nput is useful to you in your effort to make the right t!ecision when and if Ue project ever CClIIleS before the full Council far action. PJ.eue foxwarcl. these c..........n1:a to city 41taff for due evaJ.uation and :z::eaponse .in the ErR. Thank you for yew: patience. and consideration. 5~cerely, ~.P~ EJ:nest w. Piper I J.4\,UO erestwood Ave. pqway, Ca. 92064 4 /y/).rJ 11 ./ , - LJ ~ ..--r I Murder suspect blames victims' loud music PHOENIX (AP) - A 93-year-old man faces trial on murder charges after allegedly shooting his next- door neighbor and her boyfriend because their music was too loud Police say Edward L. Mazy con- fessed the Nov. 10 double slaying at a trailer park in suburban Glen- dale. He said he had plaflned to kill Francine Ritter for more than a year, according to the indictment made public Thursday. Mazy, a retired coal miner, is accused of shooting Ritter and her boyfriend, 49-year-old Alfredo Centracchio, with a .22-caliber handgun, the indictment said. !Y/I/ -<0 Third Annual Rock Concert Safety SurveYTM ~ Summary Twelve people died as a result of lax safety precautions at pop concert events in 1994-surpassing the death toll of 1987 when 11 fans perished according to the third annual RocK Concert Safety Survey..... released in February. Among the most serious incidents of 1994 were the fire deaths and trampling cf seven people at a concert in Poland and two separate moshing deaths-one in the U.S. and one in England. In addition to these fatalities. serious injuries were also on the rise. A record 26 concert incidents were listed in the 1994 survey, as compared with 16 incidents in 1993. At least 7,888 fans who attended the least safe conceits of 1994 sought medical treatment. Most of these fans were at Woodstock '94 in Saugerties. New York. An estimated 1,888 of all fans who sought medical attention at pop events listed in the survey could trace their injuries to poor crowd safety planning or execution, nearly twice as many as in 1993. More than $146,000 in property damage was recorded, not including two destroyed concert halls and other unappraised damage. Two hundred and seventeen arrests were reported in 1994. Rock groups added to the havoc by provoking a number of concert incidents. Nine Inch Nalls, Pearl Jam. Green Day and Take That were among the rock groups that made the lives of facility operators and public safety officials difficult and often jeopardize,d the well-being of fans. Against this backdrop, the rock concert industry enjoyed one of its most profitable years ever. '1994 was a record-setting year for the concert business,' reported the noted Rock & Rap Confidential newsletter in its January issue. "[There was an) unprecedented number of dollars taken in during 1994 (197 shows had gross receipts of over $1 million, compared to only 85 in '93)." Performance magazine, a leading rock concert industry publication, wrote in its December issue that the 50 most successful pop concert tours collectively grossed $987 million in ticket sales. an 86 percent improvement from 1993. The publication also noted that the combined grosses of the tap 20 promoters reached more than one billion dollars. a nearly seventy percent increase over 1993. JY// .;2. :</ 82 , Wednesday, February 23, 1994 The Times _. <:rbe <:rimes SAN MATEO TIMES AND DArty NEWS LEADER THE ADVANCE STAR 1080 S. Amphlen Blvd.. San Mateo 9440~ " '. Rock 'n' roll as a weapon By JACK ANDERSON United Feature Syndicate ,WASHINGTON - As conven- tional weapons give way to psy- chological warfare, military inind games could'put the Penta- gon's arsenal at the top of the pop music charts. .-The United States has secretly trained thousands of American soldiers for mental combat. Their weapon of choice: rock 'n' roll, In three recent large-scale operations - the standoff with David Koresh and the Branch Davidian cult in Waco, Texas; the Gulf War; and the invasion of Panama and the capture of Gen. Manuel Antonio Noriega - highly secretive units of the Army called Psychological Operations Groups have aimed their boom boxes at the enemy. With blaring loud music, the military tactic is to deprive the enemy of sleep and peace of mind, forcing them to surrender. So far, PSYOPS' antics have only had dubious success. Among the Ill'St contingents of American troops who landed in Panama in 1989 was a 200- strong PSYOPS force armed with bullhorns, leaflets and loud- speakers. When dictator Manuel Noriega holed up in the Vatican diplomatic mission, PSYOPS deprived the opera-loving dicta- tor of sleep with "Nowhere To Run" by Martha and the Van- deilas, "Take the Money and. Run" by the Steve Miller Band, "Smugglers' Blues" by Glenn Frey and "You're No Good" by Linda Ronstadt. Military officials most familiar with the operations say three factors more than the ear-split- /y/J) ting music wore down the gen- eral: the papal nuncio's own efforts inside the embassy; tele- phone calls from Noriega's friends that PSYOPS allowed through urging him to surren- der; and, the most effective, the PSYOPS-instigated parade of thousands of hateful Panamani- ans calling for Noriega's death. In the face of the lynch mob, Noriega soon chose to surrender to the relative safety of the U.S. military forces. Secret Pentagon documents we have obtained concluded that PSYOPS' antics are most effec, tive when harmonized with a concerted military effort. "Psy- chological operations can qe most effective in a joint opera- tion when they are planned for and closely coordinated from the first moments of planning," stated the classified report obtained by our associate Dale Van Atta. In the Gulf War, PSYOPS boosted morale for U.S. troops . by frequently responding to Iraqi SCUD attacks with Pat Benatar's "Hit Me With Your Best Shot" played over military radio. Against the Iraqis, however, music only played a minor role, according to PSYOPS sources. Far more effective were the mil- . lions of leaflets encouraging Iraqis to surrender, followed up by detailed information on how to surrender blared over loud- speakers. Another effective method of confusing the Iraqis was to drop leaflets on troops warning them they were about to be bombed, followed by a quick strafing run, and more pamphlets urging them to surrender. But using these tactics against David Koresh, the military sources tell us, was a serious mistake. If someone like Koresh is already irrational, spouting nonsense and exhibiting an extreme martyr syndrome, the last thing yoU Want to do is deprive him of sleep or try to make him more irrational. ~~ .:c lit " " ,\' . . - . - . - - - - . . - - - - - . - _,'. "0 _.___._.._"._,"___O_''';."~'':'';'';... _..;; ..:~.;.....:...; -.=--------~-~.~--~-~-i--~.~~-~- t~55 ;.; a s~~~.. ~~c cD."] ~ Sot 1!'. -0'}: ~c;W;:I G,llo.o-:!it ~.;:i= ...~...-... ecn.::!t....._ Q,l~- ~~ ~~= E- c ~=~ ~t-e ~c~Q ~~~~; i~ >o~ O :: =--C Q, ell ~ ~ :: CD.Q rn C "C = r..... ce 1: .... t.I = 0 Q, as .. ~ .<: "'.., - .... - .. .. - - ~c -~ -_"..... .... .... "Co rJ -.. -- ..... .... as .- c ___... 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'" ~ 0 = .. ... e '" c:.> c c.... a.J s.. 8 ....; Cf'} = c:.l S-CCtlCQ,l .Cas .Q ="O"=e ="='=~i.c.s C,) ~ ~ B = ~ c := CIS Co..=l 5 c>o-;O . (J1ooQ,l"C 0>_ o 00'.1 :.._ ~ >. Co.oo '-"""-IV ::J=I..Sc ;n~0 ~;.== ~:n.!o.c:'~ClJ ~ :it:i~ c.8 tn~;;: =U3 ~ - ~ .~ >. Q I1:l C ~..... "'l:I" _ _ ~..c..c:J.."::~5~s ClJJ:- ~- =>- -~-'" E=;- c:n=?"~ :::: . 1: G.l =";.i~~it:'""8~ 2.J '. 1T1T*** San .3rancisco <r1)roniclt -..: ---_._-- ----- --..---..---- THURSDAY, JULY 20, 1995 Stampede Ccricels Isrceli Rock Fest of Tuesday night's stampede in the desert resort of Arad as Hani Yitzhak, 16. a duall!.S.-Is- raeli citizen from Los Angeles, and 17-year-old Eitan Peled. About 100 youths were treated for injuries; three re- mained hosnitalized vesterdav - - - in serious condition. The stamnede occurred Tuesday night as some 20.000 fans pushed in to see the last periormance of )fashina,Isra- el's oldest rock group. Associated Press Jerusalem Organizers shut down a popular Israeli music fes- tival two days early yesterday after a stampede at a rock con- cert killed two teenagers, one an American. The decision followed calls from hundreds of parents of children attending the festival and cancellations by several top-billed periormers. Police identified the vic~ims ~ )y/J37 ll.(' .. - ~-~~.=,,~ R.E.M. concert marred by deaths Two teens drowned in a fast- moving river during a weekend R.E.M. concert on the grounds of an Irish castle. About 70,000 people attended the Saturday concert, which also featured alternative rock groups Belly and Oasis, at the 18th-century Slane Castle in County Meath, 30 miles north- west of Dublin. The first drowning occurred soon after the concert began when three fans got into trou- ble in the fast-flowing Boyne River. Rescuers pulled two to safety but the third, Derek Kenny, 18, from Dublin, drowned~. . Saturday night, a second teen-ager was dragged from the river and died later in a hospital. He was not identified. The concert was not inter- rupted. From Mercury News Wire Services -~-----_._---_._- -- . San Jose Mercury News · People/News ~ Monday, July 24, 1995 ~//~ ,<.j.- " Erin Grif~in 1.2655 Gate Dr. Poway, CA 92064 poway city council P.O. Box 789 City of powa~ 92074-7089 January 10, 1995 Dear poway City council: My name is Erin Griffin and ~ am unable to be here tonight so Z am " sending you this st:atement regarding tl'1e Amphitheater you are considering building in the Industrial Park. I am a ,26 YAar old female with a B.S. degree in criminal Justice and I have been to many concerts (somewhere in the neighborhood of 25 or mO:'e). These concerts have been of various music types- country, pop, rock and heavy metal. I have been going to conce~-s for 10 vears and Z have seen first hand what happens ~t these conce~s, in the parking lot as well as inside the arena. My point' is that there is more to consider than the economic impact that this amphit.~eater will have on the city of po..ay. MY concern is t.'le d-""'Uas and alcohol that goes along ..ith concerts. There are already druq dealers and kids using d.r~9's in the city at po..ay and that is a tact. The building of a new amphitheater will give these druq dealers and users a place to meet and to deal. Not to mention the kids that ..ill be cons=1nq alcohol in the parking lots before and after the shows. As I have stated I h~ve been to concerts an~ I have seen this happe~ openly. This amphitheater will also attract people from San Diego ~~d they will bring their dr~gs. 'l'here will be ~roblems for the Business park- vandalism, parkinq to do druqs, make drug deals, people having sex in areas arouna and behind buildings and possiblY ~ven burglaries and/or thefts ~o businesses within the industrial park, let alone .what will be qoing on in the open areas _surrounding the theater. ' Mr. Silva does proviae seC:-.lrity for these concerts and the security - does search people before they can enter the arena. But that does not stop t.'1e "~'\l'''' from being taken into t.'1e concert nor does it stop the concert "qoers from using clrugs insiae 1:o'1e facilities. That is al~o a fact. I have seen this happen at all but 3 concer--s that I have 'been to- and those t.~=ee concerts were in small theaters. " From what I have seen 'at concerts ~ ca.~'tell you that witfi the bast of security you will still need the help of the poway's Sheriff's Department in controlling the crow~s outsiae the arena, as ..ell as the traffic probler.s, and depending on the concert the Sheriffs may be needed inside t~e facilities as well. Even wit.'1 the security, ana the help of the Sheriffs t.'1ere will be d::::'".1y dea:1JJ:!g, d1:--.J9' usin9', and the ""'~"''''!'!1pi"; "'" (If ;0; ~"'I1Ql (by some mine::-:a:' '.;; t.~cse ovar t~e ,,"ce of 21).' . Zf you doubt what I am saying is t=ue t.'1en you can contact the San ,... ~~-- '--.,. .."'." 4'....1 "bout t.':.e concerts at 15-/1? -' :<6 ---- ~_.,-..:=:.~:.~--.:'-. .- .-.---'-- "... '.-.." 'c . .. . --~ --","': -:-:"_.'~:'-:_..._--.-. . -'-,' _.. -. -. tllE!' s~orts Arena. J: Happen to'icncw a' few S.D.P.D. O~~j.cers that: have had 'toO work 't.he' 'area during' concart:s,and. o~~icers i::hat had = work . inside at the Qun"'_N_~OS"'5IMeta11ica concert (which was brought to San Dieqo by Bill Silva), and those that had to deal. with the aftermath. . 'rhese of~icers h.a~%}o:;p._~cLSood. t~".~Y .~o':l~ ~e.,..xpe~~f!%1~e.. ...... r :,.:, . .. '-'. ~...~., ." .....:::!.,..~._~.;',..'..'..~_~..:..~.:.:~......:.~..~~...._...:..;. - _ ~~. ..' _.~~'-a'. --:-" ...~ .,<,.,. ,". . -:-. . .~ _ .'..... .:.;.:..~.<~.:<~c".i:,,;-:':".:;':~:;": .' :tnB'-"ry ,I hilve been to these concerts and. have seen ~at So.. on. Plan on lUring lIIore poway Sheriffs. '!his Ulphitheater beinq proposed :'~; will. become a Hahn itv to ~he citV"o! poway and will brinq added ;o',' :::' problems that the c:i ty can not hanc1le. '. 'rhea. 'problems are things that must. be considered before this "proposal.is 'voted em. .' Xn lA'J opini.on' -' this is not 't.he type of business that'should be brouqht here. '".,:.:' ... .. .. . . . . . .~. . . -;.. ~-~-. ~. L.:::f.,: '-::". . .' - .~:. . - . .. . ". '.... ~ ....... . , sincere~Y . . ....-; .,,,: . ,'.". _:-, . .-.. -.' ...g~b+ Erin Griffin Concerned citizen ...-.. ."._--. -. . ~'..,"'" .-." "- ~/// ~? .-? Looks Like A Lawsuit A man was left paralyzed from the waist down after attending a June 19th Metallica show at Riverbend Music Center in Cin~innati. Keith Phillips, 27, apparently participated in a "trust falr; which went awry. The fall involves being thrown into a crowd and trusting that you will be caught. Phillips was not caught and landed on his head. According to Phillips' sister, doctors told the family that he has about a 5 percent chance of walking again. .h,;.i.. '.- POLLSTAR -<._~. July 4,1994 Page 1 -'"' /5-1/7 Jrr ~ . r-v'Io .......CJ V_ I_I,... _ .....~---- . Insider News Briefs ~ Page & Plant Cotten To rne Brues ,.>.~. ~.,- If IOtJIo/ib. rr:rJ/ _ mimn "" ~." ..:ama c.:."" u roe is ,~."i<ed 1:'/ Ifobetf p,.", (!,.; and JImmy ~ (PJ ~t;I it !1fe CMw<< w...", Forwrt in ~ Ant;M.s. ~m:n ~ec ~Q' ,4,(4Y f5~:7 Page I ~a.~: ::arws Punks In Tn~ Gut:er At Gl~r: Helen Tce ~::i::. inc!:.z:;~i Gutt::=cc::-: Si:':2~ ~1.1.--k A~~.::s. wer: =.,t".,.j ~.:...... ., _.i_ t..-r..... I'\ut ~... ...- 1f:"','_-!'1v ,..u...t. ...-....,'a_ IUl-' '-_.:10.,_ ... >"_'_ :Jrul\.iiO... _ _. ~ _.:' ..... _...._., ._ 25th :1[ thee O;::~ H:!~:: Block~t.:..~...::~ ~ymc:: in O:'/or:. CUir. Saa 3em~-:f;~G CO'~r.:J' Sh::i*-.~ D~==--=.=:scck:s'.:.ro~~"': T'QUj Brot:.'1 sOlie ?Clli=" ~d d::lt wir..~ .~,,'d :01tt1rc::s ~~=:: ~ show bu: :t:: bulk of :~e :muOle .:iU---=:: whe: Ciutt::"':":":or.::."': ,:cok tee~. At::~n::b~~ gen::-.1l ~'~-'"!g::'.~ 04L::1 tcld. POLLST.~ :\'e~i:tg wu fu:: :o~ =~ :;:s;:: $.Ye..~ ~.uu.'"'S. :,e:ore C;u=ou~': '.>Ie:,:, ~.". He l:lic.. '.r..-f~->: .-\Ckl.-.:;'J li:s: ''''ores we:::. ruc.~ ::::5 E!DCkJ:::s:::- 'Ji~c ~h;:.. !"rn net eo;e: gcn::a pltlj' until you t::lr :hl.. pl:.co 1p~' C"z..,n .<ai:! ."c::!'..:::S :c[c! :he '''-'''''d r'" ~..... ~"'c' .._;, 0" ~.._......... ~-... :.- '~',l{ r"I' =" ...:~ :-'.. u ~..... ...:-.~ I. ~....~~. _'_ '.-. _.j... ._. ~ :.....=.. IntI:,) ~~ .:u.::e::c; gt\1u:. !'ile~ :U-:-::':":~:::::'-':::. Sr:::~::~ i:':;.-:'. 1 r.e C~\l,.:d :or: uc s~;:kl~~ ~:tcls :me ''''''''e..-:- :l:r::win; :."ar:': ~ tr.c sec~:i~'i cft!c;:s :""'lC: :.~c :lc:::.::;:s. n=:"':::d ~Or='l i.:~: :{e~:.:i out. or ."c ..-.:...._f'Jo ~....IC:-rrs '"':..oll ,~...., 'lJe,.- ;- "-""';",I,::e~ '..-..l,d-..-c:::s .... .......40_...... ,....1 h'.=, _ ~""..' ... __ _1.._ ... ....... ..~ ~'. of :..:or:c:-:~: :1: ::~C ~:..~:.;:i::s." Sh:: ::~;:: ~:~;.o; EOt :.;urnple~:l~ cut of h;:nc. "Somr::ody :ice J brt:.ih ;,,1~._ O~"':c..;\ we:: ;:!i:n=:~~ ti:: to....- .~... -'f', .........."..... ....... ._~... ~.- 1"',=..;;;.., ~Ul'!"'" ~.. /""...- ""n ..\ --,s.... ~......_..:: :""" .,~... to ~._ . _ _.....~. ...... ...._ ....._. :" Gt..:t::~olJ[h lnC A':lrr:::"::i Wl'1.... Jl:':S~'::: :::- ::Ut::"'Y on J. ~e:-..;::ty .=:........ d; ........ ., A' :..--.,...:....r~... l. ......__~~,_ ::.....:..0 ,n.c...I.:1.=, :.i..r:ut... ~P".......~th'~. .... "1..511(")1,l,. ."'t'"._.......~_. ~u '..)-~.,-......s ...~l.. -U.I;_~ r"- -f..... -... G"--.~Ul- W"J':: '_.u~"" -:.. .:...,.........,.... . .........:' I.LU.~ "'::~::'. _:. __.. ................... ,__~ ~1.l,;.S~ :he crowd :0 go baH.:.snc.. ll'::'~:::'lti Mart:~ sazd ~ucr:~~t::"~ w~ ?e:f:;;.-Jn; irs i.:.S:.:..:r. ...hc:'.-. :me! t.::: c:o.....C was '=:;:r.~ :l Uc~:: ro......cy bet' nor ~c~:;~ ~ '..l;":L"':':L:: 5tc;::::; =:: nct,L.. Rut DeL::: sale. "Pum~; ::.:: ;-::.;; ~n (jllt:.:~al,;:':"':. """u a. Pa;. ZZ JUly 2. 1995 cIec:.:,;,,,,, I maCe silr.ply for pubuc safc~l - Tn" ban: !'ace 'to Fit<:: :.oak rll: l~" after Ciu=.out.'l a.:::! ~..!;:od ,0 .::1m th.. c:c':"c.. Mar:i., said bv t!:!s dlrol:. the Sc.o.~ Pro se.:::t.:y lCIff::~ IIad aca.~doc::d rlleir Poses. H.. said. "M)' b:otit=r, ~'SIllf and Ihr= ot!:= SUBe hands go: :::sid= belwe::: cc ~=:uld the stag: to ~ :he sllo'" goie; on.. Ma.:.:" said rlIe e::d of me show == urn:::: il =mbcr of OIl: of the ::acda s:amd spt:lyinl: a (u-: :.."tti:1~Jish:r:md $omecnl: j'eU=i. 7=:- O.-;!- Bur OeZon $lid h: ===d..-d '0 1<0< F:u:: To F-..::: :0 on becOu.<: '"" wlIule! r.::he:" :..-:d fthe show} wit.": a. Oand whose ac:u.:!c w~ d::"~~Ty be=. - All but tM::: or L.':: :J br.:!:s on :.~" ~il! pfayc-.L M..-..:.'1 we C?R bi=:1 :he f:leiJit)' aDd SwT?r-~, fo, ::ol being ~..:Il"_-d Co: :.Co:: punk rock::-s. He saie! C?R QSx:::! :l:c ;T..Lvi!iun = tr~ ~..:.~:,,.. com::ar.y ro make F::~"Xlt)ns be.::.:;rc :he show hut thev INcu!:;:";. D~n db"'Pu~ :..::d:. cl~ ~i~g. "Tn=:, n:ve~ :.slc~ (or .u:j'~~:g r:g:1."TJing s=:;ri:"j .... untir ~ey s::w meJ!" wene! faLU..::; 3.~ dudng Gut:e:":"::out.~':i =- F..= '....,er.t on m Si1Y, .,. den': thi:"lk mese promoc:::s h:1ve :he ~~~:-::.."::;= or b~pund to ic~otA. how to ded wit.'"t ::h::-::::.:.i)' banc..z. ,'4"1:: ~-:ac rong:! si:1cw," A sc:e~e::t r~lI;ued oy CPR sOlid :cnc.:::":'-~~~:":i ccmpb:~::! of pon..... a.."'::! .~:.:rity bru~ity .saying. ~.: vffid~ls provoked _u..l'a..._. ----.- M"-'" :!'__I..l ~;. ......... "'Ie.......! '""_ of . ~.-:.- ....-.....:-.;': ......~.._~lo.o. "....~.,.....: \o...~ :~... . ''" ._.._.~" ".....-l "lckln~ nn' nr .-. '-"'C '" ~'"'.. ."'C. ...,.... "'if ~.... .-...-. ',:J =_..u.." 1'0._ .~. =- _~. ....... ~...... .,. ..._ .." ... .:~.: "" ...... SQ~e_ BI.4~:he ::to.:::tcy ana ::te Sh~3 c:;-:::.."':':~r d!c:: c agr::. Brc= said. "[Tne ofr'1c=r:o;J die! .r"'~y wh.:: :hey (1~";"'; :0 do to t::.io.: il:c :rlcacion i.L~:" :ont:'CL" Sh~ sa.ic. "LuciCly. mer: dcF..:ti~ c::: ::Ol gc:. hu..-... Ace ~i-ay .~awed ~~~rk:.Ofe ::m:nn! ii.'e:: =~ sic:3noa." Broc=: we!::o cne ....0:.:; ,"~ou.'\!: ;nju~ AJ f:: !tS == facility is conc:=:=.L ~n .~c :..~= ~....... :::= SO:::= sc::s we:-: da.oor.,::g= bu~ ;t w~,sn': a ~~~~ ro.'is. And ae:cre,::l; ::;, ~.'1. :he.~ was ~c :urir:to;o;i::.' .::':":ong ~he ~Jr..<;. "1\ lor or :<ies :.:ir sayi~; ch.'1t :: was :.'".: :est :-ihn..... :::a: :,~; ....e =v!:" :one :::.'" Cookie Can Be Harmful ic Ycu~ HeaJtl': The Ame:-::::.., MedicI I\ssce::tion jum:e-J intO t...":: :n~k: !\'ncs ccn::-..;"'c.~y whc.., it rc:=nuv Q!ld ~or' COt~C'uiso:""" rati~ (or re::::rC~ :::usic. .~'&A UCl::~01::S ;::ner:d ~A~y :.r ir i:1 CtiC.1iO for a.c ac::'JaJ pol.i::y"ma.kl::;- m.=".:n; .....h=:-= ~h~y p:sSc:rl ~ resolution :0 work with ~ r=:::r:i::z h",:::.l.o;:-. to develop 01 rr.:tnd.:..."O;:", ::rir:; sysre:::. "Evid.::::c: is ~u..,t::,,:i of,J. co~l~:on berwe::: :;:::ssion :u:d lisre:alng to viuJc::t tyric.'\. ,. me ~.'lflJrio" SiUcL '.R=;:~::::d lisr::::c& :r..J)' d:s....-uitiz: :..~iic."",=:': tc vini:n::= wic::ct.:r :cnveyjni:~o eo,:::t the consequ:cc::s uf '.r1ol:nr ~"':'''or.'' The: bac.\:::~~of :hc: r:sc!1.ltic:x. SI.LS~ Rude! ~.i'n~t .1n i1Ilc:::~r !:"Ont - iY/~C/ )9 ... .- cu ;; ~ = .- -= cu l- I- ca .. Q.) - -= E = .... c !~ Ig II. Ie I Ii:: 14) jU ,= 8 en ~ c co CI) -- t,; ~ Q.) a:l I , i ! I , I ; I i I I ! I . >. ... u:n .,~o.",_ ~~~ !::i--c,:! --S:ll "CI1 ~ t; ~ =:: '" ... '" Co ,2, - ~ "0 ~ ~ ';:Z - _ rn _ - "'0 ~ C >< k.=r = ~.- v _ V to CiQ'_ o ~ u ~ -==' ~.s C i::':::Oca LO...._~ 1: ....'0 cD"::: N '" ,: IJ _. '" _ -0 s:; _ ~ (;; ::.~ = O"l:_ ~QJo::~ ....,:s- -QC-~ Lf)....btJ U~C:':.o~ """0= :~~-g Il.'''ll] - =0 0.5 "1::1 '" = <;> l>-. ;. ;;~~.;: t' !\.-!"g ~ ; v = ~ _ .c ~ C <Il -::.52 ~ a:: "I::I;!J . ~~o~~ ~~~o u ;,) :: L". I.. tJ .:a:...::: ""..,; " - '$ :., ... '" iri ~ o ...... .~ '"'l;: 00 w ~"_ ~ !!l -:; ;; .. .. ~ ~,~ ~ '" :/)QJ-%o.-..-s_ ~;:.r~~ij-=u. ~ 4)":. t,.l o,..~_ >-;:';~~~c..'!j~s ...-::; y.=: ~ '" .~,.. :. :":: -. ." t_,... ~ (/l '47 ~N~'-_ , - o ~~ -;::I , - u.", t:i C'.2~ o _.... U S cr. "''''l ", i ~~ .., - - .... .... .... -.- l1J v";:::: .<: -... .1) s i'- ~;." ...;. ~.. Q..l 's. -~, ~ ~.~ ~ ~ ~ C~ o = _ C -= . ~..... rd =::r. :.t VI <L\1' _:~ -'= t::: -._ ..... - \-. :; ~ .~ --~~t v ;... ~ ~.;r. = 3 ~ = _ 5;,fl ~ I S 0; ;.n I _ 'U..... (oJ ~ ~:; w:J;.... \": ~ .- .v ~ .., ';: -:,~ ~ :Jl._ .:t ::f <l):to. _, ~~ .$ I ~ - N;";~ - - -..... GJ ........ "'0_< e :'U f/I W :r " ;:)~ ::~ w'1: crs: ...- ..'3 tQ ~..1 rn lU ~ ~ :0-;::: - - 5 ~ ~ >.~ b - =~ e:c n:: :t:_ ~ bO .=: ;"S7~ ~ "--= :J VJ = Io0o .:fl = 5: ; >. 4J 1"C l.l"'t.( ~ ~ QD,D ;0: .", r;;: Jl " t: 'j; ~ 4.l ~_ = t:: ~ . ~ ='t;~c- u __ g-,,:~j( ~ ;J d3 _-:: ~ ._-.... ..... :; ~ ~ ,~ e 5 "';.e .~ :~ %~ ..:=-;:::~ ~ -;:;. =. - = ~ ::; x ~. :Ll'I I ell iO"l '.-I I. I"- (I) e: :s I~ '(1) \S 'li\IP I'~ I'" ,e- Ie: 10 l.!""t 'e: Ie 10 ,C'l '(1) ..... 10 ! Ie: :10 ItIl , I i i ! i I I I I I , 'JS- -jc2/ .10 I. '. ,. f\A.s.c......"""I'll J. 1P90 San' Fcancisco Chronicle . . 1/-~-r;iJ -:P$;$.. UC Berkeley Says Nevermore On 'Rock Shows 3" D<rb.... LlN Holu o.-..w.. c... ~. The I'lul MtCarury eoonortl grDrl'1l1H .. lDarb aoUr aa" dla- ",pUlln lul w""kead \.bal lIlajot .-k eIIo... will DO 10Dg.' lie al. loweclllllllrmorlal SLldlam al the tiaJ"enlly'.f CallfonUa III ""'11.. Iry, a eamplll ol1ldal uid 1nlet. day. . Campus aDd Berkeley pollct,e- celvecl huodredl of complaJnia aboUI 80und Impll/lcaUOD aD Sal. urday and Suoday nlgl1t1 from u far aWIY u the OatJ.&J\d IlIIII and Pleclmont, ~Idenu wbo lI.e ciON 10 tbe aIlIdJum 1110 romplal.oecl lbOUt Iralflc roogestloo Illd U.pullII, by conce"1Io..n. "We're really happy thaI 80 maDY people enjoyed the con. ceN," laid AaslItaDt ChaDCtUDt Jobn CUmmlDL MBut It'l qUIll! cleat to ua Iblt ...e are DOl .qul,,- peel 110 hlndJe a cOllcen of that m&lInllude." Memorial Sudlum II "DOl Id.. quate" for .urb larg~al. perfor. manr... t>e<:1..... of IU locaUoD .In the hili. bel",een Ibe clmpua and a r8ldenlla. .Del,l1borbood, I&Id Cumml.... "Whal "'e bave lurnecl from 1I0lng throu,b thll II thaI "'e wW DOl do thll IgalD," aid CummlDl. In addlUOD to the c:omp1alntl thaI ...ere made to pollee, a bot1lDe sel up by Cal PerformaDc.. the campUl ,roup thaI lponsorecl the _.sbo..., received more thall 1110 calls .over the ...eekend by raldenl& complal.ol.og lboUI Dolle, traffic, parking, treopualng and low.n)'. Inl ad..rllllng airplan.... .' 'nil uDlvenlty - by IIStklna aa ex p 00 Jona4landlaa policy baa.Dt1ll com. merclal _Dla from the ludlum. Half of the moue)' wW be uaecI to bulJd a hODlet_ abetter lD Bert.,. ley. "4ter ptylDa foe modUlcaUoDl to the -'Adlum Dee...ttaled by the eoueerta. the IID.Ivendty wW cJ>>. tribute the halaaee to CaI Perfor. IDIUICS aDd to the lDten:oUqllo~ athletlc fueL . '" . I Approximately eo lDl fen. at. tendecl ..eh of the (WCJ aold-out perfOr1lUlac:-. Tlcketa COI&'. apiece. __ " / S- - /.,.{ d2.., 3/ J th~ is- SWEETWATER UNION HIGH SCHOOL DISTRICT Division of Adult and Continuing Education CAREER AWARENESS CENTER 1355 Second Avenue, #4 Chula Vist:a, CA 91911 Phone: (619) 691-5792 FAX: (619) 425-4736 ========================================================================================== Sp<<iaI ProjecU C."rer "JTPA Adult ProqI7llflS" November 6, 1995 Chula Vista City Council 276 Fourth Ave Chula Vista, CA 91910 Dear Council Members: This letter is in support of the proposed MCA Amphitheater to be built on Otay Valley Road. Sweetwater Union High School District has an adult student population of approximately 31,000 of these, one third, are vocational education students who will be seeking employment in various business, construction, and technical fields. The development of the amphitheater will have a positive impact on our community, opening many employment opportunities to our students as well as to the community at large. Our staff at the Career Awareness Center has met with Bitterlin-Brice development and a representative of MCA Concerts Inc. to develop a partnership for the referral of qualified applicants to appropriate job openings. Through this partnership we hope to ensure a better economic future for our community. Sincerely, &w,~ f3, 6 'ReA'~ Constance B. O'Reilly Adult Education Resource Teacher " /~ /c43 11/05/1995 10:51 519-420-1259 CV CHAI~BER PAGE 02 ..1rf/'7 , ~ o ~ Go-I.1IIinO a-_ ~ "'1'11<) G. GordOn llIowr1ng. O.M~ J."V J. G~ffllt\ Ma,la N.......p."'\Cln JudV Se/lulenbe'Q ~ M. Conte supe,Nendtnt'''''''d'''' November 6. 199! Cbul. VII" Ch.mblr of Commertl 233 4tb A"..u. Chull VI.II, CA .1.10 Dear Cbllllh' M.lllb....l TlIII Ielte.. " I. IUpport 01 dla propelled MeA. Amphltbeater planed lor the Ota)' V.lley ...... Soulh_...... Coll.I..... ulud.at pop.lallol otlPPl'Oldmllel)' 11.000. Th_ .tudaaIU" Il'IIlned III more tllAII '4) bUlla..., e._r IlId teebolul aeld ...... Ind tbl mljority ot IIIMe ltud.." leek employmlut 10 GOYlr tultloa, 1I001llllld lI,-1al _II lmo.. other D.... With the developm.at of the .mphlthe.t.... the tCo.omle IlIIp.et lor the City of Chtll. Villi IlId lurroundllla I"U win hive. pOIltlve tfrtct weill till nv.au. ..erated, but 11I10. lad mOlt Imporilltlt 10 ul la edUeAtloa. will lie tbl employ_lit piclure for our ltudllllll. 011" lOll II South_tenl it 10 bridle "le.tlolI with COlIIllllUlltr emplo)'.... who .re 1oo1dP. to.. eadlu\Qtie. prof...IClul, .killed Illldllllta to nil tbe pollotlal llIlplO)'_al opporiunltiet. Tblt iDlullon "'ull.. everyono llnd 1l1l0WI .tudenls 10 live bll.k 10 tlte _lllllalt)' who blve IlIpported tbelr eduutlODal aftbra. Bllterll..Brlee DfYelop.eallilnd MeA eonurtellave met wldl Ollr Clrter Pla.llle.1 ofDee to dlleu.. I..d c1.,.,lop . pamlll"lblp tar Job reenaltm'llt, wlllclt InltlllJly. woald be for ,_olll pMlllol.. However, with the wide variety or talet1llI.Ille.. proJede4. a44itlonll Job opportllllltltl will unfllld. With dala pJU1..nhlp ..4 tlte ...tllll b..elll d.dv" for II" w. wltll to roafllr. Ollr IUpport flIr tile MeA All'pbl.II....r outdOCl.. .a......lnm... '''Ult)'. I'll)'. ,~~ tI'I (yJz ph M. CooM, r1l1tend.ntl1'rasldlllt WOOlCV LeI.... ~d . ChUla I/bto. CA 91910. (619) 421-470) FAX (619) 182-4323 . Soulh_t<lln c()IMIUnlIy CtJlI60e OIlMe! /5--/~f _""".",,, MN _u_ $;t179___C:81'-619'131 ~,... .J ~,..."...... l"'M "c. ~ 3~3__10J N~31S3~HlnDS I DANIELSON TRUST COMPANY ---r- ~ 'm ~ w ~ 0 w ~ @ ~~,~ , I NOV - 6 1995 COUNCil Of f ICES CHUlA VISTA CA October 31, 1995 Honorable Mayor Shirley Horton Councilman Scott Alevy Councilman John Moot Councilman Steve Padilla Councilman Jerry Rindone City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Dear Mayor Horton and Members of the City Council: As a member of the Symphony's Board and Executive Committee and as chair of the Symphony Pops Committee, I encourage and urge your approval of the MCA AmphitheJter project in Chula Vista. I regret that I am unable to attend the November 7th hearing to offer my public support for the project. As you know, the San Diego Symphony has undertaken a major task in solving its financial problems. A big boost to that effort will be the timely approval of the MCA project so that the Symphony will have the opportunity to stage events at the Amphitheater next summer and for years thereafter. We are proud of the San Diego Symphony's role as a regional organization. Chula Vista and the South Bay are areas that are important to us and we want to be more heavily involved in the southern part of the county. Your individual and collective support for the MCA Amphitheater helps the San Diego Symphony and the performing arts in the entire region. Sincerely, Ii l~~tl~i J:j'i~ A. Vincent Siciliano President and Chief Executive Officer A VS/ga cc: Chris Binerlin San Diego Property Management 525 B Street, Six!rf'l1lh Floor, 5(/11 Dirgo, California 92101-4492 Tdepbo11f (619) 23 f -5 800 Fax (6 f 9) 231-2088 /5-/~5 1::'-[17-1'3'3::. ~::).c;.: 12Fl~ ~F:l]r'l '~r-HRn',.!ELL i~c;'F'IUHIT IE:; Ir;C. '~o 47653''?'3 ;.:.. U..:: TopMark, InC. Stephen P. Delaney Chief Executive Officer November 7,1995 The Honorable Mayor and City Council City of ChuJa Vista 276 Fourth Avenue ChuJa Vista, CA 91910 Re: Chula Vista Amphitheater Port of San Diego Dear Mayor and Council: Based upon the input from your staff concerning the noise test, combined with the requirements of the Port District, The Nederlander Companies are~unable to meet your November 7, 1995 deadline. If given a reasonable amount of time, The Nederlander Companies believe that the Bayfront Amphitheater is a viable project. The Nederlander Companies will continue to monitor the amphitheater market in Chula Vista and in San Diego and appreciate the courtesy you have shown them. Sincerely, ~ /Mr-'-jf- Stephen P. Delaney (I SPD/liz cc: Chris Salomone, Community Development Department 12520 Hi~h Rlurr Dl'ivl; Suite 1()~' San Dil.'At(,l. C^ 9'1. J _~O San Diego (619) 4.)2.:t~2 t Nullli CUUIl\)' (619) 792-JObO I'^X ((>19) 792-006.1 /S-,/..~~ 11-06-199504:12PM FROM TO 7564763 P.01 \.-r- I c:: '--1 \Q,y,- ? SNMB 5575 LAKE PARK WAY SUITE 106-E LA MESA, CA 91942 ~ Mayor Horton Council Members 276 Fourth Avenue Chula Vista, CA 91910 November 6, 1995 RE: MCA PROPOSAL Dear Mayor and Council Members: As you know we are the owners of village 3, part of village 4 and other villages of Otay Ranch. We have appeared several times and written twice previously. Our land is in the county of San Diego. Village 3's present zoning is for a residential community, as we understand the MeA EIR, development of the amphitheatre will preclude residential development. Obviously this project has broad implications to the county of San Diego and to our property. To date, in the public testimony the DEIR, the Final EIR or the various staff reports, we have not read or heard of any analysis of the MCA proposal upon the health, safety, and general welfare of the County or the land outside of your jurisdiction and sphere of influence. We believe this is a .serious failure. This project has considerable noise and land use implications upon adjacent planned communities. While the City of Chula Vista may benefit from increased revenue, there are serious detrimental impacts to the County of San Diego General plan and a serious dimunition of value to our land. As we have previously requested, the amphitheatre shoullj be studied further. Alternative orientations of the stage should be seriously explored. Thank you for the opportunity to comment. Christopher G. Patek SNMB //f -/d57 RESOLUTION NO. /~~f? 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 Ccmmission 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, 19<'5; and /5/1-/ ~+C! I 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 of the 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 FEIR 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 EIR, FEIR-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 CaI ifornia 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 not~d in the above referenced environmental documents described above, each of the altern olives to the project which were identified as potentially feasible in the EIR are found net to be feasible since they could not meet both the o~ectives of the Project /5"'~ .<<"'l!" 'f d- Resolution No. Page 3 and avoid the identified significant environmental effects through implementation of feasible mitigation measures for the reasons set fortb 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 furtber in force and effect ab initio. Presented by Approved as to form by ~ ruce M:'Boogaar ey Robert A. Leiter Director of Planning (M:'.barecI\atlorDey\MCACC.RES) IS/) ~ ,,",'.<~ '> d"!''-'' RESOLUTION NO. 18058 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., AND AUTHORIZING THE MODIFICATION AND DEFERMENT OF CERTAIN CITY PERMIT AND DEVELOPMENT IMPACT FEES DUE FOR DEVELOPMENT OF THE PROJECT 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, city's vacation of public streets at the Project without monetary compensation, City's negotiation with the City of San Diego to reduce that City's Facilities Benefit Assessment against the Project on behalf of MCA, and other good and valuable consideration, MCA and the City have agreed that the City shall receive a percentage of its net ticket sales and parking 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"); and WHEREAS, at the commencement of Project processing, and more formally pursuant to a letter to the City from MCA dated September 29, 1995, MCA requested that the City's traffic signal fee, sewer capacity fee, and public facilities impact fee be modified and/or deferred given the unique nature of the project, the reduced impacts that it would impose on City facilities, and the fact that the imposition of full city fees against the project 1 /5 ~ ~/ )'14 under existing city formulas would therefore be unreasonable and overly burdensome; and WHEREAS, the Chula vista Municipal Code ("CVMC") provides a basis for such modification and/or deferral pursuant to CVMC sections 3.45.010, 3.50.160, and 15.51.010, et seq; and WHEREAS, city staff has analyzed MCA's proposal, and for the reasons stated in MCA's proposal and the staff report for this item, staff has recommended certain fee modifications and/or deferrals to the city council for approval; and WHEREAS, a public hearing was properly noticed and held on the proposed fee modification and deferral and the city council considered all testimony presented at such hearing. 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, subject to such minor clarifying changes as may be required or approved by the City Attorney, 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 authorized and directed to execute the Tri-party Agreement Sublease for and on behalf of the city of Chula Visa. hereby and the BE IT FURTHER RESOLVED, that the Mayor or her designee is authorized to execute escrow instructions and other adminstrative agreements implementing the MCA Amphitheater Agreements in a form approved by the City Manager and the City Attorney; BE IT FURTHER RESOLVED, that the City council hereby finds and determines that imposing the standard City development impact fees on the Project would be unreasonable and overly burdensome because of (a) the overall unique nature of the Project which does not fit squarely into any of the city's existing fee categories; (b) the less than full fee rate impacts on City facilities that the Project will generate in light of the number of days of operation of and the number of employees working at the Project; and (c) the quasi-public uses associated with the Project including, without limitation, city use rights of the amphitheater. The City council further finds and determines that such circumstances outweigh the need of the City of the full fee revenue and a uniform way for collecting fees. Accordingly, development impact fees for the Project are hereby determined as follows: 1. In accordance with section 3.50.160 of the CVMC, and city staff's application thereof, the City Public Facilities Development Impact Fee for the Project shall be $424,501. This fee is allocated $369,925 to the amphitheater use and $54,576 to the 2 /58-2- ""' q.~ CY-' ~' open air market use. This amount shall be subject to upward adjustment by the city in the event that amphitheater or open air market operations exceed the thresholds which formed the basis for this modification. 2. In accordance with section 3.45.010 and 13.14.090 of the CVMC, and city staff's application thereof, the city Sewer Capacity Fee for the project shall initially be determined in accordance with existing formulas (Le., based upon the actual plumbing fixture units (translated into EDU's) at the Project. This amount shall be subject to adjustment by the City (up or down) based upon actual measurements of water usage and/or sewage outflow at the Project over a period of time determined appropriate by staff not to exceed 4 years; this calculation shall be further adjusted to reflect maximum permitted use at the project. 3. In accordance with sections 3.45.010 and chapter 15.51 of the CVMC and staff's application thereof, the City Traffic Signal Fee for the Project shall be $63,245. In accordance with existing council Policy 478-01, this amount shall be subject to reimbursement to MCA in the event that, in accordance with MCA's conditional use permit for the project, MCA is required to install a traffic signal (at its sole cost) at a public intersection adjacent to the Project. 4. Some portion of the above referenced fees shall be paid prior to the issuance of building permits and some portion of the fees shall be deferred pursuant to sections 5.6 and 11.6 of the Sublease between MCA and the City. The City Manger shall determine with respect to which fees such up front and deferred payments shall be applied, and shall notify City Council in writing of such determination. Presented by Approved as to form by ~ Chris Salomone, Director of Community Development C: \ rs\ tripar'ty .lIlca 3 /6~.3 '. ;:~&. C;I/I> r'i/" ~~~ ::::--A~ ~--=~~ ~~~~ CllY OF CHULA VISTA OFFICE OF THE CITY ATTORNEY DATE: November 7, 1995 FROM: The Honorable Mayor and City Council Glen R. Googins, Deputy City Attorney ~ TO: SUBJECT: Revised Resolution No. 18058 regarding Approval of MCA Agreements and Modification and Deferral of Certain Development Fees The attached revised resolution reflects a change in the determination of the sewer capacity fee to be paid by MCA at the time of issuance of building permits. The staff report and this resolution had previously indicated that the sewer capacity fee to be paid initially by MCA was determined in accordance with existing City formulas and that such figure was estimated to be approximately $160,000. This calculation was done in good faith by the applicant, but in fact was done in a manner inconsistent with the formula used by the city Engineer. Applying the existing sewer capacity fee f ~_ this project results in an actual fee of approximately $281,000 Despite this miscalculation, the City Engineer is w collect a smaller figure up front (now proposed to b $164,080 in the expectation that, given the less than "full tim of the facility, the actual measured outflows, and therefore applicable sewer capacity fee, ~s likely to be less than the $287,000 amount. If the measured outflow indicates that a higher fee is appropriate, the City shall impose that higher fee, subject to a cap of $287,000. If the measured flow indicates a lower fee, the difference between the fee charged up front and the lower fee would be reimbursed to MCA. Such fee would be paid in accordance with the deferred fee provisions under S11.6 of the Sublease Agreement whereby deferred fees are paid over a ten-year period in equal yearly installments. GRG: 19k Enc. cc: John D. Goss sid Morris Bruce M. Boogaard Chris Salomone Fred Kassman U:\ho.e\attorney\1805B..e. IS;} ~5 276 FOURTH AVE/CHULA VISTA, CALIFORNIA 91910/(619) WI-5037 2,t>" \-,.,.. RESOLUTION NO. 18058 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. AND AUTHORIZING THE MODIFICATION AND DEFERMENT OF CERTAIN CITY PERMIT AND DEVELOPMENT IMPACT FEES DUE FOR DEVELOPMENT OF THE PROJECT 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, City's vacation of public streets at the Project wi~nout monetary compensation, City's negotiation with the city of San Diego to reduce that City's Facilities Benefit Assessment against the Project on behalf of MCA and other good and valuable consideration, MCA and the City have agreed that the City shall receive a percentage of its net ticket sales and parking 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"); and WHEREAS, at the commencement of Project processing, and more formally pursuant to a letter to the city from MCA dated September 29, 1995, MCA requested that the City's traffic signal fee, sewer capacity fee, and public facilities impact fee be modified and/or deferred given the unique nature of the project, the reduced impacts that it would impose on City facilities, and the fact that the imposition of full city fees against the Project 1 /5-8b , ',q'- (:;,T- , under existing city formulas would therefore be unreasonable and overly burdensome; and WHEREAS, the Chula vista Municipal Code ("CVMC") provides a basis for such modification and/or deferral pursuant to CVMC sections 3.45.010, 3.50.160, and 15.51.010, et seq; and WHEREAS, City staff has analyzed MCA's proposal, and for the reasons stated in MCA's proposal and the staff report for this item, staff has recommended certain fee modifications and/or deferrals to the city council for approval; ad WHEREAS, a public hearing was properly noticed and held on the proposed fee modification and deferral and the city council considered all testimony presented at such hearing. 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, subject to such minor clarifying changes as may be required or approved by the city Attorney, 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. BE IT FURTHER RESOLVED that the Mayor or her designee is authorized to execute escrow instructions and other administrative agreements implementing the MCA Amphitheater Agreements in a form approved by the City Manager and the City Attorney. BE IT FURTHER RESOLVED that the City Council hereby finds and determines that imposing the standard City development impact fees on the Project would be unreasonable and overly burdensome because of (a) the overall unique nature of the Project which does not fit squarely into any of the city's existing fee categories; (b) the less than full fee rate impacts on City facilities that the Project will generate in light of the number of days of operation of and the number of employees working at the Project; and (c) the quasi-public uses associated with the Project including, without limitation, city use rights of the amphitheater. The City Council further finds and determines that such circumstances outweigh the need of the city of the full fee revenue and a uniform way for collecting fees. Accordingly, the development impact fees for the Project are hereby determined as follows: 1. In accordance with section 3.50.160 of the CVMC, and City staff's application thereof, the city Public Facilities Development Impact Fee for the Project shall be $424,501. This fee is allocated $369,925 to the amphitheater use and $54,576 to the 2 /~--C-l 'dCfg open air market use. This amount shall be subject to upward adjustment by the City in the event that amphitheater or open market operations exceed the thresholds which formed the basis for this modification. 2. In accordance with Sections 3.45.010 and 13.14.090 of the Cv"MC, and City staff's application thereof, the City Sewer Capacity Fee for the project shall be $164.080 iFli t.ially ee actermiPH:a iPl aeeeraartec. -u*ith e.uistiRfJ ferJR\;llaa (i.e.., ease-a apefl the aet,1d.al pll:lmeifll} fiu:tare Hflits (traRslatea iAt.e EDU'a) at. t.he Prejeet.). This amount shall be subject to adjustment by the city (up or down) based upon actual measurements of water usage and/or sewage outflow at the Project over a period of time determined appropriate by staff not to exceed 4 years; this calculation shall be further adjusted to reflect maximum permitted use at the project. 3. In accordance with Section 3.45.010 and Chapter 15.51 of the CVMC and staff's application thereof, the city Traffic Signal Fee for the Project shall be $63,245. In accordance with existing Council Policy 478-01, this amount shall be subject to reimbursement to MCA in the event that, in accordance with MCA's conditional use permit for the Project, MCA is required to install a traffic signal (at its sole cost) at a pUblic intersection adjacent to the Project. 4. Some portion of the above referenced fees shall be paid prior to the issuance of building permits and some portion of the fees shall be deferred pursuant to Sections 5.6 and 11.6 of the Sublease between MCA and the City. The City Manager shall determine with respect to which fees such up front and deferred payments shall be applied, and shall notify City Council in writing of such determination. Presented by Approved as to form by Chris Salomone, Director of Community Development Bruce M. Boogaard, City Attorney C:\rs\triparty..ca 3 ~-;---13 -~ &:11 ~hned TRI-PARTY AGREEMENT THIS TRI-PARTY AGREEMENT ("Agreement") is made and entered into as of this day of , 199 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. Assianment to and Assumotion bv the Citv. 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 ma"ing, no representations or warranties to the City of any kind or nature, t: \jdemorea\mca\tri-party. 006 Xs -J3-Y whether express or implied, as to the condition of the Leased Premises. 2. Consent to Assianment to the City. 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, subject to the provisions of paragraph 4.1, below, such assignment shall not relieve MCA of its obligations and liabilities under the Master Lease. Notwithstanding the foregoing, MCA shall onlv.be fally released and relieved of ~ further obligations and liabilities under the Master Lease ~eR a ~ermiBatieB af the Cul31eaes (a) at the eEa sf the teL'm 'thereaf I (13) BY r~Cl.. pUF'sua:at te the I'rsviaisRs af Dcetie:ae 2.2, 2.J er 18.3 BY l.a-tielea 16: eJr 28 af tat:: t1astcr Lease, as iBee~eratea iate Eke Cusleaoe ~ar8uaHt ~e Patiele ~ sf the D$leaae, -Br (e) ether-.lie8 as a E'es1:l1t af a sreaeh ar aefaalt sy Ehe easlaRaleFa aHaer Ehe Basleaee. in the event. and to the extent. that MeA would have been released if this Aareement had not been entered into and MCA remained the "Tenant" under the Master Lease. 3. Consent to Sublease bv the City to MCA. 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. Future Transfers bv MCA: Release of MCA. The parties hereby agree that MCA may assign, conveyor encumber its interest in the Sublease and the Improvements, or sub-sublease the Leased Premises or any part thereof, upon the following terms and conditions: 4.1 Aooroval bv Los Alisos. MCA may freely assign or encumber its interest in the Sublease and the Improvements, or sub-sublease the Leased Premises or any part thereof, without obtaining Los Alisos' approval. However, MCA shall not be released or relieved of its obligations or liabilities under the Sublease or the Master Lease, vis a vis Los Alisos, (a) as a result of such an assignment unless the assignee is approved by Los Alisos, or (b) as a result of such an encumbrance or sub-sublease. If MCA desires to be released from its obligations and liabilities under both the Sublease and the Master Lease, vis a vis Los Alisos, based upon an assignment of its rights under the Sublease, then MCA shall submit the identity of such assignee to Los Alisos for its approval, which approval shall not be unreasonably conditioned, withheld or delayed. Le.s Alisos' approval of a proposed assignee of MCA's rights under ~he t:\jdemore.\mca\tri~party.006 -2- /.5-8/ i7 ?')~ ,,-,'~-4' Sublease 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 assignee of MCA's rights under the Sublease, then MCA shall nonetheless have the right to consummate the proposed assignment, but MCA shall not thereby be released, vis a vis Los Alisos, from its obligations and liabilities under the Master Lease or the Sublease. In the event MCA assigns or encumbers its interest in the Sublease and the Improvements, or sub-subleases the Leased Premises or any part thereof, MCA shall provide prompt written notice thereof to Los Alisos. 4.2 Aooroval bv the Citv. 4.2.1 Notwithstanding the provisions of paragraph 4.1, which are intended to govern only the rights and obligations of MCA vis a vis Los Alisos, prior to the fifth anniversary of the commencement of the Initial Term under the Master Lease, MCA may not assign or sub-sublease its interest under the Sublease without the City's prior written consent, which consent shall not be unreasonably withheld if the proposed assignee or sub-sublessee is a Fe~~EaBle hiahlv aualified operator sf a~RiEReaEer faeiliEiee with substantial experience in operating similar venues and with the financial capacity to reliably satisfy MCA's obligations under the Master Lease, the Sublease, this Agreement and the terms, conditions and obligations imposed by the conditional use permit for the amphitheater. MCA may freely encumber its interest in the Sublease and the Improvements at any time, without obtaining the City's approval. After the fifth anniversary of the commencement of the Initial Term under the Master Lease, MCA may freely assign its interest in the Sublease and the Improvements, or sub- sublease the Leased Premises or any part thereof, without obtaining the City's approval. 4.2.2 MCA shall not be released or relieved of its obligations or liabilities under the Sublease or the Master Lease, vis a vis the City, (al as a result of an assignment of its rights under the Sublease, unless the assignee is approved by the City, or (b) as a result of an encumbrance or sub-sublease. If MCA desires to assign or sub-sublease its interest under the Sublease prior to the fifth anniversary of the commencement of the Initial Term under the Master Lease, or to be released from its obligations and liabilities under the Sublease, vis a vis the City, based upon an assignment of its rights under the Sublease, then MCA shall submit the identity of such assignee to the City for its approval, which approval shall not be unreasonably conditioned, withheld or delayed if the proposed assignee or sub-sublessee is a highly qualified operator ~ a~RiEheaEer faeiliEies with substantial experience in operating similar venues and with the financial capacity to reliably satisfy MCA's obligations under the Master Lease, the Sublease, this Agreement and the terms, conditions and obligations imposed by the conditional use permit for the amphitheater. If the City t:\jdemores\mca\tri-party.006 -3- /5-8// ?t"\~ .......~ ".- 0".,..;,. reasonably denies its approval of a proposed assignee of MCA's rights under the Sublease after the fifth anniversary of the commencement of the Initial Term under the Master Lease, then 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 Sublease. In the event MCA assigns or encumbers its interest in the Sublease and the Improvements, or sub-subleases the Leased Premises or any part thereof, under circumstances where the City's consent is not required, MCA shall provide prompt written notice thereof to the City. 4.3 General provisions Concerninq Assiqnments and Sub-Subleases. Any assignee of MCA's rights under the Sublease or any Sub-Sublessee thereunder shall agree to perform all of the terms, covenants and conditions to be performed by MCA under the Tri-Party Agreement and the Sublease, so far as applicable to the portion of the Leased Premises which is the subject of such transaction. All Sub-Subleases shall provide that they shall be subject and subordinate to the provisions of the Master Lease, the Sublease and the Tri-Party Agreement. 5. 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 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. 6. Acceotance 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. 7. 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 t:\jdemorea\mca\tri-party.006 -4- /~;:-g~ 7/\tl .....^. 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: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Manager With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: Director of Community Development If to MCA: MCA Concerts, Inc. 100 Universal City Plaza Universal City, CA 91608 Attention: Jay Marciano MCA Concerts, Inc. 100 Universal City Plaza Universal City, CA 91608 Attention: Adam Friedman, Esq. Notices shall be effective on the next business day following its actual delivery to the address specified above. With a copy to: 8. 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. 9. Exercise of Ootions 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 t:\jdemore8\mca\tri-party.006 -5- /'-:;?3 /3 l'c' MCA notwithstanding any inconsistent or contrary communication or notice from City. 10. Purchase Ootion/Riqht of First Refusal. The parties understand and agree that all of the 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 may be exercised by either Sublandlord or Subtenant, subject to the terms and conditions set forth in this Article 10 and in Article 10 of the Sublease. In the event that City exercises its rights under either Article 44 or 45 of th~ Master Lease during the term of the Sublease, the Master Lease shall not merge into the fee but, rather, the City shall be deemed to have concurrently assigned all of its rights under the Master Lease to MCA. In that event, the Master Lease shall be deemed to have been amended so that MCA's obligation to pay the City Special Assessment under Section 3.4 of the Sublease shall then apply to MCA as the Tenant under the Master Lease and the City's duties under Article 11 of the Sublease shall then be deemed to apply to the City as the Landlord under the Master Lease. From and after that event, all of MCA's rights as the Tenant under the Master Lease, as amended, including its rights under Articles 44 and 45 of the Master Lease shall be in full force and effect, the Sublease shall be deemed to have merged out of existence and be of no further force and effect and this Agreement shall become null and void._ Notwithstandina the foreqoinq, in the event the Citv exercises the riahts under Article 45 of the Master Lease. "fair market value" under Section 44.6 shall be deemed to be equal to the areater of (i) the fair market value of the Landlord's interest in the Master Lease includina its reversionarv interest in the ~and and the imD~ovements: or (ii) the fair market value of the land unencumbered bv the Master Lease based u~on its hiahest and best use. In determininq the fair market value of the Master Lease ~ursuant to subsection (i) above, Landlord's interest shall be valued without reaard to Tenant's riaht to earlv termination and shall assume that the Term of the Master Lease shall extend for a ~eriod of ten (10) vears from the date of the ODtion Notice. 11. Termination: Recoqnition Aqreement. 11.1 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 either the Master Lease or any material term or provision thereof shall be declared invalid or unenforceable~ as a result of the City beina a ~artv thereto or the Master Lease shall be terminated, aRa immeaia~ely prseeaiRg e~eR acclaLa~ieR 8F tcrmiaatisB the Casleaee shall have seeR iB effect as a result of acts or omissions of the City, then upon the request of MCA, Los Alisos t:\jdemores\mca\tri.party.006 -6- /58/-r- .,", # J "j'y::; .....,;. '~ 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. The execution of such direct lease shall not release or relieve MCA of anv obliaations or liabilites it may have arisina under the Master Lease, the Sublease or this Aareement prior to the termination thereof. If such invalidity, unenforceability or termination of the Master Lease, this Agreement or the Sublease, or any material provision thereof, results from legal proceedings initiated by third parties or a statutory prohibition and is over the objections of the City, then Los Alisos, the City and MCA will cooperate in good faith and use their reasonable best ~~forts Cat no cost or expense to Los Alisos and MCAl to devise and enter into an alternative arrangement whereby the City will receive substantially the same net economic benefits as the City receives pursuant to the Master Lease in tandem with the Sublease, provided that such alternative structure shall not Cal in fte any material way ~ impair MCA's rights or increase MCA's obligations compared to those set forth in the Master Lease, the Sublease and this Agreement, (b) interrupt MCA's operation of an amphitheater at the Leased Premises, or (c) impose upon MCA ~ Los Alisos an obligation to make rent payments to the City with respect to the period between the date of such invalidity, unenforceability or termination and the date on which the alternative structure is implemented. Los Alisos and MCA hereby agree not to challenge or support a challenge to the legal validity of this Agreement, the Master Lease, the Sublease or any material provision thereof (but do not waive any claims that may hereafter arise with respect to the parties' performance of their obligations under the Master Lease, the Sublease and this Agreement), and agree to cooperate with the City in defending any third party challenge thereto. In the event the City's right to receive rent under the Su~lease is invalidated, and the City elects to impose a host fee or other charge with respect to the operation of an amphitheater on the Leased Premises, provided that (i) such fee or charge is substantially similar to the City Special Assessment payable to the City as rent under the Sublease and the performing arts fund fee payable under the Sublease, (ii) MCA's rights are in no way impaired and MCA's obligations are in no way increased compared to those set forth in the Master Lease, the Sublease and this Agreement, (iii) MCA's operation of an amphitheater at the Leased Premises is not interrupted, and (iv) no obligation is imposed upon MCA to make such payments to the City with respect to the period between the date of such invalidity and the date on which such host fee or other charge is implemented, Los Alisos and MCA hereby agree not to challenge or support a challenge to the City's imposition of such fee or charge. 11.2 Notwithstanding the provisions of Article 2 of the Sublease, in the event MCA exercises its right to terminate the Sublease ~ in accordance with the terms and provisions of BesEieRs Section 2.2 and 2.3 of the Master Lease, as incorporated into the Sublease, Les ~lises Heresy a!FeeS EflaE Qi"EY sRall aa'\;e a ~eJ:i6a af eRE: year ....-J.'e.kia 'wIRieR toe iEie~tify ~ t:\jdemores\mca\tri~party.006 -7- /-.0 ,- .:rL7 ,(~ ':/('}rl .......- f in the event that the Sublease. or anv material ~rovision thereof for the benefit of the Citv. is invalidated. found unenforceable. or is otherwise terminated bv other than an affirmative exercise of termination riqhts bv the City (the "Sublease Termination Event"). and the ~rovisions of Section 11.1 hereof do not otherwise a~~lv. Los Alisos and City aaree as follows: l!l Beainnina with the date of the Sublease Termination Event. and endina (i) on the date three (3) years thereafter in the event the Sublease Termination Event results from MCA's exercisina its ri~ht to terminate. or (ii) two (2) years thereafter in the event the Sublease Termination Event results from any of the other above-described circumstances. if Los Alisos identifies a new operator for the Improvements~ Cask e~erater saall se sHsjeet te ERe appLe~al af Leo Ali'a6s iFl the e.nE.:Fsiee sf then Los Alisos aarees to offer the City the o~tion to enter into a lease. sublease and tri-~artv arranaement. or a similar arranaement. ~rovidina the same relative economic benefits and on substantially the same terms to the City as the Master Lease. Sublease and this Aareement. The City may exercise such o~tion in writina within sixty (60) days followina notice bv Los Alisos that it intends to enter into an aareement with a new o~erator. l2l After the e~iration of the three (3) or two (2) Year ~eriod. as a~plicable. Los Alisos shall have no further duty or obliaation to enter into any arranaements with the City. This provision will be bindina on Los Alisos' successors and assians. lsl Except as e~resslv provided above. nothina herein shall ~revent or restrict Los Alisos from sellina. leasina. or dealina with the Leased Premises in any manner it determines in its sole and absolute discretion e~t, is tRe e~eRt ~e8 Lliasa seee as a~l?re"-e, ERe City akall eneeute a Re~.: ~\:iBleaBe. -.:ita SHea e~erateF 6R terms Be less fav6rBsle te tke City afta Lee Lliaea thaft the terms aet taxEk in tke E\:isleaae aRa the f1aater Lease. saall relflaiFl iR flill ferse. aREi effeeE. includina. without limitations. convertina the Leased Premises to another use. 12. City 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. 13. Insurance. Los Alisos agrees that the insurance coverage c,rried by MCA under the Sublease shall satisfy the insurance coverage requirements of the City, as tenant, under t:\jdemores\mca\tri-party.006 -8- /~B/~ .Y. " Article 9 of the Master Lease. Los Alisos and MCA each agree that they shall have the City named as an additional insured on t:\jdemores\mca\tri.party.006 -9- /5-8/:/ ?t'/I ',..-/ all insurance policies which they maintain pursuant to their respective duties under the Master Lease and/or the Sublease. 14. 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 3B of the Master Lease or otherwise. 15. 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. 16. 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. 17. Attornevs' 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. lB. 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. t: \jdemores\mca\tri-party. 006 -10- /_-rB/f" ?,IO 19. 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. 20. 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. 21. 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. 22. 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. 23. Priori tv of Aqreements. The parties to this Agreement agree that in the event of a conflict among the terms of the Master Lease, the terms of the Sublease and/or the terms of this Agreement, this Agreement shall control over both the Master Lease and the Sublease and the Sublease shall control over the terms of the Master Lease. 24. Indemnities. The parties hereby understand and agree that at no time shall Los Alisos make any claim or demand against the City which arises out of or based on the Tenant's indemnities of the Landlord which are set forth in the Master Lease. Rather, Los Alisos shall, in all such events, look solely to MCA to satisfy any obligations based upon any indemnification of the Landlord by the Tenant pursuant to the terms of the Master Lease. The parties hereby understand and agree that at no time shall MCA make any claim or demand against the City which arises out of or based on the Landlord's indemnities of the Tenant which are set forth in the Master Lease. Rather, MCA shall, in all such events, look solely to Los Alisos to satisfy any obligations based upon any indemnification of the Tenant by the Landlord pursuant to the terms of the Master Lease. Notwithstanding the foregoing, the City shall indemnify, defend (or, at MCA's option, pay for MCA's defense) and hold MCA harmless from and against, and MCA shall not be required to indemnify the City against, claims, damages, liabilities, costs and expenses caused by (a) the willful or actively negligent acts or omissions of the City and/or its agents, employees or contractors in the exercise of t: \jdemores\mca\tri-party. 006 -11- /~~-t?/1 t\ the City's rights or the performance of the City's obligations under the Master Lease or the Sublease, or (b) any breach or nonperformance by the City of any of its covenants, obligations, representations or warranties under the Sublease, except in each case to the extent covered by insurance. 25. Gross Revenues. The parties hereby agree that all sums paid by MCA in satisfaction of its obligation to pay the City Special Assessment pursuant to the provisions of the Section 3.4 of the Sublease shall be deducted from all cash receipts actually received by MCA for the purposes of calculating Gross Revenues in accordance with provisions of Section 3.3 of the Master Lease. Similarly, the City's receipt of the City Special Assessment shall not result in any obligation on the part of the City to pay Percentage Rent to Los Alisos pursuant to the terms of the Master Lease. 26. Citv Reserves Discretion/Authoritv. Notwithstanding any provision in this Agreement, the Master Lease or the Sublease to the contrary, the City reserves the right to exercise its police powers as a city in conformance with applicable law, and any such exercise shall not constitute a t: \jdemores\mca\tri-party. 006 -12- /_<<) -8~p /I'^ ~!f C.,-, " breach of its obligations under the Master Lease, this Agreement, or the Sublease. IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first set 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: t:\jdemores\mca\tri-party.006 -13- /5'-B~1 . I) r. ~ -~,_..~--_.. .,-.--.~- ._-~."=-- Ralhned SUBLEASE THIS SUBLEASE is made as of this ___ day of ___, 199 ("Effective Date") by and between the City of Chula Vista ("Sublandlord"), and MCA Concerts, Inc., a California corporation ( "Subtenant") . 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 and the Tri-Party Agreement. 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 0: terminate any such easements or restrictive covenants t:\jdemores\mca\sublease.001 -----!~~ .~I'l !W" ....'" JI'i without Subtenant's prior written consent, which consent may be withheld in Subtenant's sole and absolute 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. Notwithstanding the foregoing, the parties understand and agree that Sublandlord cannot contract away its lawful exercise of the police power. Such lawful exercise of Sublandlord's police power shall not be prohibited by the terms of this Sublease. 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 ~ean 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 incorpo~ated herein, than required of Sublandlord by Master Landlord 11,lder the Master Lease. t: \jdemores\mca\sublease. 007 2 ./A.B~~ ?! 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 Participation Rent. In addition to the Sublease Minimum Rent payable by Subtenant pursuant to Section 3.2 above and the "City Special Assessment" 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 City Special Assessment. In addition to Sublease Minimum Rent and Sublease Participation Rent, Subtenant agrees to collect a "City Special Assessment" in an amount determined by Subtenant from time to time, but not less than three percent (3%) or more than six percent (6%) of the "Net Ticket Revenues" generated from the operation of an amphitheater at the Leased Premises, and to pay a portion of such City Special Assessment to Sublandlord as additional rent, all as provided in this paragraph 3.4. 3.4.1 Subtenant shall endeavor to charge and collect the City Special ~~sessment on a per-ticket basis, but if Subtenant determines, due to market constraints or artist t:\jdemores\mca\sublease, 007 3 /-7- .!3Al ~ " " ,,^,- i ...! 1a".1 complaints, that it is unable to charge and collect such amount on a per-ticket basis, Subtenant shall nonetheless remain obligated to pay Sublandlord the amount described in paragraph 3.4.5, below as additional rent. If Subtenant is precluded from collecting the portion of the City Special Assessment payable to Sublandlord hereunder as a result of legal proceedings initiated by a third party or a statutory prohibition, then the provisions of paragraph 11.1 of the Tri-Party Agreement shall apply. 3.4.2 For purposes of this Sublease, the term "Net Ticket Revenues" means (a) 'the gross cash receipts from all paid admissions from ticket sales or entry fees, including parking charges, minus (b) ticket returns, commissions on sales ~aid to third ~arties, credit card charges on sales, credit card charge- backs, discounts from face value, and rebates, aae minus (c) excise, sales, ticket or other forms of taxes, a88e88ffieR~8 Cexcludina income taxes). facility fees or surcharaes added to the face value of the ticket and im~osed on the revenues described in clause Ca). above. and minus Cd) assessments i~osed on the revenues described in clause Ca). above (including the City Special Assessment), faeili~y fees sy SHYeflaY~es. 3.4.3 For purposes of this Sublease, the term "Subtenant's Development Fees" means all development impact fees, traffic signal fees, sewer capacity fees, water district fees, public facilities development impact fees, building permit fees, permit fees, inspection fees, application fees, school fees and other similar fees paid by Subtenant to the City of Chula Vista, the City of San Diego (including without limitation Otay Mesa Development Impact fees), or any school district, water district or other governmental or quasi-governmental agency in connection with Subtenant's construction of an amphitheater and associated improvements 9n the Leased Premises. 3.4.4 For purposes of this Sublease, the term "Prime Rate" means the rate published from time to time in the Western Edition of the Wall Street Journal under the heading "Prime Rate" in the section entitled "Money Rate," and if more than one rate is listed under the heading "Prime Rate," then the highest rate listed. 3.4.5 A portion of the City Special Assessment collected by Subtenant shall be paid to Sublandlord as additional rent, and a portion shall be credited to Subtenant, as follows: 3.4.5.1 Until such time as Subtenant has recovered, pursuant to this paragraph, an amount equal to all of Subtenant's Development Fees, together with interest thereon from the date paid at the Prime Rate plus two percent per annum, the portion of the City Special Assessment payable to Sublandlord shall be: (a) 3.0% of Net Ticket Revenues with respect to the first 400,000 paid admissions in any calendar year; (b) 3.5% of Net Ticket Revenues with respect to the ~ext 100,000 paid admissions in t:\jaemores\mca\sublease.007 4 z7x3~ ?,/t7 any calendar year; and (c) 4.0% of Net Ticket Revenues with respect to paid admissions in excess of 500,000 in any calendar year. The balance of the City Special Assessment (if any) shall be retained by Subtenant. 3.4.5.2 Thereafter, subject to the provisions of paragraph 3.4.5.3, the City Special Assessment shall be reduced to: (a) 3.0% of Net Ticket Revenues with respect to the first 400,000 paid admissions in any calendar year; (b) 3.5% of Net Ticket Revenues with respect to the next 100,000 paid admissions in any calendar year; and (c) 4.0% of Net Ticket Revenues with respect to paid admissions in excess of 500,000 in any calendar year, and the entire City Special Assessment shall be payable to Sublandlord. 3.4.5.3 In addition to the foregoing provisions of this paragraph 3.4, if at any time Subtenant is required to pay, pursuant to the provisions of Conditional Use Permit No. PCC-95-47, costs related to monitoring or mitigation of sound impacts of the amphitheater, the City Special Assessment may be as much as six percent (6.0%) of Net Ticket Revenues, and the portion (if any) of the City Special Assessment collected by Subtenant that exceeds the portion thereof payable to Sublandlord as provided in paragraphs 3.4.5.1 and 3.4.5.2 may be retained by Subtenant until such time as Subtenant has recovered an amount equal to such monitoring and mitigation expenses, together with interest thereon from the date paid at the Prime Rate plus two percent per annum. 3.4.5.4 The portion of the City Special Assessment that may be retained by Subtenant shall not exceed 3.0% of Net Ticket Revenues for any single artist or event, and in any calendar year shall not exceed an average of 2.0% of Net Ticket Revenues. 3.4.6 On or before December 31 of each calendar year during the term of this Sublease, Subtenant shall pay to Sublandlord the portion of the City Special Assessment for such calendar year that is payable to Sublandlord. Said payment shall be accompanied by a written statement certified by a financial officer of Subtenant showing in reasonable detail the Net Ticket Revenues derived from amphitheater operations at the Leased Premises for the preceding calendar year, the calculation of the City Special Assessment based thereon, and the calculation of the portion of the City Special Assessment to be paid to Sublandlord and the portion thereof to be retained by Subtenant. In addition, Subtenant shall submit to Sublandlord, on or before April 30, July 31 and October 31 of each calendar year, a report estimating the portion of the City Special Assessment that will be payable to Sublandlord with respect to the preceding calendar quarter. t: \jdemores\mca\sUblease. 007 5 /3 t3.:t {;, 3(& 3.4.7 Subtenant shall keep complete and accurate books of account and records from which Subtenant's Development Fees and Subtenant's Net Ticket Revenues from the Leased Premises can be determined. Subtenant shall keep for at least three years following the end of each calendar year all pertinent original books and records. 3.4.8 The acceptance by Sublandlord of payments of the City Special Assessment shall be without prejudice to Sublandlord's right to an examination of Subtenant's books and records maintained with respect to the calculation thereof in order to verify the amount of Subtenant's Net Ticket Revenues. At any reasonable time within three years after receipt of any statement furnished it by Subtenant as provided in paragraph 3.4.5, above, and upon ten (10) days' prior written notice to Subtenant, Sublandlord may cause a special audit to be made of Subtenant's books and records relating to the calculation of the City Special Assessment for the period covered by such statement. Such audit shall be conducted during regular business hours and otherwise in such a manner as to avoid disruption of Subtenant's operations. Except as provided in paragraph 3.4.9, below, the cost of such audit shall be paid by Sublandlord. 3.4.9 If it shall be determined that there has been an error in the payment of the portion of the City Special Assessment payable to Sublandlord, then a reconciling payment or credit shall be made. If it is determined that the error exceeded three percent (3.0%) of the City Special Assessment for the period covered by the audit, and if such error was to the disadvantage of Sublandlord, then Subtenant shall also pay to Sublandlord the cost of the audit. Each statement of Net Ticket Revenues. submitted by Subtenant shall become binding upon Sublandlord eRe year three years after delivery thereof to Sublandlord unless within such ~ three years Sublandlord shall cause such special audit to be commenced. 3.5 Net Charoes. 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 or the Tri-Party Agreement, the covenants, agreements, terms, provisions, representations, warranties and 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 t: \jdemores\mca\sublease. 007 6 ~>a;;:t/ ?,11 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 "Expiration Date" Sublease Term. All references in the Master Lease to the shall mean and refer to the last day of the 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," "City Special Assessment" 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 Subject to the provisions of paragraph 24 of the Tri-Party Agreement and to Article 12 of this Sublease, 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 Incorporated into Sublease. Notwithstanding any contrary provision of this Article 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); t: \jdemores\mea\sublease. 007 7 /~ g.:? f" ""...; 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) ; and 4.3.8 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 or the Tri-Party Agreement. 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, 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 or the Tri-Party Agreement. t: \jdemores\mca\sublease. 007 8 ,/ S /3~; 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 or the Tri-Party Agreement, and (ii) Sublandlord's default hereunder is caused by a default by Master Landlord of its obligations under the Master Lease or the Tri-party Agreement. 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 Approvals 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 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' the corresponding payment due under this Sublease shall likewise be abated during the period and to the extent of such abatement under the Master Lease. To the extent requested in writing by Subtenant, and at Subtenant's sole cost, Sublandlord agrees to preserve, pursue and enforce all of its rights under the Master Lease to abate Rent. Notwithstanding the foregoing, in no event c: \jdemores\mca\sublease. 007 9 ?:..:: gOt ... 3,;}.'" shall any abatement of rent under this paragraph have the effect of abating any City Special Assessment payable to Sublandlord pursuant to paragraph 3.4.5 hereof. 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. In the event Subtenant terminates this Sublease prior to the earlier to occur of (a) the tenth anniversary of the commencement of the Initial Term of the Master Lease, or (b) the date on which Sublandlord has been paid $500,000 in City Special Assessments pursuant to paragraph 3.4 hereof, Subtenant shall pay to Sublandlord a termination fee in an amount equal to the difference between $500,000 and the amount of City Special Assessments that have been paid to Sublandlord. In addition, upon termination of this Sublease by Subtenant, Subtenant shall pay to Sublandlord any outstanding installments of the portion of Subtenant's Development Fees the payment of which has been deferred pursuant to paragraph 11.6, below, together with interest in an amount equal to (i) 6.0% per annum on the deferred portion of Subtenant's Development Fees from time to time remaining unpaid, minus (ii) the amount of City Special Assessments in excess of $500,000 that have been paid to Sublandlord (but in no event less than zero) . 5.7 Notices. Sublandlord agrees to immediately give Subtenant a copy of each and every notice, statement and other written communication that 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 t:\jdemores\mca\sublease.Ou7 10 I. ~ 83/ , " "J '.~ ...,,~~. '."0' , 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. ARTICLE 7 REPRESENTATIONS AND WARRANTIES 7.1 Sublandlord's Reoresent~tions 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 Reoresentations 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 t: \jdemore.\mca\8uble..e. 007 11 /5- e ,g.;:/. 3'&1 binding obligations of and enforceable against Subtenant in accordance with their terms. 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: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Manager With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Attorney With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: Director of Community Development If to Subtenant: MCA Concerts, Inc. 100 Universal City Plaza Universal City, CA 91608 Attn.: Jay Marciano t:\jdemores\mca\BUblea...007 12 /-"J _ L:> :n __ L::> _~) =;) 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 next business day following its actual delivery to the address specified above. 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 PURCHl',SE OPTION AND RIGHT OF FIRST REFUSAL 10.1 Exercise of Riohts. Sublandlord and Subtenant agree that all of the 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 may be exercised by either Sublandlord or Subtenant, subject to the terms and conditions set forth in this Article 10. 10.2 Exercise bv Sublandlord. In the event that Sublandlord exercises its rights under either Article 44 or 45 of the Master Lease prior to Subtenant's exercise of such rights, the Master Lease shall not merge into the fee but, rather, Sublandlord shall be deemed to have concurrently assigned all of its rights under the Master Lease to Subtenant. In that event, the Master Lease shall be deemed to have been amended so that Subtenant's obligation to pay the City Special Assessment under Section 3.4 of the Sublease shall then apply to Subtenant as the Tenant under the Master Lease and Sublandlord's duties under Article 11 of the Sublease shall then be deemed to apply to the Sublandlord as the Landlord under the Master Lease. From and after that event, all t: \jdemorep\mca\subleaee. 007 13 / 5~/53-f .-,,, ... -",r-'t' of Subtenant's rights as the Tenant under the Master Lease, as amended, including its rights under Articles 44 and 45 of the Master Lease shall be in full force and effect, the Sublease shall be deemed to have merged out of existence and be of no further force and effect and the Tri-Party Agreement shall become null and void. 10.3 Exercise bv Subtenant. In the event that Subtenant exercises its rights under either Article 44 or 45 of the Master Lease prior to Sublandlord's exercise of such rights, the Master Lease and the Sublease shall continue in full force and effect, except that from and after that event Sublandlord shall not longer have any rights under Articles 44 and 45 of the Master Lease. ARTICLE 11 ADDITIONAL AGREEMENTS 11.1 Sublandlord's Construction. Sublandlord shall, at its sole expense, construct improvements to Otay Valley Road to provide for the following: 11.1.1 Three westbound travel lanes and two eastbound travel lanes separated by a raised center median from the intersection of Nirvana Avenue to the point where the road curves to the south. At that point the improvements shall provide for four travel lanes, two northbound and two southbound. 11.1.2 Improvements to the bridge over the Otay River to an ultimate width of 52 feet. The bridge and the approaches to the bridge shall be striped to accommodate one permanent travel lane in each direction, with a painted center median that would provide sufficient width to accommodate two additional lanes that can be used in a reversible operation. Sublandlord shall cause such construction to be completed by not later than the later to occur of (a) May 1, 1996, or (b) the date falling fifteen days after the date on which the project improvements being constructed by Subtenant have been completed such that a certificate of occupancy would be issuable but for failure to complete such offsite road improvements. 11.1.3 The deadline for Sublandlord's completion of the work described in paragraph 11.1, above, shall be extended for such additional periods of time as Sublandlord's performance is prevented or delayed due to strikes, lockouts, unavailability of materials, acts of governmental agencies or delays in the granting of governmental permits (other than acts or delays of Sublandlord), acts of God, riots, civil insurrection, abnormal force of elements or any other similar event which is beyond the control of Sublandlord or actual delays caused by the installation of Subtenant's improvements at or around the project t:\jdemore8\mca\.ublea.e.fi07 14 /5-635 ~ r/ , '.--. site; provided, however, that in no event shall any extension be deemed to have occurred unless Sublandlord shall have given notice to Subtenant, within ten (10) days after the occurrence of the event, setting forth the facts giving rise to such extension. Sublandlord shall give prompt written notice to Subtenant of the cessation of the event or condition giving rise to such delay. For purposes of this Sublease, the phrase "abnormal force of elements" shall include, without limitation, greater than fifteen (15) days per calendar year (pro-rated for portions of a calendar year) of rain delay. For purposes of this Sublease, unavailability of funds or other fiscal restraints encountered by Sublandlord shall not constitute an event or condition that extends the deadline for Sublandlord's completion of the work described in paragraph 11.1, above. 11.2 Sublandlord's Use of the Amphitheater. On up to eighteen (18) days per calendar year, Subtenant shall grant Sublandlord a license to use the amphitheater facility to be constructed on the Leased Premises for civic events, such as graduation and award ceremonies and religious services. Sublandlord shall not use the amphitheater facility for events or activities that are similar to or competitive with the types of activities normally conducted at the amphitheater by Subtenant. 11.2.1 Sublandlord must notify Subtenant at least sixty (60) days in advance of its desire to use the amphitheater facility. Promptly following receipt of such a request, Subtenant will notify Sublandlord whether the amphitheater facility is available on the requested date(s), it being agreed that Subtenant shall at all times have the paramount right to use and schedule events for the amphitheater, and that the paramount rights of Subtenant are necessary to allow Subtenant to maximize its revenues, which in turn will benefit Sublandlord by maximizing the amount of Sublease Participation Rent and City Special Assessment that will be payable to Sublandlord. Notwithstanding the foregoing, once Subtenant grants a request for a license, it may not revoke that license without Sublandlotd's prior consent, which Sublandlord agrees not to withhold if Subtenant is able to provide a reasonable substitute date and is willing to compensate Sublandlord for reasonable unrecouped costs incurred by Sublandlord as a proximate result of the cancellation or rescheduling of Sublandlord's event. Subtenant affirms the expectation of the parties that licenses for up to one event per month during each of the months May through October would normally be available to Sublandlord. 11.2.2 Sublandlord shall not be required to pay rent for use of the amphitheater facility pursuant to licenses granted as provided herein. However, Sublandlord shall pay, or reimburse Subtenant on demand, for all out-of-pocket costs incurred by Subtenant in connection with Sublandlord's use of the amphitheater facility, including without limitation costs for security, medical and supervisory personnel, ushers, janitorial service, and utilities. Subtenant agrees to cooperate with t:\jdemores\mca\sublease.007 15 /:7--- L?3 cO ~;'.)~ " Sublandlord, or its designee, in developing a good faith estimate of out-of-pocket costs likely to be incurred for each such event or use proposed by Sublandlord. 11.2.3 Sublandlord shall execute a license agreement for each event conducted by Sublandlord at the amphitheater. The form of such license agreement shall be substantially the same as the standard form license agreement Subtenant uses with respect to the Leased Premises, as the same may be revised from time to time by Subtenant. The current form of such standard license agreement is attached hereto as Exhibit "A." The parties will negotiate in good faith on an event-by-event basis concerning appropriate modifications to the standard form license agreement, but Sublandlord acknowledges that the provisions of the standard form license agreement concerning insurance, indemnification and cost recovery are not subject to modification. 11.3 Event Seatinq. Sublandlord shall provide Subtenant with (a) a twelve-seat box, plus (b) an additional twelve seats, to each event promoted and presented at the amphitheater facility by Subtenant, free of charge. Subtenant shall have the right to determine, and from time to time to change, the precise location of such box and seats, but agrees that the twelve-seat box shall at all times be in a prime location, and that the additional twelve seats shall be at least in pairs and in the best third of the fixed seating area. None of the tickets provided to Sublandlord pursuant to this paragraph may be resold. 11.4 Future Lease. Although Sublandlord is not required to do so hereby, in the event that Sublandlord acquires fee title or a leasehold estate in the real property more particularly described in Exhibit "B" attached hereto, said real property shall, upon Subtenant's request, be leased by Sublandlord to Subtenant for use as surface parking for the amphitheater facility. The term of said lease shall be coterminous with the term of the Master Lease, and the other terms and conditions of said lease shall be substantially identical to the terms and conditions of the Master Lease, except that the parties thereto shall be Sublandlord and Subtenant, the "Minimum Rent" payable by Subtenant shall be $100 per year, no "Participation Rent" shall be payable by Subtenant, and said lease shall be assignable to the landlord under the Master Lease on the terms and subject to the conditions set forth in Article 47 of the Master Lease. 11.5 Non-Comoetition. Sublandlord agrees that when and if it acquires fee title or a leasehold estate in the real property adjacent to the Leased Premises that presently is owned by Otay Rio Business Park II, a California limited partnership, such other real property shall not be used for: 11.5.1 The construction or operation of an amphitheater or similar facility or live entertainment project which is primarily utilized for t~e promotion of concerts or live stage events; t: \jdemores\mea\aublease. 007 16 /5'- 13.5}' :;>:j) '..,).~J 11.5.2 Any concert performance or other live entertainment performance, except for performing fine arts presentations (i.e. orchestral, symphonic or chamber music, opera, live theater and dance); 11. 5.3 Leased Premises, Subtenant; Parking to serve events taking place at the except with the prior written consent of 11.5.4 Events or activities that are similar to or competitive with the types of activities normally conducted at the amphitheater by Subtenant, except for performing fine arts presentations (i.e. orchestral, symphonic or chamber music, opera, live theater and dance) . 11.5.5 During times when public performances are being conducted at the amphitheater, and for twenty-four hours before and six hours after such performances, (a) the sale of merchandise relating to the activities conducted at the amphitheater, including without limitation souvenirs or other similar merchandise identified with the activities at the amphitheater, or (b) commercial activities principally directed at patrons of the amphitheater. This Sublease shall not confer any license or consent to sell merchandise or engage in services bearing or utilizing the name, logo, trademark or other identification of the Leased Premises, Subtenant, any artist, or any other third person. In addition, when and if Sublandlord acquires fee title or a leasehold estate in such adjacent real property, Sublandlord will use its best efforts to conduct its activities on such adjacent real property in such a manner as to minimize interference with Subtenant's use of the Leased Premises and any audible, visual or other sensory interference with concerts or other performances on the Leased Premises. 11.6 Subtenant's Develooment Fees. 11.6.1 s~;ect to the ~rovisions of ~araqra~hs 11.6.2 and 11.6.3. Sublandlord agrees that Subtenant's Development Fees. excluding (a) the Otay Mesa Development Impact Fees payable to the City of San Diego, (b) water capacity charges payable to the Otay Water District, and (c) school fees payable to the Chula Vista and Sweetwater School Districts, shall not exceed $820,000, and that such portion of Subtenant's Development Fees may be less. Sublandlord agrees to work diligently and in good faith to reduce the Otay Mesa Development Impact Fees payable by Subtenant to the City of San Diego and the balance of Subtenant's Development Fees to the lowest amount possible. 11.6.2 The $820,000 maximum amount referred to in paragraph 11.6.1 relates to all of Subtenant's Development Fees that are payable to the City of Chula Vista, and is comprised of (a) not more than $470,000 for the Chula V~sta Public Facilities t:\jdemores\mca\subleaae.001 17 /~r;- 8 --3 J7 33D Development Impact Fee, and (b) not more than $350,000 for all other Development Fees payable to the City of Chula Vista_ includina sewer capacity fees. An amount equal to all of the portion of Subtenant's Development Fees that is payable to the City of Chula Vista, excluding the Chula Vista Public Facilities Development Impact Fee but includina sewer capacity fees in the estimated amount of $164.080, shall be payable upon the issuance of building permits for the amphitheater. The remainder of Subtenant's Development Fees payable to the City of Chula Vista shall be paid in ten equal annual installments, without interest (except as provided in paragraph 5.6), commencing on the first anniversary of the issuance of building permits for the amphitheater. 11.6.3 Notwithstandina the provisions of paraaraph 11.6.1. if it is subsequently determined. based on metered flows. that the sewer capacity fees payable by Subtenant to the City of Chula Vista exceed $164.080. then Subtenant shall pay such increase in the sewer capacity fees. UP to an additional $122.920. provided that if the portion of Subtenant's Development Pees described in paraaraph 11.6.1 would as a consequence exceed the $820.000 maximum amount referred to in paraaraph 11.6.1. then an amount equal to the excess over $820.00 shall be payable by Subtenant in equal annual installments that will amortize such excess over the then-remainina portion of the ten year period referred to in paraaraph 11.6.2. 11.7 Performinq Arts Fund. For each ticket sold to an event promoted and presented at the Leased Premises by Subtenant, Subtenant will assess and collect a performing arts fund fee, as follows: (a) for the first 100,000 tickets sold in each calendar year, the fee would be $0.15 per ticket; (b) for the next 100,000 tickets sold in each calendar year, the fee would be $0.25 per ticket; (c) for the next 100,000 tickets sold in each calendar year, the fee would be $0.35 per ticket; and (d) for each additional ticket sold in each calendar year, the fee would be $0.50 per ticket. 11.7.1 The performing arts fund fee assessed and collected by Subtenant will be ae~esitea <litH paid to Sublandlord as rent on or before February 1 of each calendar year, in arrears. 11.7.2 Funds from time to time deposited with Sublandlord as provided above would be administered by an advisory commission having no more than seven members established and appointed by the Chula Vista City Council. At least one member of the commission shall be a designee of Subtenant. Final decisions concerning the use of such funds would be made by the Chula Vista City Council, based upon the recommendations of the commission. 11.7.3 The commission established to administer the performing arts fund would be permitted to use the tunds only to t:\jaemores\mca\sublea.e,007 18 /5-,831' ')"":>1 .... "':;. .e..'.... underwrite the cost of performing fine arts presentations (i.e. orchestral, symphonic or chamber music, opera, live theater and dance, as opposed to visual arts, pop music or other purposes) conducted within the boundaries of the City of Chula Vista (including events conducted at the Leased Premises) . ARTICLE 12 INDEMNITY 12.1 Subtenant's Indemnitv. Subtenant hereby agrees that all indemnifications of the Master Landlord by the Tenant pursuant to the terms of the Master Lease are hereby made to Sublandlord by Subtenant as if those indemnities were set forth in full in this Sublease. Subtenant hereby indemnifies, and agrees to protect, defend and hold harmless Sublandlord, its officers, agents, employees and representatives from and against any claims, damages, liabilities, costs and expenses, including reasonable attorneys' fees incurred by or brought against Sublandlord, its officers, agents, employees and representatives which arise out of or relate to Tenant's indemnities of the Landlord Which are set forth in the Master Lease. Subtenant further agrees to indemnify, protect, defend and hold harmless Sublandlord, its officers, agents, employees and representatives from and against any and all claims, damages, liabilities, costs and expenses, including reasonable attorneys' fees, arising directly or indirectly from (a) Sublandlord's approval of the CEQA documents or entitlements for the amphitheater project to be developed by Subtenant on the Leased Premises (the "Project"), (b) Subtenant's installation of the improvements required for the Project, and (c) Subtenant's operation of the Project. 12.2 Sublandlord's Indemnitv. Notwithstanding the provisions of paragraph 12.1, Sublandlord shall indemnify, defend (or, at Subtenant's option, pay for Subtenant's defense) and hold Subtenant harmless from and against, and the Subtenant shall not be required to indemnify Sublandlord against, claims, damages, liabilities, costs and expenses caused by (a) the willful misconduct or grossly negligent acts or omissions of Sublandlord and/or its agents, employees or contractors in the exercise of Sublandlord's rights or the performance of Sublandlord's obligations under this Sublease or the Master Lease, or (b) any breach or nonperformance by Sublandlord of any of its covenants, obligations, representations or warranties under this Sublease, except in each case to the extent covered by insurance. ARTICLE 13 MISCELLANEOUS 13.1 Governino 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. t:\jaemores\mca\suble..e.001 19 /:S-8~ZJ 13.2 Counteroarts. This Sublease may be executed in counterparts, each of which shall be deemed an original hereof. 13.3 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 intended to or may be deemed to create any rights in favor of third parties. 13.4 Sublease Relationshio. 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 nor the creation of a partnership or joint venture, nor the imposition of any tax or assessment by Sublandlord against or throuah Subtenant. 13.5 Further Assurances. Sublandlord and Subtenant 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 Sublease. 13.6 Assianabilitv. provisions governing the assignability of this Sublease and sub-subleasing are contained in the Master Lease and the Tri-Party Agreement. 13.7 Successors and Assians. Subject to any restrictions on assignment and sub-subletting set forth in the Master Lease, the Tri-party Agreement or this Sublease, the rights and obligations of Sublandlord and Subtenant shall bind and inure to the benefit of their respective successors and assigns. 13.8 Memorandum. At the request of either Sublandlord or Subtenant, the parties will execute and acknowledge a short-form memorandum of this Sublease, and record the same in the Official Records of San Diego County, California. 13.9 Insurance. In the event Subtenant assigns or sub- subleases its interest in this Sublease and the Leased Premises in the manner and subject to the conditions contained herein, in the Master Lease and in the Tri-Party Agreement, or grants a license to use a substantial portion of the Leased Premises (e.g. a license to operate an open air market as opposed to a license to operate a small concession), Subtenant shall require the assignee, sub-sublessee or licensee to name Sublessor as an additional insured on all casualty and liability insurance maintained by such assignee, sublessee or licensee with respect to the Leased Premises. IN WITNESS WHEREOF, the parties have entered into this 3ublease as of the day and year first above written. t: \jdemores\mca\aublease. 007 20 /5--8..;// SUBLANDLORD : CITY OF CHULA VISTA By: Its: APPROVED AS TO FORM: SUBTENANT: MCA CONCERTS, INC., a California corporation By: Jay Marciano, President t: \jdemores\mca\sublease. 007 21 /<.5--8~ '"-;;..:) f ~, ~ Draft: November 6. 1995 Ground Lease by and between Los Alisos Company, a California general partnership and MCA Concerts, Inc., a California corporation Dated: [L227070.5J /5'- g 7'!..) ? 2 C;-" ."7.,..J'.,.~ TABLE OF CONTENTS Paae ARTICLE 1. LEASED PREMISES. . . . 1 1.1 Demise of Leased Premises 1.2 Possession 1 1 ARTICLE 2. TERM 2 2.1 Initial Term 2.2 Termination Right 2.3 Termination Prior to Rent Commencement Date 2.4 Extension Options 2 2 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 [L227Q70.61 RENTAL 4 Rent Commencement Date Minimum Rent Participation Rent 3.3.1 Definitions. 3.3.2 Payment of Participation Rent Net Lease 4 4 5 5 8 8 USE. . 8 IMPROVEMENTS 9 REAL ESTATE TAXES 9 UTILITIES . 10 REPRESENTATIONS AND WARRANTIES 10 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 10 10 11 11 11 11 11 11 11 11 TENANT'S INSURANCE 12 Tenant's Coverage During Construction of Improvements Tenant's Coverage After Completion of Construction of Improvements . Terms of Policies Tenant's Acknowledgment . . . . . . . 12 12 13 14 (i) <5---- Lf -E// -:;,2, f .,dO'" 9.5 9.6 Subrogation . Indemnity . . 14 15 ARTICLE 10. LANDLORD'S INSURANCE 15 ARTICLE 11. HAZARDOUS MATERIALS 16 11.1 Restrictions . . . . . 11.2 Indemnification. . . . 11.3 Removal Of Contaminants 11.4 Definition . . . . . . 11.5 Right To Test. . . . . 11.6 Landlord's Obligations 11.7 Remedial Action Plan 16 16 17 17 17 18 18 ARTICLE 12. MAINTENANCE AND REPAIR 19 ARTICLE 13. COMPLIANCE WITH LAWS 20 ARTICLE 14. COOPERATION 20 ARTICLE 15. ENTRY AND INSPECTION 20 ARTICLE 16. DAMAGE AND DESTRUCTION 20 16.1 Restoration of Damage 16.2 Effect on Lease. 16.3 Abatement of Rent 20 21 21 ARTICLE 17. ASSIGNMENT AND SUBLETTING 21 ARTICLE 18. DEFAULTS; REMEDIES. . . . 22 18.1 Defaults . . . . . . . . . . 18.2 Remedies Upon Tenant's Default 18.3 Landlord's Default 18.4 Waiver of Default. 22 22 23 23 ARTICLE 19. ATTORNEYS' FEES 23 ARTICLE 20. HOLDING OVER 23 ARTICLE 21. NOTICES 24 ARTICLE 22. SUCCESSORS IN INTEREST 24 ARTICLE 23. FORCE MAJEURE .' 24 ARTICLE 24. PARTIAL INVALIDITY 25 ARTICLE 25. MARGINAL CAPTIONS 25 ARTICLE 26. TIME. . 25 (L2270"Hl.6] (ii) /S-8~5 ,""-:J''') t:7 .. " '-'" ARTICLE 27. ESTOPPEL CERTIFICATE 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 No Termination . . . . 43.2 provisions of Leasehold Mortgage 43.3 Notices. . . . . . . . . 43.4 Performance of Covenants 43.5 Delegation to Mortgagee 43.6 Default by Tenant. 43.7 Bankruptcy Events. 43.8 New Lease. . . . . . . 43.9 Further Amendments ... 43.10 Personal Liability of Mortgagee 43.11 More Than One Mortgagee . . . . . 43.12 Miscellaneous Additional Mortgagee [L22707Q.6] (iiil /6-CJ4p 25 25 26 26 26 26 26 26 27 27 27 27 28 28 28 29 29 29 29 30 30 31 31 32 32 33 33 33 34 34 35 35 35 Protections 35 ARTICLE 44. PURCHASE OPTION 36 44.1 Option Notice. 44.2 Escrow . . . . 44.3 Purchase Price 44.4 Title. . . . . 44.5 Cost and Expenses 44.6 Fair Market Value 36 36 36 38 38 38 ARTICLE 45. RIGHT OF FIRST REFUSAL 39 ARTICLE 46. NONCOMPETITION 39 46.1 No Competing Entertainment Facilities 46.2 Restricted Use of Adjacent Property 39 40 ARTICLE 47. PARKING PARCEL 41 EXHIBITS EXHIBIT A LEGAL DESCRIPTION OF SITE EXHIBIT B PERMITTED EXCEPTIONS EXHIBIT C ENVIRONMENTAL DOCUMENTATION EXHIBIT D PHASE II DESCRIPTION EXHIBIT E PARKING PARCEL {L227070.6] (::..v) /;:J -8~7 "? > tl , 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 uses permitted hereunder. 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 lL227070.61 1 /5- /3 ",/f ~lfO benefit the Site, or any part thereof, and Landlord shall not modify, amend, cancel or terminate any such easements and restrictive covenants without Tenant's prior written consent, which consent shall not be unreasonably withheld or delayed. Tenant agrees that, in the event that any portion of Landlord's representation and warranty set forth in the first sentence of this Section 1.2 is or becomes untrue, Tenant shall exhaust its remedies, if any, against Tenant's title insurer before Tenant pursues any action or right of offset against Landlord. 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 ef~ective 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: [L22i070.61 2 /5-4~>! "7'11) ..Y'1 2.3.1 the Rent Commencement Date shall never occur an~ Tenant's obligation to pay Minimum Rent shall never commence; 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 effectuated the substantial completion (as defined in Section 2.3.6) of the Improvements (as defined in Article 5), Tenant shall, at the election of Landlord, to the extent possible, either (a) restore the Site to substantially the same condition as it existed as of the Effective Date, including landscaping, irrigation systems, utilities, streets, curbs, gutters and other related improvements; (b) restore the Site to approximately the grade which existed at the Effective Date; or (c) leave the Site in the same condition as existed on the Termination Notice Date; and 2.3.6 the Effective Termination Date shall be the earlier of (a) the date which Tenant has completed the restoration of the Site as required in Subsection 2.3.5(a) or (b) above and surrendered possession of the Leased Premises to Landlord or (b) if the Landlord selects the option described in 2.3.5(c), the date Tenant surrenders possession of the Leased Premises to Landlord. For the purposes of this Lease, "substantial completion" shall mean that Tenant has received a Temporary Certificate of Occupancy, or its equivalent, from the City of Chula Vista, such that Tenant is legally able to use the Improvements for the presentation of concerts, sporting events or other forms of live entertainment. If the Improvements have been substantially {L227070.61 3 /'5 -g~1 '1'-) , " completed and the Tenant elects to terminate this Lease prior to the Rent Commencement Date, the Effective Termination Date shall be the Termination Notice Date, Tenant shall have no obligation to restore the Site to its prior condition, and Landlord shall accept the Improvements in accordance with Article 39, below. Landlord shall make its election under Subsection 2.3.5, above, within thirty (30) days following the Termination Notice Date or Landlord shall be deemed to have made the election described in Subsection 2.3.5{a). 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 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, provided Tenant has given reasonably prompt notice of the occurrence of the force majeure event, the date set forth in clause (i) in the immediately preceding sentence shall be extended by the period of such Force Majeure Delays, but, in no event for more than 180 days. 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 advance in equal installments of Eighty Seven Thousand Five Hundred Dollars tL227070.6} 4 /:::;:-6.5 /J 1 /jl~) . ,"... ($87,500.00). The first quarterly installment of Minimum Rent shall be payable on or before the first January 1, April 1, July 1 or October 1 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 thereaf;:er. 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, not later than thirty (30) days following the end of each Lease Year, 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 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 or other entertainment or sporting events presented by Tenant at the Leased Premises, other than admissions to Rental Engagements. transactions Tenant a fee Premises. (iv) "Rental Engagements" shall mean in which a licensee of Tenant essentially pays for a license or other right to use the Leased [L227070.61 5 /S~L36/ ?J.N (v) "Ticket Rent" shall mean the following amounts payable with respect to each Paid Admission during a Lease Year: Paid Admissions furinq 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. (vi) "Percentage Rent" shall mean an amount equal to the following percentages of Tenant's Gross Revenue during each Lease Year: 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 (L227070.6l 6 /5~6..5.7 ?(j,. .. [ j 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 prer.lises 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 Partici~ation 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. (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. (x) "Season" shall mean the period of time, generally during the Spring through Fall of each Lease Year, during which Tenant, or its licensees, regularly produces live concerts, entertainment events and/or sporting events in the Improvements. 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 (x) above shall mean the [L227070.61 7 /5-8-5..3 ") 'j'i ,L '..' ",";,V subtenant (or sub-subtenant, if applicable) which is in actual possession of the Leased Premises. 3.3.2 Payment of Particioation Rent. On or before thirty (30) days following the end of each Season, but in no event later than thirty (30) days following the conclusion of each Lease Year, Tenant shall deliver to Landlord a statement certified by the Chief Financial Officer of Tenant 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 (30) 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 ,1onpayment 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 or similar facilities for live concerts, other entertainment events, sporting events, swap meets, the sale of food, beverages (including, without limitation, alcoholic beverages), merchandise, and any other related or incidental purposes. 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 (L227070.6] 8 /5-85~ ? I of such contest shall not be the basis of any default under this Lease. ARTICLE 5. IMPROVEMENTS Tenant shall have the right to ccnstruct 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. Tenant shall not demolish the Improvements without replacing them with similar or equivalent 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 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 Landlo~d generally without regard to its ownership of the Leased [L227070.6J 9 /5-85~ -.. '.'.') ,,~<'~ {. 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 prior to the fifth anniversary of the Effective Date of this Lease, any change in ownership (as defined in Division 1, Part 0.5, Chapter 2 of the California Revenue & Taxation Code) by the Landlord 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. The immediately preceding sentence shall become ineffective on the fifth anniversary of the Effective Date and thereafter Tenant's duties shall be as are provided in the remainder of Article 6. 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: 8.1.1 Authoritv. 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 Leas~d Premises and to consummate the transaction contemplated bv this Lease. By executing this Lease, each of tL22707Q.6) 10 /32350 '-"11/' ., 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, have 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 Enforceabilitv. 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 Representations and Warranties. Tenant represents and warrants to Landlord as follows: 8.2.1 Authoritv. 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 Enforceabilitv. 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. 8.2.4 Consents. Tenant has obtained all consents and approvals required for Tenant to enter into this Lease. [L227070.6) 11 /6-/35/ "?r-" .......~ C- 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: 9.2.1 commercial general liability insurance (and/or excess liability coverage) 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 [L227070.61 :2 /5-L35! interest" clause and shall be written on an oC';urrence 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. The self insurance provisions set forth in Section 9.2.2 shall apply only so long as (a) MCA Concerts, Inc. or one of its corporate affiliates is the Tenant under this Lease, (b) if MCA Concerts, Inc. has assigned its interest in this Lease, MCA Concerts, Inc. or one of its corporate affiliates has sublet the Leased Premises from its assignee, or (c) Tenant's assignee demonstrates its financial capability to Landlord's reasonable satisfaction. 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. 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 s~all be effective. The (L227070.6] 13 /3--135'1' "":;' ,,-~,,;)~ deductibles for such insurance shall not exceed deductibles typically carried by other comparable prudent tenants of similar properties in Southern California. Tenant'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 Landlord. Upon written request a certificate of insurance reasonably satisfactory to Landlord shall be delivered by Tenant to Landlord. The stipulated limit of coverage set forth above shall not be construed as a limitation of any potential liability to Landlord, and failure to deliver said insurance certificate or Landlord's failure to request delivery thereof shall in no way be construed as a waiver of Tenant's obligation to provide the insurance coverage specified herein. 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 Acknowledqment. Tenant agrees that subject to and except as otherwise provided in Sections 9.6 or 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 Subroqation. 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 (L227070.6] 14 /5~g6{J -'-, ..."' "., 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, contractor, licensee or invitee of Tenant in, upon or at the Leased Premises, except to the extent the same shall be caused by (I) the willful or actively 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 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 reason~ble 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 actively 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 [L227070.6l 15 /,,~LJ0/ ? _"~f j ~>,,"" :::.. '''1 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. Landlord's obligations to provide insurance under this Article 10 may be satisfied by one or more blanket policies of insurance which otherwise satisfy the requirements set forth above. 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. [L227070.6) 16 /5-/3&;~ 7(~~' _,J "..;>".-J 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, (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 U.S.C. ~ 1317), (viii) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resources Conservation and Recovery Act, 42 U.S.C. ~ 6902 et seq. (42 U.S.C. ~ 6903), (ix) defined as a "hazardous substance" pursuant to Section 101 of the Compensation and Liability Act, 42 U.S.C. ~ 9601 et seq. (42 U.S.C. Il 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 {L227070.6] 17 -LJ'-:2 /_'7 -.(J r;:, j '2 rl J~t:I 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 Obliaations. Landlord hereby represents, warrants and covenants to Tenant that, except as described in the documents and communications (the "Disclosure Documents") which are described on Exhibit C which is attached hereto, as of the Effective Date, and 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 Cl.gents, 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 or its affiliates, including without limitation that certain real property ("Phase II") described on Exhibit D which is attached hereto, which is adjacent to the Leased Premises and which is owned by Otay Rio Business Park II, a California limited partnership ("Otay Rio"), 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 (including, but not limited to, those described in the Disclosure Documents) 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 (or, at Tenant's option, pay for the defense of Tenant) 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 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. provisions agree that 11.7 Remedial Action Plan. Notwithstanding the of Section 11.6, above, the Parties understand and certain Hazardous Materials exist on Phase II (as is [L227D70.61 18 /5-/3(P~ ""'''.f, more particularly described in the Disclosure Documents) and the Landlord wishes to relocate those materials onto the Leased Premises in accordance with a Remedial Action Plan ("RAP") which Landlord will have approved by the San Diego County Environmental Health Services Department and the Regional Water Quality Control Board. Landlord shall d~liver the RAP to Tenant together with copies of all associated documentation at such time as Landlord has obtained approval of the RAP by all applicable governmental agencies. Landlord hereby agrees that should Tenant consent to the RAP, Landlord shall implement the RAP at its sole cost and expense. Landlord shall submit the following to Tenant, together with the RAP: (a) a schedule for implementing the RAP, (b) copies of all contracts with all contractors who will be performing the RAP on behalf of Landlord, and (c) evidence satisfactory to Tenant indicating Landlord's ability to pay for the cost of implementing the RAP. In the event Tenant consents to the RAP following Tenant's review of it and all of the other documents delivered to Tenant by Landlord in connection with its delivery of the RAP, which consent may be withheld by Tenant in the exercise of its sole and absolute discretion, then Landlord shall have the right to implement the RAP by relocating those Hazardous Materials which are currently located on Phase II onto the Leased Premises. Notwithstanding the preceding sentence, if the implementation of the RAP will not delay Tenant in the performance of its grading activities and/or other construction activities on the Leased Premises, will have no cost to Tenant and will not expose Tenant to any increase of liability by virtue of such Hazardous Materials being relocated onto the Leased Premises, then Tenant shall consent to Landlord's implementation of the RAP, which consent may be withheld by Tenant in the exercise of its reasonable good faith judgment. Notwithstanding the foregoing provisions of this Section 11.7, Landlord shall nonetheless 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 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 the presence of Hazardous Materials in, on, under or about the Leased Premises and/or Phase II which is caused or permitted by Landlord, its agents, employees, contractors or representatives in connection with the implementation of the RAP which results in contamination of the Leased Premises or adjacent property or groundwater, whether or not such Hazardous Material were placed on the Leased Premises in accordance with the terms of the RAP. In addition to any other obligation of Landlord to indemnify Tenant herein, Landlord agrees to and does hereby indemnify, defend and hold Tenant and its assignees, employees, agents, contractors, representatives and sublessees harmless from [L227Q70.6] 19 ~-)- Ll~::J ...'~ I ./ any and all claims, judgments, damages, demands (including without limitation demands arising from injuries or death of persons), penalties, fines, costs, liabilities or losses (including reasonable attorneys' fees) which arise in connection with or as a result of any entry onto, or any actions taken or permitted to be taken during such entry onto, the Leased Premises by Landlord or its assignees, employees, agents, contractors or representatives in connection with the implementation of the RAP, except to the extent the same shall be caused by the willful or actively negligent act or omission of Tenant and/or its assignees, employees, agents, contractors, representatives and sublessees. The terms of this Section 11.7 shall survive the expiration or earlier termination of this Lease. ARTICLE 12. MAINTENANCE AND REPAIR Tenant shall maintain and repair the Leased Premises and Improvements in good order and condition, clean and free of 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. [L227070.6] 20 /5-13 ?re ';'-0) ;;,.,:~,. 1 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, app:ications, 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 in support of Tenant's operations at all public hearings which may be held in connection with Tenant's lawful conduct of its activities on the Leased Premises. Landlord shall exercise its best efforts to obtain the support and consent of all property owners (other than the owners of individual single family residences) and/or owners associations whose property is located within one mile of the Leased Premises to the conduct of Tenant's business on the Leased Premises. Landlord shall not be obligated to spend material sums of money in performance of its obligations under this Article. 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 agentd to enter into and upon the Leased Premises at all reasonable times for the purpose of inspecting 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 t~nants. ARTICLE 16. DAMAGE AND DESTRUCTION 16.1 Restoration of Damaqe. 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 and/or alterations (collectively, "Restoration") 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 described in Article 23 which shall include but not be limited to, delays due to adjustment of insurance, preparation of plans and specifications and applications for zoning variances and rezoning. Such Restoration shall thereafter be prosecuted with reasonable diligence. Notwithstanding any contrary provision hereof, (a) if the cost of the Restoration of the Improvements shall exceed the insurance proceeds available to Tenant (including any applicable IL22707':.6) 21 /5-/.1&7 36') deductible) to perform such Restoration and Landlord does not agree to pay, or does not pay, the difference between such cost of Restoration and such available insurance proceeds, or (b) if Tenant is not otherwise permitted to effect the Restoration of 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. In the event Tenant terminates the Lease as provided in this Article, then Tenant shall make so much of such insurance proceeds available to Landlord as is necessary to pay for the cost of demolishing the Improvements, clearing the Site and returning the Site to an even grade. 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 (10%) 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 carryon its business in and on the Leased Premises. 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 an assignee approved by Landlord, which approval shall not be unreasonably conditioned, withheld or delayed. Landlord's approval of an assignee as described in the immediately preceding sentence shall be based [L227070.6J 22 /5-~D r::- f ''/1/ __.0" 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, 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; 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 de~ault 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; or 18.1.3 Tenant's abandonment of the Leased Premises, where such abandonment continues for cl period of thirty (30) days after delivery of written notice from Landlord to Tenant provided however that Tenant's normal closing for winterizing and during winter months shall not be an abandonment. 18.2 Remedies UDon 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 [L227070.61 23 /5-8&9 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) days' written notice upon terms and conditions as existed during the last year of the term hereof. The Minimum Rent during any period of holding over shall be Forty Three Thousand Seven Hundred Fifty Dollars ($43,750.00) per month, payable in advance. Tenant shall also be obligated to pay Participation Rent and Net Charges for such period. 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 ~ddress set forth below, or to (L227070.6] /.4 63~ 3h3 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 next business day following its actual delivery to the address specified above. 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, 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. [L227070.61 25 /5-67/ '.- ,\ "I . '.r> 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 statement is addressed shall have the right to rely on such estoppel certificate and financial statement. ARTICLE 28. CONDEM~ATION In the event that the Leased Premises, Site, Improvements or any essential access to the Leased Premises, or any portion thereof which materially affects Tenant's use of the Leased Premises or the Improvements, 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 (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. [L221070.6J 26 ~6'7~ 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 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. [L22707Q.6l 27 /2---673 '-~-.:.I::-,t.~ 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 L~ase. 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 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 [L22707Q.61 28 /y6'7~ ~2/., '/ ....--J......., / 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. 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 tL227070.61 29 g .--,8;75 -/' (,:", 'In''. ../"'" .,' 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 fO 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 ORANGE COUNTY, 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 PROCEDURE SECTION 1286.2. THE VALIDITY AND ENFORCEABILITY OF THE ARBITRATOR'S DECISION IS TO BE DETERMINED EXCLUSIVELY BY THE [L227070.6J 30 ~,(3" ?"~ - ~/I.. , i.~"'-. c,/),. . 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-PREVP.ILING 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 that Landlord has received notice of the identity and address of [L227070.61 31 /3-.6'7:/ -;:'r~'.", __', Iv 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 [L227070.6] 32 /~-67.f -;)"--n ../ II or Tenant, and for the entry of such Mortgagee upon the Leased Premise~ 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 th~ 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 upc~ 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 [L227070.61 33 /3~..6'7f ~';"Oqr -"'" I ,~~. remedy any default by Tenant hereunder, and Landlord shall accept 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 or 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 30-day period, such 30-day period shall be extended so long as such Mortgagee promptly commences cure (in any event, within such initial 30-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 [L227070.6] 34 /3~6fO ~'-'I 30 days following such acquisition and thereafter diligently prosecute such cure to completion (except that such transferee 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. [L227070.61 35 /5>LfJ! "'...r"", . , , ,- 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 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 Mortoaoee. 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 Mortoaoee. 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 Mortoaoee 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. [L227Q70.61 36 /5 ~b,f;;; ?75 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. 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 following the fifth anniversary of the Effective Date. 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" (as defined below) of the Leased Premises as of the date of the Option Notice. 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 (3D) 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 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 (3D) days after the Outside Agreement Date. 44.3.2 The two arbitrators so appointed shall, within thirty (30) days of their respective appointment render an appraisal of the fair market value of the Leased Premises in accordance with the provisions of this Article, and, if the values established by such appraisals do t.ot differ by more than [L221070.61 37 /~-6t:3 7("7, c.---<_;( ten percent (10%), the average of such appraisals shall be deemed to be the fair market value of the Leased Premises. 44.3.3 If the values established by the two arbitrators differ by more than ten percent (10%), the arbitrators shall, within fifteen (15) days, 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. 44.3.4 The third arbitrator shall, within thirty (30) days of the appointment of the third arbitrator, render his opinion as to the fair market value of the Leased Premises in accordance with the provisions of this Article, and shall notify Landlord and Tenant thereof. The appraisal farthest from the average of the three shall be disregarded and average of the remaining two appraisals shall be deemed to be the fair market value of the Leased Premises. 44.3.5 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. 44.3.6 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. 44.3.7 Notwithstanding any contrary provision hereof, within ten (10) 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 [L227070.61 38 /5z3cry ",;~..) v' 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) 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. 44.6 Fair Market Value. For the purposes of this Article 44, the term "fair market value" shall be determined based on the following assumptions: (a) So long as there is at least one (1) unexpired Extension Term, the arbitrators shall assume that the Tenant will not terminate this Lease under Section 2.2 and that the Term of the Lease shall extend for a period of ten (10) years from the date of the Option Notice. (b) The fair market value shall be the fair market value of the Landlord's interest in this Lease, including its reversionary interest in the Leased Premises (but excluding any value attributable to the Improvements). (c) Notwithstanding any other provision of Article 44 to the contrary, in no event shall the fair market value exceed the fair market value which the Arbitrators determine would be paid by a willing third party purchaser for Landlord's interest in the Lease (including its reversionary interest in the Leased Premiss and the Improvements) without regard to the assumptions set forth in Subsection 44.6(a) and (b) above and with full regard to Tenant's termination rights under Section 2.2, above. [L227070.6l 39 /J~6'c!5 -"~.. ~.< 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 a letter of intent or similar document (the "Proposal") to purchase the Leased Premises from a ready, willing, and able bona fide third party of requisite financial capability. Landlord shall accompany Landlord's Sale Notice with a copy of the Proposal 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 enter into a binding contract to sell 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 and the accompanying Proposal. In the event that (a) Landlord fails to enter into a binding contract within such ninety (90) day period, (b) in the event Landlord thereafter fails to consummate such sale within an additional ninety (90) day period, or (c) 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 and the accompanying Proposal, then prior to consummating any such transaction Landlord 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 46.1 No Comoetinq Entertainment Facilities. Landlord agrees that during the Term neither Landlord, nor any person or entity affiliated with Landlord shall develop, own, lease, operate, manage, or have any other interest in, any other amphitheater or similar facility or other live entertainment project which is primarily utilized for the production of [L227070.6) 40 /5--6 g ~ "'.", ~. concerts or live stage events 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, all as further provided in Section 46.2. 46.2 Restricted Use of Adiacent Propertv. Landlord agrees that at or prior to commencement of the Term and for the Term of this Lease, Landlord shall have caused Otay Rio to record a covenant and restriction which shall be an equitable servitude restricting the use of Phase II and shall record the same covenant and restriction as to any other real property within a one-mile radius of the Leased Premises presently owned or acquired during the Term by Landlord or any affiliate of Landlord (as defined in Section 46.1) (Phase II and such other properties are referred to as the "Restricted Properties") providing as follows: 46.2.1 The Restricted Properties shall not be used for any concert performance or for any other live entertainment performance. 46.2.2 The Restricted Properties shall not be used for parking to serve events taking place at the Leased Premises except with the prior written consent of Tenant. 46.2.3 During the times when public performances are being conducted on the Leased Premises, and within twenty-four (24) hours before and six (6) hours after such performances, no sales of merchandise relating in any way to the Leased Premises or to any activities conducted on the Leased Premises shall be permitted on the Restricted Properties, including but not limited to sale of souvenirs identified in any way with any part of the Leased Premises or the activities conducted thereon. In addition, during said periods, no commercial activity principally directed at patrons of any event conducted on the Leased Premises shall be conducted on the [L22707Cl.6] 41 /_5 ~ .61'1" ,). / Restricted Properties, including but not limited to, sales of food and/or beverages. A restaurant, cafeteria, snack shop or similar facility which comprises an incidental part of any other business then operated on any part of the Restricted Properties shall not be included within this restriction. This Agreement shall not conf~r any license or consent to sell merchandise or engage in services bearing or utilizing the name, logo, trademark or other identification of, the Leased Premises, Tenant or any artist, or of any other third person. 46.2.4 No activities shall take place on the Restricted Properties which interfere with, or are reasonably likely to interfere with, Tenant's use of the Leased Premises. Without limiting the foregoing, any conduct, activity, equipment or improvement which is likely to cause any audible, visual or other sensory interference with concerts or other performances on the Leased Premises shall not be permitted. 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 Ex~ibit E 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 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 assumption by Landlord of Tenant's obligations under such lease. 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 [L227D70.6] 42 /5--:-/3S( c,,! leasehold interest in the Parking Parcel at an Applicable Termination Date or any other time. ARTICLE 48. CONFIDENTIALITY In connection with the performance of Tenant's duties under this Lease, Tenant shall supply to Landlord certain confidential, proprietary and non-public information about the Improvements, Tenant's use of the Leased Premises in accordance with Article 4, and Tenant's calculation and payment of Participation Rent in accordance with the Lease. All information described in the preceding sentence furnished by the Tenant or any its affiliates, directors, officers, employees, agents or controlling persons (collectively the "Representatives") whether furnished before, contemporaneously with, or after the execution of this Lease, and regardless of the manner in which it is furnished, including any reports, studies, notes of conversations, audits or any other materials prepared by the Representatives for the Landlord is referred to in this Lease as "Proprietary Information". The obligations of the Landlord described below do not extend to information which (a) is or becomes generally available to the public other than as a result as a disclosure by the Landlord in breach of this Lease, (b) was available to Landlord on a non-confidential basis prior to its disclosure by Tenant, or (c) is delivered to Landlord on a non- confidential basis from a person other than a Representative of the Tenant. Except as provided for below, and unless otherwise required by law, Landlord shall not, without Tenant's prior written consent, disclose to any person any Proprietary Information. Unless otherwise agreed to in writing by Tenant, Landlord agrees (a) to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than Landlord's agents who are actively and directly participating in the evaluation of the Proprietary Information in connection with the performance of Tenant's performance of its duties under this Lease and (b) not to use Proprietary Information for any purpose other than determining whether Tenant is in compliance with its duties to pay Rent under this Lease. In the event that Landlord is requested by legal process to disclose any Proprietary Information, Landlord shall provide Tenant with prompt notice of such request to enable Tenant to seek an appropriate protective order or other appropriate remedy. In the event that no such remedy is obtained, Landlord may furnish such portion of the Proprietary Information that is legally required (by judicial or similar process that would subject Landlord to a holding of contempt or other penalties for failure to disclose) and will exercise Landlord's best reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Proprietary Information, it being understood that Landlord will not be required or expected to undertake any legal proceedings on Tenant's own behalf. Without prejudice to the rights and remedies otherwise available to Tenant, Landlord hereby acknowledges that the Proprietary Information is unique, lL227010.51 43 /5 -,Oj1 / .' sensitive and confidential that there is no adequate remedy at law for a breach, or threatened breach, or Landlord's duties under this section and that Tenant shall be entitled to equitable relief by way of injunction if Landlord or any its agents breach or threaten to breach any of the provisions of this section of this Lease. IN WITNESS WHEREOF, the parties have entered into this Lease as of the day and year first above written. TENANT: LANDLORD: MCA CONCERTS, INC., a California corporation LOS ALISOS COMPANY, a California general partnership By: Jay Marciano, President 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 [L227070.51 44 ~g~ (1.22707[,.6] I LEGAL DESCRIPTION OF SITE [To be supplied.] EXHIBIT A /5.-139/ '/:Z ' /<-' PERMITTED EXCEPTIONS [To be supplied.] EXHIBIT B [L227070.6l .-/ ( . ENVIRONMENTAL DOCUMENTATION [To be supplied.] EXHIBIT C [1.227070.61 /5 ~IJ y.;2, "",/ ::,... . PHASE II DESCRIPTION [To be supplied.] EXHIBIT D [L227070.6J /5--L:;'Y3 . PARKING PARCEL [To be supplied.] EXHIBIT E IL227070.61 /3[57'1-/6'- Mi) ~;~!:~ '2:' RESOLUTION NO. 18059 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING A CONDITIONAL USE PERMIT, PCC-95-47, TO BITTERLlN-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 I. 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-95-471 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 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 /se.-I "J , 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, duly called and noticed public hearings on the Project were held before the City Council of the City of Chula Vista on September 26, 1995, October 3, 1995, October 17, 1995 and November 7, 1995 to receive the recommendation of the Planning Commission, and to hear public testimony with regard to same; and WHEREAS, at said public hearings 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. 18057 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. /5C-L ?c/!\ ..,,> f''''- Resolution No. 18059 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 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 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 and in the Mitigation Monitoring and Reporting Program for the MCA Chula 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. 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 /5C-3 ~'? Resolution No. 18059 Page 4 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 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, amphitheater operator and/or property owner shall: Planninq Department/Environmental A. Comply with all applicable Mitigation Measures identified in EIR-95-03 and in the Mitigation Monitoring and Reporting Program. B. Construct the Project as submitted to and approved by the City, except as modified herein and/or as required by the Municipal Code. C. 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). 1St!. - 1- .-,'"1> ~/ ; (, ~ Resolution No. 18059 Page 5 D. 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. E. Comply with and implement the following conditions as related to noise: 1 . 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 0.1. 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 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 0.1 or 0.2 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 1 25 % 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 jSC-S ~I/- .;Ii ",.jl.,..- Resolution No. 18059 Page 6 could be suspended without offsetting the Applicant's rent payment obligation; or c. City could pursue an injunction to order the placement of ~~s. . 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, Applicant shall devise, submit for City approval and implement 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. 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 effective measures shall trigger City's right to revoke this Conditional Use Permit. F. 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. G. For the life of the amphitheater, review the consistency of actual operations with the operational parameters considered in the Environmental Impact /5C -b , ")'.~J4 '} , . Resolution No. 18059 Page 7 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. H. Prior to the issuance of a Certificate of Occupance for the Project, Applicant shall be the lead party in forming an Events Planning and Coordination Task Force (Task Force). The Task Force shall consist of representatives from MCA Concerts, Inc. or their designee, the City Manager's Office, the Chula Vista Police Department, Fire Department, Public Works Department, Planning Department, Building and Housing Department, Community Development Department and any other City department or outside governmental agency deemed by the Task Force to be involved in the operational aspects of the amphitheater. The City Manager or his/her designee shall convene the Task Force at his/her discretion and shall act as chair of the Task Force. Said Task Force's objective shall be to ensure that amphitheater concerts/events proceed in a manner as to mitigate any disturbances to the community and that the applicable conditions of this Conditional Use Permit (PCC-95-47), the Mitigation Measures of the Environmental Impact Report (EIR-95-03), and all other applicable agreements are implemented. In the event disagreements arise between the Applicant/amphitheater operator and the Task Force, the Applicant/amphitheater operator agrees to abide by the decision of the Zoning Administrator with appeal rights to the City Council. Costs associated with the formation and on-going operations of the Task Force shall be paid by the Applicant to a maximum of $10,000, to be paid upon the earlier to occur of the date upon which (a) accumulated staff time equals this amount, or (b) the date following one year after issuance of a Certificate of Occupancy for the project. I. Prior to the issuance of a Certificate of Occupancy, develop an Events Management Plan (EMP). The EMP shall be reviewed by the Task Force and submitted to Council for approval. The EMP shall address such operational functions as traffic control, security, emergency response, on- and off-site clean-up, special effects, curfew, facility maintenance and any other aspects determined to fall under the purview of the Events Planning and Coordination Task Force by the Zoning Administrator. The EMP will be implemented by the Applicant/amphitheater operator. Implementation of the EMP shall be overseen by the Task Force. The Task Force may also modify, as it deems /5e..-7 ~.. i" //~., .. .^' , ./ Resolution No. 18059 Page 8 necessary, the EMP in order to accommodate any situation deemed to be detrimental to impacted properties in the area. Actual operations shall be reviewed annually by the Task Force to ensure conformity with the EMP and shall be a component of the annual report to the Zoning Administrator. The EMP shall, at a minimum, consist of the following subplans, as well as other items mentioned in this Resolution of Approval: 1. 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. 2. A traffic control management and event security plan addressing such aspects as the placement of 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. As deemed necessary and appropriate by the Chief of Police, the Applicant's obligation to provide traffic control and security may include the hiring of City of Chula Vista police officers, with enhanced staffing requirements during crowd disbursement time periods, particularly when disbursement occurs after 10:00 p.m. on weekdays and after 11 :00 p.m. on weekends. City staff agrees to cooperate with Applicant/amphitheater operator in an attempt to structure the delivery of project security services in an economical manner. 3. An off-site clean-up program which shall ensure that all public rights- of-way are cleaned of project-associated litter. 4. Any other operational aspects deemed appropriate by the Task Force. Any costs associated with the preparation, processing, review, implementation and/or modification of the EMP shall be paid by the Applicant as part of the same $10,000 cost for the Task Force funding. Compliance with the EMP shall be mandatory and is an express condition of this Conditional Use Permit. J. Performances shall end by no later than 11 :00 p.m. on Sundays through Thursdays and 11 :30 p.m. on Fridays and Saturdays. A maximum of five performances per year may be permitted to exceed these hours. Operator shall use its best efforts to notify the Events Planning and Coordination Task Force for events it anticipates will exceed the curfew. Only events which actually exceed the curfew will be counted towards the five (5) exemptions per year. The curfew shall be a component of the aforementioned Events Management Plan. Police Department K. Designate an appropriate area within one of the main amphitheater buildings /5C -rf ", 7" ~"',: b Resolution No. 18059 Page 9 as a temporary Police Department substation, to the satisfaction of the Chief of Police. Said substation should be housed with or in close proximity to the operator's own security office in order to enhance communications and coordination of security during concerts/events. L. 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. This shall be a component of the aforementioned Events Management Plan. M. All on-premise alcohol sales shall be suspended for the remainder of each and every event one hour after the commencement of the last "headline" act's performance at such event. No more than two alcoholic drinks shall be sold to anyone adult in a single transaction. Enoineerino Deoartment N. 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. O. 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. P. Prior to preforming any work in the City right-of-way, obtain a construction permit from the City Engineer. Q. To the satisfaction of the City Engineer as he/she determines necessary or appropriate to mitigate traffic impacts from the project, implement the following: /5 e - 1 -,','Jr ')1/ Resolution No. 18059 Page 1 0 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. Fire Department R. 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. This shall be a component of the aforementioned Events Management Plan. S. Comply with and implement all requirements of the Fire Marshal as related to conforming with the Uniform Fire Code and applicable Municipal Code requirements. T. 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 shall also provide for training of amphitheater personnel in basic firefighting and first aid. This shall be a component of the aforementioned Events Management Plan. Buildino and Housino Department /5C - /0 -VI/) :')",(> Resolution No. 18059 Page 11 U. Comply with and implement all requirements of the Director of the Building and Housing Department as related to conforming with the Uniform Building Code. V. Comply with and implement all provisions related to Title 24 (Part II), Disabled Access, to the satisfaction of the Director of Building and Housing. School Districts W. Prior to obtaining any building permit, pay <'III 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. Miscellaneous Conditions of Aooroval X. 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. This shall be a component of the aforementioned Events Management Plan. Y. Cooperate with any interested party in their obtaining all appropriate permits, including, but not limited to a conditional use permit, related to the planning, design and construction of soccer fields in Parking Area B, the northern-most parking lot. In the event no soccer fields are constructed in Parking Area B within two years after the approval of this Conditional Use Permit, Applicant shall implement the landscape plan approved through and on file with the Parks and Recreation Department and Planning Department. Cooperation under this condition shall not require the amphitheater operator to construct or maintain or to pay for construction or maintenance of the soccer fields, and the amphitheater operator shall be entitled to an agreement with the soccer field developer giving the amphitheater operator full indemnity/protection and insurance coverage. Additionally, the amphitheater operator shall retain scheduling priority over any soccer field use. Z. Comply with all applicable City ordinances, codes, standards, and policies. Any violation of applicable City ordinances, codes, standards, and policies, or of any condition of approval shall be grounds for revocation or modification of this Conditional Use Permit by the City of Chula Vista. Citv Attornev AA. Pay all processing and development impact fees applicable to the Project unless otherwise agreed by the City. Further, in the event that for whatever reason the City ceases to receive revenue under a sublease or other similar arrangement with the operator of the project (the "Operating Agreement), the City reserves the right to impose a host fee with respect to the project. Provided that such host fee (a) is substantially similar in economic effect to the revenues which had been received by the City the Operating Agreement, 15~ - II -,n? ~Y'>t I Resolution No. 18059 Page 1 2 and does not impair operator's rights or increase operator's obligations compared to those set forth in the Operating Agreement, or (b) interrupt operator's operations of the project, the operator agrees to accept the imposition of such a host fee, waives any challenges to such host fee and agrees to pay such host fee as a condition to the Conditional Use Permit. BB. 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. CC. 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. DD. This Conditional Use Permit shall become void and ineffective if: 1 . The Master Lease, Tri-Party Agreement and Sublease between Los Alisos Company, or a California general partnership, MCA Concerts, Inc., and the City of Chula Vista are not closed and in full force and effect within one year from the effective date of this Conditional Use Permit; and 2. This Conditional Use Permit is 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 /5C - /2- (foe Resolution No. 18059 Page 1 3 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. Presented by Approved as to form by Robert A. Leiter Director of Planning ~c;:-~' ... ~e M. BO~ ad.... . :.k,-,..- /Se..-/3 L'j,) ~ '-' , Resolution No. 18059 Page 14 EXHIBIT A /5c..-/i (Ie Resolution No. 18059 Page 15 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 7th day of November, 1995, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Council members: ABSTAIN: Councilmembers: Shirley Horton, Mayor ATTEST: Beverly A. 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. 18059 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 7th day of November, 1995. Executed this 7th day of November, 1995. Beverly A. Authelet, City Clerk /5C -15 /t5t-1c' cJ~Y' I!:'~ MEMORANDUM FROM: The Honorable Mayor Shirley Horton and City Council Bob Leiter, Director of PlanningA Martin Miller, Associate Planner TO: VIA: DATE: November 7, 1995 SUBJ: Resolution 18059: Minor changes requested by Applicant Attached, please find Resolution 18059 with minor changes on pages 7, 8, 10 and 11. These changes were requested by the Applicant on Monday, November 6, 1995. Staff has reviewed them and, because of their clarifying nature, recommends approval. /-5c -/7 L{Di RESOLUTION NO. 18059 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING A CONDITIONAL USE PERMIT, PCC-95-47, TO BITTERLlN-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 I. 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 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 /5~CJ g ! ,;,(' ,tv Resolution 18059 Page 2 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, duly called and noticed public hearings on the Project were held before the City Council of the City of Chula Vista on September 26, 1995, October 3, 1995, October 17, 1995 and November 7, 1995 to receive the recommendation of the Planning Commission, and to hear public testimony with regard to same; and WHEREAS, at said public hearings 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. 18057 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. 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 /5C-/'l !' , ,,;,t\ Resolution 18059 Page 3 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 ~EASI8LE 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 Chula 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. 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. 8. 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. /5t3-.)ZJ j'f .., Resolution 18059 Page 4 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 C;evelopment 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 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, amphitheater operator and/or property owner shall: Plannino Deoartment/Environmental A. Comply with all applicable Mitigation Measures identified in EIR-95-03 and in the Mitigation Monitoring and Reporting Program. B. Construct the Project as submitted to and approved by the City, except as modified herein and/or as required by the Municipal Code. C. 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). D. 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. E. Comply with and implement the following conditions as related to noise: 1 . 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 / --J 6~/ tJoE Resolution 18059 Page 5 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 0.1. 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 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 0.1 or 0.2 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, Applicant shall devise, submit for City approval and implement permanent noise controls, at /5(!-:~~ .../,)~~ Resolution 18059 Page 6 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. 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 effective measures shall trigger City's right to revoke this Conditional Use Permit. F. 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. G. 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 ~valuate 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. H. Prior to the issuance of a Certificate of Occupance for the Project, Applicant shall be the lead party in forming an Events Planning and Coordination Task Force (Task Force). The Task Force shall consist of representatives from MCA Concerts, Inc. or their designee, the City Manager's Office, the Chula Vista Police Department, Fire Department, Public Works Department, Planning Department, Building and Housing Department, Community Development Department and any other City department or outside governmental agency deemed by the Task Force to be involved in the operational aspects of the amphitheater. The City Manager or his/her designee shall convene the Task Force at his/her discretion and shall act as chair of the Task Force. Said Task Force's objective shall be to ensure that amphitheater concerts/events proceed in a manner as to mitigate any disturbances to the community and that the applicable conditions of this Conditional Use Permit IPCC-95-47). the Mitigation Measures of the Environmental Impact Report (EIR-95-03), and all other applicable agreements are implemented. In the event disagreements arise between the Applicant/amphitheater operator and the Task Force, the Applicant/amphitheater operator /5(:,,-~3 L./tD Resolution 18059 Page 7 agrees to abide by the decision of the Zoning Administrator with appeal rights to the City Co~ncil:. . (;ost.s. .~sso~i.at~~..wi~~.th~ f()rrTlati()~..an~..on-!loi~!l.()J>~rati()~s. of. the. Task Force Ili~lil~_IIIIIIII~II"lllr~t!~~~!~~~I~~~~~~!~~i~~~~~~~~!9!'~~i~~~!l~~!!;~ $10,000, to be paid upon the earlier to occur of the date upon which (a) accumulated staff time ~1!99~t~i:I~91!l~~*n~tR~!~i:!~~ equals this amount, or (b) the date following Oi.e year after issuance of a Certificate of ()ccupancy for the project. I. Prior to the issuance of a Certificate of Occupancy, develop an Events Management Plan (EMP). The EMP shall be reviewed JliOq~ppf9\i~Q by the Task Force and mijiiPl! t~~i;!ly~i~~~#!~ii~ii:l~l~~i~~o~~Jr~~~~~!liQ~!!~!~~~~~;~~~~~~~:i9f~~~ij!fl!~!~~t~~!ffic control, security, emergency response, on- and off-site clean-up, special effects, curfew, facility maintenance and any other aspects determined to fall under the purview of the Events Planning and Coordination Task Force by the Zoning Administrator. The EMP will be implemented by the Applicant/amphitheater operator. Implementation of the EMP shall be overseen by the Task Force. The Task Force may also modify, as it deems necessary, the EMP in order to accommodate any situation deemed to be detrimental to impacted properties in the area. Actual operations shall be reviewed annually by the Task Force to ensure conformity with the EMP and shall be a component of the annual report to the Zoning Administrator. The EMP shall, at a minimum, consist of the following subplans, as well as other items mentioned in this Resolution of Approval: 1 . 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. 2. A traffic control management and event security plan addressing such aspects as the placement of 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. As deemed necessary and appropriate by the Chief of Police, the Applicant's obligation to provide traffic control and security may include the hiring of City of Chula Vista police officers, with enhanced staffing requirements during crowd disbursement time periods, particularly when disbursement occurs after 10:00 p.m. on weekdays and after 11 :00 p.m. on weekends. City staff agrees to cooperate with Applicant/amphitheater operator in an attempt to structure the delivery of project. security services.i~aRe6eReffiieal ~manner q!i!~iQ!l!li:l!Pfi'!YP~ R9~!!!9;~~~l!liliG~!lt'l~mfiHi~~~~!~rPR~f~!9r. 3. An off-site clean-up program which shall ensure that all public rights-of-way are cleaned of project-associated litter. 4. Any other operational aspects deemed appropriate by the Task Force. Any costs associated with the preparation, processing, review, implementation and/or modification of the EMP shall be paid by the Applicant as part of the same $10,000 cost for the Task Force funding. Compliance with the EMP shall be mandatory and is an express condition of this Conditional Use Permit. /5~-.;e/ ,.! I ! Resolution 18059 Page 8 J. Performances shall end by no later than 11 :00 p.m. on Sundays through Thursdays and 11 :30 p.m. on Fridays and Saturdays. A maximum of five performances per year may be permitted to exceed these hoursI~yt!!irtyt~~)jjji_$. Operator shall use its best efforts to notify the Events PlanningandCoordiriliiioriTask Force for events it anticipates will exceed the curfewQY~hiayl~!1l'!!OO!niiit~~. Only events which actually exceed the curfew will be countediowardsihe five (5) exemptions per year. The curfew shall be a component of the aforementioned Events Management Plan. Police Department K. Designate an appropriate area within one of the main amphitheater buildings as a temporary Police Department substation, to the satisfaction of the Chief of Police. Said substation should be housed with or in close proximity to the operator's own security office in order to enhance communications and coordination of security during concerts/events. L. 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. This shall be a component of the aforementioned Events Management Plan. M. All on-premise alcohol sales shall be suspended for the remainder of each and every event one hour after the commencement of the last "headline" act's performance at such event. No more than two alcoholic drinks shall be sold to anyone adult in a single transaction. Enoineerino Department N. 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. O. 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 /::;c ~5 Lfl'd Resolution 18059 Page 9 around the project. P. 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: 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. Fire DeDartment R. 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. This shall be a component of the aforementioned Events Management Plan. S. Comply with and implement all requirements of the Fire Marshal as related to conforming with the Uniform Fire Code and applicable Municipal Code requirements. T. 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 shall also provide for training of amphitheater personnel in basic firefighting and first aid. This shall be a component of the aforementioned Events Management Plan. /5C-;{0 If -~ Resolution 18059 Page 1 0 Buildino and Housino Department U. Comply with and implement all requirements of the Director of the Building and Housing Department as related to conforming with the Uniform Building Code. V. Comply with and implement all provisions related to Title 24 (Part II). Disabled Access, to the satisfaction of the Director of Building and Housing. School Districts W. 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. Miscellaneous Conditions of Approval X. 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. This shall be a component of the aforementioned Events Management Plan. Y. Cooperate with any interested party in their obtaining all appropriate permits, including, but not limited to a conditional use permit, related to the planning, design and construction of soccer fields in Parking Area B, the northern-most parking lot. In the event no soccer fields are constructed in Parking Area B within ~ tQ~ years after the approval of this Conditional Use Permit, Applicant shall implement the landscape plan approved through and on file with the Parks and Recreation Department and Planning Department. Cooperation under this condition shall not require the amphitheater operator to construct or maintain or to pay for construction or maintenance of the soccer fields, and the amphitheater operator shall be entitled to an agreement with the soccer field developer giving the amphitheater operator full indemnity/protection and insurance coverage. Additionally, the amphitheater operator shall retain scheduling priority over any soccer field use. Z. Comply with all applicable City ordinances, codes, standards, and policies. Any violation of applicable City ordinances, codes, standards, and policies, or of any condition of approval shall be grounds for revocation or modification of this Conditional Use Permit by the City of Chula Vista. Citv Attornev AA. Pay all processing and development impact fees applicable to the Project unless otherwise agreed by the City. Further, in the event that for whatever reason the City~j:!~~ qQtpi!iili'lIti~q9~Qr ceases to receive revenue under a sublease or other similar arrangement with the ClperatClr of the project (the "Operating Agreement), the City reserves the right to impose a host fee with respect to the project. Provided that such host fee (a) is substantially similar in economic effect to the revenues which had been received by the City the Operating Agreement, and does not impair operator's rights or increase operator's obligations compared to those set forth in the Operating Agreement, or (b) interrupt /5 t!-.~7 Lit LJ Resolution 18059 Page 11 operator's operations of the project, the operator agrees to accept the imposition of such a host fee, waives any challenges to such host fee and agrees to pay such host fee as a condition to the Conditional Use Permit. BB. 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. CC. 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. DD. This Conditional Use Permit shall become void and ineffective if: 1. The Master Lease, Tri-Party Agreement and Sublease between Los Alisos Company, or a California general partnership, MCA Concerts, Inc., and the City of Chula Vista are not closed and in full force and effect within one year from the effective date of this Conditional Use Permit; and 2. This Conditional Use Permit is not utilized or extended. within one year from the effective date thereof, in accordance with Section 19.14.260 of the Municipal Code. 'll"""""!'"'' t!!tE!vi VIII. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL The property owner and the applicants shall execute this document by signing the /5C -.~ f Resolution 18059 Page 1 2 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 tletermined 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. Presented by Approved as to form by Robert A. Leiter Planning Director Bruce M. Boogaard City Attorney /:5C -~9 ;c:> Resolution 18059 Page 14 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 7th day of November, 1995, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: ABSTAIN: Councilmembers: Shirley Horton, Mayor ATTEST: Beverly A. 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. 18059 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 7th day of November, 1995. Executed this 7th day of November, 1995. Beverly A. Authelet, City Clerk /~~'-31 WI '6 RESOLUTION NO, 18060 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 OT A Y RIO ROAD I. RECITALS A. Project Site WH EREAS, 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 /5.D -/ . I; 'I' ii' Resolution No. 18060 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, duly called and noticed public hearings on the Project were held before the City Council of the City of Chula Vista September 26, 1995, October 3,1995, October 17, 1995 and November 7,1995 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. 18057 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 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 /5j)-2. Resolution No. 18060 Page 3 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 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 FEASI8LE 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 /5,/)-3 )',4''''; :e Resolution No. 18060 Page 4 day, thus not causing congested roadways. 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, open air market operator and/or property owner shall: Planninq Deoartment/Environmental A. Comply with all applicable Mitigation Measures identified in EIR-95-03 and in the Mitigation Monitoring and Reporting Program, as determined by the Environmental Review Coordinator. B. 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. C. 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 15./)- Lf ;;,~~ Resolution No. 18060 Page 5 issues regarding location, aesthetics and the maintenance of adequate parking and circulation can be resolved to the satisfaction of the Zoning Administrator.) D. 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 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. All costs associated with any requests made pursuant to CVMC, Section 19.58.370Bshall be paid by the Applicant and/or open air market operator. E. Limit the public hours of operation of the open air market to the 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 a modification of the Conditional Use Permit to allow extension of the days to include Thursdays and Fridays, and expansion from 150 to 300 vendors to 750 to 1,000 vendors after one year of operation from the opening day of sales. The Zoning Administrator may approve, deny or modify the extension and expansion request subject to appeal to the Planning Commission. All costs associated with any modification to this Conditional Use Permit shall be paid by the Applicant and/or operator of the open air market. Any modifications may also require additional environmental review, which costs shall also be borne by the Applicant and/or operator of the open air market. 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 /5D -5 ,,,~-'",,,,, -: Cr--/ Resolution No. 18060 Page 6 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. All costs associated with the drafting and review of this report shall be paid by the Applicant and/or open air market operator. Police Department 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 prevention report for the operation of the open air market, to the satisfaction of the Chief of Police. Said 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. Fire Department 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. All costs associated with the development and implementation of a Pre-fire and Emergency Medical Plan shall be paid by the Applicant and/or open air market operator. Buildinq and Housinq Department J. 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. /5.D-fo ....': Resolution No. 18060 Page 7 Finance Department L. 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. All costs associated with the development and implementation of a tax collection/business license issuance plan shall be paid by the Applicant and/or open air market operator. School Districts M. 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. Miscellaneous Conditions of Approval N. 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. O. 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. P. Pay all processing and development impact fees applicable to the Project unless otherwise agreed by the City. Citv Attornev Q. 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. R. 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. )5D-7 r ....'1" " Resolution No. 18060 Page 8 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. Presented by Approved as to form by Robert A. Leiter Director of Planning ;5D-f " EXHIBIT A /5 D-1 Resolution No. 18060 Page 9 4~ ! ~ Resolution No. 18060 Page 10 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 7th day of November, 1995, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: ABSTAIN: Councilmembers: Shirley Horton, Mayor ATTEST: Beverly A. 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. 18060 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 7th day of November, 1995. Executed this 7th day of November, 1995. Beverly A. Authelet, City Clerk /5]) -/~ 4)'6 RESOLUTION NO. / YtJd? 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 1. 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 John P. Lippitt, Director of Public Works c:u.\vac::a6on /5 F- / THIS PAGE BLANK /5 E --:2.. 43 -- - .35 .34 II) 1 2 ~ .3 ,.. .36 ~~ HIO .. '-i .3.3 0' .37 0 . .38 .32 29 25 .39 .30 24 40 2.3 41 42 4.3 19 9 18 17 16' 1.3 12 - LE(;ENO: V / / / /J - ST~ccTS TO BE VACATED LOT NUMBERS DRAWN BY L.M. G. TIT L E EXHIBIT "P.' 1fJ. f /SE'Y -------- DATE 2 -/5 - 90 -------- 15E',YEXHIBIT I1B" --1 ~ ~ co ?l o z II ( II ~ ~ ., ll/ ~ " " ) ~ II .. 'l ...: ~( ;t !a ~~ l . / .... ...... ....... ,.- 'A4J(IAI~ .-/ }. ~ .. f) :,1 " ~ I I I, ~ ~ l~ ~ ~ l\f 'J"I ~ ~ ~ . I ~l t t ~ ::! ( I~I"'-....J ... I ~ --: : -- '3 \ I Si -.... 0' ~ It' ~ ~ )'l\ ~ ~ .. ,..a' ~ ""' -..,\~, ~ ~\ ) :\ , '" , , , " .,,-' \" ,----- ..",-- \ '....-------- '- -- . OWN BY: DATE: ., " / , ~ ~ " ~ I I' " I . I '" , . , '" , ""'// "'" '" '" " ' / ,- '" ' " ..- -" ..- "" " ",," _.- FILE NO. Plio OG4 (/3- o 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 ofChuIa 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 orless), Turnberry Drive (1.73 acres, more orIess), 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 s~;d 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 /.5ES ii')"""";' I..t;~;;. 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 Avenue, Tumberry 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:\wpSI\pv\les_desc.064) Page 2 /5F....~ : I;~ Li 1,,, , . . COUNCIL AGENDA STATEMENT Page 1, Item ~ Meeting Date 11/07/95 ITEM TITLE: 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. Ordinance r:?, t, if:L-- Amending 919.68.020 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 SUBMITTED BY: Director of Planning ;?l{ REVIEWED BY: City Manager 1J (4/5ths Vote: Yes_No.1O 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.l 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.l of the Municipal Code. The minutes from that meeting are attached to the staff report for the MCA Amphitheater. DISCUSSION: 1. Prooosal In an application and letter dated August 18, 1995, the Applicant has requested that the wording found in 919.68.020 T.l be expanded as follows (additional wording highlighted): " Noise Disturbance-- Environmental. ..... .'l:'I1?se noise disturballc:~~E:~~I~ill~!~?J?I~Il~\J~: ~~~~~ii~a_,r;;w;e~:e~1;\!~~~:~:e~s~~o::is~1~~"!~~~~~G~~!f!'~! It, -I Lf3~, Page 2, Itemi!P Meeting Date 10/3/95 for that particular land use. Enviromnental 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., "enviromnental" rather than "nuisance" noise. For example, freeway noise is considered enviromnental 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 enviromnental noise. Enviromnental 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 enviromnental noise. 2. Analvsis The substance of the amendment is that the impact of enviromnental 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 enviromnental 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. Therefore, staff agreed to process this clarification of a standard practice. 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: \home\planning\martin\mca\960 1 a.113) /0 ~ 2--- lr,~ ORDINANCE NO. 2642 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. 1, 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 l506l(b)(3) of the California Environmental Quality Act; and WHEREAS, on September 6, 1995 the Planning Commission voted 6-0 to recommend that the City Council adopt the amendment to the Municipal Code in accordance with Resolution No. PCA-96-0l; 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 /? _ 3 431"] . . Ordinance No. 2642 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 Ililil.i,iiO~~t!!t,!!!!P!!'!!'!~!!!~~!~~!~!~~ this . code for . that 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 second reading and adoption. Presented by Approved as to form by Robert A. Leiter Director of Planning Bruce M. Boogaard City Attorney It - 1- U-:'.:J , ~ () COUNCIL AGENDA STATEMENT ~R~ \11,fq( ITEM TITLE: Item Meeting Date 10T24'o~ Resolution /~t?~~aking a position of "Oppose, Unless Amended" on U.S. Senate Bill S. 269, regarding border crossing fees and immigration, which carries a "Watch" position in the Legislative Program and therefore requires direct council action. SUBMITTED BY: Legislative commit~\ REVIEWED BY: City Manager~~~(4/5ths Vote: Yes_ No..JL) Attached for your review is an analysis of S 269, which would impose a $1 border crossing fee. Over the last two years, there have been a number of federal proposals regarding border crossing fees, which have been held by several groups---including the Chula Vista Chamber of Commerce---to have a chilling effect on local businesses and cross-border commerce. RECOMMENDATION: . That council approve the resolution opposing S 269 unless amended. BOARD/COMMISSION RECOMMENDATIONS: Legislative Committee recommends approval of the resolution. The Chula Vista Chamber of Commerce has indicated that it concurs in the City's proposed position on this bill. DISCUSSION The bill proposed for Council action is as follows: 1. S 269 (SIMPSONI IMMIGRATION/BORDER CROSSING FEES: Would establish a $1 land border crossing fee for all non-commercial traffic, with unspecified discounts available to frequent crossers. Other provisions include pilot programs for automated border crossing facilities, hiring of 700 new Border Patrol agents per year through the year 2000, hiring 300 new INS investigators per year through the year 1998, and strengthening criminal penalties for alien smuggling or document fraud. Legislative Committee Recommendation: , OPPOSE, tlNLESS AMENDED At the Council meeting of February 7, 1995, Council declined to take either an oppose or support position on border crossing fees due to lack of information on how they might be structured. Council instead took a "Watch" position and asked that any future legislation on the subject be brought forward for their consideration. Subsequently, Council did take an Oppose position to a border fee proposal (S 754) of $1.50 per vehicle and $0.75 per pedestrian. Since S. 269 contains several positive provisions, the committee recommends the city take an OPPOSE, UNLESS AMENDED position on the ~ I . '/:...!J I Ig~- ( tf3q Item Meeting ,.--- 1J>.a....- , Page 2 Date 10/24/95 bill. This position would favor the increased border patrol staffing, but push for either the elimination of the border fees or at the very least, a liberal interpretation of the frequent- crossing discounts to minimize the fees' impacts on local shoppers. FISCAL IMPACT: Local border crossings are estimated at 5-6 million per month, with approximately 40% of these trips for the purpose of shopping in the San Diego area. In Chula vista, it is estimated that 30% of retail shoppers come from Mexico. Especially with the recent Peso devaluation, an additional border crossing fee would significantly impact local businesses. In an unrelated action (not subject to this pending congressional authorization), as of Monday, October 9, the INS began charging a $4 fee per border crossing card (maximum of $8 per family) for Mexican citizens traveling bevond 25 miles north of the border or for lonaer than 72 hours. This fee does DQt affect travel to the Chula vista area and should not have a direct fiscal impact on the city. Attachments: 1. Resolution 2. Analysis and bill text, 5 269 c:\wp51\memos\cc1024.113 ~ IkQ. ., do. t~4t RESOLUTION NO. /~P~~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA TAKING A POSITION OF "OPPOSE UNLESS AMENDED" ON S 269, WHICH CARRIES A WATCH POSITION IN THE LEGISLATIVE PROGRAM AND THEREFORE REQUIRES DIRECT COUNCIL ACTION WHEREAS, on February 7, 1995, the City Council adopted the 1995-96 Legislative Program; and WHEREAS, although this program was intended to provide comprehensive direction to the Legislative Committee on the City's legislative priorities, there are certain issues which are reserved for direct action by the Council; and WHEREAS, the following bill, which under the City's current legislative policy is specifically required to be addressed by Council: 1. S 269 (SIMPSON) IMMIGRATION/BORDER CROSSING FEES: Would establish a $1 land border crossing fee for all non-commercial traffic, with unspecified discounts available to frequent crossers. Other provisions include pilot programs for automated border crossing facilities, hiring of 700 new Border Patrol agents per year through the year 2000, hiring 300 new INS investigators per year through the year 1998, and strengthening criminal penalties for alien smuggling or document fraud; and WHEREAS, S 269 contains several beneficial prov~s~ons in terms of hiring additional border patrol agents; and WHEREAS, based on the significant potential for negative fiscal impact to the city due to border crossing fees, the Legislative Committee is recommending that Council take a position to oppose S 269 unless amended. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby oppose S 269 unless amended to reduce the impact of or eliminate the proposed border crossing fees and direct the Legislative Committee to send letters as appropriate. Presented by over 0 '.:r Bo gaa d, City Sid Morris, Assistant city Manager c: \rs\s269.opp . /'~ -..2. }!~"3 ! (Cjq- ~ Lf41 ';..::>~~ . &rJ (/ MEMORANDUM October 10, 1995 TO: VIA: FROM: SUBJECT: Legislative Committee (\ ~ John D. Goss, City ManagerJ:\\1I.o~\ Gerald Young, Senior Management Assistan~ legislative Analyses Attached for your review is an analysis of S 269. This Item carries a "WATCH' position in the 1995.96 Legislative Program and, therefore, would require formal action by the City Council. It Is being forwarded to the Legislative Committee so that the committee's recommendation may accompany the report to Council. 1. S. 269 {SIMPSONIIMMIGRATION/BORDER FEES Establish a $1 land border crossing fee for all non-commercial traffic, with unspecified discounts available to frequent crossers. Other provisions include pilot programs for automated border crossing facillties, hiring of 700 new Border Patrol agents per year through the year 2000, hiring 300 new INS investigators per year through the year 1998, and strengthening criminal penalties fOr alien smuggling or document fraud. Local border crossings are estimated at 5.6 million per month, with approximately 40% of these trips for the pI., pose of shopping in the San Diego area. In Chula Vista, it is estimated that 30% of retail shoppers come from Mexico. Especially with the recent Peso devaluation, an additional border crossing fee would significantly Impact local businesses. An OPPOSE, UNLESS AMENDED position would favor the Increased border patrol staffing, but push for either the elimination of the border fees or at the very least, a liberal interpretation of the frequent-crossing discounts to minimize the fees' impacts on local shoppers. Staff Recommendation: OPPOSE, UNLESS AMENDED If you h_ any questions about this bill, please give me a call at 585.5649. cc: M8yar and Council Advocation, tnc. c:\wp5'~ly...\Covxxxx /" r):.5: - < ~a.-S LfLj'd- CITY OF CHULA VISTA LEGISLATIVE ANALYSIS October 11, 1995 BILL AUTHOR TITLE INTRODUCED AMENDED S 269 SIMPSON IMMIGRATION AND 1/24/95 6/14/95 NATIONALITY ACT CITY POSITION LEAGUE POSITION RELATED BILLS ADDRESSED BY LEG. PROGRAM PENDING NONE S 754 (City Opposed 5/16/95) YES; II.C.3.a. (Watch) STATUS: Pending in Senate Judiciary Comminee; No hearing set BACKGROUND: Over the last two years, there have been a number of federal proposals regarding border crossing fees. In the range of $1 to $3 per crossing, these fees have been held by several groups, including the Chula Vista Chamber of Commerce, to have a chilling effect on local businesses and cross-border commerce. At the Council meeting of February 7, 1995, Council declined to take either an oppose or support position on border crossing fees due to lack of information on how they might be structured. Council instead took a "Watch" position and asked that any future legislation on the subject be brought forward for their consideration. Subsequently, Council did take an Oppose position to a border fee proposal (S 754) of $1.50 per vehicle and $0.75 per pedestrian. As of Monday, October 10, the INS began charging a $4 fee per Mexican border crossing card (..,aximum of $8 per family) for travel bevond 25 miles north of thft border or for loncer than 72 hours. This fee dces mu affect travel to the Chula " I area and should not have a direct fiscal impact on the City. S 269 would: Establish a $1 land border crossing fee for all non-commercial traffic, with unspecified discounts available to frequent crossers. Other provisions include pilot programs for automated border crossing facilities, hiring of 700 new Border Patrol agents per year through the year 2000 (a total increase of approx. 70%), hiring 300 new INS investigators per year through the year 1998 (a total increase of approx. 100%), and strengthening criminal penalties for alien smuggling or document fraud. The bill summary states that, "all monies will help cover costs and improvements at U.S. land ports of entry," and, "The collection of such fees reduces the likelihood that funds needed for border-related expenses will not be available." ,This language implies that there may be a risk of little new border infrastructure money being approved by Congress without a border fee. Although the bill was "marked up" by the Immigration Subcommittee in June, the official text is still not available and may vary significantly from the published summary. As such, it is difficult to be sure how some of the new language will be interpreted. One area that may be especially problematic is the original bill's reference to the fees being sufficient to cover all maintenance and operation costs. Such language could result in a "bait and switch," with the foot-in-the-door $1 '~e soon replaced by a much higher levy. ~ litA -~ II LfJ ~ OPPOSE, UNLESS AMENDED S. 269 (SIMPSON) October 11, 1995. Page 2 Due to some of the bill's other positive provisions, staff would recommend the City take an OPPOSE, UNLESS AMENDED position on the bill. This position would favor the increased border patrol staffing, but push for either the elimination of the border fees or at the very least, a liberal interpretation of the frequent-crossing discounts to minimize the fees' impacts on local shoppers. FISCAL IMPACT: Local border crossings are estimated at 5-6 million per month, with approximately 40% of these trips for the purpose of shopping in the San Diego area. In Chula Vista, it is estimated that 30% of retail shoppers come from Mexico. Especially with the recent Peso devaluation, an additional border crossing fee would significantly impact local businesses. DATE TO COUNCIL City Council October 24, 1995 RECOMMENDATION OPPOSE. UNLESS AMENDED LETTERS YES C:\wp51 \ANAL VSES\dU.8N 18 A-1 / --.;:.. 7 i./LJ4 SUMMARY OF 8.269, lMMIGRANT CONTROL AND FINANCIAL RESPONSIBILITY ACT OF 1995, (as reported from the SU..........mfttee OD Imm\gratiOD; June 14, 1995) TitIl: I fDcrca8lI6 the SOvemmeut'1 Ibi.Iil:y 110 toDIrOl -igralioD. Title n red''CeW the cost of immigration to 1b taxpayer. TlI'LE I: IMMIGRANT CONTROL A. LAW ENFORCEMENT PIIrt 1. ..did-a' Eafor<_.' PerIoImel (IeCtlODS 101.103) 'I1IeIe leCtIons add 700 Bon1ec PlIUol ApD for each of die IICltt ftve 1i&ca1 )all (a total iDcreue of about 70'Jli). They ID1hori%e the addition of 300 fW]-time INS lDwstigators for tbe !leX1 three fiscal years (I total i.oc.rease of 8lmosl100'Jli). all of which would be used to CDforce laws Ipinst alien 1III'lggJmg IDd UDlawful employmtDt of aliens. Tbe A1torDey GcIIcraIIJId Secretary of!be"TreuuIy tile eJso required to .iDcI:ease 1b IIIIDIbcr of D~ to asSUte fuJIlIafliDg of alllaDd border crossiDg laDes duriDi peak times. PIIrt 2. Ver1fyIna El1clbWty to Wen 8IId to Receln Pobllc A.aIItIIDce (ICCliODS 111.120) Within 8 ycaIS. the A1:frru::y Genera1 and I"nmml.mnft(1 of Soc:ia1 Security umst implemeat a system to verify an app1ican1's eligfbnlty for t.IDp1oymen1 or public uaistanee. The syDm nmst reliably verify both tbe kIemity and eligibility of an Ippllcallt. NJ.y "IV'!I""~ used in SIlch a system DIIUt be raiatant to laII:IperiDg ml COIIIIZet'feItIng. The 1ta1Ule provides pro1I:Ction qaimt improper WIC (If the ~rinn I)'StIID and vio1adons of privacy. Such of!iciala lie 4lrecled to CODducl '-year pnot projects in S ItatcS to tm tile bsibility of mifi::al:ion sylltllDB, m1 to CIOIISUlt resuJatIy with Cot1grcn on the status of eac:J1 pIOjeel. AddilioDa1 or mJn'Cd projects lie possible, and a liDMl evaluaticD and ftlCOlDlIICtldation i>> Rquircd after campletion of the proja;U. '[be A.utJmty 0eDml is dirccbl to establish 1 syItcm to 8DCeSS tbe 4............~ or INS IDd tbe Socla1 Security A.dDl!DiJIzUiol for poaib1c DIe in the ~ ftriflCltiOJl. 1)'IIal. PedmlItaDdards me es1abUahed for birth c:erdficatc& IDd Ilate-issued driwn licenses. A copy of lIl1 deUh oertificme 1IIDII be ICDl to tlle Soc:lal $-'nty ~~...1~0J1. p:. e- (t~ - f L14: CMI peDIltieI arc IDcIeuecl for til6.. a. employmmll ol 1IDII.ocwnented aliell5 IIDl1 failure to properly vedt,; WOIkcr eI1&1llilily. 1bc paUI:m or practice of ~ illegal wOlters Is made a feloay. Civll penalties can be doubled for employers who bave willfully or rrpete4Jy violale4 fecJcn1labor IWI4ards. Pines In ~ of SS miJlilll1 per year arc ,-,;.-1 by INS to IUp:IIlUl tun.u:e ~orcemc:Dl oldie law IplDst bIowiDg employmellt of illepl aliens. 11ae AltOI:Dcy GeIIcral illDthorized tD 1m alitlollll A.mstam U.S. Attorneys to prosecute imndpdon-re1ated cues. SubpoeDa power iI al".~..., to ..~S""~ INS oftice:rs aDd to die Secrewy of Ubor to aw-;pt.. document frlIud. aDd die lIDIUtb0rize4 employmeu of aDem. . Part 3. ABell ~aJl"I; Doel~ Fnuul (1llCtioos 121-133) These &eCdODS IDcreuc antl-llD1UGGllDg ...dt.a.-",,,,,,,,,, ~s dIrough Iclliitiollll wiretap authority UId availability of mea pi oc:edlues aDd pc:aalties. Pemltic::s for alien IIDII8SJing CI: barborin& arc lacreued, UId .........tnty minimums are added. Vidcotlped ..&.:11-'-"11)' is admiIllllle ill ImllQliD& prosealliODS. AIIet r..,.r~ iI authorized for certain activitiel RlaIDd SO .ie.n IIDl1Uling aDd 40,.....- fraud. and crilnioal fCllfeimre 11 Ql~ SO cover U8CtS derived from IUch activllies. Civil peualtic::s are IDcreued. for briJlalng ll1egal alienS from CODtiguaus COUDtrie$. 'lbese &eCliom a1Io provide I new pmd of aeJo'f= fat' clocument frlIuO; establish hiPr pcIIII1ties and IIIIIldalOl)' mfnlmll"'" for die fraudnlent creation or u.se or .o.Q.......ot.ilsuccl documents; Inctease ~ dvillllld c:rimlDal penalties for uslDg fp'''''llrDllWo.......... to c1aIm IImDigratkm beDefits. md h'lJOOSC a DeW erimlnll' peualty fur f'aiIiDg SO div~c:- nile IS the prepare:r, for a m:. of a fraudII1cm application for uyJum (1IId - after IlICh a 00DViI::tian - for prepuiDg m immJgratIon appJietori...., ... if DOt for a fee ml DOt for asylum. Tbe affeDder is forced "out of die ~I.t-,' of prepariDg immiaration applicatloDs. Elmll.. to die -- of IOIIlClODe who vlolates securiries laws). The civil peIIIIties for docum<<Dl fnud may be iDczeued for employers who have wUlful1y or repeatedly YioIaIed &dcrallabor .......nh. 1be Attomey 0eDInl DIllY WIM ID1 po_1t;.." for cIocumeDl fraud if D aIiaI is Jl'UIlCd uyJum, or if depoItaDOIl II ,.,;thlv!ld bccllllK of 1bI alien's fear of persec:mlOll. SecdoIl133 pnIv1des that aJieDS ~"~Ie \le('...... of dOC'lQI'"IIl bud ma)' DOt qaalify for withho1ctiD& of ~bItiOIl. v.n1asa folmd to IIave e "c:rediblc t!cIr of peoecudon. . Part 4. En"lusSoa aad Depor1ation (ICCtiOl'E 141-153) /:..,~ - z: 1f'~-7' LjL/( Special exclllsiou.l'" o(;ec"I'lp (wid11bnitfl<! IdmiDistndivc ao:1 judicial ~view) an: eltablishcd for (1) IIicDs who commit docDmeD1 frlIud or fail to prese:ot doeum~ which would !lave bceD sequlred to baud a.....it... (2) aliens who ha\'e been apprehen4e4 III lea mJ appear to be exdudable. IDd &Hens who !lave ,..A....4 Wilhout b~ to. tbe previoos two ,em. IDd (3) wben the AtttmY:y GeDeralIDvokes lIUCh pocecdlllil cturiJl& "c cmaordiDal'y miintion ailuation.. AlieDa who eDIer from CIlnl4ll or ~ IDIlY be ft:tlUocd to that COIUII1)' pcndiDc dIdr ...."b..1on adJ,...;,."t1I)\). These ectlllDS a1Jo rc4lIc:.c me A...wAifC to delay c txr.t,.Jiou. or ~.....natiou. ~I'lg. T.be '-year period of U.S. pd- required to cpWify for RdiOD 212(~) or eecti.ou.244 rolief (aDowing IDeD8 to llVoid depoIt&tion or acJ.usioll if !bey have lived in tIK: U.S. for IllCh pcriocI) DO km8er includes time &fter proceedinp bIlve begun. 1udidaI review of fIIlI1 orders of c1cportatiol1 (II well II exclusion mJ specW ~...tI1.IOD ckclIiODll) is IIT""mlln....d. A DeW civil penaJty Is created for aIleDs who have .....d..ed an order to depart bUt have failed to leave lbc .........ny. AlieDs who fail to depart &fter being IDIhorlzed 1D lave voluntarily are mbject 1D fiDe. JIDmipIioD judae$ lie pveu.1UbpoeDa IUthority for exclusion e.od deportlltion tari!lgs. An &elditioDal iD=Itive is provided for COUIIlrias to ICCCpt deported aliens who art their 1lIlti0Dals. Cumnt law I\Ilhorizc& the withholdiIli of immigrant visas to nationals of sucb countries. 1be blll &4cIs Il"nlmmlJVUll visas. Al50 authorized: a special fuIId 1D *~ deportation batkloI=s IDd a pilot program for pro bono ~OD ill depor1a!icm ptOCtC''';TlJs to detmDioc whether lU~h l"!'.ea<:-tIOIl expMlt.... tile process. Part 4 also .~res carrier liability for 1toWa9llY' bro. iJlto lbc United States. In IllclliioD, dlDIe .aions ll1Ithorize pilot P'l0IfIZllS for the irdmior Iql8ttiation of illegal allals. cd for ~ of dosed militaIy bueI for dct=Itiou. of excll,".t.le or deporlIble aliens. Part 5. Crhnin-' AlieDI (leai0Dll161.t72) T.be defiDiliou. of .qgraVlted fe10Dw illlroI....-. toO IDc:IlJIW addItlonal crimes (u:h II traNpOrtalion rot ......aiwtiou.lDd ...c.....-...1a1 bribczy) IDd to 1DcJude alIcaI who ~It .mOllS aimes but who are ............. to less than S 7eatS Imprisom:IIeD1 (1be 5 year an!.._ _....~ II nquIsed for IeVeI"IlI aagraV8tCd felonies UIlL1er cuxreot law). Catain ~ fe1QDJ are mIde !>>1Igl1l1.. for w1ftt),ol"iDg of deportatIoIl baed OIl far of pcrN .111"" ~ Ie.... -10 L/Lft , 10/10/15 11:42 tf Ill! oo~ District judges arc IIJlborized to order deporWion as a CODditioD of probation ad may order die deporl:aIion of a crimlDa1l1ieD at the time of sentenCing If dJe Ilien Is dIlportab1e em my srouud- The Art.Omt!'J GelIeral is zequu= to IlIbmit lID aumaal1'qlOrl to CQD&ttI$ on c:rI.mIDalllimls NII1Ibe1r nmovaL INS is liveu IUt1writy to '7"""- UDdm:ovcr opermODS. The Secntary of Stale. ropther with the AltDrMy GeucDJ. is IIIIbcrized. to enU:r neJOtiations a1lowlna the ~...4~t of crim!Da1 a&ns to fOld&n prlsoDs wIIbout prisooer eon--'. . Laws requiriD& tbose wbo C:ODlIOI or hubor aJicI1 proItl.nt... to D81ster wilh INS lie .~--gtbencd. Part 6. MisceDaDeoas (sectioDs 181-192.A) This part c:omaiDS prcMsiODS reIatini lD use of the ImIniJraDnn Bmeraency Fu1l4. the selzme of vessell, lIDd (be use of Ioca1law emorocmcn1 pcnoDIltl in urgent clrcumataDCeS involviDg IIWS migration. Abo, the ban 011 opeu-fielc1 IIITChes is repealed, Itld a crlmiDa1 pcDB1ty ia imposed an I1iem who voce. The Ar.t11rDty GcncraI is clirected to cIeve10p In Wlltolr5~ eDlry/exit control I)'stem within 2 years. CarrIer liabnity II r~lMtd for lnd.ivIdlWs who CDtcr 1b: U.S. 111 ttaIl8it to a ddrd COlIDIIy, but tanto leave. These sections also authorize law cafoW',.-ue of iaformatiOD from JF.CA's ]ea~lI",rinn aDd special agricuJtura1 wmm I"VP.....s, m1 require that Federal. State. and localIQ'\l~~ apDCic8 DOt rwtoict ..............;('..tlO11 betwa:n their penomr:l and INS. VollllltccIllU)' be ucc1 to aid INS offic.ia1s. Sulplus equipment from OIlIer ~ agencies may be acqulred for use In ItoppiDg iUcgal1mrnigration. Det'I1;,,~ for die 11.,,11,..'1011 pzogram imposed by JF.CA in 1986 IrC JCaffirmcd. Aliens wbo bave worked within the UJliIed $Utes without IIUthorIzation, or"<<lbo have ovcnraycd a .... ..:......iJTIDS visa or otherwise violaled the tenDS of such I visa, IrC probibiled from adjluliDg (D lawful pennanent reIrident slims, II are aliens who ue not In . lawful J'^n_lgrud: 1tatUS. , B. OUUI.. CONTROL MEAStlllES Part 1. PuoIe AI.,J--~ (18ClioDs 193-194) ~ _JI /../ ' / ./ tgA -II U4' I 'Ibex IeCdoDII ..,.."" parole IUtbori1y by (a) cbauPli the ICCCplIblll use from .-6...... l'eIISOIII' lJId"reasons ~m"" Ittlctly lD. ~ public ~I...t. to .llI'J:CJIllmmanlr.rIan _ or aIgnlf\caDl pm1lc benefit,. (b) requiriDg case- by-ease M-.nina!ioD., aad (c) provi\tiDI that the DllDber of parolees who mnaln In die CCIUWy for mor;e lblIII a ycu mIIIt be IUbtra.c;tcd from the world- wide Jewl of ID:IIDJgrams for a IUbgequent year. Pert Z. AIyIum (letIicma 195-198) These lIeCtioIIs reduc:e the abuse of asylum law. There I. . prohibition on the fWIIa: of asylum IpplicatiODS by IUaIs ualD& e,lnrnm....'" fno'...."'_ly or by <<V.........,,. a1leIIa apprebcDdo4 at Ill&, aabjec:t to & '~Ie fear of pe,ge(..ooz," e.xccpti0ll. 'l1Ie cIeIenntnatlon that dIuc II . "credible (ear of "",ge(\Itioll" ja made by ID asylum officer aD the besia of (a> the appllcmn IIIt"Glleillt_. if the vf&.- cIatermJDes that tlae is . ..._n';ol likclihood !be ItaII!ments 8R 1l'\Ie, &lid (b) the otJicer', bowle4p; of l:OIIIItry cxmdition.~. ApplicatiOllS for IS)'lum an: mqulrcd wiIblD 30 days of ilia)' ialo 1IIe UDited States or within 30 daYI of c:!wIIed circamIIaJlceI. These.nODS alIIo encourase more careful graJttiDg of wOJtc lI1tborization to asylum applicams IDd plVYilJc additiOJlll resources to zedDce exiItiDg asylum adjUdieftiOD bKklap. Part 3. CabIa AcQastmeat Act (leC1lon 199) This Iec:tI.on zepeI1s the Act. I:Iut provides that !be Act', proviaioDs will contiJme to apply aD, case-by-case basis to aliCDS pr:olecl iDlo the IXlIUItIy plIl1U8dt to the U.S...cuba Aareem= of 1995. CubaIIs auaiDinS lawful ~ nsideDt ItaIU$ I.D. Ibis way will be ooasldmld fami1y-spomored tmmIgnn1s for pIlpOIeS of 1DIlllI11111U1micl1l1imill5 on immiption. TITLE D: FINANCIAL RESPONSIBILITY Part 1. Reaipt of CertlIIn ...efttl. (Rctiom 201-208) Tbia put ...-.-1DCtioDI p-cwI4Ins dial olnellglble aJieDa" (IJlcSI1I1ieus md DO~) an: -,'Ipble fox varioua public ~ bided by the Federal Go"""",,,eDf or by ~t.. or ..,.",11010"......- ...mti,.,. (withllll18iD. exceptioas 6:lr -5~1 mecIit'~ tleatmeDL. CII;.). Such b.lw.fa iJr;1ude, bu1an: DOt limited to, PJbIlc ...1__ proaramI base4 em Deed. PabUc _.-tl""ol , ll4l.di~ II'lI DDt prohibi1od. . ~ II also . providon w!Iich prohIbItII Stare or local pea.........4 ~" from ClDIlIiclaial an pl;ph\1I alien . . ...idcat if 10 do 10 would p*- IIICh 111m in . ID01'C favorable pos1tioAlban that of a U.S. eitivn.. with ~ to IIlCelSI to, or the CllIt of, 11I3' bcDeftt or 16....~ BVice. ~ "J,I' _, 4:2.- rk~../~ 449 ~U/~U/.Q ~~... .. Thcae IOClioI:Is mlun that 1bc affidavit of IUppOrt licned by tile sponsor of an immigrant be eDforceable II I COJlttlCt 1IIId1!be lpOIISored iDdiviclua.l has wmbd in the U.S. for 40 "qualifying quarterS" (10 years - ....rnir,glllfficiellt waps, payina ~, IDlIlIDt recelvlD& welfare). A civil peJIIlty 11 created for failure to give DOtification within 30 days of llpOllSOr'l cJwlae of address. '!'be mA is modIfted to require dIIt the I1Icome and reeourcc: of the IIpOIlSOr be cIeel:D.... to be lhat of !be ..,ol.lllOl.ed IDfivldual for p.uprr~ of accessing DtC4-bascd FtdelaI ~.....s for .. lcq II tile affidavit of IIIppOrt is in effect. States IIl'e Jlven die option to ClIlct ratrictiolll which are equivalcm 10 (or Jess IIlIttIcdve than) IhoIe "..pqaed by tbe Pcdem1 5u....d..~t. In Iddition, I ~F:..:I:cm of "pub~ c:barF" 11 Id&d to tbe IeC:ticm :1.41(a)(5) around 01 deportatlon. A"pubUc cllarge" 11 dl"fi...... II aD IlJa1 who haI ftCCived a govc.t'IlIDe.Qt-fwlde4 beDefil for aD IggIeptc of 12 _10" whbin tbe first S ')'e&rS. Aliens who ber.mn~ a public cIwIe are deportable, wI1h w:eptions relaUDg to ICriouI phyllcal or m-I dilability &riling after eatry. Thj~ part also doubles tile mnlmllm pcualtic& for iDlividuals who forge or a1II:r the lIeal of III)' Federal apllC)', or use a forSecl or aJte:ed .aI. in order II:) falsely receive govcmmc.at b=efit$. High D1egal immigration IIItca are pcanitted 10 use Medicaid Cun4s to pllll:e iDvcstipton at hospUal& to discern fI'aw:Il11d alien inell;ihllity for bellCfilS. Part 2. URl' Fees (lIllCtioDS 211-213) This pert institutes a Iud bo1de:r uer fee of $1 (for JIOD""""""'trcial travelers), with clisc:OunlS available 10 those who erau tiequlllltly. All monies will help cover costs I11d improvements at U.S. laId ports-oC-cnuy. 1be coUcaion of auch feel reduces the l;ii<Pllhnnd that funds Del ~ for borI>>r-telafed ellpeDSCs will not be avaUab\e. Tbis part aho IIJthorizes pilot pr'opmI for ~-__ at tbe Iud border aDd for automlllcd border ~ CaQlities. The fee c:urreutly cblqed for impection of all airli:De plllCllgen is eJtWIded to alllbip pa~en, except !bole OJ!. inICD1"tlOJW kzric:lI. ~ Ife....-/J -/1 , I.{5"C ~ ~ ~ ! ~ = .5 ~ ." .- 'S ~- .s 2l ~ j j ! ~ Ill~ o'~ 1 ~ .s '>! .!i III ~ _., ~ 'p : 'i ~ 1 t ~ :. _I'l~;; 1'- "CI t- ~ = !i~"C J j J i ~ t 1 ..s IS .s 1 III .~ ] ~ -;; i ~ "[3 - ~ i i J '" 0 I j ~ "( ~ I ! ~ ~ ~ 8 ~ f I ~ s ~ . 0 ! III ... ] i ~ II] Ii .~ ~ t ~ j .!!~j'i i ~ I ~ ~ 's .: _ c ce ;;.! 'iT U ~ TEXT FROM ORIGINAL BILL (prior to 6/14/95 subcommittee action) ~ "C 1 f ~ ., ~ ~ .. .c: .~ ~ Jil 5 JIQ .~ j ~ ~ ::! ~ l! 1 ~ 1 sill.. ~ ~ ~- ~ ~ 1 .!i ~ ~ f ~E <D '" :'! ;:;: -< j i .s ] 'i III Jl 'i III J ~ l! 1 ] .5 'il "C ~ t> ., := ..s 8. ] III ~ i :~ -~ =a ~ ii 8- i ~ .! .~ ~ r1J .:l IS 'Ejt 'i 'f "C .s ill II .. z -i ~ l :B ~ .i .s ! t' oS '" .... ., C "C ~ I .~ .. ., ... 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