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HomeMy WebLinkAbout2008/04/22 Agenda Packet I declare under penalty of perjury that I am employed by the City of Chula Vista in the Office of the City Clerk and that I posted this document on the bulletin board according to \ r , Brown Act requirements. ~ ' ':t-- "5I1.RL-t-,- ::~ ~ ~ 4' If D'l Signed ~ ~=c~~ ~- ~........ CllY OF (HULA VISTA AJOL Cheryl Cox, Mayor/Chair Rudy Ramirez, Council/Agency Member David R. Garcia, City Manager/Executive Director John McCann, Council/Agency Member Ann Moore, City Attorney/Agency Counsel Jerry R. Rindone, Council/Agency Member Donna Norris, Interim City Clerk Steve Castaneda, Council/Agency Member REGULAR MEETING OF THE CITY COUNCIL AND SPECIAL MEETING OF THE REDEVELOPMENT AGENCY April 22, 2008 6:00 P.M. Council Chambers City Hall 276 Fourth Avenue CALL TO ORDER ROLL CALL: Councilmembers/Agency Members: Castaneda, McCann, Ramirez, Rindone, and Mayor/Chair Cox PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY - City Council . PRESENTATION OF A TREE CITY USA AWARD TO THE MAYOR AND COUNCIL FROM THE CALIFORNIA DEPARTMENT OF FORESTRY & FIRE PROTECTION FOLLOWED BY A STAFF UPDATE ON THE CITY'S URBAN SHADE TREE PROJECT AND ARBOR DAY COMMUNITY TREE PLANTING EVENT SCHEDULED FOR APRIL 26, 2008 A T MOUNTAIN HAWK PARK . PRESENTATION BY MR. PETER WATRY OF SUGGESTED SOLUTIONS FOR NEAR ELIMINATION OF THE COSTS OF POLICE RESPONSE FALSE ALARMS TO THE CITY . PRESENTATION BY MAYOR COX OF A PROCLAMATION TO ELIZABETH SCOTT PROCLAIMING MAY 3 AND 4, 2008 AS "RELAY FOR LIFE OF CHULA VISTA" DAYS Page 1 - J1. CounciVRDA Agenda http://www .chulavistaca. gOY April 22, 2008 CONSENT CALENDAR - City Council and Redevelopment Agency (Items I and 2) The Council/Agency will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Council/Agency Member, a member of the public, or staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed immediately following the Consent Calendar. 1. APPROVAL OF MINUTES of the Special Meetings of the Redevelopment Agency of February 12 and 26,2008. Staff recommendation: Agency approve the minutes. 2. JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT WITH SUNROAD CV AUTO, INC., AND APPROPRIATING FUNDS ACCORDINGLY (4/5THS VOTE REQUIRED) In February 2005, the Redevelopment Agency entered into an Owner Participation Agreement with SW1Toad CV Auto, Inc. (OP A). The purpose of the OP A was to guide the operation and maintenance of a "first quality, first class" Toyota dealership in the City. Adoption of the resolution will approve an amendment to the OPA to make it compatible with current law (Amendment), and appropriate the necessary funds to comply with the OPA. (City Attorney) Staff recommendation: Council! Agency adopt the resolution. CONSENT CALENDAR - City Council (Items 3 through 11) 3. APPROVAL OF MINUTES of the Special Meeting of March 15,2008 and the Regular Meeting of March 18, 2008. Staff recommendation: Council approve the minutes. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008 BUDGET AND APPROPRIATING $1,228,169 FROM THE AVAILABLE FUND BALANCE IN OTAY RANCH VILLAGES 1,2,5, AND 6 PEDESTRIAN BRIDGE DEVELOPMENT IMPACT FEE TO REIMBURSE OT A Y PROJECT, L.P. FOR THE CONSTRUCTION OF THE EAST AND WEST OLYMPIC PARKWAY PEDESTRIAN BRIDGES (4/5THS VOTE REQUIRED) The construction of both the East and West Olympic Parkway bridges has been completed and is now accessible for pedestrian use. This appropriation from the Pedestrian Bridge Development Impact Fee (Ped Bridge DIF) Fund will reimburse Otay Project L.P. for the bridges' construction costs. (Engineering and General Services Director) Staff recommendation: Council adopt the resolution. Page 2 - Jt. Council/RDA Agenda http://vvWW .ch ula vistaca. ~ov April 22, 2008 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH PACIFIC MUNICIPAL CONSULTANTS FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED FORTY THOUSAND DOLLARS ($40,000) FOR ADDITIONAL AUDITING AND ENGINEERING SERVICES REQUIRED FOR THE UPDATE OF THE POGGI CANYON BASIN GRAVITY SEWER DEVELOPMENT IMPACT FEE AND CLOSURE OF VARIOUS ASSESSMENT DISTRICT IMPROVEMENT FUNDS On May 5, 2007, the City retained Pacific Municipal Consultants (PMC) to provide consultant auditing and engineering services required to facilitate the update of the Poggi Canyon Development Impact Fee (DIF) and the closure of various assessment district improvement funds. Since then, as work on the Poggi DIF update proceeded it became apparent that additional work was needed beyond what was defined in the original scope of work in order to complete the project. Staff is recommending the contract be amended and the amount increased by $22,030 to facilitate the completion of the update. (Engineering and General Services Director) Staff recommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATED MATERIALS AND FUNDS FROM THE FRIENDS OF THE LIBRARY AND THE CHULA VISTA PUBLIC LIBRARY FOUNDATION, TRANSFERRING REMAINING FUNDS FROM LB139 TO LBI40 FOR THE PURPOSE OF RE-CARPETING THE CHILDREN'S AREA OF THE CIVIC CENTER BRANCH LIBRARY AND AMENDING THE FISCAL YEAR 2008 CIP PROGRAM (4/5THS VOTE REQUIRED) The Friends of the Chula Vista Library and the Chula Vista Public Library Foundation are donating materials and funds to complete the re-carpeting of the Children's Room at the Civic Center Branch Library. (Engineering and General Services Director) Staff recommendation: Council adopt the resolution. 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "EAST H STREET SEWER MANHOLE REHABILITATION IN THE CITY OF CHULA VISTA (SW- 250A)" PROJECT TO ZONDIROS CORPORATION, IN THE AMOUNT OF $70,300 Sealed bids were received on April 3, 2008. The project provides for the removal of 19 existing manhole frames and covers and replacement with new manhole frames with locking covers along East "H" Street between Kernel Place and Regulo Place. (Engineering and General Services Director) Staff recommendation: Council adopt the resolution. Page 3 - Jt. Council/RDA Agenda http://www .ch u 13 vistaca. e:ov April 22, 2008 8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AND APPROVING THE BORROWING OF FUNDS FOR FISCAL YEAR 2008/2009, THE ISSUANCE AND SALE OF A 2008/2009 TAX AND REVENUE ANTICIPATION NOTE THEREFOR AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES TRANS FINANCING PROGRAM In order to address cash shortfalls that are projected to occur in the General Fund during Fiscal Year 2008/2009 due to the cyclical nature of some of our major revenue sources, it is recommended that the City once again take advantage of the opportunity to borrow money on a short-term basis at potentially no cost by issuing Tax and Revenue Anticipation Notes (TRANs) through the pooled financing program sponsored by California Statewide Communities Development Authority. TRANs are recommended as an alternative to borrowing from other City funds. (Finance Director) Staff recommendation: Council adopt the resolution. 9 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY MANAGER AND/OR HIS DESIGNEE TO COMPLETE ALL NECESSARY APPLICATION PROCESSES AND TO ENTER INTO A FIVE- YEAR LEASE PURCHASE AGREEMENT WITH NECESSARY PARTIES FOR THE ACQUISITION OF MEDICAL RESUSCITATION EQUIPMENT MANUFACTURED BY ZOLL MEDICAL CORPORATION FOR USE BY THE FIRE DEPARTMENT, APPROVING THE FINANCING OF THE LEASE PURCHASE AGREEMENT THROUGH KANSAS STATE BANK OF MANHATTAN, AND AUTHORIZING THE MAYOR TO SIGN ALL NECESSARY AGREEMENTS The Chula Vista Fire Department delivers quality Basic Life Support services. A vital component of this service heavily relies on the resuscitative equipment that is carried on all apparatus. Such essential equipment includes cardiac defibrillators, Auto-Pulse devices, and portable suction units. The industry standard for the service of this equipment is five years. The Fire Department is requesting authorization to enter into a 5-year lease purchase agreement with ZoIl Medical Corporation for the acquisition of medical resuscitation equipment in order to replace existing equipment that is beyond its useful performance life. Kansas State Bank of Manhattan will provide financing for the lease-purchase of this equipment and no budget amendment is required for fiscal year 2007/2008 as the Fire Department has sufficient funds to make the initial payments under the proposed financing agreement. (Interim Fire Chief) Staff recommendation: Council adopt the resolution. 10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING ANOTHER DESIGNATED PERIOD FOR TWO YEARS ADDITIONAL SERVICE CREDIT (CALPERS) Page 4 - 11. CounciLIRDA Agenda http://wwvv .ch ula vistaca. gOY April 22, 2008 In an effort to significantly reduce the Fiscal Year 2008 General Fund budget by reducing the number of benefited employees throughout the organization, staff is proposing that Council grant Two Years Additional Service Credit for eligible employees, and provide for a limited medical incentive program for those that retire during the prescribed window period. The proposal is to offer this benefit to all Local Miscellaneous employees, in all departments of the City. In addition, it would be offered to all eligible Police Department and Fire Department management employees to include the classifications of Police Chief, Police Captain, Fire Chief, Deputy Fire Chief and Fire Battalion Chief (Human Resources Director) Staff recommendation: Council adopt the resolution. 11. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE AGREEMENT WITH DOUGLAS R. NEWMAN RELATED TO THE WORK OF THE NATIONAL ENERGY CENTER FOR SUSTAINABLE COMMUNITIES AND THE CHULA VISTA RESEARCH PROJECT TO ANALYZE HOW THE RESULTS OF THE CHULA VISTA RESEARCH PROJECT RELATE SPECIFICALLY TO CALIFORNIA'S GLOBAL WARMING SOLUTIONS ACT OF 2006 (AB32) AND INCREASING THE CONTRACT AMOUNT BY TEN THOUSAND DOLLARS ($10,000) Since March of 2006, staff has been working with the National Energy Center for Sustainable Communities (NECSC) to advance responsible use of energy resources through the planning efforts of three master-planned developments in eastern Chula Vista (the Chula Vista Research Project or CVRP) and the Los Vecinos and Creekside Vistas projects. The resulting recommendations establish a precedent for a comprehensive approach to energy conservation, efficiency demand management and alternative energy at the individual building and community infrastructure level. The City previously entered into an agreement with Douglas Newman to publish and disseminate the results of the research of the NECSC. This amendment will analyze the results of the CVRP as they relate specifically to the State of California's Global Warming Solutions Act of2006 (AB32), and will assist both the City and the State in implementing their respective energy and climate change policies. (Economic Development Officer) Staffrecommendation: Council adopt the resolution. ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS - City Council and Redevelopment Agency Persons speaking during Public Comments may address the Council/Agency on any subject matter within the Council/Agency's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council/Agency from discussing or taking action on any issue not included on the agenda, but, if appropriate, the Council/Agency may schedule the topic for future discussion or refer the matter to staff Comments are limited to three minutes. Page 5 - Jt. Council/RDA Agenda htto ://www.chulavistaca.goy April 22, 2008 PUBLIC HEARING - City Council The following item(s) have been advertised as public hearing(s) as required by law. If you wish to speak on an item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 12. CONSIDERATION OF SUBMITTAL OF CHULA VISTA'S PORTION OF THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM State and Federal regulations require the San Diego Association of Governments develop and adopt a Regional Transportation Improvement Program (RTIP) every two years in order to continue to receive Federal and State funding. All projects that the City of Chula Vista proposes to fund with these Transnet funds must be included in the RTIP, which currently covers Fiscal Years 2008/2009 through 2012/2013. (Engineering and General Services Director) Staff recommendation: Council conduct the public hearing and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUBMITTAL OF CERTAIN PROJECTS FOR THE TRANSNET LOCAL STREET IMPROVEMENT PROGRAM TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2008/2009 THROUGH 2012/2013 ACTION ITEM - City Council The ltem(s) listed in this section of the agenda will be considered individually by the Council, and are expected to elicit discussion and deliberation. If you wish to speak on an item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 13. CONSIDERATION OF QUARTERLY FINANCIAL REPORT FOR THE QUARTER ENDED MARCH 31, 2008 Section 504 (f) of the City Charter requires quarterly financial reports to be filed by the Director of Finance through the City Manager. Adoption of the resolution approves a transfer of $482,383 from the personnel services budget category to the supplies and services budget category to fund the transfer of the Fire Communications Center. Council approved transfer of Fire Communication services on December II, 2007 as part of the Fire Department budget reduction proposals that were adopted. In the report, staff informed the Council that it would be returning to seek approval for this transfer of funds. (Finance Director) Staff recommendation: Council accept the report and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2007/2008 BUDGET, IN ACCORDANCE WITH THE BUDGET TRANSFER POLICY, BY TRANSFERRING $482,383 FROM THE FIRE DEPARTMENT PERSONNEL SERVICES CATEGORY TO ITS SUPPLIES AND SERVICES CATEGORY (4/5THS VOTE REQUIRED) Page 6 - Jt. CounciVRDA Agenda httn ://v..'ww .chula vistaca. gOV April 22, 2008 OTHER BUSINESS - City Council and Redevelopment Agency 14. CITY MANAGER/EXECUTIVE DIRECTOR'S REPORTS 15. MAYOR/CHAIR'S REPORTS 16. COUNCIL/AGENCY MEMBERS' COMMENTS CLOSED SESSION - City Council Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Attorney's office in accordance with the Ralph M Brown Act (Government Code 54957. 7). 17. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b) Two cases 18. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) . NPDES Permit No. CAS0108758 19. CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: Assessor No. 6440801000 Negotiating Parties: Rob Cameron, Jim Sandoval, Ann Moore Under Negotiation: Price and Terms ADJOURNMENT The City Council will adjourn to a workshop on May 1,2008 at 6:00 p.m. in the Council Chambers, and thence to their Regular Meeting on May 6, 2008 at 4:00 p.m. in the Council Chambers. The Redevelopment Agency will adjourn to their Regular Meeting on May 6, 2008 at 4:00 p.m. in the Council Chambers. In Compliance with the AMERICANS WITH DISABILITIES ACT The City of Chula Vista requests individuals who require special accommodations to access, attend, and/or participate in a City meeting, activity, or service, contact the City Clerk's Office at (619) 691-50415041 or Telecommunications Devices for the Deaf (TDD) at (619) 585-5655 at least forty-eight hours in advance for meetings and five days for scheduled services and activities. California Relay Service is also available for the hearing impaired. Page 7 - J1. CounciVRDA Agenda http:// WW'0/. ch uIa vistaca. !lOY April 22, 2008 DRAFT MINUTES OF AN ADJOURNED REGULAR MEETING OF THE CITY COUNCIL AND A SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA February 12, 2008 6:00 p.m. An Adjourned Regular Meeting of the City Council and a Special Meeting of the Redevelopment Agency of the City of Chula Vista were called to order at 7:41 p.m. in the Council Chambers, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: CounciV Agency Member: Castaneda, Rindone, and Mayor/Chair Cox McCann, Ramirez, ABSENT: CounciV Agency Member: None ALSO PRESENT: City Manager/Executive Director Garcia, City Attorney/General Counsel Moore, Interim City Clerk Norris, Deputy City Clerk Bennett PUBLIC COMMENTS There were none. ACTION ITEM 1. CONSIDERATION OF THE ESTABLISHMENT OF A POOL OF INVESTMENT BANKING AND UNDERWRITING FIRMS FOR THE CHULA VISTA MERGED BAYFRONT/TOWN CENTRE I REDEVELOPMENT PROJECT AREA AND THE MERGED REDEVELOPMENT PROJECT AREA A joint planning effort between the City/Redevelopment Agency and the San Diego Unified Port District created the Chula Vista Bayfront Master Plan (CVBMP) that envisions developing a world-class waterfront using sound planning and economics. Within this area, which encompasses a total of approximately 550 acres that includes approximately 490 acres of land and 60 acres of water area, is the Merged Bayfront/Town Centre 1 Redevelopment Project Area. Over the next several years, the City anticipates the CVBMP's new development and redevelopment projects will result in between $178 and $510 million in capital and infrastructure requirements. To finance these projects, it is necessary to establish a pool of investment banking and underwriting firms to serve as an integral part of the City's financing team. Adoption of the resolution establishes such a pool. (Finance Director) Mayor/Chair Cox informed the CounciV Agency Members that Item 1 B would not be discussed. 1 A-I DRAFT ACTION ITEM (Continued) Council/Agency Member Castaneda stated that he would be abstaining from voting on Item lA, due to the location of his residence to the Bayfront/Town Centre 1 Redevelopment Project Area. He then left the dais. ACTION: B. CounciVAgency Member Rindone moved to adopt Council Resolution No. 2008- 059 and Redevelopment Agency Resolution No. 2008-1990, heading read, text waived. A. COUNCIL RESOLUTION NO. 2008-059, AND AGENCY RESOLUTION NO. 2008-1990, RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA ESTABLISHING A POOL OF INVESTMENT BANKING AND UNDERWRITING FIRMS FOR THE CHULA VISTA MERGED BAYFRONT/TOWN CENTRE I REDEVELOPMENT PROJECT AREA JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA ESTABLISHING A POOL OF INVESTMENT BANKING AND UNDERWRITING FIRMS FOR THE CHULA VISTA MERGED REDEVELOPMENT PROJECT AREA Mayor Cox seconded the motion and it carried 4-0-1, with Council/Agency Member Castaneda abstaining. CounciV Agency Member Castaneda returned to the dais at 7 :44 p.m. OTHER BUSINESS 2. CITY MANAGERlEXECUTIVE DIRECTOR'S REPORTS There were none. 3. MAYOR/CHAIR'S REPORTS There were none. 4 COUNCIL/AGENCY MEMBERS' COMMENTS There were none. ADJOURNMENT At 7:44, Mayor/Chair Cox adjourned the meeting to the Regular Meeting of February 19, 2008, at 6:00 p.m. in the Council Chambers. .~ ~ett, CMC, Deputy City Clerk Page 2 - Jt. CC/RDA Minutes February 12,2008 /A~'~ DRAFT MINUTES OF AN ADJOURNED REGULAR MEETING OF THE CITY COUNCIL AND A SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA February 26, 2008 6:00 p.m. A Special Meeting of the Redevelopment Agency of the City of Chula Vista was called to order at 6:04 p.m., in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Agency Members: Castaneda, McCann, Ramirez, Rindone, and Chair Cox ABSENT: Agency Members: None ALSO PRESENT: City Manager/Executive Director Garcia, City Attorney/General Counsel Moore, Interim City Clerk Norris, Deputy City Clerk Bennett CONSENT CALENDAR (Items 1 and 2) 1. APPROVAL OF MINUTES of the Adjourned Regular Meeting of February 5, 2008. Staff recommendation: Agency approve the minutes. 2. JOINT CITY COUNCIL RESOLUTION NO. 2008-065, AND REDEVELOPMENT AGENCY RESOLUTION NO. 2008-1992 OF THE CITY OF CHULA VISTA AUTHORIZING (1) AN AMENDMENT TO THE EXISTING AFFORDABLE HOUSING REGULATORY AGREEMENT AND ITS FIRST AMENDMENT FOR THE 115 MODERATE INCOME FOR-SALE UNITS AND THE 92 LOW-INCOME RENTAL UNITS; AND (2) AN AMENDMENT TO THE AFFORDABLE HOUSING AGREEMENT FOR THE 92 LOW-INCOME RENTAL UNITS IN NEIGHBORHOOD R-19 IN OT A Y RANCH VILLAGE ELEVEN Brookfield Shea Otay LLC, the City of Chula Vista and/or Agency have previously entered into several regulatory and fmancial agreements for the purpose of providing affordable housing opportunities within the Winding Walk master planned community. In partial satisfaction of these agreements, CIC Landing, LLC (CIC) is constructing and will own and operate a 92-unit, low-income apartment development, known as the Landings at Winding Walk. During the closing of escrow and securing of financing for the project, CIC determined that amendments were necessary to the Affordable Housing Regulatory Agreement, its first amendment, and the Affordable Housing Agreement to clarify the affordable housing obligations and conflicts of law. Adoption of the resolution amends these agreements. (Housing and Redevelopment Agency Assistant Director) Staff recommendation: Council and Agency adopt the resolution. ACTION: Deputy Mayor/Agency Member Rindone moved to approve staffs recommendations and offered the Consent Calendar, headings read, text waived. CounciVAgency Member Ramirez seconded the motion and it carried 5-0. f 8- I DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS There were none. OTHER BUSINESS 3. CITY MANAGERlEXECUTIVE DIRECTOR'S REPORTS There were none. 4. MA YORJCHAIR'S REPORTS There were none. 5. COUNCIL/AGENCY MEMBERS' COMMENTS There were none. ADJOURNMENT At 6:06 p.m., Mayor/Chair Cox adjourned the Redevelopment Agency meeting to the Regular Meeting of March 4,2008 at 4:00 p.m. in the Council Chambers. c:::-: ~ Lorraine Bennett, CMC, Deputy City Clerk ,.J . --) t>F~ CITY COUNCIL & REDEVELOPMENT AGENCY AGENDA STATEMENT ~\~ CllYOF i~CHULA VISTA APRIL 22, 2008 Item 2 SUBMITTED BY: REVIEWED BY: JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT WITH SUNROAD CV AUTO, INC.; AND APPROPRIATING FUNDS ACCORDINGLY CITY ATTORNEY Qm CITY ATTORNEY 4m. ITEM TITLE: 4/5THS VOTE: YES 0 NO D SUMMARY In February 2005, the Redevelopment Agency entered into an Owner Participation Agreement with Sunroad CV Auto, Inc. (the "OPA"). The purpose of the OPA was to guide the operation and maintenance of a "first quality, first class" Toyota dealership in the City. Adoption ofthe resolution will approve an amendment to the OP A to make it compatible with current law (the "Amendment"), and appropriate the necessary funds to comply with the OP A. , ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act ("CEQA") and has determined that the activity is not a "Project" as defined under Section 15378 (b)(4) of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION That the City Council and the Redevelopment Agency adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not Applicable. DISCUSSION THEOPA On February 15, 2005, the Redevelopment Agency was asked to consider entering into an OPA with Sunroad CV Auto, Inc. ("Sunroad"). The Agenda Statement presented to the Agency at that time provided the following background information regarding the OPA: J:\AttorneyIJILLM\Sunroad\Agenda Statement- Sunroad OPA__CC~RDA_04_15_08.rev (clean ee).doc 2--1 APRIL 22, 2008, Item 2- Page 2 of3 "The OP A will guide the operation and maintenance of a proposed Toyota auto dealership consisting of a 52,923-square-foot building (showrooms, administrative offices, service area, etc.), a service reception area, lube center, and carwash facility. Chula Vista Toyota will be the first of several new dealerships that will be built and operated pursuant to the City's Auto Park East and Auto Park North Specific Plans. ... The Sunroad OPA will ensure a 'first quality, first class' Toyota dealership through the imposition and purchase by the Agency of various restrictive and limiting operating covenants on the property and dealership, including specified development obligations, maintenance requirements, non-discrimination covenants, and restrictive operating covenants. In exchange for the developer's acceptance and compliance of those requirements and restrictions on the land, and the development and maintenance of the property as a "first quality, first class" auto dealership, the Agency will agree under the OP A to make quarterly payments to the developer calculated as a percentage of the City's share of net sales tax revenues generated by the project. ..." After considering the matter, the Redevelopment Agency voted 4-0 to approve the OPA. (For reference purposes, copies of the February IS, 2005 Agenda Statement, and accompanying resolution, are provided as Attachment I to this Agenda Statement.) THE AMENDMENT Since entering into the OPA, the Agency has determined that certain amendments are necessary in order to make the OP A compatible with existing law. The resolution currently being presented to the City Council and Redevelopment Agency is intended to accomplish those amendments. Specifically, the resolution approves the Amendment which would substitute the City, in place of the Agency, as a party to the OPA. The Amendment does not purport to alter any of the substantive terms of the OPA. The terms and principles of the original OPA would remain the same as those that were approved by the Agency in 2005. The Community Development staff has determined that Sunroad's development and maintenance of the Toyota dealership, pursuant to the OP A has resulted, or will likely result, in the following benefits to the City and its residents: 1. Public improvements, at Sunroad's expense, which will become City property, including curb, gutter, sidewalk, driveway, ramp and sewer improvements, with an estimated value in excess of $200,000; 2. Increased business development in the City, including additional auto dealerships; 3. Creation of additional job opportunities for City residents; 4. Additional tax revenue to the City, which will assist the City in providing public services to its residents; and J:\Altomey\JILLM\SunroadlAgenda Statement _ Sunroad OPA__CC_RDA_04_15_08.rev (clean cc).doc 2-2 APRIL 22, 2008, Item 2 Page 3 of 3 5. Development, planning and operation of the Toyota dealership in accordance with the City's adopted Auto Park East Specific Plan and with the operating and restrictive covenants contained in the OP A. THE ApPROPRIATION As mentioned above, the OP A provides for certain payments to be made to Sunroad. The amount of the payments is proportionate to the amount of sales tax revenues generated by the Sunroad project. The Agency agreed to the payments in the original OP A, in exchange for the various development, maintenance and operating covenants agreed to by Sunroad in the OP A. Those covenants remain in place and would not be altered by the Amendment. To date, the amount due under the OPA is $548,334. (This amount is based on sales tax revenues generated by the Toyota dealership through the third quarter of 2007; this is the most current information available to the City.) Adoption of the resolution would approve the Amendment and appropriate $548,334 to be paid to Sunroad in accordance with the OPA. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and Redevelopment Agency and has found no property holdings within 500 feet of the boundaries of the property that is the subject of this action. FISCAL IMPACT The appropriation will impact General Fund reserves by $548,334 in fiscal year 2007-08. An updated General Fund reserve projection will be provided in the Third Quarter Financial Report. The General Fund will pay Sunroad an amount not to exceed $1,435,000 over seven years. The amount of the payment is based upon a percentage of the sales tax revenue generated by the Toyota dealership. Quarterly disbursements will be made to the developer in accordance with the pre-determined schedule of disbursements in Exhibit C of the Owner Participation Agreement. ATTACHMENTS Attachment I: Agenda Statement, dated February 15, 2005, and accompanymg resolution, approving the original Sunroad OPA. Attachment 2: "First Amendment to Owner Participation Agreement" (including Attachment 1 to the First Amendment, which reflects the changes to the OPA being effectuated by the First Amendment). Prepared by: Jill Maland. Deputy City Attorney. Attorney's Office J:\AUomey\JILLM\SunroadlAgenda Statement - Sunroad OPA--CC-RDA_O+-15-08.rev (clean cc).dx Z-3 PAGE 1, ITEM NO.: 2 MEETING DATE: 02/15/05 REDEVELOPMENT AGENCY AGENDA STATEMENT ITEM TITLE: RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING AN OWNER PARTICIPATION AGREEMENT WITH SUNROAD CV AUTO, INC. FOR THE OPERATION AND MAINTENANCE OF A CHULA VISTA TOYO DEALERSHIP SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR lrt L. 1M REVIEWED BY; EXECUTIVE DIRECTOR 4/5THS YOTE: YES 0 NO D BACKGROUND The Owner Participation Agreement ("OPA") with Sunroad CV Auto, Inc. ("Sunrood") presented this evening represents 0 significant milestone in the long-term efforts of the Chula Vista Redevelopment Agency ("Agency") to innovatively and effectively plan for the City's expanding auto park. The OPA will guide the operation and maintenance of a proposed Toyota auto dealership consisting of a 52,923-square-foot building (showrooms, administrative offices, service area, etc.), a service reception area, lube center, and carwash facility. Chula Vista Toyota will be the first of several new dealerships that will be built and operated pursuant to the City's Auto Park East and Auto Pork North Specific Plans. The Sunroad OPA, together with the Master OPA for Auto Pork East (adopted by City Council on August 24, 2004), will establish a foundation and set the stage for the comprehensive operation and maintenance of "first quality, first closs" auto dealerships within the Chula Vista Auto Park. RECOMMENDATION Staff recommends that the Redevelopment Agency of the City of Chulo Vista adopt the attached resolution approving the Owner Participation Agreement with Sunroad CV Auto, Inc. for the operation and maintenance of a Chula Vista Toyota dealership. BOARDS/COMMISSIONS RECOMMENDATION Not applicable. DISCUSSION During the post several years, the Agency has praactively planned for the development and expansion of the auto pork along the Main Street corridor east of the 1-805 Freeway between Brandywine Avenue and Maxwell Rood. As port of those planning activities, Agency and City 2-4 ~ PAGE 2, ITEM NO.: 2.. MEETING DATE: 02/15/05 staffs have worked closely with existing auto dealerships, prospective dealerships, and master developers to coordinate the many moving parts that will facilitate the ongoing development and expansion of the auto park in. Chula Vista. With respect to the Sunroad property and the Toyota dealership, a number of prior Agency and City Council approvals have preceded the current proposed OPA: . On June 1, 2004, the City adopted a Mitigated Negative Declaration (15-02-010) for the Auto Park East project and specific plan, including all future dealership-specific projects (e.g. Toyota). . On June 8, 2004, the City adopted Ordinance No. 2965 adopting 0 specific plan (PCM- 02-10) for the 29-acre Auto Pork East property. The Specific Plan establishes the City's land use policies and entitlements that govern the 29-acre Auto Park East property and all future auto dealerships within. . On August 2, 2004, the City's Design Review Committee, pursuant to the Specific Plan, reviewed and approved the developer's proposed design concepts for the Toyota dealership with a condition that the height of the proposed tower element be reduced. During the next few weeks, Agency staff helped facilitate discussions between Sunroad and existing dealership owners regarding fair and consistent land use policies and design guidelines among the existing and future dealerships. Consistent with those discussions, the developer announced at the August 24, 2004 Agency meeting their agreement to reduce their tower element from 100' to 80'. On August 24, 2004, the Agency approved modified site plans that included the lower tower element. . At the Agency's August 24, 2004 meeting, the Agency approved a Master Owner Participation Agreement ("OPA") with Fred Borst, Borst Family Trust, Fask Land, Inc., establishing development standards and performance requirements for the 29 acres of territory within the Auto Park East Specific Plan. The Master OPA sets forth a number of developer obligations of both the existing master developer and future individual developers and dealership owners, such as Sunroad and the Toyota auto dealership. The Master OPA and the proposed Sunroad OPA will concurrently guide the development, maintenance, and operation of the Sunroad property as a "first quality, first class" auto dealership. The Sunroad OPA will ensure a "first quality, first class" Toyota dealership through the imposition and purchase by the Agency of various restrictive and limiting operating covenants on the property and dealership, including specified development obligations, maintenance requirements, non-discrimination covenants, and restrictive operating covenants. In exchange for the developer's acceptance and compliance of those requirements and restrictions on the land, and the development and maintenance of the property as 0 "first quality, first class" auto dealership, the Agency will agree under the OPA to make quarterly payments to the developer calculated as a percentage of the City's share of net sales tax revenues generated by the project. The structure of the monetary disbursements and conditions of disbursement ore further described below. 2--5 ~ PAGE 3, ITEM NO.: 2- MEnlNG DATE: 02/15/05 Disbursement Structure and Schedule Quarterly disbursements will be mode by the Agency to the developer in accordance with a pre- determined schedule of disbursements (Exhibit "C" of the OPAl. The schedule outlines the percentage of the City's share of net sales tax revenues it will disburse to the developer during each year of the first seven years of operation of the auto deolership. See below table. Year of Ooeration. 1 2 3 4 5 6 7 Disbursement Amount.. 50% 50% 50% 50% 25% 25% 25% .Disbursements will be distributed each quorter, commencing with the second que rter after Developer has commenced operations. "Disbursement amount will be calculated 0$ a percentage portion of the City's share of sales tax revenues generated by Developer. The disbursements will be limited only to the first seven yeors of operation of the Toyota dealership. The maximum disbursement amount is limited to a percentage of the total sales tax generated, not to exceed One Million Four Hundred Thirty-five Thousand Dollars ($1,435,000). The structure of the agreement conceptually represents a shared performance agreement between the Agency ond the developer whereby both parties will proportionately benefit from the Toyota dealership's level of performance during the first seven years of operation. Conditions of Disbursement In addition to all of the maintenance requirements and operating covenants contained in the OPA, the Agreement further establishes the following conditions of disbursement: 1. Execution and Deliverv of Documents. The OPA shall have been recorded against the property in the official records of Son Diego County as an encumbrance to the property superior and non-subordinate to any monetary liens, including without limitation construction and/or permanent financing. 2. Insurance. The developer shall have insurance as required. 3. Reaulatorv Aoorovals. Assuming no protests have been lodged against the location and opening of the dealership, the developer shall have obtained any legally required regulatory approval(s) from applicable governmental agency(ies) related to the developer's ownership and operation of the applicable dealership on the property. 4. Manufacturer Aooroval. The developer sholl have received any required approval(s) from the manufacturer for the operation of the applicable dealership upon the property. 2-" ~ PAGE .., ITEM NO.: 7- MERING DATE: 02/15/05 5. Consent of Owner for Recordina of Aareement aaainst the Prooertv. The developer shall obtain the written consent and/or agreement of each dealership and each lender allowing recordation of the OPA against the property in a superior and non-subordinate position to all other monetary liens and use restrictions on the property . 6. Pavment of Procertv Taxes. No ad valorem real property taxes or assessments assessed with respect to the property shall be delinquent. 7. No Default. There shall exist no condition, covenant, event or act which would constitute an event of default, or which, upon the giving of notice or the possage of time, or both, would constitute an event of default. 8. Dealershic Continuous Oceratian. The applicable dealership on the property shall be in continuous operation and generating sales tax revenues in compliance with the restrictive covenants of the OPA. 9. Environmental Condition of the Property. The developer shall not be in default of the requirements regarding the environmentol condition of the property. FISCAL IMPACT The General Fund will loan the Agency an amount not to exceed One Million Four Hundred Thirty-five Thousand Dollars ($' ,435,000) over seven (7) yeors. The amount' loaned to the Agency eoch year is based upon a percentage of the sales tax revenue generated by the Toyota dealership. Quarterly disbursements will be made by the Agency to the developer in accordance with the pre-determined schedule of disbursements (Exhibit "C" of the OPAl. The Agency will repay the General Fund the entire amount of the loan with interest. Sales tax revenues generated by the Toyota dealership during the lifetime of the project are anticipated to far exceed the loan amount, resulting in no net impact to the general fund. J:\COMMDEV\STAFF.REP\2005\02.15.05\Toyola OPA.doc 2.-7 , 2 1 Recording Requested By and When Recorded Mail to: CHULA VISTA REDEVELOPMENT AGENCY 276 Fourth Avenue Chula Vista, CA 91910 Attn: Linda Welch (Space Above This Line For Recorder) 'This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. APN: 644-040-66 and 644-040-11 OWNER P ARTICIP ATION AGREEMENT This OWNER P ARTIOP A TION AGREEMENT ("Agreement") is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a public body corporate and politic ("AGENCY"), and Sunroad CV Auto, Inc. ("DEVELOPER"), dated and effective as of February~ 2005 ("Effective Date"). WHEREAS, the DEVELOPER desires to develop real property (APN 644-040-66 and 644- 040-11) within the City of Chula Vista, generally located along the southerly side of Main Street, east of Brandywine Avenue and west of Maxwell Road, within the City of Chula Vista, California ("Property"), as further described in the map attached hereto as Exhibit" A." WHEREAS, a Master Owner Participation Agreement ("Master Agreement") was previously executed and entered into on August 24, 2004 by and between AGENCY and Fred Borst, Borst Family Trust, Fask Land, Inc. or permitted assignee ("Master DEVELOPER"), the Master DEVELOPER of Property and other contiguous properties in the Auto Park East Specific Plan, setting forth development standards and performance requirements for the Master DEVELOPER and individual dealerships, including Property; and WHEREAS, DEVELOPER shall comply with all applicable obligations, covenants, and provisions of said Master Agreement, incorporated herein by this reference; and WHEREAS, DEVELOPER has presented AGENCY plans for the development of Property as a Toyota auto dealership ("Project") in accordance with the City of Chula Vista's ("City") adopted Auto Park East Specific Plan ("Initial Entitlements"); and WHEREAS, the Project is located entirely within the MERGED REDEVELOPMENT PROJECT AREA within the jurisdiction of AGENCY; and 2.-e -e1- WHEREAS, in consideration of the specific operating covenants and restrictive covenants binding on DEVELOPER and set forth herein, AGENCY has agreed to make certain payments to DEVELOPER; and WHEREAS, AGENCY has determined it is of benefit to AGENCY, the City, and its citizens for the Property to be planned, developed, and operated in accordance with the City's adopted Auto Park East Specific Plan ("Specific Plan"), and that the imposition of certain operating covenants and restrictive covenants upon the Property for the uses set forth in the Specific Plan constitutes a valid public purpose and objective of AGENCY's Redevelopment Plan for the Project area, and therefore AGENCY desires to obtain such operating covenants and restrictive covenants on the Property and, subject to the terms hereof, DEVELOPER (for itself and its successors and assigns of the Property or any part thereof) is willing to enter into and be bound by such operating covenants and restrictive covenants; and WHEREAS, AGENCY and DEVELOPER desire that the Project be developed in accordance with the terms of this Agreement. NOW, THEREFORE, AGENCY and DEVELOPER do hereby agree as follows: 1. DEVELOPMENT OBLIGATION. DEVELOPER covenants and agrees by and for itself, its heirs, executors, administrators and assigns and all persons claiming under or through them the following: A. DEVELOPER shall develop the Property with the Project substantially in accordance with the AGENCY-approved development proposal attached hereto as Exhibit "B:' B. DEVELOPER shall obtain all necessary federal, state, and local governmental permits and approvals and abide by all applicable federal, state and local laws, regulations, polities and approvals in connection with the development of the Project. DEVELOPER further agrees that this Agreement is contingent upon DEVELOPER securing said permits and approvals. DEVELOPER shall pay all applicable development impact and processing fees. Subject to applicable laws, AGENCY staff agrees to exercise good faith efforts to expedite the processing and final consideration of all entitlements and permits necessary for the Project. DEVELOPER further agrees that construction shall be completed in compliance with all applicable laws, labor standards, and Department of Industrial Relations rules and regulations. C. DEVELOPER shall apply for all necessary building permits to develop the Project within one year from the date of this Agreement, shall diligently pursue obtaining such building permits and shall actually develop the Property with the Project within one year from the date of issuance of the building permits. In the event DEVELOPER fails to meet these deadlines, AGENCY approval of DEVELOPER's development proposals shall be void and this Agreement shall have no further force or effect. D. DEVELOPER shall comply with all conditions of approval of the Auto Park East Specific Plan (PCM-02-10) and the Design Review Committee (DRC-04-66), and comply with the mitigation monitoring program adopted for Mitigated Negative Declaration 15-02-010. 2-ct -~ 2=8- II. MAINTENANCE OBLIGATION. A. DUTY TO MAINTAIN FIRST CLASS CONDmON. DEVELOPER covenants to develop and maintain the Property in First Quality, First Gass Condition and Repair consistent with development, maintenance and operation standards customary for first quality, first class auto parks and first class quality automobile dealerships of comparable size within the San Diego California market region and in conformity with the Initial Entitlement, and the covenants, conditions, maintenance obligations and other restrictions therein during the term of this Agreement. Additionally, DEVELOPER shall promptly and diligently repair, restore, alter, add to, remove, and replace, as required, all improvements to maintain or comply as above, or to remedy all damage to or destruction of all or any part of the improvements except improvements dedicated to and accepted by the City. "First Quality, First Class Condition and Repair" means an efficient and attractive condition, at least substantially equal in quality to the condition which exists when the improvements on the Property were completed, ordinary wear and tear excepted, in accordance with all applicable laws and conditions. "Dealership" shall mean any person or business of any nature selling, leasing, or financing vehicles on the property. B. DELEGATION OF REPAIR AUTHORITY. In order to enforce all above maintenance provisions, the parties agree that the Community Development Director of the City of Chula Vista ("Director") is empowered to make reasonable determinations as to whether the Property is in a first class condition and repair. In accordance with the Master Agreement: 1. If the Director determines the Property appears materially different in terms of maintenance and upkeep than the remainder of the Auto Park, the Property is not in conformity with the requirements of this Agreement regarding maintenance and upkeep of the Project, DEVELOPER shall be notified in writing and provided a reasonable time to cure and/or to commence to cure and diligently and continuously complete such cure. 2. If a cure or substantial and ongoing progress to cure has not been made, the Director is authorized to effectuate the cure by City forces or otherwise, the cost of which will promptly be due from and reimbursed by DEVELOPER. 3. The Director or the City shall have the right to enforce this lien by forwarding the amount to be collected to the San Diego Tax Assessor who shall make it part of the tax bill for the Property. III. NON-DISCRIMINATION COVENAN1S. DEVELOPER covenants by and for itself and any successors in interest (and each Dealership suocessor) that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, physical or mental disability or medical condition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall DEVELOPER itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land. A. All deeds, leases or contracts with respect to the Property shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 1. In deeds: "The grantee herein covenants by and for itself, its successors and ~_ '2-10 2.:::os.. assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 2. In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub lessees, subtenants or vendees in the land herein leased." 3. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with Reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the land." IV. RESTRICTIVE OPERATING COVENANTS. DEVELOPER hereby covenants and agrees (for itself and any and all successors in interest of the DEVELOPER entity, any and all AGENCY- approved assignees under this Agreement or any part thereof, and any and all successors in interest to the Property or any part, portion, or parcel thereof, including any and all AGENCY-approved transferees of the Property or any part, portion, or parcel thereof) to the following covenants: A. DEVELOPER AND DEALERSHIP'S OPERA TlONS. During the operating period, DEVELOPER shall do or cause to be done the following: 1. For as long as operated as a new vehicle Dealership, to designate the Property as the point of sale for sales tax purposes in all retail sales for vehicles whose sales originate from the Property; 2. At no cost to AGENCY or City, keep and maintain the Property and the improvements thereon and all facilities appurtenant thereto, consistent with first class auto parks and first class automobile dealerships, in good order and repair and safe condition, and the whole thereof, the improvements, and landscaping in a clean, sanitary, and orderly condition; and 3. Comply with all governmental requirements but only to the extent a failure to comply materially and adversely affects DEVELOPER's (or any successor's) ability to comply with these covenants; provided, however, that DEVELOPER (nor its successors) dol does not waive its _~ 2-11 2 -1'0- right to challenge the validity or applicability of any such governmental requirements. V. CONSIDERATION/PAYMENT FOR ANNUAL COMPUANCE WITH RESTRICTIVE OPERATING COVENANTS. A. SALES TAX REVENUES AND RELATED DEFINITIONS. As used in this Section, "Sales Tax Revenues" shall mean that portion of taxes derived and received by the City and legally available for unrestricted use by the City's General Fund from the imposition of the Bradley Burns Uniform Local Sales and Use Tax Law, commencing with Section7200 of the Revenue and Taxation Code of the State of California ("State"), as amended, or its equivalent, arising from all businesses and activities conducted on the Property in accordance herewith from time to time, which are subject to such Sales and Use Tax Law. As used in herein "Retained Sales Tax" shall mean 1 % of Sales Tax Revenues reported in the DEVELOPER's quarterly sales and use tax report to the State and verified by the City minus an amount equal to the payment described herein if any, paid to DEVELOPER herein. B. CONSIDERA TrON. In consideration for DEVELOPER's agreement to be bound by the Restrictive Covenants in Section IV of this Agreement, AGENCY agrees, as follows: 1. AGENCY shall pay to DEVELOPER an amount equal to a portion of the City's share of Sales Tax Revenues generated by Developer on a quarterly basis as identified in the attached Exhibit "C' ("Disbursement"). The Disbursement will be based on the sales tax information received from the State Board of Equalization which is available one quarter after the submission of the DEVELOPER's quarterly sales/use tax report. The Disbursement will be distributed each quarter, commencing with the first full quarter after DEVELOPER has commenced operations during the term of the Restrictive Covenants until the earlier of (i) the Seventh (7th) anniversary date of the first payment as identified in Exhibit "C:' or (ii) receipt by DEVELOPER of the aggregate amount of One Million Four Hundred Thirty-five Thousand Dollars ($1,435,000) under this subsection. a. The Disbursements due hereunder shall be payable from any source of funds legally available to AGENCY. The determination of the source of funds shall be in the sole and absolute discretion of AGENCY. b. The amount of the Disbursement due on each such payment date shall be determined by the City's sales tax consultants based on information provided by the State Board of Equalization and verified by the City's Finance Department adjusted for any corrections to previous tax reports made by the State Board of Equalization. c. Sales Tax Revenues generated each period shall be determined as follows: (i) For sales of automobiles, parts and accessories, Sales Tax Revenue shall be based upon the State Board of Equalization sales and use tax report(s) applicable to a dealership at the Property during the applicable sales period; and (1) "Sales of Automobiles" shall include all new or used vehicles conveyed to any related or independent third party, including any financing company for purposes of selling, leasing, or financing the vehicle to the end user. (ii) Upon written request by AGENCY, DEVELOPER shall ~- 2-~ 2--/2- promptly furnish to AGENCY any and all said information and take any and all actions which are reasonably deemed necessary by AGENCY to assist AGENCY in verifying the information contained in said sales and use tax returns and reports of new and used vehicles. AGENCY shall be entitled to review and audit the Dealership's books and records pertaining to the foregoing. (1) If an audit of the Dealership's books and records determines that DEVELOPER (or Dealership) has overstated revenues in any applicable period, DEVELOPER shall reimburse AGENCY for any overpayment, and if DEVELOPER has overstated revenues by more than ten percent (10%) in any period, DEVELOPER shall reimburse AGENCY for the cost of the audit, within thirty (30) days of notice thereof from AGENCY. (2) Reciprocally, DEVELOPER (or Dealership), atits sole cost and expense, may request an audit to verify and/ or reconcile the calculation of the amount of any payment If such audit reveals an underpayment to DEVELOPER (or a Dealership), then AGENCY shall pay the outstanding amount of any payment hereunder to be paid to the DEVELOPER (or Dealership); and if such audit reveals an overpayment to DEVELOPER, then DEVELOPER immediately shall reimburse AGENCY for such overpayment. If AGENCY has underpaid DEVELOPER by more than 10% as a result of an error committed by the AGENCY, AGENCY shall reimburse DEVELOPER for reasonable audit costs, within 30 days of notice thereof from DEVELOPER. (3) If DEVELOPER contests the amount of Sales Tax Revenues for any period for the sales of automobiles, parts, and accessories arising from the dealership, as based upon the State Board of Equalization sales and use tax report applicable to the Dealership and the Property, at the sole expense of DEVELOPER, then AGENCY shall use good faith efforts to investigate and, if appropriate, to take steps to ensure that the correct amount of Sales Tax Revenues arising from the dealership is allocated to the City, and the correct amount of the period's payment is calculated and paid to DEVELOPER. d. If after the fourth (4th) year payments, DEVELOPER has received less than $1.1 million in compensation for compliance with the restrictive covenants contained herein. DEVELOPER may reqUest and AGENCY shall in good faith consider modification to the payment schedule to ensure DEVELOPER receives fair and just compensation for compliance with the restrictive operating covenants being purchased by the AGENCY herein. C. PAYMENTS. Upon DEVELOPER's satisfaction of the Conditions Precedent to Disbursement set forth below, each payment shall occur within 180 days following the end of the quarter ("Payment Date") based with respect to the applicable sales period. DEVELOPER is aware and acknowledges that the determination of the Disbursement amount will be determined and based upon the receipt by the City of the State Board of Equalization report within 90 days of the end of the applicable quarter. If the City fails to receive said report within 90 days of the end of the applicable quarter, Payment Date shall be automatically extended a number of days equal to the number of days delay in the City receipt of said report. DEVELOPER is aware and acknowledges that as of the Effective Date of Agreement, CITY intends that the State Board of Equalization report will be supplemented and summarized by an outside third party fiscal consultant. 1. Each payment will be made within 180 days following the end of the quarter, except as otherwise provided herein, based on the issuance and receipt by the City of the applicable State Board of Equalization report/disbursement. DEVELOPER acknowledges each State Board of Equalization report is also reviewed by fiscal consultant(s) to AGENCY and City. DEVELOPER acknowledges and agrees that such fiscal consultant(s) will undertake caIcu1ation of each payment and, thereafter, the calculation will be reviewed by the City's Finance Department staff. Upon the ~'2--/3 City's receipt of each quarterly report, AGENCY shall notify DEVELOPER in writing of the date of receipt and the anticipated date of delivery of payment to DEVELOPER. AGENCY will use its best efforts to review and process any and all payments due to DEVELOPER in a timely and expeditious manner. D. CONDITIONS PRECEDENT TO DISBURSEMENT. Each payment hereunder is conditioned upon the satisfaction by DEVELOPER of the respective conditions precedent (1) through (9) inclusive, described below. Such conditions ("Conditions Precedent") are solely for the benefit of AGENCY, and shall be fulfilled by DEVELOPER (or waived by AGENCY in its sole and reasonable discretion) within the time periods provided for herein. DEVELOPER may satisfy (and submit evidence of such satisfaction to the Director) one or more of such Conditions Precedent at any time prior to the first payment, so that at the time the first payment is due, DEVELOPER may have already provided satisfactory evidence of compliance with each of such Conditions Precedent. Thereafter, for subsequent payments, DEVELOPER shall have been deemed to have satisfied each of the respective conditions precedent which do not expire or contain a recurring obligation, unless DEVELOPER fails to timely satisfy condition 7, below, in which case AGENCY may require renewal or update of any prior submittal. 1. Execution and Delivery of Documents. This Agreement shall have been recorded against the Property in the official records of San Diego County as an encumbrance to the Property superior and non-subordinate to any monetary liens, including without limitation construction and/ or permanent financing. 2. Insurance. DEVELOPER shall have insurance, including general liability coverage. 3. Regulatory Ap'provals. Assuming nO protests have been lodged against the location and opening of the Dealership, DEVELOPER shall have obtained any legally required regulatory approval(s) from applicable governmental AGENCY(ies) related to DEVELOPER's ownership and operation of the applicable Dealership on the Property. 4. Manufacturer Approval. DEVELOPER shall have received any required approval(s) from the manufacturer for the operation of the applicable Dealership upon the Property. 5. Consent of Owner for Recordin~ of Agreement a~ainst the Propertv. DEVELOPER shall obtain the written consent and/ or agreement of each Dealership and each lender allowing recordation of this Agreement against the Property in a superior and non-subordinate position to all other monetary liens and use restrictions on the Property. 6. Payment of Prooerty Taxes. No ad valorem real property taxes or assessments assessed with respect to the Property shall be delinquent. 7. No Default. There shall exist no condition, covenant, event or act which would constitute an event of default hereunder, or which, upon the giving of notice or the passage of time, or both, would constitute an event of default. 8. Dealership Continuous Ooeration. The applicable Dealership on the Property shall be in continuous operation and generating Sales Tax Revenues in compliance with the Restrictive Covenants herein. 2-11+ ~3 9. Envirorunental Condition of the Pro~erty. DEVELOPER shall not be in default of the requirements regarding the environmental condition of the Property. D. NO PLEDGE OF TAXES. AGENCY's obligations hereunder are not, shall not constitute, and shall not be construed as a pledge of funds by AGENCY or the City, in particular there is and shall not be a pledge of tax increment pursuant to Health and Safety Code Section 33671, a pledge of City sales tax revenues, a pledge of any other specific revenues of AGENCY, or a pledge of the City's general fund. All references to the Sales Tax Revenue are intended solely to create an index for calculating the amount of the payments, and shall not in any respect whatsoever be construed as a pledge of specific funds of AGENCY nor the City's general fund. Nothing in the foregoing statement that there is and shall be no pledge of specific funds hereunder, shall limit or diminish the AGENCY's obligation to make payments required hereunder to DEVELOPER, assuming all Conditions Precedent to such payment are satisfied. E. CAPON CONSIDERATION. Notwithstanding anything else herein contained, in no event shall the total consideration paid to DEVELOPER pursuant to this Section V exceed the sum of One Million Four Hundred Thirty-Five Thousand Dollars ($1,435,000). F. NO ACCELERATION. It is acknowledged by the parties that any payments by AGENCY provided for herein may only be paid in those periods in which DEVELOPER is in compliance with the Restrictive Covenants provided for herein. Upon AGENCY satisfaction that DEVELOPER has come into compliance with the restrictive operating covenants contained within Section V, AGENCY shall make any previously withheld payments due pursuant to Section V. Therefore, the failure of AGENCY to make any payments during the contribution term provided above shall not cause the acceleration of any future payments by AGENCY to DEVELOPER beyond the date of such default. VI. SIGNAGE A. SIGN. Upon execution of this Agreement, AGENCY shall diligently pursue the construction of an auto park directional sign along Auto Park Drive in the vicinity of the eastern boundary of Interstate 805 ("Sign"). The Sign will be professionally designed utilizing auto park industry standards. At this time, such standards may include a permanent display with space for a listing of each make of auto dealership that constructs an auto dealership within the Auto Park, including but not limited to Toyota and Scion,. and an electronic reader board. The Sign will be designed by the AGENCY in consultation with the Association or with Master Developer and existing dealers if the Association has not yet been formed. B. AGENCY recognizes that the DEVELOPER believes it is critical that the Sign be erected before the date upon which DEVELOPER opens the Project to the public. As a result of that acknowledgment AGENCY will use its best efforts to timely identify a location for and design of the Sign. Additionally, AGENCY will in good faith use all reasonable means necessary to procure the appropriate interest in land. C. Concurrently with site identification AGENCY will diligently pursue design and construction consultants to erect said Sign. To that end, Agency has identified the following target dates for the sign: '2.. _15 -~ DATE February, 2005 April, 2005 May, 2005 June, 2005 Jul , 2005 September, 2005 October, 2005 ACTION City hires consultant to recommend potential location and desi n of the Auto Park Directional si n Proposed design of Auto Park Directional sign complete and otential sites identified Auto Dealers Association! City staff select design and proposed location DRe and City Council Review and Approval of Design and location Be in ac uisition process Acquisition of site Be in construction D. DEVELOPER acknowledges and agrees that this Agreement does not bind the AGENCY to enter into any agreement or to take any particular action related to said Sign and that the AGENCY's failure to enter an agreement with a consultant to pursue installation or construction of said Sign shall not constitute a breach of this Agreement. In this regard, the AGENCY undertakes no obligation to DEVELOPER hereunder and retains its sole and unfettered discretion to adopt any resolutions and does not prejudge or commit, in any respect whatsoever, to the DEVELOPER, or any other person or entity, regarding said Sign. DEVELOPER understands that the AGENCY and City expressly and intentionally reserve the right to exercise their discretion as to all matters which they are, by law, entitled or required to exercise their discEtion. E. DEVELOPER retains its discretion to apply for and pursue construction of the above identified sign. H after consultation with the AGENCY, DEVELOPER and AGENCY reasonably determine AGENCY is unable or unwilling to erect said sign and DEVELOPER pursues private construction of said sign, DEVELOPER may request and AGENCY shall in good faith consider providing appropriate assistance to DEVELOPER. DEVELOPER acknowledges and agrees that any assistance provided to DEVELOPER shall not exceed $1.2 million for the sign. H the AGENCY determines assistance is appropriate, at least30 days prior to DEVELOPER expending funds for the erection of the sign. DEVELOPER and AGENCY shall meet to determine the amount and form of said assistance and to devise a mutually acceptable payment schedule. F. H the DEVELOPER chooses to pursue the erection of the sign. the AGENCY acknowledges that DEVELOPER may request additional funds associated with land acquisition and financing of the sign. DEVELOPER acknowledges AGENCY has made no commitment as it relates to acquisition or financing costs but will in good faith consider said request. VII. MISCELLANEOUS. A. AGENCY and DEVELOPER agree that the covenants of the DEVELOPER expressed herein shall run with the land for the duration of the term of the MERGED REDEVELOPMENT PROJECT AREA, as it may be amended from time to time. B. DEVELOPER and AGENCY agree to mutually consider reasonable requests for amendments to this Agreement which may be made by lending institutions, AGENCY's counsel,. or DEVELOPER's counsel provided such requests are consistent with this Agreement and would not 05 2-/~ substantially alter the basic business terms included herein. The Director shall have the authority to issue interpretations, waive provisions and enter into amendments of this Agreement on behalf of the AGENCY so long as such actions do not substantially change the uses permitted for the Project or the terms and provisions specified herein and as agreed to by the Agency Board. All other waivers or amendments shall require the consideration and written consent of the AGENCY Board. C. It is understood the schedule and outside dates for performance under this Agreement are subject to all of the terms and conditions set forth in the text of this Agreement. AGENCY vests in the Executive Director the sole and complete discretion to authorize extensions to the outside dates set forth herein for (i) application for all necessary permits to develop the Project, and (ii) development of the Project; provided however, that in no event shall any extension of any outside date referenced in (i) and/or (ii) of this subsection, or all extensions taken together, exceed eighteen (18) months. Additionally, each and every extension is also subject to the following provisions. (i) Each extension shall be mutually agreed upon in writing between DEVELOPER (or a successor) and the Executive Director based on extensions necessary due to changes in circumstances, market conditions relating to operation of first class, first quality automobile dealerships and franchises in Chula Vista, California, or other factors not known by the parties as of the date of this Agreement. (ii) Each request for an extension from DEVELOPER (or a successor) of an outside date shall be in writing stating the requested extension period, the reasons for such extension, the facts and circumstances related to the need for such extension, and other information reasonably necessary for the Executive Director to understand the basis for such request and the circumstances that did not exist as of the date of this Agreement that necessitate such requested extension. The Executive Director is authorized to agree to make such revisions as he/she deems reasonably necessary based on changes in circumstances or other factors not known as of the date of this Agreement. In the event an extension is granted by the Executive Director, then the performance tasks hereunder shall be extended by such period and any corresponding extension necessary to correlate the times for performance hereunder are also reasonably extended to correlate with the approved extension, as determined by the Executive Director in his/her sole and absolute discretion. D. AGENCY and DEVELOPER agree that the covenants of the DEVELOPER expressed herein are for the express benefit of the AGENCY and for all owners of real property within the boundaries of the MERGED REDEVELOPMENT PROJECT AREA as the same now exists or may be hereafter amended. AGENCY and DEVELOPER agree that the provisions of this Agreement may be specifically enforced in any court of competent jurisdiction by the AGENCY on its own behalf or on behalf of any owner of real property within the boundaries of the MERGED REDEVELOPMENT PROJECT AREA. "Notwithstanding the foregoing or anything else in this Agreement, nothing in this Agreement shall be construed to accord any party not a party to this Agreement third-party beneficiary status under this Agreement, and nothing in this Agreement shall be construed to accord any party not a party to this Agreement any right to enforce any provision of this Agreement." E. AGENCY and DEVELOPER agree that this Agreement may be recorded by AGENCY in the Office of the County Recorder of San Diego County, California. F. DEVELOPER shall and does hereby agree to indemnify, protect, defend and hold 2-17 ~ harmless AGENCY and the City, and their respective Council members, officers, employees, agents and representatives (collectively, the "Indemnified Parties"), from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs incurred as result of any administrative or regulatory action, and reasonable attorneys' fees (collectively, "liabilities") arising, directly or indirectly, from (a) AGENCY'S approval of this Agreement, (b) AGENCY's or City's approval or issuance of any other permit or action, whether discretionary or non-discretionary, in connection with the Project contemplated herein, and (c) DEVELOPER's construction and operation of the Project permitted hereby. G. In the event that any court action or other legal proceeding is brought by any person not a party to this Agreement to challenge this Agreement, the granting of any entitlements, the purchasing of the operating covenant or the fulfillment of any condition to the obligations of the parties hereto, and without regard to whether or not the DEVELOPER or the AGENCY is a party to said action or proceeding, DEVELOPER and AGENCY shall meet and confer to discuss how to respond to such challenge. If the parties agree to defend against such challenge, or defense costs are otherwise reasonably incurred by AGENCY or the City prior to such determination, DEVELOPER shall indemnify the AGENCY and the City for all expenses, including attorneys' fees, to defend the City or the AGENCY from any claim, action or proceeding against the City, the AGENCY or their agents officers, or employees to attack, set aside, void or annul the approval of this Agreement or the approval of any entitlements or the purchasing of the operating covenants or condition to the obligations of the parties hereto. AGENCY and the City shall promptly notify DEVELOPER of any such claim, action or proceeding. For purposes of this Section, DEVELOPER acknowledges that the term" attorneys' fees" includes the reasonable costs incurred by the City or AGENCY in the defense of any claim, action or proceeding by the City Attorney or her staff. H. In the event of any dispute between the parties with respect to the obligations under this Agreement that results in litigation, the prevailing party shall be entitled to recover its reasonable attorney's fees and court costs from the non-prevailing party. 1. Time is of the essence for each and every obligation hereunder. J. If DEVELOPER fails to fulfill its obligations hereunder after due notice and reasonable opportunity to cure, DEVELOPER shall be in default hereunder, and in addition to any and all other rights and remedies AGENCY may have, at law or in equity, AGENCY shall have the right to terminate its approval of the Project and this Agreement. K. If a party to this Agreement fails to timely satisfy a material obligation under this Agreement as the time for performance may have been "extended in its sole discretion pursuant to Section VII.e and/or Section VIIJ of this Agreement (such party, a "Defaulting Party", and such failure to timely perform, an "Event of Default"), then the other party to this Agreement (the "Non- Defaulting Party") may provide the Defaulting Party written notice of such Event of Default (a "Default Notice"). Upon the Defaulting Party's receipt of a Default Notice, the Defaulting Party shall have ninety (90) days within which to cure the Event of Default, or if such Event of Default is of a nature that it cannot be cured within such 90-day period, then to begin to effect such cure and diligently pursue completion of performance in the shortest, commercially reasonable time period (the "Cure Period"). Except as otherwise provided within this Agreement, neither party to this Agreement may proceed against a Defaulting Party, nor cease to itself timely perform each and every obligation due under this Agreement, unless and until a Defaulting Party has failed to cure the Event of Default within the applicable Cure Period. If the Defaulting party fails to cure the Event of ~7 Z-{e, Default within the applicable Cure Period, then in addition to any and all other rights and remedies the Non-Defaulting Party may have, at law or in equity, the Non-Defaulting Party may terminate this Agreement. L. The qualifications and identities of the individuals comprising the DEVELOPER entities are of particular concern to the AGENCY. It is because of those qualifications and identities that the AGENCY has entered into this Agreement with the DEVELOPER. No voluntary or involuntary successor in interest of the DEVELOPER shall acquire any rights or powers under this Agreement except as expressly set forth herein. (i) DEVELOPER shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to the Proj ect, nor make any total or partial sale, transfer, conveyance or assignment ofthe whole or any part of the Property Site or the improvements thereon, without prior written approval of the AGENCY in its sole discretion. Any attempted transfer that has not been so approved by AGENCY shall be void. Except as permitted below, transfers of any interest in the DEVELOPER entity shall constitute a prohibited transfer hereunder. (ii) Notwithstanding any other provisions ofthis Agreement to the contrary, AGENCY approval of an assignment of this Agreement or any interest herein shall not be required in connection with any of the following: (a) Any transfers among the principals of the DEVELOPER entities so long as the existing principals thereof shall be and remain in management control of the DEVELOPER entity with at least a fifty-one percent (51 %) ownership or beneficial interest in the DEVELOPER entity. (b) The granting of temporary or permanent easements or permits to governmental or quasi-governmental agencies to facilitate the development of the Property, or any component thereof. (iii) AGENCY consent will be granted if: (a) the proposed assignee/transferee expressly assumes, in writing, Master DEVELOPER's obligations hereunder as to times following the effective date of the assignment or transfer; (b) the proposed assignee/transferee has demonstrated to the reasonable satisfaction of AGENCY that such person or entity has adequate financial capacity to fulfill all obligations of this Agreement. (M) Notwithstanding the foregoing or anything else in this Agreement, all dates for performance set forth in this Agreement are subject to a one (1) day extension for each day of delay in performance due to a Force Majeure Event, provided that the party claiming the right to such extension provides the other party written notice of the Force Maj eure Event within thirty (30) days following the occurrence of such event. As used in this Agreement, "Force Majeure Event" means any act of God, act or omission of any local, state, or federal governmental AGENCY (including, without limitation, the AGENCY and the City, and including without limitation, the failure or refusal N 2-1<1 of any such AGENCY to grant, issue or enact any entitlement, approval, or pennit necessary for the use, development or disposition of the Property or any portion of the Property), casualty, stormy or inclement weather, epidemic, war, terrorism, insurrection, riot, :fire, flood, earthquake, strike, boycott or other labor dispute, delay in transportation, unavailability or scarcity oflabor or materials and any legislative, administrative or judicially imposed restriction upon or prohibition against construction or development. Signature Page Follows 2-20 ;;9 -CQ-ZCC5 07:36PW FROM-SUNROAD ENTERPRISES +Q5Il6ZB44; T-m P.oI5/018 F-3Q9 Signature: Page IN WITNESS WHEREOF TIiE PARTIES HAVE ENTERED INTO TInS AGREEMENT EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE. -AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA. a public body corporate 8I1d politic DATED: By. Stephen C. Padilla, Chainnan APPROVED AS TO FORM BY: Ann Moore AGENCY Anomey "PEVELOPER" DATED: 1;6 q 2 p"5 / :~~=;.~ Its: (/.. Fc./J--1 t/ P NOTARY; Pleue attach acmowledgmenl eard(s). J:IAItpmoylEHuUlAsreo"""'ts\Toyota OPA 020205 CLEAN.doc 2,2-1 4-%6 - EXHIBIT A LOCATOR MAP I ~ ~ ~ '" ~ ~ ~ i ~ McIn St ~ PROJEOT ~ LOCATION AUTO PARK --- - ~ CHULA VISTA PLANNING AND BUILDING DEPARTMENT LOC)CATOR ~~~ Chula Vista Toyota ~;;I;~~IEW PROJECT Auto Park East ADDRESS: Request Proposal fer new auto dealership and carwash. SCALE: . FILE NUMBER: 2 ,...,..., NORTH No Scale DRC-04-66 - .&-.&- J:\pIanning\carlo.~ocators\drc0466.cdr 07.12.04 EXHIBIT B REDUCED COPIES OF DESIGN PLANS FRONT ELEVATION . -- ~:~~~....~~= CHULA VISTA ~ TOYOTA --,- 2--23 .2 22 ) f., I ~ ~ '\ :!:" MAIN STREET c....., '~.~;IITrrr!If~!:~tb~;L,. ~~16# ' "co \/lClHnY..... ...~...~ @ ::::::- ,-- -,_--. ~...._._..~. ---I - ~-I -- =-....-:r_ I --. --';;;;;... --\--: 1""'....; ~~ -- -- -- -- -- ----------.,;;;.~ -- -- ....._- 2--2-LJ- 2 23 o o o II .I II III! . ~< 5'b( ~gl @i ~~_.- -- ~~. . -- ...., ________.-J ~~ \. ~" MAIN STREET :~~ ' PLANT LICJ:ND - -- -- - IS Wk I 0 -- -- Wk '* ---- n * -- ---- n I EEl 1:1:.--""" .__ ~ II 1iS!E----==.-=.- ... I CJ -- IiJ:I -- .. -- i~~"::-_ -...- --- -- -..- -....... ~~~:'i'iiIIO @ -----: _..=--- ---- . -- w:uc... / 1'lAHOOUf'IT . ....-oc..-.,... -..------- CHUL.A VISTA @ TOYOTA -_.- 2--26 -f- 24 ..---\ ~'f"' . "_:. '" "'~.'. -;-' ~-+-. , tl' ; ; ,!....., ., ~'''-PH1_...' .1- ...' , . 'I ' . . !i j' ,,,l. . . i I . . I :'''1> ~;..., ';"_. ,,__. "', ~""'". ~_.... ' " "' I, \' , .; _tifl,,',,~~;~!T"': , ~'" :i-.:/ ~-'; .':0--- 'j~:)/ ~.~ JoIC<<rN_"'_ ~......._-_._. .. .;,;';.,..-_..... ~'Illl:::i:=-==_ ' ---~~.~~'-'._.. --.-- _._,._."'-_.._.~~~ 1!/""- j,: I ! V"""" ! ."..,. i ~ .,. " 7--U 2 25 ~'-'\ 5;, o o o !I r .1 II III! . < ig i~! " I ! @i ~ i~ o , , , ,~ _...,~' ! i' ,I ! I .-fjl~ ,i '.: · ~,T~'..I :'f.:... i ~i...... ....~l1ON '"',. ""'1 1=1r ..... .....i.......\\ -.' ,.-,....;. --...,.........;; n ~-'""'" ?-..27 2 III ~-,~..;;~--= :=__-=E.-=== .-=.=:!:...--o;:' -~.__.-.-..,.. <t-", 'n~- -, ,LJ1 ~., - L~T" --_-- o o o c'-'" I I!! I I ., I! IIII . ~ ill I . ~i ~v II ,. ~: "'.."'...,.....,-"'~ ~ _11J~ 0 tr - '.-<< --d-- 1.";" tl i :;.;- --t- '.--""// :,- -' . ,J' ,f":- "1'-- L.' Ii ----. i 0 .( i ('""". ~~;;'ij."4 . n__ I ! ~~. . .. '--l" f I! I I i I ~l ~ <C ~~ il1l ~ @l ~ il-----.... I :~--=: .... -- i .."",~ l:t I i ....,...~._o~"L..""",,,.,,,,"'L..."'..... I I j : i -:="""".. ,'._..__...._.._._.___.,........"..L",.,.. : : ! i : "___~-----------.-------~-----.--..---------~--J e:: .,- il ._~.,. " ,.=.~:~~~ -,---, 2-28 2 27 ) U \ MAIN STREET It..., PLANT LECEND , ! - -- -- - , , . -- I . -- -- ~~ . -- ---- . -..-- e . -...---=-.-- 5 . E-e::..a.-:.- i . ...- . -- .- --- I!!I WALKI!" ~ NAMCOUl'n' . ASIIOOIA"" -..------- ?-- 24 2-28 -- '1IIIR"'------'1!II:-'':'''_ --- --- -...- l;lGt"~':/iii:W_~ ~ @ CHULA VISTA @ TOYOTA -_.- Year of Oueration 1 2 3 4 5 6 7 EXHIBIT C SCHEDULE OF DISBURSEMENTS Disbursement Amount 50% 50% 50% 50% 25% 25% 25% ~;30 :.17.:/ ~ RDA RESOLUTION NO. 2005-1903 RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING AN OWNER PARTICIPATION AGREEMENT WITH SUNROAD CV AUTO, INC. FOR THE OPERATION AND MAINTENANCE OF A CHULA VISTA TOYOTA DEALERSHIP WHEREAS, The Redevelopment Agency of the City of Chula Vista has proactively planned for the development and expansion of the auto park along the Main Street corridor east of the I-80S Freeway between Brandywine Avenue and Maxwell Road; and WHEREAS, Sunroad CV Auto, Inc. proposes to develop a Toyota dealership on a portion of the property located on the south side of Main Street between Brandywine and Maxwell Road; and WHEREAS, the site for the proposed Toyota dealership is located within the Otay Valley Road Redevelopment Project Area under the jurisdiction and control of the Redevelopment Agency of the City ofChula Vista; and WHEREAS, the site for the proposed Toyota Automobile Dealership is located within the boundaries of the Auto Park East Specific Plan (PCM-02-10) approved by City Council in June 2004; and WHEREAS, in August 2004, the Redevelopment Agency of the City of Chula Vista approved a Master Owner Participation Agreement with Fred Borst, Borst Family Trust, Fask Land, Inc., establishing development standards and performance requirements for the 29 acres of territory within the Auto Park East Specific Plan; and WHEREAS, The Master Owner Participation Agreement sets forth a number of developer obligations of both the existing master developer and future individual developers and dealership owners; and WHEREAS, The Master Owner Participation Agreement and the Owner Participation Agreement with Sunroad CV Auto, Inc. will concurrently guide the development, maintenance, and operation of the Toyota dealership as a "first quality, first class" auto dealership; and WHEREAS, the agreement represents the Chula Vista Redevelopment Agency's ongoing efforts to effectively plan for the City's expanding Auto Park. NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of Chula Vista that this Redevelopment Agency does hereby approve in the form presented the Owner Participation Agreement between the Redevelopment Agency of the City of Chula Vista and Sunroad CV Auto, Inc., a copy of which shall be kept on file in the Office of the City Clerk. :2---31 RDA Resolution No. 2005-1903 Page 2 BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Owner Participation Agreement with Sunroad CV Auto, Inc. for and on behalf of the Redevelopment Agency of the City of Chula Vista. Presented by Approved as to form by . Madigan ity Development Director o.~ Ann Moore Agency Counsel PASSED, APPROVED, and ADOPTED by the Redevelopment Agency of the City of Chula Vista, California, this 15th day of February 2005, by the following vote: AYES: Agency Members: Castaneda, Davis, McCann, and Padilla NA YES: Agency Members: None ABSENT: Agency Members: Rindone ABSTAIN: Agency Members: :tbcP~ ~ Stephen C. Padilla, Chairman ATTEST: cJ STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Laurie A. Madigan, Secretary of the Chula Vista Redevelopment Agency, do hereby certify that the foregoing Resolution No. 2005-1903 was duly passed, approved, and adopted by the Redevelopment Agency at a regular meeting held on the 15th day of February 2005. Executed this 15th day of February 2005. ~'''U])~1~(r) . Lauri. A. Madigan, ecre 2--32- THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: 11/5/ DV First Amendment to Owner Participation Agreement Between City of Chula Vista, Redevelopment Agency ofthe City of Chula Vista, and Sumoad CV Auto, Inc. 2-33 Recordinl! Reauested Bv and When Recorded. Mail to: City Clerk's Office CITY OF CHULA VISTA 276 FOUlih Avenue Chula Vista, CA 91910 (Space Ahove TlJ;S Line for ReciJrder) This document is exempt from the payment of a recording fee pursuant to California Government Code section 6103. APN: 644-040-66 and 644-040-11 FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT This "First Amendment to Owner Participation Agreement" (the "Amendment") is entered into by and between the City of Chula Vista, a California municipal corporation and charter city (the "City"), the Redevelopment Agency of the City of Chula Vista, a California municipal corporation (the "Agency"), and Sunroad CV Auto, Inc., a California corporation ("Sunroad"), (these entities may be referred to, collectively, as the "Parties," or each individually, as a "Party"). This Amendment shall amend the "Owner Participation Agreement," dated February 2005, by and between the Agency and Sunroad, with respect to the development of certain real property located within the City. This Amendment shall be effective as of the date last signed by the Parties to the Amendment (the "Effective Date") and is entered into with respect to the following recited facts: RECITALS A. The Agency and Sunroad entered into an "Owner Participation Agreement," pursuant to Agency Resolution No. 2005-1903, adopted on February 15, 2005 (the "OPA"); B. The OPA relates to Sunroad's development of certain real property located within the City of Chula Vista, identified as Assessor's Parcel Nos. 644-040-66 and 644- 040-11, generally located along the southerly side of Main Street, east of Brandywine Avenue and west of Maxwell Road, and further described on Exhibit "A" to the OPA (the "Propeliy"); C. Pursuant to the OPA, Sunroad agreed to, among other things: I. Develop the Property in accordance with the Agency-approved development attached as Exhibit B to the OPA; Z-3L/- --t-=- 2. Apply for all necessary building permits to develop the Project within one year from the date of the OPA and develop the Property within one year from the date of issuance of the building permits; 3. Comply with all conditions of approval of the Auto Park East Specific Plan and the Design Review Committee and comply with the mitigation monitoring program adopted for Mitigated Negative Declaration IS-02-0 I 0; 4. Develop and maintain the Property in "First Quality, First Class Condition and Repair," consistent with development, maintenance and operation standards customary for first quality, first class auto parks and first class quality automobile dealerships of comparable size within the San Diego market region; and 5. Designate the Property as the point of sale for sales tax purposes in all retail sales for vehicles whose sales originate from the Property; 6. Keep the automobile dealership on the Property in continuous operation and generating Sales Tax Revenues; D. In exchange for Sunroad's covenants and obligations under the OPA, the Agency agreed to provide certain consideration to Sunroad, including the obligations detailed in sections V. and VI. of the OPA; E. The City has determined that Sunroad's development and maintenance of the Property pursuant to the OP A has resulted, or will likely result, in public benefit to the City and its residents, including: I. Public improvements to the Property, at Sunroad's expense, which improvements will become City property; those improvements include curb, gutter, sidewalk, driveway, ramp and sewer improvements and have an estimated value in excess of $200,000; 2. Increased business development in the area, including additional auto dealerships; 3. Creation of additional job opportunities for City residents; 4. Additional tax revenue to the City, which will assist the City 111 providing public services to its residents; F. Development, planning and operation of the Property in accordance with the City's adopted Auto Park East Specific Plan and with the operating and restrictive covenants contained in the OPA; and G. The City, the Agency and Sunroad desire to amend the OPA. 2-35 -r: AGREEMENT NOW, THEREFORE, CITY, AGENCY, and SUNROAD agree as follows: I. AGENCY REMOVED AS P ARTY TO OP A. As of the Effective Date of this Amendment, the Redevelopment Agency of the City of Chula Vista is no longer a party to the OP A; the Agency shall have no right or obligation under the OPA. I. I Estoooels. Sunroad acknowledges and agrees that, as of the Effective Date, no performance of the Agency is due to Sunroad under the OP A. The Agency acknowledges and agrees that, as of the Effective Date, no performance ofSunroad is due to the Agency under the OPA. 1.2 Releases of Liabilitv. 1.2.1 Release of Sunroad. The Agency, on behalf of itself, its successors and assigns, releases and discharges Sunroad its officers, directors, employees and agents from any and all debts, claims, demands, liabilities, obligations, causes of action and rights, including attorneys' fees and court costs, whether known or unknown, that the Agency now owns or holds, or at any time on or before the Effective Date owned or held, by reason of any act, matter, cause or thing relating to the OPA, as of the Effective Date. 1.2.2 Release of Agency. Sunroad, on behalf of itself, its successors and assigns, releases and discharges the Agency, its elected officials, officers, directors, employees and agents from any and all debts, claims, demands, liabilities, obligations, causes of action and rights, including attorney's fees and court costs, whether known or unknown, that Sunroad now owns or holds, or at any time on or before the Effective Date owned or held, by reason of any act, matter, cause or thing relating to the OP A, as of the Effective Date. 1.2.3 Waiver of Civil Code Section 1542. The releases contained in this Section 1.2 extend to any and all claims, whether or not claimed or suspected by either the Agency or Sunroad, to and including the Effective Date, and constitutes a waiver of the application of each and all of the provisions of California Civil Code Section 1542, which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." :z - 3b -&- Initials of authorized Agency representative sunrff Initials of authorized Sunroad representative Agency 1.2.4 Legal Counsel. The Agency and Sunroad each acknowledge that the import of the provisions of Civil Code Section 1542 were explained to it by its own legal counsel and that it understands the same. 1.2.5 Changed Circumstances. The Agency and Sunroad each expressly acknowledge and agree that the facts with respect to which the releases contained in this Section 1.2 are given may subsequently turn out to ~eother than or different from the facts in that connection now known or believed to be true and each expressly assumes the risk of the facts turning out to be different, and agrees that the releases contained in this Section 1.2 shall be in all respects effective and not subject to tennination or rescission by reason of any such difference in facts. Sunroad and Agency acknowledge the significance and the consequence of such a specific waiver of unknown claims and each assumes full responsibility for any injuries, damages, losses or liabilities that it may incur in the future as a result of the releases contained in this Section 1.2 of said unknown claims. 1.3 Advice of Counsel. The Agency and Sunroad each represent and warrant that in executing the releases contained in Section 1.2 it relied on legal advice from the attorney of its choice, that the temlS of the releases contained in Section 1.2 and their consequences were completely read and explained to the Party by that attorney and that the Party fully understands the terms and consequences of the releases contained in Section 1.2. 1.4 No Reliance. The Agency and Sunroad each acknowledge and represent that, in executing the releases contained in Section 1.2, it did not rely on any inducements, promises or representations made by any other party or person representing any other Party to this Amendment, except as expressly set forth in this Amendment. 1.5 No Admission. The releases contained in Section 1.2 do not constitute an admission of liability by either the Agency or Sunroad. 1.6 Representation of No Assignment. Sunroad represents and warrants that it has made no transfer of the OPA, any interest in the OPA, or any demand, obligation, liability, or cause of action arising out of the OP A. The Agency represents and warrants that the Agency has made no transfer of the OPA, any interest in the OPA, or any demand, obligation, liability, or cause of action arising out of the OP A. 1.7 Limitation Agencv Participation. Sunroad and Agency acknowledge and agree that the Agency's only purpose and participation in this Amendment is for removal of Agency as a party to the OPA. '2--37 ~. 2. CITY SUBSTITUTED AS PARTY TO OP A. As of the Effective Date, the OPA is amended as reflected on Attachment] to this Amendment. The Parties to this Amendment acknowledge that the purpose of the Amendment is to remove the Agency as a party to the OPA and substitute the City in place of the Agency with respect to the OP A. They further acknowledge that the amendments to the OPA, as reflected on Attachment I, are intended to carry-out this purpose. 3. GENERAL PROVISIONS 3.1 Incorporation of Recitals. The Recitals of fact preceding this Amendment are true and correct and are incorporated into this Amendment, in their entirety, by this reference. 3.2 Recordation. The City may record this Amendment in the Office of the County Recorder of San Diego County, California. 3.3 Notices. Demands and Communications Between the Parties. 3.3.1 Notices. Any and all notices submitted by any Party to any other Party pursuant to or as required by this Amendment shall be proper, if in writing and transmitted to the address of the Party set forth in Section 3.3.2 by one or more of the following methods: (a) messenger for immediate personal delivery, (b) a nationally recognized overnight (one business day) delivery service (i.e., Federal Express, United Parcel Service, etc.) or (c) registered or certified United States mail, postage prepaid, return receipt requested. Such notices may be sent in the same manner to such other addresses as either Party may designate, from time to time, by notice. Any notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after it is deposited with the United States Postal Service for delivery, as provided in this Section 3.3. Rejection, other refusal to accept, the inability to deliver a notice because of a changed address of which no notice was given, or other action by a person to whom notice is sent, shall be deemed receipt of the notice by such person. Delivery of a notice to any courtesy copy recipient shall not be a prerequisite to the validity or effectiveness of any Notice. 3.3.2 Addresses. The following are the authorized addresses for the submission of notices to the Parties, as of the Effective Date: To the City: Citv Manager City of Chula Vista 276 Fourth Avenue Chula Vista. CA 91910 2-38 s-- To the Agency: Executive Director Chula Vista Redevelooment Agencv 276 Fourth Avenue Chula Vista. CA 91910 To Sunroad: Sunroad Enterorises 4445 Eastgate Mall. Suite 400 San Diego. CA 92121 Attn: Uri Feldman 3.4 Relationshio of Parties. The Parties each intend and agree that the City, the Agency, and Sunroad are independent contracting entities and do not intend by this Amendment to create any partnership, joint venture, or similar business arrangement, relationship or association among or between them. 3.5 Non-liability of Officials. Emolovees and Agents. No elected official, officer, director, employee or agent of either the City or the Agency, shall be personally liable to Sunroad, or any successor-in-interest of Sunroad, in the event of any default or breach by the City or the Agency under this Amendment or for any amount that may be or become due to Sunroad, or any of its successors-in-interest, on any obligations under the terms or conditions ofthis Amendment. 3.6 Interoretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Amendment. The Parties have all participated substantially in the negotiation, drafting, and revision of this Amendment, with advice from legal and other counsel and advisers of their own selection. 3.7 Governing Law. The laws of the State of California shall govern the interpretation and enforcement of this Amendment, without application of conflicts of laws principles. The Parties acknowledge and agree that this Amendment is entered into, is to be fully performed in and relates to real property located in the City of Chula Vista, County of San Diego, State of California. All legal actions arising from this Amendment shall be filed in the Superior Court of the State in and for the County or in the United States District Court with jurisdiction in the County. 3.8 Binding on Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and assigns. 3.9 No Other Reoresentations or Warranties. Except as expressly set forth in this Amendment, no Party makes any representation or warranty material to this Amendment to any other Party. 2-34 ...Q.- 3.10 Execution in Counteroarts. This Amendment may be executed in multiple counterpart originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. [Signatures blocks appear on the next page] 2-lfo -r=- SIGNATURE PAGE TO FIRST AMENDMENT OT OWNER PARTICIPATION AGREEMENT The Parties have signed this Amendment by and through the signatures of their authorized representatives, as set fOlih below: CITY SUNROAD Dated: CITY OF CHULA VISTA, a California municipal corporation and charter city By: Cheryl Cox, Mayor Dated: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 2-LfI .-i- AGENCY REDEVELOPMENT AGENCY OF THE CITY CHULA VISTA, a municipal corporation By: Cheryl Cox, Chairman Dated: ATTEST: Agency Secretary APPROVED AS TO FORM: Agency Counsel 2 -Lf 7- -9- CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT . . . ...-.-.-.-.-.-.-.-.-.-.-.-.- ~ personally appeared } ~(~~ .C- .:;n~7!..'?::,JJ;!.~f:.~~bl{'C- LA n f.;( drn a/I Name(s) ofSigner(s) State of California County of SlAV! ):)1C:30 onGt>,.' 'f I toolS before me, Date ruu--. u _u~u'~1 . L1tAA. . Commllllon " 1625126 ", -.., PublIC . Callfornlo I Ian DIego County - l____,.~~~~~_1 who proved to me on the basis of satisfactory evidence to be the person(st whose name(sl isfaFe subscribed to the within instrument and acknowledged to me that he/st-leitAey executed the same in hislRerltAeir authorized capacityfiesj; and that by his/heritheir signature{st on the instrument the person{5t; or the entity upon behalf of which the persontsTacted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my ha Place Notary Seal Above Signature OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Doc/fe:t:fl d LA I drnerH- Document Date: ~ ,; ( Lf) 2-008' Signer(s) Other Than Named Above: ,0 Qt;Jn~r-h6{' Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name: [,1 VI' 1;;/ d mo VI o Individual ~ n' J2I:: Corporate Officer - Titie(s): Ice (i CStderrf o Partner - 0 Limited 0 General o Attorney in Fact o Trustee D Guardian or Conservator o Other: Top of thumb here Signer's Name: o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee D Guardian or Conservator o Other: RIGHT THUMBPRINT OF SIGNER RIGHT THUMBPRINT OF SIGNER Top of thumb here 9igner Is Re~re~T\til1\J: .:::itnVOO-d.. ell uuio "JLle- Signer Is Representing: .~~. @2007National Notary Association. 9350 De Soto Ave., P.O. Box 2402 .Chatsworth, CA 91313-2402. www.NationaINotary.org Ilem #5907 Reorder: Call Toll-Free 1-800-876-6827 2-4-3 OWNER PARTICIPATION AGREEMENT This OWNER PARTICIPATION AGREEMENT ("Agreement") is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY Of CHULf. VISTf., a J3al3lie BElfry cSFJ3Elrate ami J3Ellitic ("f.GENCY"), Citv of Chula Vista. a California municipal corporation and charter citv ("CITY:' or "Citv"), and Sunroad CV Auto, Inc. ("DEVELOPER"), dated and effective as of February_, 2005 ("Effective Date"). WHEREAS, the DEVELOPER desires to develop real property (APN 644-040-66 and 644-040-11) within the City of Chula Vista, generally located along the southerly side of Main Street, east of Brandywine A venue and west of Maxwell Road, within the City of Chula Vista, California ("Property"), as further described in the map attached hereto as Exhibit "A." WHEREAS, a Master Owner Participation Agreement ("Master Agreement") was previously executed and entered into on August 24, 2004 by and between the Redevelopment Agencv of the Citv of Chula Vista ("AGENCY:l and Fred Borst, Borst Family Trust, Fask Land, Inc. or permitted assignee ("Master DEVELOPER"), the Master DEVELOPER of Property and other contiguous properties in the Auto Park East Specific Plan, setting forth development standards and performance requirements for the Master DEVELOPER and individual dealerships, including Property; and WHEREAS, DEVELOPER shall comply with all applicable obligations, covenants, and provisions of said Master Agreement, incorporated herein by this reference; and WHEREAS, DEVELOPER has presented CITY/\GENCY plans for the development of Property as a Toyota auto dealership ("Project") in accordance with the CITY's City of Chula Vista's ("City") adopted Auto Park East Specific Plan ("Initial Entitlements"); and WHEREAS, the Project is located entirely within the MERGED REDEVELOPMENT PROJECT AREA within the jurisdiction of CITY f,GENCY; and WHEREAS, in consideration of the specific operating .covenants and restrictive covenants binding on DEVELOPER and set forth herein, CITYf,GENCY has agreed to make certain payments to DEVELOPER; and WHEREAS, CITY f.GENCY has determined it is of benefit to f,GENCY, the City, and its citizens for the Property to be planned, developed, and operated in accordance with the City's adopted Auto Park East Specific Plan ("Specific Plan"), and that the imposition of certain operating covenants and restrictive covenants upon the Property for the uses set forth in the Specific Plan constitutes a valid public purpose and objective of the CITY,'\GENCY's ReacvelElJ3lReffi Plan fSf the Project area, and that this public purpose outweighs anv private benefit to DEVELOPER and. hat this public purpose outweighs any private benefit to DEVELOPER and, therefore, CITYAGENCY desires to obtain such operating covenants and restrictive covenants on the Property and, subject to the terms hereof, DEVELOPER (for itself and its successors and assigns of the Property or any part thereof) is willing to enter into and be bound by such operating covenants and restrictive covenants; and '2--4-4-- ATTACHMENT 1 WHEREAS, CITYi\GBNCY and DEVELOPER desire that the Project be developed in accordance with the terms ofthis Agreement. NOW, THEREFORE, CITY.\GBNCY and DEVELOPER do hereby agree as follows: 1. DEVELOPMENT OBLIGATION. DEVELOPER covenants and agrees by and for itself, its heirs, executors, administrators and assigns and all persons claiming under or through them the following: A. DEVELOPER shall develop the Property with the Project substantially In accordance with the CITYf.GENCY approved development proposal attached hereto as Exhibit "B." B. DEVELOPER shall obtain all necessary federal, state, and local governmental permits and approvals and abide by all applicable federal, state and local laws, regulations, policies and approvals in connection with the development of the Project. DEVELOPER further agrees that this Agreement is contingent upon DEVELOPER securing said permits and approvals. DEVELOPER shall pay all applicable development impact and processing fees. Subject to applicable laws, CITY.\GBNCY staff agrees to exercise good faith efforts to expedite the processing and final consideration of all entitlements and permits necessary for the Project. DEVELOPER further agrees that construction shall be completed in compliance with all applicable laws, labor standards, and Department of Industrial Relations rules and regulations. C. DEVELOPER shall apply for all necessary building permits to develop the Project within one year from the date of this Agreement, shall diligently pursue obtaining such building permits and shall actually develop the Property with the Project within one year from the date of issuance of the building permits. In the event DEVELOPER fails to meet these deadlines, CITYf.GBNCY approval of DEVELOPER's development proposals shall be void and this Agreement shall have no further force or effect. D. DEVELOPER shall comply with all conditions of approval of the Auto Park East Specific Plan (PCM-02-1O) and the Design Review Committee (DRC-04-66), and comply with the mitigation monitoring program adopted for Mitigated Negative Declaration IS-02-01O. II. MAINTENANCE OBLIGATION. A. DUTY TO MAINTAIN FIRST CLASS CONDITION. DEVELOPER covenants to develop and maintain the Property in First Quality, First Class Condition and Repair consistent with development, maintenance and operation standards customary for first quality, first class auto parks and first class quality automobile dealerships of comparable size within the San Diego California market region and in conformity with the Initial Entitlement, and the covenants, conditions, maintenance obligations and other restrictions therein during the term of this Agreement. Additionally, DEVELOPER shall promptly and diligently repair, restore, alter, add to, remove, and replace, as required, all improvements to maintain or comply as above, or to remedy all damage to or destruction of all or any part of the improvements except improvements dedicated to and accepted by the City. "First Quality, First Class -2---. ATTACHMENT 1 2 -4-6 Condition and Repair" means an efficient and attractive condition, at least substantially equal in quality to the condition which exists when the improvements on the Property were completed, ordinary wear and tear excepted, in accordance with all applicable laws and conditions. "Dealership" shall mean any person or business of any nature selling, leasing, or financing vehicles on the property. B. DELEGATION OF REPAIR AUTHORITY. In order to enforce all above maintenance provisions, the parties agree that the CITY's Citv Manager, or his or her designee, ("Citv Manager")CoIRHHlnity DeyeloJllReHt Directer of the City of ChHla ViGta ("Director") is empowered to make reasonable determinations as to whether the Property is in a first class condition and repair. In accordance with the Master Agreement: 1. If the Citv ManagerDirector determines the Property appears materially different in terms of maintenance and upkeep than the remainder of the Auto Park, the Property is not in conformity with the requirements of this Agreement regarding maintenance and upkeep of the Project, DEVELOPER shall be notified in writing and provided a reasonable time to cure and/or to commence to cure and diligently and continuously complete such cure. 2. If a cure or substantial and ongoing progress to cure has not been made, the DirectorCitv Manager is authorized to effectuate the cure by City forces or otherwise, the cost of which will promptly be due from and reimbursed by DEVELOPER. 3. The Director er the City City Manager or the CITY shall have the right to enforce this lien by forwarding the amount to be collected to the San Diego Tax Assessor who shall make it part of the tax bill for the Property. III. NON-DISCRIMINATION COVENANTS. DEVELOPER covenants by and for itself and any successors in interest (and each Dealership successor) that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, physical or mental disability or medical condition, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall DEVELOPER itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the Property. The foregoing covenants shall run with the land. A-All deeds, leases or contracts with respect to the Property shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: -hA. In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or ~ ATTACHMENT 1 2--tfh occupancy of tenants, lessees, subtenants, sub lessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." ;hB. In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, creed, religion, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment ofthe land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub lessees, subtenants or vendees in the land herein leased." 3. C. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with Reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the land." IV. RESTRICTIVE OPERATING COVENANTS. DEVELOPER hereby covenants and agrees (for itself and any and all successors in interest of the DEVELOPER entity, any and all CITY.^.GENCY-approved assignees under this Agreement or any part thereof, and any and all successors in interest to the Property or any part, portion, or parcel thereof, including any and all CITYf.GENCY.approved transferees of the Property or any part, portion, or parcel thereof) to the following covenants: ;\, DEVELOPER AND DEALERSHIP'S OPERATIONS. During the operating I period, DEVELOPER shall do or cause to be done the following: h&-For as long as operated as a new vehicle Dealership, to designate the Property as the point of sale for sales tax purposes in all retail sales for vehicles whose sales originate from the Property; ;hIL-At no cost to AGENCY or City, keep and maintain the Property and the improvements thereon and all facilities appurtenant thereto, consistent with first class auto parks and first class automobile dealerships, in good order and repair and safe condition, and the whole thereof, the improvements, and landscaping in a clean, sanitary, and orderly condition; and ~C. Comply with all governmental requirements but only to the extent a failure to comply materially and adversely affects DEVELOPER's (or any successor's) ability to comply with these covenants; provided, however, that DEVELOPER (nor its successors) do/does noto ~ ATTACHMENT 1 1- -'17 waive its right to challenge the validity or applicability of any such governmental requirements. V. CONSIDERATION/PAYMENT FOR ANNUAL RESTRICTIVE OPERATING COVENANTS. COMPLIANCE WITH A. SALES TAX REVENUES AND RELATED DEFINITIONS. As used in this Section, "Sales Tax Revenues" shall mean that portion of taxes derived and received by the City and legally available for unrestricted use by the City's General Fund from the imposition of the Bradley Burns Uniform Local Sales and Use Tax Law, commencing with Section7200 of the Revenue and Taxation Code of the State of California ("State"), as amended, or its equivalent, arising from all businesses and activities conducted on the Property in accordance herewith from time to time, which are subject to such Sales and Use Tax Law. As used in herein "Retained Sales Tax" shall mean 1% of Sales Tax Revenues reported in the DEVELOPER's quarterly sales and use tax report to the State and verified by the City minus an amount equal to the payment described herein if any, paid to DEVELOPER herein. B. CONSIDERATION. In consideration for DEVELOPER's agreement to be bound by the Restrictive Covenants in Section IV of this Agreement, CITYf.GENCY agrees, as follows: 1. CITY"\GENCY shall pay to DEVELOPER an amount equal to a portion of the City's share of Sales Tax Revenues generated by Developer on a quarterly basis as identified in the attached Exhibit "c" ("Disbursement"). The Disbursement will be based on the sales tax information received from the State Board of Equalization which is available one quarter after the submission of the DEVELOPER's quarterly sales/use tax report. The Disbursement will be distributed each quarter, commencing with the first full quarter after DEVELOPER has commenced operations during the term of the Restrictive Covenants until the earlier of (i) the Seventh (7th) anniversary date of the first payment as identified in Exhibit "c" or (ii) receipt by DEVELOPER of the aggregate amount of One Million Four Hundred Thirty-five Thousand Dollars ($1,435,000) under this subsection. a. The Disbursements due hereunder shall be payable from any source of funds legally available to CITY,\GENCY. The determination of the source of funds shall be in the sole and absolute discretion of CITYf,GENCY. b. The amount of the Disbursement due on each such payment date shall be determined by the City's sales tax consultants based on information provided by the State Board of Equalization and verified by the City's Finance Department adjusted for any corrections to previous tax reports made by the State Board of Equalization. c. Sales Tax Revenues generated each period shall be determined as follows: tBlll-For sales of automobiles, parts and accessories, Sales Tax Revenue shall be based upon the State Board of Equalization sales and use tax report(s) applicable to a dealership at the Property during the applicable sales period; and ~ Z''tf> ATTACHMENT 1 fBiliL"Sales of Automobiles" shall include all new or used vehicles conveyed to any related or independent third party, including any financing company for purposes of selling, leasing, or financing the vehicle to the end user. WiliUUpon written request by CITY,\GENCY, DEVELOPER shall promptly furnish to CITY/\GENCY any and all said information and take any and all actions which are reasonably deemed necessary by CITY.\GE}!CY to assist CITY.\GENCY in verifying the information contained in said sales and use tax returns and reports of new and used vehicles. CITYf.GENCY shall be entitled to review and audit the Dealership's books and records pertaining to the foregoing. (1) If an audit of the Dealership's books and records determines that DEVELOPER (or Dealership) has overstated revenues in any applicable period, DEVELOPER shall reimburse CITYf.GENCY for any overpayment, and if DEVELOPER has overstated revenues by more than ten percent (10%) in any period, DEVELOPER shall reimburse CITYf.GENCY for the cost of the audit, within thirty (30) days of notice thereof from CITY,^.GENCY. (2) Reciprocally, DEVELOPER (or Dealership), at its sole cost and expense, may request an audit to verify and/or reconcile the calculation of the amount of any payment. If such audit reveals an underpayment to DEVELOPER (or a Dealership), then CITY.\GENCY shall pay the outstanding amount of any payment hereunder to be paid to the DEVELOPER (or Dealership); and if such audit reveals an overpayment to DEVELOPER, then DEVELOPER immediately shall reimburse CITY.\GENCY for such overpayment. If CITYf.GENCY has underpaid DEVELOPER by more than 10% as a result of an error committed by the CITYf.GENCY, CITYf.GE~!CY shall reimburse DEVELOPER for reasonable audit costs, within 30 days of notice thereof from DEVELOPER. (3) If DEVELOPER contests the amount of Sales Tax Revenues for any period for the sales of automobiles, parts, and accessories arising from the dealership, as based upon the State Board of Equalization sales and use tax report applicable to the Dealership and the Property, at the sole expense of DEVELOPER, then CITY/\GENCY shall use good faith efforts to investigate and, if appropriate, to take steps to ensure that the correct amount of Sales Tax Revenues arising from the dealership is allocated to the City, and the correct amount of the period's payment is calculated and paid to DEVELOPER. d. If after the fourth (4th) year payments, DEVELOPER has received less than $1.1 million in compensation for compliance with the restrictive covenants contained herein, DEVELOPER may request and CITYf.GENCY shall in good faith consider modification to the payment schedule to ensure DEVELOPER receives fair and just compensation for compliance with the restrictive operating covenants being purchased by the CITY;\GENCY herein. C. PAYMENTS. Upon DEVELOPER's satisfaction of the Conditions Precedent to Disbursement set forth below, each payment shall occur within 180 days following the end of the quarter ("Payment Date") based with respect to the applicable sales period. DEVELOPER is aware and acknowledges that the determination of the Disbursement amount will be determined and based upon the receipt by the City of the State Board of Equalization report :.J;;..-- 2-Lfc; ATTACHMENT 1 within 90 days of the end of the applicable quarter. If the City fails to receive said report within 90 days of the end of the applicable quarter, Payment Date shall be automatically extended a number of days equal to the number of days delay in the City receipt of said report. DEVELOPER is aware and acknowledges that as of the Effective Date of Agreement, CITY intends that the State Board of Equalization report will be supplemented and summarized by an outside third party fiscal consultant. -hEach payment will be made within 180 days following the end of the quarter, except as otherwise provided herein, based on the issuance and receipt by the City of the applicable State Board of Equalization report/disbursement. DEVELOPER acknowledges each State Board of Equalization report is also reviewed by fiscal consultant(s) to AGENCY and City. DEVELOPER acknowledges and agrees that such fiscal consultant(s) will undertake calculation of each payment and, thereafter, the calculation will be reviewed by the City's Finance Department staff. Upon the City's receipt of each quarterly report, CITYf.GENCY shall notify DEVELOPER in writing of the date of receipt and the anticipated date of delivery of payment to DEVELOPER. CITYf.GENCY will use its best efforts to review and process any and all payments due to DEVELOPER in a timely and expeditious manner. D. CONDITIONS PRECEDENT TO DISBURSEMENT. Each payment hereunder is conditioned upon the satisfaction by DEVELOPER of the respective conditions precedent (1) through (9) inclusive, described below. Such conditions ("Conditions Precedent") are solely for the benefit of CITYAGENCY, and shall be fulfilled by DEVELOPER (or waived by CITYf.GENCY in its sole and reasonable discretion) within the time periods provided for herein. DEVELOPER may satisfy (and submit evidence of such satisfaction to the DireetorCitv Manager) one or more of such Conditions Precedent at any time prior to the first payment, so that at the time the first payment is due, DEVELOPER may have already provided satisfactory evidence of compliance with each of such Conditions Precedent. Thereafter, for subsequent payments, DEVELOPER shall have been deemed to have satisfied each of the respective conditions precedent which do not expire or contain a recurring obligation, unless DEVELOPER fails to timely satisfy condition 7, below, in which case CITY.^.GENCY may require renewal or update of any prior submittal. 1. Execution and Deliverv of Documents. This Agreement shall have been recorded against the Property in the official records of San Diego County as an encumbrance to the Property superior and non-subordinate to any monetary liens, including without limitation construction and/or permanent financing. 2. liability coverage. Insurance. DEVELOPER shall have insurance, including general 3. Regulatory Approvals. Assuming no protests have been lodged against the location and opening of the Dealership, DEVELOPER shall have obtained any legally required regulatory approval(s) from applicable governmental agencvf.GENCY(ies) related to DEVELOPER's ownership and operation of the applicable Dealership on the Property. 4. Manufacturer Approval. DEVELOPER shall have received any required approval(s) from the manufacturer for the operation of the applicable Dealership on the Property. -:;..-:- 2 -'50 ATTACHMENT 1 5. Consent of Owner for Recording of Agreement against the Property. DEVELOPER shall obtain the written consent and/or agreement of each Dealership and each lender allowing recordation of this Agreement against the Property in a superior and non-subordinate position to all other monetary liens and use restrictions on the Property. 6. Payment of Property Taxes. No ad valorem real property taxes or assessments assessed with respect to the Property shall be delinquent. 7. No Default. There shall exist no condition, covenant, event or act which would constitute an event of default hereunder, or which, upon the giving of notice or the passage of time, or both, would constitute an event of default. 8. Dealership Continuous Operation. The applicable Dealership on the Property shall be in continuous operation and generating Sales Tax Revenues in compliance with the Restrictive Covenants herein. 9. Environmental Condition of the Propertv. DEVELOPER shall not be in default of the requirements regarding the environmental condition of the Property. gE. NO PLEDGE OF TAXES. CITYf.GE"P'ICY's obligations hereunder are not, shall not constitute, and shall not be construed as a pledge of funds by AGENCY or ilie City, iR flartieular iliere is and shall Rot be a pledge of tal. iRerement purStlaRt to Health aRa Safety Code SeetioR 33671, a pledge of City sales tax revenues, a pledge of any oilier sfleeifie reveooes of /\.Gm'ICY, or a pledge of the City's general fund. All references to the Sales Tax Revenue are intended solely to create an index for calculating the amount of the payments, and shall not in any respect whatsoever be construed as a pledge of specific funds -.ill of CITY's f.GENCY Ror the City's general fund. Nothing in the foregoing statement that there is and shall be no pledge of specific funds hereunder, shall limit or diminish the CITY,'\.GENCY's obligation to make payments required hereunder to DEVELOPER, assuming all Conditions Precedent to such payment are satisfied. EF. CAP ON CONSIDERATION. Notwithstanding anything else herein contained, in no event shall the total consideration paid to DEVELOPER pursuant to this Section V exceed the sum of One Million Four Hundred Thirty-Five Thousand Dollars ($1,435,000). FG. NO ACCELERATION. It is acknowledged by the parties that any payments by CITY,^.GENCY provided for herein may only be paid in those periods in which DEVELOPER is in compliance with the Restrictive Covenants provided for herein. Upon CITY,'\.GENCY satisfaction that DEVELOPER has come into compliance with the restrictive operating covenants contained within Section V, CITY,'\.GENCY shall make any previously withheld payments due pursuant to Section V. Therefore, the failure of CITYf.GENCY to make any payments during the contribution term provided above shall not cause the acceleration of any future payments by CITY,'\.GI'"J'ICY to DEVELOPER beyond the date of such default. VI. SIGNAGE ~ ATTACHMENT 1 1--6/ A. SIGN. Upon execution of this Agreement, CITY}"GENCY shall diligently pursue the construction of an auto park directional sign along Auto Park Drive in the vicinity of the eastern boundary of Interstate 805 ("Sign"). The Sign will be professionally designed utilizing auto park industry standards. At this time, such standards may include a permanent display with space for a listing of each make of auto dealership that constructs an auto dealership within the Auto Park, including but not limited to Toyota and Scion, and an electronic reader board. The Sign will be designed by the CITY}<GENCY in consultation with the Association or with Master Developer and existing dealers if the Association has not yet been formed. B. CITY}<GENCY recognizes that the DEVELOPER believes it is critical that the Sign be erected before the date upon which DEVELOPER opens the Project to the public. As a result of that acknowledgment CITY,'\GEI'ICY will use its best efforts to timely identify a location for and design of the Sign. Additionally, CITY,'\GENCY will in good faith use all reasonable means necessary to procure the appropriate interest in land. C. Concurrently with site identification CITY,'\GENCY will diligently pursue design and construction consultants to erect said Sign. To that end, Agency has identified the following target dates for the sign: DATE ACTION Jul ,2005 September, 2005 October, 2005 City hires consultant to recommend potential location and design of the Auto Park Directional sign. Propose ~. t Park Directional sign complete and otential sites identi led Auto Dealers Association! City staff select design and proposed location DRC and City Council Review and Approval of Design and location Begin ac uisition rocess Acquisition of site February, 2005 April, 2005 May, 2005 June, 2005 Be in construction D. DEVELOPER acknowledges and agrees that this Agreement does not bind the CITY,^<GENCY to enter into any agreement or to take any particular action related to said Sign and that the CITY}"GENCY's failure to enter an agreement with a consultant to pursue installation or construction of said Sign shall not constitute a breach of this Agreement. In this regard, the CITY,^<GENCY undertakes no obligation to DEVELOPER hereunder and retains its sole and unfettered discretion to adopt any resolutions and does not prejudge or commit, in any respect whatsoever, to the DEVELOPER, or any other person or entity, regarding said Sign. DEVELOPER understands that the ,'\GEI'ICY aad City expressly and intentionally reserve~ the right to exercise itstheif discretion as to all matters which it istkey are, by law, entitled or required to exercise itstheif discretion. -~ ATTACHMENT 1 2-62.. E. DEVELOPER retains its discretion to apply for and pursue construction of the above identified .s.sign. If after consultation with the CITY.\GBNCY, DEVELOPER and CITY,\GENCY reasonably determine CITY.\GBNCY is unable or unwilling to erect said sign and DEVELOPER pursues private construction of said .s.sign, DEVELOPER may request and CITYf,GBNCY shall in good faith consider providing appropriate assistance to DEVELOPER. DEVELOPER acknowledges and agrees that any assistance provided to DEVELOPER shall not exceed $1.2 million for the .s.sign. If the CITYf.GENCY determines assistance is appropriate, at least 30 days prior to DEVELOPER expending funds for the erection of the .s.sign, DEVELOPER and CITY,\GBNCY shall meet to determine the amount and form of said assistance and to devise a mutually acceptable payment schedule. F. If the DEVELOPER chooses to pursue the erection of the .s.sign, the CITYf.GENCY acknowledges that DEVELOPER may request additional funds associated with land acquisition and financing of the sign. DEVELOPER acknowledges CITYf,GBNCY has made no commitment as it relates to acquisition or financing costs but will in good faith consider said request. VII. MISCELLANEOUS. A. CITY:\GENCY and DEVELOPER agree that the covenants of the DEVELOPER expressed herein shall run with the land for the duration of the term of the MERGED REDEVELOPMENT PROJECT AREA, as it may be amended from time to time. B. DEVELOPER and CITYf,GB]>!CY agree to mutually consider reasonable requests for amendments to this Agreement which may be made by lending institutions, CITY,\GBNCY's counsel, or DEVELOPER's counsel provided such requests are consistent with this Agreement and would not substantially alter the basic business terms included herein. The Citv ManagerDireetor shall have the authority to issue interpretations, waive provisions and enter into amendments of this Agreement on behalf of the CITY,\GENCY so long as such actions do not substantially change the uses permitted for the Project or the terms and provisions specified herein and as agreed to by the Citv CounciL^.gency Board. All other waivers or amendments shall require the consideration and written consent of the Citv Councilf.GENCY Board. WC. It is understood the schedule and outside dates for performance under this Agreement are subject to all of the terms and conditions set forth in the text of this Agreement. CITYf.GENCY vests in the Citv ManagerElleelltive Direetar the sole and complete discretion to authorize extensions to the outside dates set forth herein for (i) application for all necessary permits to develop the Project, and (ii) development of the Project; provided however, that in no event shall any extension of any outside date referenced in (i) and/or (ii) of this subsection, or all extensions taken together, exceed eighteen (18) months. Additionally, each and every extension is also subject to the following provisions. (i) Each extension shall be mutually agreed upon in writing between DEVELOPER (or a successor) and the El[eelltive DireetarCity Manager based on extensions necessary due to changes in circumstances, market conditions relating to operation ~ 1.-63 ATTACHMENT 1 of first class, first quality automobile dealerships and franchises in Chula Vista, California, or other factors not known by the parties as of the date of this Agreement. (ii) Each request for an extension from DEVELOPER (or a successor) of an outside date shall be in writing stating the requested extension period, the reasons for such extension, the facts and circumstances related to the need for such extension, and other information reasonably necessary for the Executive DirecterCitv Manager to understand the basis for such request and the circumstances that did not exist as of the date of this Agreement that necessitate such requested extension. The Executiye DireeterCitv Manager is authorized to agree to make such revisions as he/she deems reasonably necessary based on changes in circumstances or other factors not known as of the date of this Agreement. In the event an extension is granted by the E)[eeutive DireetmCitv Manager, then the performance tasks hereunder shall be extended by such period and any corresponding extension necessary to correlate the times for performance hereunder are also reasonably extended to correlate with the approved extension, as determined by the E)[ecutive DireetorCitv Manager in his/her sole and absolute discretion. D. CITY,'\GENCY and DEVELOPER agree that the covenants of the DEVELOPER expressed herein are for the express benefit of the CITY. the AGENCY,-and for all owners of real property within the boundaries of the MERGED REDEVELOPMENT PROJECT AREA as the same now exists or may be hereafter amended. and the residents of the CITY. CITY/\GENCY and DEVELOPER agree that the provisions of this Agreement may be specifically enforced in any court of competent jurisdiction by the CITY,'\GENCY on its own behalf or on behalf of any owner of real property within the CITY's iurisdictionthe bSlIlldaries ef the M.ERGED REDEVELOPMENT PROJECT ,'\REf.. "Notwithstanding the foregoing or anything else in this Agreement, nothing in this Agreement shall be construed to accord any party not a party to this Agreement third-party beneficiary status under this Agreement, and nothing in this Agreement shall be construed to accord any party not a party to this Agreement any right to enforce any provision ofthis Agreement." E. ,'\GENCY CITY and DEVELOPER agree that this Agreement may be recorded by CITY.'\GENCY in the Office of the County Recorder of San Diego County, California. F. DEVELOPER shall and does hereby agree to indemnify, protect, defend and hold harmless AGENCY and the CityCITY, and their respective Council members, officers, employees, agents and representatives (collectively, the "Indemnified Parties"), from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs incurred as result of any administrative or regulatory action, and reasonable attorneys' fees (collectively, "liabilities") arising, directly or indirectly, from (a) CITY'sf.GE]'>ICY'S approval of this Agreement, (b) AGENCY's or CITYity's approval or issuance of any other permit or action, whether discretionary or non-discretionary, in connection with the Project contemplated herein, and (c) DEVELOPER's construction and operation of the Project permitted hereby. G. In the event that any court action or other legal proceeding is brought by any person not a party to this Agreement to challenge this Agreement, the granting of any entitlements, the purchasing of the operating covenant or the fulfillment of any condition to the obligations of the parties hereto, and without regard to whether or not the DEVELOPER. the ...H-"' ATTACHMENT 1 2-64 CITY or the AGENCY is a party to said action or proceeding, DEVELOPER and CITYf.GENCY shall meet and confer to discuss how to respond to such challenge. If the parties agree to defend against such challenge, or defense costs are otherwise reasonably incurred by AGENCY or the City prior to such determination, DEVELOPER shall indemnify the AGENCY and CITYtae City for all expenses, including attorneys' fees, to defend CITYtfie Gity or the AGENCY from any claim, action or proceeding against the CITYGity, the AGENCY or their agents, officers, or employees to attack, set aside, void or annul the approval of this Agreement or the approval of any entitlements or the purchasing of the operating covenants or condition to the obligations of the parties hereto. f.GENCY aria CITYtfl.e City shall promptly notify DEVELOPER of any such claim, action or proceeding. For purposes of this Section, DEVELOPER acknowledges that the term "attorneys' fees" includes the reasonable costs incurred by CITYtae City or AGENCY in the defense of any claim, action or proceeding by the City Attorney or her staff. H. In the event of any dispute between the parties with respect to the obligations under this Agreement that results in litigation, the prevailing party shall be entitled to recover its reasonable attorney's fees and court costs from the non-prevailing party. 1. Time is of the essence for each and every obligation hereunder. J. If DEVELOPER fails to fulfill its obligations hereunder after due notice and reasonable opportunity to cure, DEVELOPER shall be in default hereunder, and in addition to any and all other rights and remedies CITYf.GENCY may have, at law or in equity, CITYAOgNCY shall have the right to terminate its approval of the Project and this Agreement. K. If a party to this Agreement fails to timely satisfy a material obligation under this Agreement as the time for performance may have been extended in its sole discretion pursuant to Section VII.C and/or Section VIIJ of this Agreement (such party, a "Defaulting Party", and such failure to timely perform, an "Event of Default"), then the other party to this Agreement (the "Non-Defaulting Party") may provide the Defaulting Party written notice of such Event of Default (a "Default Notice"). Upon the Defaulting Party's receipt of a Default Notice, the Defaulting Party shall have ninety (90) days within which to cure the Event of Default, or if such Event of Default is of a nature that it cannot be cured within such 90-day period, then to begin to effect such cure and diligently pursue completion of performance in the shortest, commercially reasonable time period (the "Cure Period"). Except as otherwise provided within this Agreement, neither party to this Agreement may proceed against a Defaulting Party, nor cease to itself timely perform each and every obligation due under this Agreement, unless and until a Defaulting Party has failed to cure the Event of Default within the applicable Cure Period. If the Defaulting Party fails to cure the Event of Default within the applicable Cure Period, then in addition to any and all other rights and remedies the Non- Defaulting Party may have, at law or in equity, the Non-Defaulting Party may terminate this Agreement. L. The qualifications and identities of the individuals comprising the DEVELOPER entities are of particular concern to the CITY.^.GgNCY. It is because of those qualifications and identities that the CITY:\GENCY has entered into this Agreement with the ~ 2--55 ATTACHMENT 1 DEVELOPER. No voluntary or involuntary successor in interest of the DEVELOPER shall acquire any rights or powers under this Agreement except as expressly set forth herein. (i) DEVELOPER shall not, except as permitted by this Agreement, assign or attempt to assign this Agreement or any right herein with respect to the Project, nor make any total or partial sale, transfer, conveyance or assignment of the whole or any part of the Property Site or the improvements thereon, without prior written approval of the CITYAGENCY in its sole discretion. Any attempted transfer that has not been so approved by CITYf,GENCY shall be void. Except as permitted below, transfers of any interest in the DEVELOPER entity shall constitute a prohibited transfer hereunder. (ii) Notwithstanding any other provisions ofthis Agreement to the contrary, CITY.^.GENCY approval of an assignment of this Agreement or any interest herein shall not be required in connection with any of the following: (a) Any transfers among the principals of the DEVELOPER entities so long as the existing principals thereof shall be and remain in management control of the DEVELOPER entity with at least a fifty-one percent (51 'Yo) ownership or beneficial interest in the DEVELOPER entity. (b) The granting of temporary or permanent easements or permits to governmental or quasi-governmental agencies to facilitate the development of the Property, or any component thereof. (iii) CITYf.GENCY consent will be granted if: (a) the proposed assignee/transferee expressly assumes, in writing, Master DEVELOPER's obligations hereunder as to times following the effective date of the assignment or transfer; (b) the proposed assignee/transferee has demonstrated to the reasonable satisfaction of CITY.^.GENCY that such person or entity has adequate financial capacity to fulfill all obligations of this Agreement. (M) Notwithstanding the foregoing or anything else in this Agreement, all dates for performance set forth in this Agreement are subject to a one (1) day extension for each day of delay in performance due to a Force Majeure Event, provided that the party claiming the right to such extension provides the other party written notice of the Force Majeure Event within thirty (30) days following the occurrence of such event. As used in this Agreement, "Force Majeure Event" means any act of God, act or omission of any local, state, or federal governmental /\GENCY agencv (including, without limitation, the AGENCY and the CITYGity, and including without limitation, the failure or refusal of any such agencv,^.GENCY to grant, issue or enact any entitlement, approval, or permit necessary for the use, development or disposition of the Property or any portion of the Property), casualty, stormy or inclement weather, epidemic, war, terrorism, insurrection, riot, fire, flood, earthquake, strike, boycott or other labor dispute, delay in transportation, unavailability or scarcity of labor or materials and any legislative, administrative or judicially imposed restriction upon or prohibition against construction or development. .-J.V" 1--?~ ATTACHMENT 1 Signature Page Follows -~ 2-67 ATTACHMENT 1 ,^.RTICLE 4 Signature Page IN WITNESS WHEREOF THE PARTIES HAVE ENTERED INTO THIS AGREEMENT EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE. "CITY,^.GENCY" CITY OF CHULA VISTAREDEVELOPMENT ,^.GE}!CY OF THE CITY OF CHUU. VIST,'\., a California municipal corporation and charter illypwlic sedy C6l'fleFate ana pelitic DATED: By: Stephen C. Padilla, MavorCbaifHIaB ATTEST: City Clerk APPROVED AS TO FORM BY: Ann Moore CITY,\GENCY Attorney "DEVELOPER" SUNROAD CV AUTO, INC. DATED: By: Uri Feldman, Vice President NOTARY: Please attach acknowledgment card(s). ~ 1--68 ATTACHMENT 1 RESOLUTION NO. 2008- JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT WITH SUNROAD CV AUTO, INC.; AND APPROPRIATING FUNDS ACCORDINGLY WHEREAS, on February 15, 2005, the Redevelopment Agency of the City of Chula Vista considered, approved and entered into an Owner Participation Agreement with Sunroad CV Auto, Inc. ("Sunroad") (the "OPA"); and WHEREAS, the purpose of the OPA was to guide the operation and maintenance of a "first quality, first class" Toyota dealership in the City of Chula Vista; and WHEREAS, adoption of the proposed resolution will amend the OPA to substitute the City as a party to the OPA, in place of the Agency; and WHEREAS, the Amendment would not alter any of the substantive terms of the OP A; and WHEREAS, the terms and principles of the original OPA would not be changed by the Amendment but, rather, would remain the same as those that were approved by the Agency in 2005; and WHEREAS, Community Development staff has determined that the OP A serves a public purpose, in that, Sunroad's development and maintenance of the Toyota dealership has resulted, or will likely result, in the following benefits to the City and its residents: 1. Public improvements, at Sunroad's expense, which will become City property, including curb, gutter, sidewalk, driveway, ramp and sewer improvements, with an estimated value in excess of $200,000; 2. Increased business development in the City, including additional auto dealerships; 3. Creation of additional job opportunities for City residents; 4. Additional tax revenue to the City, which will assist the City in providing public services to its residents; and 5. Development, planning and operation of the Toyota dealership in accordance with the City's adopted Auto Park East Specific Plan and with the operating and restrictive covenants contained in the OP A; and J:\AltomeyIJILLMISunroad\Resolulion. Sunroad CV Auto Inc,_04-15-08 (clean ee).doc 2- -S1 Resolution No. 2008- Page 2 WHEREAS, the OPA provides for certain payments to be made to Sunroad, based on the sales tax revenues generated by the Sunroad project; and WHEREAS, those payments are in exchange for the various development, maintenance and operating covenants agreed to by Sunroad in the OPA; and WHEREAS, the covenants remain in place and would not be altered by the Amendment; and WHEREAS, to date, the amount due under the OPA is $548,334; and WHEREAS, adoption of the resolution would approve the Amendment and appropriate $548,334 to be paid to Sunroad in accordance with the OPA. NOW, THEREFORE BE IT RESOLVED, that the City Council and the Redevelopment Agency of the City of Chula Vista approve the "First Amendment to Owner Participation Agreement with Sunroad CV Auto, Inc.," a copy of which shall be kept on file in the Office of the City Clerk. BE IT FURTHER RESOLVED, that the City Council and the Redevelopment Agency of the City ofChula Vista appropriate $548,334, accordingly. Presented by Approved as to form by Ann Moore General Counsel/City Attorney Cc~ Ann Moore General Counsel/City Attorney J:\Atlorney\J1LLM\Sunroad\Resolution. SllnroadCV Auto Inc._04-i5-08 (cleancc).doc 2. _ '0 DRAFT MINUTES OF SPECIAL MEETINGS OF THE CITY COUNCIL, DESIGN REVIEW COMMITTEE, GROWTH MANAGEMENT OVERSIGHT COMMISSION, PLANNING COMMISSION, REDEVELOPMENT ADVISORY COMMITTEE, RESOURCE CONSERVATION COMMISSION AND CHULA VISTA REDEVELOPMENT CORPORATION OF THE CITY OF CHULA VISTA March 15,2008 II :00 A.M. A Special Meeting of the City Council, Design Review Committee, Growth Management Oversight Commission, Planning Commission, Redevelopment Advisory Committee, Resource Conservation Commission and Chula Vista Redevelopment Corporation of the City of Chula Vista was called to order at II :00 a.m. at the Otay Recreation Center, 3554 Main Street, Chula Vista, California. A quorum of the City Council was present at 12:15 p.m. PRESENT: Councilmembers: McCann, Ramirez, Rindone, and Mayor Cox ABSENT: Councilmembers: Castaneda ALSO PRESENT: City Manager Garcia, Deputy City Attorney Shirey, Assistant City Manager Tulloch I. Southwest Chula Vista Community The above Council, Committees, Commissions and Corporation have been invited to attend the noticed public meeting to hear ideas from the public on their vision for Southwest Chula Vista. The meeting was held to solicit input only and no formal actions were taken. The Councilmembers introduced themselves and welcomed everyone to provide input to staff at the feedback stations, on their visions for Southwest Chula Vista. Councilmember McCann left the meeting at I :00 p.m., and Mayor Cox left the meeting at 1:15 p.m., leaving no quorum ofthe City Council. ADJOURNMENT At 2:00 p.m., the meeting was adjourned to the next regularly scheduled meetings of the respective legislative bodies. ~MC'D""'Y~-=k 319" / DRAFT MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA March 18,2008 6:00 P.M. A regular meeting of the City Council of the City ofChula Vista was called to order at 6:03 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Councilmembers: Castaneda, McCann, Ramirez, Rindone, and Mayor Cox ABSENT: Councilmembers: None ALSO PRESENT: City Manager Garcia, City Attorney Moore, Interim City Clerk Norris, and Deputy City Clerk Bennett WELCOME AND INTRODUCTIONS BY DEPUTY MAYOR RINDONE AND COUNCILMEMBER MCCANN Councilmember McCann recognized and introduced the dignitaries present at the meeting, and recognized the sponsors present. PLEDGE OF ALLEGIANCE TO THE FLAG, LED BY JOHN WILLETT Deputy Mayor Rindone introduced Commander John Willett, who led the Pledge of Allegiance. AMERICA THE BEAUTIFUL BY MARINA INSERRA Deputy Mayor Rindone introduced Marina Inserra, the 2008 Miss San Diego, who sang America The Beautiful. INVOCATION BY DEACON GREGORY S. SMYTH Deputy Mayor Rindone introduced Deacon Smyth, who offered the Invocation. INTRODUCTION OF MAYOR CHERYL COX BY EMILY COX Emily Cox introduced Mayor Cox. STATE OF THE CITY ADDRESS BY MAYOR CHERYL COX Mayor Cox presented the City's State of the City address. 7:00 P.M. RECESS FOR RECEPTION At 6:55 p.m., Mayor Cox recessed the meeting for a briefreception. Page 1 - Council Minutes 813-1 March 18, 2008 DRAFT 7:30 P.M. RECONVENE COUNCIL MEETING AND CALL TO ORDER The meeting reconvened at 7:34 p.m., with all members present. SPECIAL ORDERS OF THE DAY · PRESENTATION BY MAYOR COX OF A PROCLAMATION TO JOHN CLINGAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER OF THE CHULA VISTA BOYS AND GIRLS CLUB, DECLARING THE WEEK OF MARCH 30 THROUGH APRIL 5, 2008 AS "NATIONAL BOYS AND GIRLS CLUB WEEK" IN THE CITY OF CHULA VISTA Mayor Cox read the proclamation and Deputy Mayor Rindone presented it to Mr. Clingan. Mr. Clingan then invited everyone to attend an open house event for the National Boys and Girls Club on April 2, 2008, at 6:00 p.m., at 1301 Oleander Avenue in Chula Vista. He also announced the Annual Boys and Girls Club fundraiser event, "Taste of Otay Ranch and Casino Night", on September 13, 2008, at 6:00 p.m. Councilmember McCann then recognized Lynn France, President of the Board of Directors for the Boys and Girls Club, for her contributions to the organization. · INTRODUCTION BY REDEVELOPMENT AND HOUSING MANAGER MANDY MILLS, OF THE MAAC PROJECT, "SENIORS ON BROADWAY" PROJECT, AND AN A WARD TO THE CITY, BY PRESIDENT/CEO ANTONIO PIZANO AND ARNULFO MANRIQUEZ, CHIEF OPERATING OFFICER Redevelopment and Housing Manager Mills introduced Mr. Pizano and Mr. Manriquez, who, presented Mayor Cox with a plaque of the "Seniors on Broadway" project. CONSENT CALENDAR (Items 1 through 10) Mayor Cox announced that Items 2, 3, 4, 8, and 9 would be removed from the Consent Calendar for discussion by the public and Council. 1. WRITTEN COMMUNICATIONS A. Memorandum from Councihnember Steve Castaneda requesting an excused absence from the City Council Meeting of March 11,2008. Staff recommendation: Council excuse the absence. B. Letter of resignation from Juan R. Celaya, member of the Human Relations Commission. Staff recommendation: Council accept the resignation and direct the City Clerk to post the vacancy in accordance with Maddy Act requirements. Page 2 - Council Minutes 12 J) /} rir...l'" .' ,J....."" March 18, 2008 DRAFT CONSENT CALENDAR (Continued) 2. Items 2A through 2E were removed from the Consent Calendar. 3. Items 3A and 3B were removed from the Consent Calendar. 4. Items 4A and 4B were removed from the Consent Calendar. 5. RESOLUTION NO. 2008-071, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE FINAL REPORT OF EXPENDITURES FOR THE "CMP REHABILITATION PROJECT" (DRI79), AND RATIFYING THE ACTIONS OF THE CITY MANAGER AND DIRECTOR OF ENGINEERING AND GENERAL SERVICES MAKING AND EXECUTING A CONTRACT FOR EMERGENCY REPAIRS WITH MJC CONSTRUCTION, INC. (4/5THS VOTE REQUIRED) In accordance with the emergency provisions of Section 1009 of the City Charter, City staff contracted the services of MJC Construction, Inc. for the repair of two storm drain facilities located along 30th Street at the intersections of "M" and "N" Avenue. The repair was completed on February 7, 2008. (Engineering and General Services Director) Staff recommendation: Council adopt the resolution. 6. RESOLUTION NO. 2008-072, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING CITY STAFF TO SUBMIT CIP STL335 PAVEMENT REHABILITATION FISCAL YEAR 200712008 TO THE CALIFORNIA DEPARTMENT OF FINANCE IN ORDER TO RECENE PROPOSITION IB FUNDS AND APPROPRIATING $3,662,769.41 IN PROPOSITION IB FUNDS TO CIP STL335 (4/5THS VOTE REQUIRED) In order to appropriate and spend the City's share of Proposition IB transportation funding, the City is required by the California Department of Finance to have Council approval for the appropriation of funds for a project permitted by this legislation. (Engineering and General Services Director) Staff recommendation: Council adopt the resolution. 7. RESOLUTION NO. 2008-073, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA REJECTING PALSONS ELECTRICAL SERVICES' BID, ACCEPTING THE SECOND LOWEST BID AND AWARDING CONTRACT TO STARS ELECTRIC FOR THE "EUCALYPTUS PARK SECURITY LIGHTING (CIP NO. PR-288) PROJECT" On December 11, 2007, Council awarded the contract to Palsons Electrical Services, Inc. The contractor was unable to obtain performance bonds for this project and therefore will be rejected due to non-compliance. The contract will now be awarded to the second low bidder, Stars Electric. (Engineering and General Services Director) Staff recommendation: Council adopt the resolution. 8. Items 8A through 8D were removed from the Consent Calendar. Page 3 - Council Minutes ,'-? fl'.~",./-) ~ .--, March 18, 2008 DRAFT CONSENT CALENDAR (Continued) 9. Item 9 was removed from the Consent Calendar. 10. RESOLUTION NO. 2008-078, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $335,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE HUMAN RESOURCES DEPARTMENT'S BUDGET TO COVER ANTICIPATED COSTS AND EXPENSES RELATED TO CURRENT PUBLIC LIABILITY CLAIMS THROUGH THE END OF THE FISCAL YEAR (4/5THS VOTE REQUIRED) Annually, the City's budget includes funds to defend and to pay settlements on claims against the City based on typical claims activity. Depending upon the number and the complexity of claims received, the cost to defend or settle them may exceed the costs anticipated during budget preparation, as is the case this fiscal year. Adoption of the resolution appropriates the needed funds. (City Attorney, Human Resources Director) Staff recommendation: Council adopt the resolution. ACTION: Mayor Cox moved to approve staffs recommendations and offered the balance of the Consent Calendar, headings read, text waived. Deputy Mayor Rindone seconded the motion and it carried 5-0. ITEMS REMOVED FROM THE CONSENT CALENDAR Councilmember Ramirez stated he would be abstaining from voting on Item 2B, due to the proximity of his property to the project, Councilmember McCann stated he would be abstaining from voting on Item 2C, due to the proximity of his property to the project, Councilmember Castaneda stated he would be abstaining from voting on Item 2D, due to the proximity of his property to the project, and Deputy Mayor Rindone stated he would be abstaining from voting on Item 2E, due to the proximity of his property to the project. 2. A. ORDINANCE NO. 2008-3106, ORDINANCE OF THE CITY OF CHULA VISTA ACCEPTING THE WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE REPORT (TF-358) PREPARED BY STAFF AND ESTABLISHING A WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE PROGRAM TO MITIGATE TRANSPORTATION IMPACTS WITHIN WESTERN CHULA VISTA EXCLUDING PROJECTS - 1-5-17, STM-361, RAS-15, BP-5, 1-805, RAS-17, BP-4, BP-2, AND OR-4 (SECOND READING AND ADOPTION) ACTION: Mayor Cox moved to adopt Ordinance No. 2008-3106, heading read, text waived. Councilmember Castaneda seconded the motion and it carried 4-1, with Councilmember McCann voting no. B. ORDINANCE NO. 2008-3107, ORDINANCE OF THE CITY OF CHULA VISTA ACCEPTING THE WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE REPORT (TF-358) PREPARED BY STAFF AND ESTABLISHING A WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE PROGRAM TO MITIGATE TRANSPORTATION IMPACTS WITHIN WESTERN CHULA VISTA INCLUDING PROJECTS - 1-5-17, STM-361, RAS-15, AND BP-5 (SECOND READING AND ADOPTION) Page 4 - Council Minutes /. -/ March 18, 2008 "'.J' DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) ACTION: Mayor Cox moved to adopt Ordinance No. 2008-3107, heading read, text waived. Councilmember Castaneda seconded the motion and it carried 3-1-1, with Councilmember McCann voting no, and Councilmember Ramirez abstaining. C. ORDINANCE NO. 2008-3108, ORDINANCE OF THE CITY OF CHULA VISTA ACCEPTING THE WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE REPORT (TF-358) PREPARED BY STAFF AND ESTABLISHING A WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE PROGRAM TO MITIGATE TRANSPORTATION IMPACTS WITHIN WESTERN CHULA VISTA INCLUDING PROJECTS - 1-805-2, RAS-17, AND BP-4 (SECOND READING AND ADOPTION) ACTION: Mayor Cox moved to adopt Ordinance No. 2008-3108, heading read, text waived. Councilmember Castaneda seconded the motion and it carried 4-0-1, with Councilmember McCann abstaining. D. ORDINANCE NO. 2008-3109, ORDINANCE OF THE CITY OF CHULA VISTA ACCEPTING THE WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE REPORT (TF-358) PREPARED BY STAFF AND ESTABLISHING A WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE PROGRAM TO MITIGATE TRANSPORTATION IMPACTS WITHIN WESTERN CHULA VISTA INCLUDING PROJECT BP-2 (SECOND READING AND ADOPTION) ACTION: Mayor Cox moved to adopt Ordinance No. 2008-3109, heading read, text waived. Deputy Mayor Rindone seconded the motion and it carried 3-1-1, with Councilmember McCann voting no, and Councilmember Castaneda abstaining. E. ORDINANCE NO. 2008-3110, ORDINANCE OF THE CITY OF CHULA VISTA ACCEPTING THE WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE REPORT (TF-358) PREPARED BY STAFF AND ESTABLISHING A WESTERN TRANSPORTATION DEVELOPMENT IMPACT FEE PROGRAM TO MITIGATE TRANSPORTATION IMPACTS WITHIN WESTERN CHULA VISTA INCLUDING PROJECT OR-4 (SECOND READING AND ADOPTION) Adoption of the ordinances establishes a Western Transportation Development Impact Fee program for Western Chula Vista to provide for future transportation facilities needs and adequately mitigate impacts created by new development. These ordinances were introduced on March 4, 2008, and second reading and adoption was continued from March 11,2008. (Engineering and General Services Director) Staff recommendation: Council adopt the ordinances. ACTION: Mayor Cox moved to adopt Ordinance No 2008-3110, heading read, text waived. Councilmember Castaneda seconded the motion and it carried 3-1-1, with Councilmember McCann voting no, and Deputy Mayor Rindone abstaining. Page 5 - Council Minutes /) ,j March 18, 2008 ...,.) DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) 3. A. ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER 2.25 TO THE CHULA VISTA MUNICIPAL CODE PERTAINING TO GENERAL RULES GOVERNING THE CITY'S BOARDS AND COMMISSIONS (FIRST READING) B. RESOLUTION NO. 2008-068, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RESCINDING RESOLUTION NUMBERS 4880, 5654, 8149,9542,12112, AND 13906 AND CERTAIN COUNCIL POLICIES AND MINUTE ACTIONS PERTAINING TO BOARDS AND COMMISSIONS A number of redundancies and inconsistencies were discovered in the rules governing the City's boards and commissions. These rules are currently spread among the City Charter, Municipal Code, Council Policy Manual, and Council minute actions. Adoption of the ordinance and resolution is the first action needed to consolidate and clarify the general operating procedures for the City's boards and commissions. (Interim City Clerk, Senior Assistant City Attorney) Staff recommendation: Council place the ordinance on first reading and adopt the resolution. Councilmember Ramirez suggested that the nomination and appointment process for the Charter Review Commission and Growth Management Oversight Commission be conducted by the full Council, and included as part ofthe proposed section 2.25.050 (C) ofthe Municipal Code. Councilmember Castaneda suggested that Councilmembers be notified in advance of Council meetings, of all Mayor-nominated Board and Commission positions. Councilmember Ramirez suggested that commissioners be limited to serving on a single board or committee at one time. Mayor Cox responded that although it was her current practice to ask those applicants applying for multiple positions to choose their preferred commission, there were a few commissioners currently serving on multiple boards or commissions. Councilmember Ramirez requested that language be added to the General Rules to allow members serving on multiple boards or commissions to transition out as their terms expire. ACTION: Councilmember Castaneda moved to approve staffs recommendation, as amended to direct the Legislative Subcommittee to work with the City Clerk to include language in the General Rules specifying that members be limited to serving on a single board or commission at one time; and offered to place the ordinance on first reading, and adopt Resolution No. 2008-068, headings read, text waived. Mayor Cox asked for confmnation from the City Attorney that the modifications made could be brought back at second reading of the ordinance, and did not require another first reading. City Attorney Moore provided confirmation. Deputy Mayor Rindone seconded the motion and it carried 5-0. Deputy Mayor Rindone asked that staff indicate the amended language in the ordinance when the item is brought back to the Council for second reading. 4. A. RESOLUTION NO. 2008-069, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA OPPOSING STATE PROPOSITION 98 B. RESOLUTION NO. 2008-070, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA SUPPORTING STATE PROPOSITION 99 Page 6 - Council Minutes : March 18, 2008 DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) At the June 2008 election, voters will have the choice between two initiatives on the controversial topic of eminent domain. The Howard Jarvis Taxpayers Association, the California Farm Bureau Federation, and the California Alliance to Protect Private Property Rights gathered signatures to place Proposition 98 on the ballot, which would not only make major changes to the law of erninent domain, but also take on much broader private property rights issues, including rent control, open-space conservation, and local land use regulation. Proposition 98 closely resembles Proposition 90, which failed in 2006. To provide voters a simpler and more straightforward alternative for homeowner protection, the League of California Cities this year led the formation of Eminent Domain Reform Now, a coalition working to support responsible eminent domain reform. The coalition successfully qualified Proposition 99 for the June ballot. Proposition 99, entitled the Homeowners Protection Act, would very simply prohibit governments from taking an owner-occupied home to transfer it to a private party. This is consistent with this City's historical policies on the use of eminent domain by the Redevelopment Agency on properties that are both residentially zoned and used for residential purposes. Adoption of the first resolution opposes Proposition 98, and the second supports Proposition 99. (City Manager) Staff recommendation: Council adopt the resolutions. The following members of the public spoke in support of staffs recommendation: Sandy Duncan, Chula Vista resident, representing Crossroads II. Catherine Hill, Regional Public Affairs Manager, League of California Cities. City Manager Garcia summarized the issues associated with State Proposition 98. ACTION: Councilmember Castaneda moved to approve staffs recommendation and offered Resolution Nos. 2008-069 and 2008-070, headings read, text waived. Deputy Mayor Rindone seconded the motion and it carried 5-0. 8. A. RESOLUTION NO. 2008-074, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND THE SWEETWATER UNION HIGH SCHOOL DISTRICT FOR THE PROVISION OF MIDDLE SCHOOL AFTER-SCHOOL PROGRAMS B. RESOLUTION NO. 2008-075, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND HILLTOP MIDDLE SCHOOL FOR THE PROVISION OF EXTENDED AFTER-SCHOOL PROGRAM HOURS, AND AMENDING THE FISCAL YEAR 2008 RECREATION DEPARTMENT BUDGET BY APPROPRIATING $6,600 BASED ON UNANTICIPATED REVENUE (4/5THS VOTE REQUIRED) C. RESOLUTION NO. 2008-076, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND CASTLE PARK MIDDLE SCHOOL FOR THE PROVISION OF EXTENDED AFTER-SCHOOL PROGRAM HOURS, AND AMENDING THE FISCAL YEAR 2008 RECREATION DEPARTMENT BUDGET BY APPROPRIATING $4,600 BASED ON UNANTICIPATED REVENUE (4/5THS VOTE REQUIRED) Page 7 - Council Minutes ,., ...., ./)~<. ," '........"h,.J March 18, 2008 DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) D. RESOLUTION NO. 2008-077, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA AND CHULA VISTA MIDDLE SCHOOL FOR THE PROVISION OF BEFORE-SCHOOL AND EXTENDED AFTER-SCHOOL PROGRAM HOURS, AND AMENDING THE FISCAL YEAR 2008 RECREATION DEPARTMENT BUDGET BY APPROPRIATING $14,200 BASED ON UNANTICIPATED REVENUE (4/5THS VOTE REQUIRED) The Sweetwater Union High School District has awarded an $87,504 contract to the City of Chula Vista for the provision of after-school progranuning at six ChuIa Vista Middle Schools. Adoption of the resolutions approves Memorandums of Understanding between the City and the schools and appropriates the funds. (Recreation Director) Staff recommendation: Council adopt the resolutions. ACTION: Mayor Cox moved to approve staffs recommendation and offered Resolution Nos. 2008-074, 2008-075, and 2008-076, headings read, text waived. CounciImember McCann seconded the motion and it carried 5-0. ACTION: Mayor Cox moved to approve staffs recommendation and offered Resolution No. 2008-077, heading read, text waived. CounciImember McCann seconded the motion and it carried 4-0-1, with Councilmember Castaneda abstaining due to the proximity of his residence to the property. 9. HOUSING ELEMENT REPORT FOR JULY 1, 2006 THROUGH DECEMBER 31, 2007 The City of ChuIa Vista is required to prepare an annual report on the progress of the implementation of the City's Housing Element. California Government Code Section 65400 requires the report include: (1) progress in meeting the regional housing needs; (2) the effectiveness of the Housing Element in attainment of the community's housing goals and objectives; and (3) progress toward mitigating governmental constraints identified in the Housing Element. The report provides detailed information regarding the City's housing activities from July 1, 2006 through December 31, 2007. (Redevelopment and Housing Assistant Director) Staff recommendation: Council accept the report. Deputy Mayor Rindone asked for, and staff responded to, questions on the report cycle for the City's Housing Element. ACTION: Deputy Mayor Rindone moved to approve staff's recommendation and offered to accept the report. Councilmember Castaneda seconded the motion and it carried 5-0. PUBLIC COMMENTS Parks Pemberton, ChuIa Vista Resident, stated that Councilmembers were recusing themselves too frequently from Council agenda items. He stated that there needed to be consistency with green standards that should be applied citywide, not only between G Street and E Street. Page 8 - Council Minutes , / . I { March 18, 2008 DRAFT ACTION ITEMS Mayor Cox announced that Item llA would be addressed separately from Item l1B. 11. CONSIDERATION OF ESTABLISHMENT OF A FISCAL STRATEGY FOR FUNDING OPERATING COSTS OF THE MT. SAN MIGUEL COMMUNITY PARK AND ALL SEASONS PARK, AND APPROPRIATION OF FUNDS FOR REIMBURSEMENT OF THE GENERAL FUND FOR OUTSTANDING AND FUTURE STAFF TIME CHARGES AND CONTINGENCY UNTIL COMPLETION IN AUGUST OF PHASE 3 OF THE CIVIC CENTER RENOVATIONS AND THE RELOCATION, INSTALLATION AND PURCHASE OF FURNITURE THEREFOR The City Council previously approved the Master Plans for Mt. San Miguel Community Park, a 19-acre park, and All Seasons Park, a 7-acre park. The Council also approved Design/Build agreements with Erickson Hall Construction, Inc. to design and construct completed fully functional parks. Adoption of the first resolution establishes a fiscal strategy for funding the operating costs of the parks. Additionally, the City Council approved a Master Plan for the renovation of the Civic Center, a Design Build Agreement with Highland Partnership, Inc., and the Guaranteed Maximum Price (GMP) of the project along with an amendment to the GMP. The second resolution appropriates $1.3 million from the cash released from the reserve fund and authorizes those funds to be used to reimburse the General Fund for all outstanding and future staff time charges, establish and maintain project contingency until completion, and implement a furniture installation plan that includes the relocation and installation of all salvageable existing furniture stock and the purchase of new product as needed to complete the project. (Engineering and General Services Director) City Manager Garcia introduced Item llA. Engineering and General Services Director Griffin then presented the capital improvement projects update for San Miguel Community Park, All Seasons Park, and the Civic Center renovations. Councilmember Ramirez recommended that staff work closely with the City's labor groups on the bidding process for the proposed proj ects. ACTION: Councilmember Ramirez moved to adopt Resolution No. 2008-079, heading read, text waived. Councilmember McCann seconded the motion. A. RESOLUTION NO, 2008-079, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A FISCAL STRATEGY FOR FUNDING THE OPERATING COSTS OF MOUNT SAN MIGUEL PARK AND ALL SEASONS PARK BY INCLUDING THOSE OPERATING COSTS IN THE CITY'S FISCAL YEAR 2008/2009 BUDGET BALANCING EFFORTS, AND BY DEVELOPING A MANAGED COMPETITION MODEL TO SOLICIT PROPOSALS FROM OUTSIDE FIRMS AS WELL AS CITY DEPARTMENTS TO PERFORM PARK MAINTENANCE ACTIVITIES Deputy Mayor Rindone stated that although he could support the managed competition model, and the different options to operate and maintain the park, he stated that a resolution was not necessary, and that a report by staff on what was being proposed, was adequate. Page 9 - Council Minutes 1:> March 18, 2008 DRAFT ACTION ITEMS (Continued) ACTION: Deputy Mayor Rindone offered a substitute motion to accept the staff report, and direct staff to look at the proposed alternatives and bring back a recommendation upon completion of the study. Mayor Cox seconded the motion for purposes of discussion. The motion failed 1-4, with Mayor Cox, and Councilmembers McCann, Castaneda and Ramirez opposed. Councilmember McCann suggested consideration of solar panels for the proposed parks in order to defray costs and to support green standards. The original motion carried 4-1, with Deputy Mayor Rindone voting no. At 9:11 p.m., Deputy Mayor Rindone stated that he would be abstaining from voting on Item lIB, due to the proximity of his residence to the project. He then left the dais. Engineering and General Services Director Griffin presented an update on the Phase 3 Civic Center Renovations. Finance Director Kachadoorian then presented a follow-up of the existing debt reserve. Councilmember Castaneda stated he could not support the $750,000 funding for furnishings, minus the $25,100, if the decision was made by Council to move the first wave of employees into the building, and suggested an analysis by staff, of an inventory of existing office furnishings and the transition of employees. Mayor Cox sug~ested, and Councilmember Castaneda concurred, that the item be brought back at the April 8t or 15th Council Meeting to address his concerns. Councilmember Ramirez stated that his pnonty was to look at other capital improvement projects in context with the Civic Center renovations. He stated that he would be interested in seeing all potential capital improvement projects for the City, to weigh them against the Civic Center renovations. He further stated that it would be his preference to occupy the building with Human Resources staff, to move forward with the remainder of the Civic Center construction, and await a report back from staff on the additional costs to maintain staff in the temporary trailers. Mayor Cox was opposed to leaving employees in trailers, and moving only some staff to the new building, particularly since the proposed funds were specifically allocated for the Civic Center renovations. She proposed that staff come back with the information requested by Council, at the April 8th or 15th meeting. She stated that it was important to complete the project, place employees on a single campus, and move forward and focus on City business. Page 10 - Council Minutes March 18, 2008 DRAFT ACTION ITEMS (Continued) ACTION: B. ACTION: Mayor Cox moved to adopt Resolution lIB, heading read, text waived. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $1.3 MILLION FROM THE CASH RELEASED FROM THE RESERVE FUND AND AUTHORIZING THOSE FUNDS TO BE UTILIZED TO REIMBURSE THE GENERAL FUND FOR ALL OUTSTANDING AND FUTURE STAFF TIME CHARGES, TO ESTABLISH AND MAINTAIN A SUFFICIENT PROJECT CONTINGENCY UNTIL COMPLETION OF THE ClYIC CENTER PROJECT IN AUGUST 2008, AND TO IMPLEMENT A FURNITURE INSTALLATION PLAN FOR THE FORMER POLICE DEPARTMENT BUILDING THAT INCLUDES THE RELOCATION AND INSTALLATION OF ALL SALVAGEABLE EXISTING FURNITURE STOCK WITHIN THE CITY AND THE PURCHASE OF NEW PRODUCT AS NEEDED TO COMPLETE THE PROJECT (4/5THS VOTE REQUIRED) The motion failed for lack of a second. Mayor Cox moved to adopt Resolution No. 2008-080 as amended to include Option 2 on page 11-4 of the staff report to utilize existing furniture stock to move the Human Resources Department into the new building as soon as it is available. RESOLUTION NO. 2008-080, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $250,000 FROM THE CASH RELEASED FROM THE RESERVE FUND AND AUTHORIZING THOSE FUNDS TO BE UTILIZED TO REIMBURSE THE GENERAL FUND FOR ALL OUTSTANDING AND FUTURE STAFF TIME CHARGES FOR THE ClYIC CENTER PROJECT Councilmember McCann seconded the motion, and it carried 4-0-1, with Deputy Mayor Rindone abstaining. Mayor Cox suggested that staff come back to the Council in the first or second week of April with further detailed information about the fiscal consequences of not implementing the second portion of the proposed resolution. Councilmember McCann suggested that staff look at options for the cost of used furnishings. Engineering and General Services Director Griffin responded that staff would look at every option possible. Deputy Mayor Rindone returned to the dais at 10:13 p.m. OTHER BUSINESS 12. CITY MANAGER'S REPORTS There were none. Page 11 - Council Minutes March 18, 2008 DRAFT OTHER BUSINESS (Continued) 13. MA YOR'S REPORTS Mayor Cox reminded the public that there would be no Council Meeting on March 25, 2008. The next Council Meeting was scheduled for April I, 2008, at 4:00 p.m., followed by a Council Budget Workshop scheduled for April 3, 2008 at 6:00 p.m., in Council Chambers. She announced the recent grand opening of two local businesses, an optometrist in San Miguel Ranch and Frida Restaurant. She also publicly thanked the Office of Communications staff for their assistance with the recent State of the City address. 14. COUNCIL COMMENTS Councilmember Ramirez referenced an item from the Police Department's weekly activity summary, and commended Police Officers Grippo and McKaig, who performed CPR on a child who had stopped breathing. He referenced a memorandum he received on the update and status of the Fire Department contract dispatch services between the City of Chula Vista and City of San Diego, noting the great work of all involved with the transition that resulted in significant budget savings to the City Of Chula Vista. He then spoke about the impacts of the budget reductions resulting in cancellation of the annual "Taste of the Arts" festival. He suggested that rather than cancel the event, that the City Manager and Council support scaling down the event and seeking creative ways to make the event come together. Councilmember Castaneda spoke about a recent trip he made to Sacramento as part of a statewide commission on childhood obesity, and stated that the City continued to be a leader in cutting edge strategies and policies on childhood obesity, including the Southwest community plan for a healthier and more active community. He thanked City Manager Garcia and Police Chief Emerson for their participation at a recent Public Safety Committee meeting to talk to residents about police staffing, particularly in the eastern sector. Councilmember Castaneda stated that he also attended a community meeting hosted by Councilmember McCann for Eastlake residents to hear about what was being done about the recent assaults in the area. He announced the upcoming Drop Hammer dedication on March 27, 2008 in Memorial Park. He then congratulated the City employees recently recognized for their 10 years of service. He wished everyone a happy Easter. Councilmember McCann announced the Drop Hammer dedication scheduled for March 27,2008 in Memorial Park. He also wished everyone a happy and safe Easter. Deputy Mayor Rindone congratulated the Sweetwater Union High School District Alternative Education Program on their successful "Rookie of the Year" award, and upcoming trip to Atlanta for the next level of the robotics competition. He also recognized Eastlake High School as recipients of the recent "Inspiration Award." He thanked Will Neblett, Executive Director, San Diego Junior Theatre, for his excellent presentation at the first Friday breakfast on options for retaining the San Diego Junior Theatre in Chula Vista. He added that Chris Lewis, Chairman, Chula Vista Redevelol?ment Corporation, offered to set up a foundation for the Junior Theatre, and anyone interested III providing donations could contact Deputy Mayor Rindone or the Junior Theatre. Additionally, anyone interested in volunteering for the Arts Foundation Board, could contact Deputy Mayor Rindone bye-mail atirindone(a)ci.chula-vista.ca.us. He stated that the foundation would also be looking at possible collaboration with Southwestern College and the YMCA. He stated that he recently attended a workshop on C02 reduction, reporting that scientists had found a positive correlation between greenhouse gasses and global climate change, and he would be providing a presentation to Council on the issue at a future meeting. He attended the recent 10-year employee service awards and thanked staff for their service. He also attended the grand opening of the Chula Vista Little League baseball season and thanked Manny Brown and members of the Little League for their participation. He then gave his appreciation to staff for their outreach at the Southwest community event last Saturday. Page 12 - Council Minutes j~;... ~,~ March 18, 2008 DRAFT The meeting adjourned to Closed Session at 10:27 p.m. CLOSED SESSION 15. CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: Assessor No. 644070100 Negotiating Parties: Curt Noland, Jim Sandoval, Ann Moore Under Negotiation: Price and Terms No reportable action was taken on this item. 16. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) Doss, Angela v. City of Chu1a Vista, San Diego Superior Court, Case No. GIS28616 Deanna Morv. et aL v. City of Chula Vista. et aI., United States District Court, Case No. 06 CV 1460 JAH(BLM) Deanna Morv. et aL v. City of Chula Vista.. et aI., United States District Court, Case No. 07-CV-0462 JLS (BLM) No reportable action was taken on this item. 17. PUBLIC EMPLOYEE PERFORMANCE EVALUATION PURSUANT TO GOVERNMENT CODE SECTION 54957 Title: City Attorney This item was not discussed and no action was taken. ADJOURNMENT At 11:50 p.m., Mayor Cox adjourned the meeting to the Regular Meeting of April 1,2008 at 4:00 p.m. in the Council Chambers. ~ ~ ._~ . Lorraine Bennett CMC, Deputy City Clerk Page 13 - Council Minutes , _ /;',J ,Fr..;;? f.k"r, -- / ::...J ..~_) _,,-,"" I March 18, 2008 CITY COUNCIL AGENDA STATEMENT 4/22/08, Item 4 SUBMITTED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008 BUDGET AND APPROPRIATING $1,228,169.00 FROM THE AVAILABLE FUND BALANCE IN OTAY RANCH VILLAGES 1, 2, 5, AND 6 PEDESTRIAN BRIDGE DEVELOPMENT IMPACT FEE TO REIMBURSE OTAY PROJECT, L.P. FOR THE CONSTRUCTION OF THE EAST AND WEST OLYMPIC P ARKW A Y PEDESTRIAN BRIDGES DIRECTOR OF ENiIINEE G AND GENERAL SERVICES~ CITY MANAGER /' ASSISTANT CITY ANAGER c:.-;) 4/5THS VOTE: YES [gJ NO 0 ITEM TITLE: REVIEWED BY: SUMMARY The construction of both the East and West Olympic Parkway bridges has been completed and is now accessible for pedestrian use. This appropriation from the Pedestrian Bridge Development Impact Fee ("Ped Bridge DIF") Fund is to reimburse Otay Project L.P. for the bridges' construction cost. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 (b)(4) of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council approve the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION On June 10, 2003 City Council approved an agreement with Otay Project L.P ("Original Agreement") to construct the East Olympic Parkway Bridge between Villages 5 and 6 pursuant to Resolution No. 2003-255. Later, on January 11, 2005, City Council approved an amendment to the original agreement to authorize Otay Project L.P ("Developer") to construct the West 4-1 /-------. .~ 4/22/08, ItemL Page 2 of 3 Olympic Parkway Bridge between Village One and Otay Ranch High School in Village 2 pursuant to Resolution No. 2005-016 (see Attachment I which detailed the authorization of the construction as well as the reimbursement process for the construction of the pedestrian bridges). The construction of both bridges has been completed and is now accessible for pedestrian use. This appropriation from the Ped Bridge DIF fund is to reimburse Otay Project L.P for the bridges' construction cost. The Engineering and General Services Department has received a reimbursement request from Otay Project, L.P., in accordance with the Original Agreement and as amended, for the construction of the East and West Olympic Parkway Pedestrian Bridges. The original Ped Bridge DIF was established with adoption of Ordinance No. 2767, in January 1999 in order to pay for pedestrian bridge facilities that will serve Otay Ranch Villages 1 and 5. On January 7, 2003 by Ordinance No. 2892 said original Ped Bridge DIF was amended to include Otay Ranch Village 6 to pay for its fair share of bridge improvements as a condition of issuance of building permit and subsequently, Ordinance No. 2892 was amended on February 2007 by Ordinance No. 3064 to add Otay Ranch Village 2 to pay for its fair share of bridge improvements as a condition of issuance of building permit. The purpose of this fee is to finance the construction of pedestrian bridge improvements between Otay Ranch Villages I, 2, 5, and 6. The fee revenues are used to: I) pay for the construction of the bridge improvements, or 2) reimburse a developer for constructing the improvements. In addition to the funding that the Ped Bridge DIF would provide, bond proceeds were set-aside in the Community Facilities Districts created for Village One (CFD 99-1), and Village Six (CFD 08-1, and CFD 2001-2) for the construction of the pedestrian bridges. The City has received reimbursement requests from the Developer for the construction of both pedestrian bridges, in accordance with the Agreement. The Engineering and General Services Department has audited these requests, and the following table details the amounts deemed eligible. Eli ible Amount $2,651,435.84 $1,733,005.61 These eligible costs were determined after examining all documents that the Developer was required to submit to the City, under Section 11 of the Agreement. These documents included construction contracts, bid documents, performance bonds, contractor invoices, copies of cancelled checks, and unconditional and conditional lien releases by contractors. Under Section 10 of the Agreement, the City may pay Developer progress payments not to exceed 75% of the estimated cost of the construction completed to the time of the progress payment, and retain 25% of such costs until issuance by the City of a Notice of Completion. The Developer received a progress payment, in accordance with Section 10, of $1,482,332.58 for the West Pedestrian Bridge and $958,732.48 for the East Pedestrian Bridge. These first payments were made from all funding sources available (CFD 99-1, CFD 08-1, CFD 2001-2 and Ped Bridge DIF Fund), in April of2007. 4-2 4/22/08, Item~ Page 3 of 3 The Developer is now requesting the retained portion of the progress payment, as well as additional eligible costs incurred during final construction. The retained portion, plus the additional eligible costs are: $1,169,103.26 for the West Pedestrian Bridge and $774,273.13 for the East Pedestrian Bridge, for a total amount of$I,943,376.39. The resolution will appropriate $1,228,169.00, the available fund balance of the Ped Bridge DlF, to reimburse the Developer for the remaining eligible costs. Because the total eligible construction costs for these two facilities exceeds the amounts available from the funding sources, CFDs and Ped Bridge DIF fund, according to Section 13 of the Agreement, the Developer may then apply the balance as a credit against future Otay Ranch Pedestrian Bridge Development Impact Fee obligations. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject of this action. FISCAL IMPACT There is no impact to the General Fund. All costs will be taken from the Pedestrian Bridge Development Impact Fee or the Community Facilities Districts, which were set up to fund the construction of the pedestrian bridges. A TT ACHMENTS I. Otay Ranch First Amended Pedestrian Bridge Development Impact Fee Agreement Prepared by: Tessa Quicho, Administrative Analyst 11, Engineering and General Services Department J: IEngineerIAGENDAICAS2008\04-22-08IPed Bridge DlF Appropriation_R2-JDSM Redline.doc 4-3 DOC !lTTA~O~~ok7 .. ! 1111111111111111 11111111111111111111111111111111111111111111111111111 .1 I ; tS I 't(l ~ Al( I firS'!' ! I " This Instrument Benefits City Only. \1 No Fee Required ... ! This Space for Recorder's Use Only !I<\I1-"'~_IIDllIIIIlm:unB!ll<ltll"lllIIli""""'_!IIm;IIlnll'l~III_!!!!lr"""'II'IoI!:lll_!Iftl''''''\\i!;;';I~__I!","""f1<mlli't__WfIl""~.;ru_'''--'I:<''''''''~'\i'-''''mll_ll__.... .. FEB 08, 2005 11:54 AM Recording Requested by and Please Return to: City Clerk City of Chula Vista P.O. Box 1087 Chula Vista, California 91912 OFFICIAL RECORDS SAN DIEGO CDUNT'!' RECORDER'S OFFICE GREGORY .J. SMITH. COUNTY RECORDER FEES: 0.00 PAGES: 11 I1IIII 0111 B~II""I""1111 1m nlllllll Dmnm 1111 1m 1111 EI III APN(s) 644-030-1100 644-030-1800 C.V. Fi]e No.OR802C OT A Y RANCH FIRST AMENDED PEDESTRIAN BRIDGE DEVELOPMENT IMPACT FEE AGREEMENT BY AND BETWEEN THE CITY OF CHULA VISTA AND OTA Y PROJECT, L.P. TIlls agreement is made this _day of , 2005 by and between Otay Project L.P. ("Developer") and the City of Chula Vista, a California Municipal Corporation ("City") with reference to the facts set forth below, which recitals constitute a part of the Agreement. Recitals A. WHEREAS, On December 17, 2002, City Council adopted the Pedestrian Bridge Development Impact Fee ("Impact Fee"), Ordinance No. 2892 ("Ordinance"), to pay for Pedestrian Bridge Improvements as a condition of issuance of Building Permits in Otay Ranch. B. WHEREAS, Developer requested authorization from the City through a written resolution approved by the City Council to construct certain Pedestrian Bridge Facilities between Villages 5 and 6, which are described in Exhibit A attached hereto and made a part hereof; and C. WHEREAS, on June 3, 2003 the City Council approved Developer's request for authorization pursuant to Resolution No. 2003-255; and D. WHEREAS, on June ]0,2003 Developer and the City entered into the Otay Ranch Pedestrian Bridge Deve]opment Impact Fee Agreement ("Original Agreement"); and E. WHEREAS, Developer has requested authorization from the City Council to construct a Pedestrian Bridge between Village 1 and the Otay Ranch High -1- 4 4 ~* xoS:: 0IC7 School iil Village 2. Pedestrian bridges between Villages 5 and 6 and between Villages 1 and 2 are collectively referred to herein as "Facilities" which are described in the request attached hereto and made a part hereof as Exhibit ~'A"; and F. WHEREAS, on January 11, 2005 the City Council approved Developer's request for authorization pursuant to Resolution No. 2005- ; and G. WHEREAS, Ordinance No. 2892 provides that the City Council may impose other conditions on the authorization among those conditions provided for in the Ordinance; and H. WHEREAS, Ordinance No. 2892 requires a written agreement setting forth the conditions on such authorization; and 1. WHEREAS, City and Developer agree that the Original Agreement shall be amended to include reference to Pedestrian Bridge between Village 1 and Village 2 and to include cash reimbursement for said bridge. NOW, THEREFORE, BE IT RESOLVED that the parties agree as follows; 1. Developer shall prepare all plans and specifications and submit same to the City for approval. 2. Developer shall secure and dedicate any right-of-way required for the Facilities. 3. Developer shall secure all required permits and environmental clearances necessary for construction of the Facilities. 4. Developer shall provide performance bonds in a form and amount, and with a surety satisfactory to the City. 5. Developer shall pay all City fees and costs. 6. Developer further understands and agrees that City, (as "indemnitee") or any officer or employee thereof, shall not be liable for any bodily injury, death, or property damage, including thereto hazardous materials and property takings claims occasioned by reason of the acts or omissions of Developer, it's subcontractors or suppliers, its agents or employees, or Indemnitee (which are not the result of Indemnitee's sole negligence or willful misconduct), related to the construction of the Facilities. Developer further agrees to defend, indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, costs and -2- 4 5 expense (including, without limitation, reasonable attorney's fees) or loss for bodily injury, death or property damages, including thereto hazardous materials and property takings claims because of or arising out of Developer's construction of the Facilities or the acts or omissions of Developer, its subcontractors or suppliers, its agents or employees, or Indemnitee, related thereto; provided, however, that Developer shall have no obligation to indemnify, defend, protect or hold Indemnitee harmless from any such losses, claims, demands, causes of action, liability, damages, costs or expenses which arise out of the sole negligence or willful misconduct of the Indemnitee or any officer or employee thereof. Developer further agrees to defend, indemnify, protect and hold the Indemnitee harmless from any such losses, claims, demands, damages, causes of action, liability, costs and expenses to the extent that they have arisen due to the sole negligence or willful misconduct of Indemnitee. 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 construction of the Facilities 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 construction of the Facilities. The approval of plans for the Facilities 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 said work and related improvements. 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 Facilities. 7. Developer shall advance all necessary funds for the Facilities, including design and construction. The City will not be responsible for any of the costs of constructing the Facilities. 8. Developer shall secure at least three (3) qualified bids for work to be done. The construction contract shall be granted to the lowest qualified bidder. Any claims for additional payment for extra work or charges during construction shall be justified and shall be documented to the satisfaction of the City Engineer. Notwithstanding the foregoing, if the Developer is to be reimbursed for all or any portion of the cost of construction of the Facilities from the proceeds of special tax bonds issued for Community Facilities District No. 99-1, 2001-02 and/or 08-1 as provided for in paragraph 16 below, the Developer must comply with the provisions of the applicable Acquisition and Financing Agreement or Agreements establishing the design, bid, contract and - 3 - 4 6 change order requirements applicable to improvements to be acquired pursuant to such agreement or agreements. 9. Developer shall provide a detailed cost estimate, which itemizes those costs of the construction attributable to the improvements. The estimate is preliminary and subject to final determination by the City Engineer upon completion of Facilities. 10. Upon determination by the City Engineer of satisfactory incremental completion of the Facilities in accordance with the Ordinance, the City may pay Developer progress payments in an amount not to exceed 75 percent (75%) of the estimated cost of the construction completed to the time of the progress payment, but shall provide in such case for the retention of 25% of such costs until issuance by the City of a Notice of Completion. 11. When all work has been completed to the satisfaction of the City, Developer shall submit verification of payments made for the construction of the Facilities to the City. The City Engineer shall make the final determination of which expenditures are eligible for reimbursement or credit that may be applied to Developer's future obligation to pay an Otay Ranch Pedestrian Bridge Impact Fee. 12. After final determination of eligible expenditures has been made by the City Engineer and Developer has complied with the conditions set forth in paragraphs I through 9 above, as determined by the City, the final amount of payment shall be determined by the City Engineer. The City and Developer may agree to offset Developer's duty to pay current and future Impact Fees required by the Ordinance, or revisions thereto, against the City's duty to reimburse Developer. The Developer shall receive additional credit against a future fee obligation in an amount equal to the difference between the final expenditure determination and the amount of the final payment. 13. If the total eligible construction cost for the Facilities is more than the total Impact Fees which will be required for the Developer's Village 6 project the Developer may: either apply the balance as credit against future Otay Ranch Pedestrian Bridge Development Impact Fee obligations, or request reimbursement from the following sources to the extent there are funds available for such reimbursement: a Otay Ranch Village 1, 5 and 6 Pedestrian Bridge Developinent Impact Fee Fund -4- 4 1 b. Bond Proceeds. If Developer requests that Special Tax District bond proceeds, reserved to fmance all or a portion of the cost of acquisition and/or construction of Pedestrian Bridge Improvements, be used to reimburse Developer for constructing the Pedestrian Bridge Improvements such reimbursement shall comply with the provisions of the applicable Acquisition and Financing Agreement. 1. Pedestrian Bridge between Village 1 and 2 ("West POC"). Any portion of reimbursement for the West POC to be financed with Special Tax bond proceeds shaH be limited to such proceeds of such bonds issued by Community Facilities District 99-1. 2. Pedestrian Bridge between Village 5 and 6 ("East POC"). Any portion of reimbursement for the East POC to be fmanced with Special Tax bond proceeds shall be made from either the proceeds of such bonds issued by Community Facilities District 99- I, 2001-02 and/or 081. 14. Developer, its successors, assigos and interests agrees to not protest the formation of a separate Impact Fee program incorporating the remainder 0 f Developer's property that is not current! y within the existing Impact Fee program said Developer's remaining property is described in Exhibit "B" attached hereto and made a part hereof (Property), or annexation of said remainder Property into the existing Impact Fee Area of Benefit. Developer further agrees to equitably participate in any future pedestrian bridge development impact fee program, or an update to the current Impact Fee program, to finance all 0tay Ranch Pedestrian Bridges including those Facilities constructed under the terms of this.Agreement. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of a development impact fee for pedestrian bridge facilities imposed on the Property. 15. 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 ofthe parties. 16. Developer agrees to comply with requirements of Ordinance Nos. 2767 and 2892. 17. The parties agree that this First Amended Agreement shall supersede the Original Agreement and that the Original Agreement shall be of no further force nor effect when this First Amended Agreement is fully executed. - 5 - 4 8 18. Developer acknowledges and agrees that the Acquisition and Financing Agreements per City Council Resolution Nos. 2003-408; 2002-404, as amended by 2003-037; and 19694, as amended by 2001- 341 and 2001-215, for CFD-08I; CFD 2001-02; and CFD 99-1, respectively, remain in full force and effect and have not been modified nor amended by this agreement. Exhibit A: Otay Ranch Pedestrian Bridge Facilities Exhibit B: Property Next page is signature page to Amended Otay Ranch Pedestrian Bridge Development Impact Fee Agreement - 6 - 4 9 SIGNATURE PAGE TO THE FIRST AMENDED OTAYRANCH PEDESTRIAN BRIDGE DEVELOPMENT IMP ACT FEE AGREEMENT CITY OF cHULA VISTA OTA Y PROJECT L.P., A California limited partnership, /~~ SOHAlB AL-AGHA CITY ENGINEER By: OTA Y PROJECT, LLC, a California limited liability company, its General Partner, By: OTA Y RANCH DEVELOpMENT, LLC, a Delaware limited liability company, its~ By: Date I-z(rr.e;o 1- Approved as to form by ~/UJLfr' CITY A TIORNEY l:lEngineerlLANDDEWrojcctslPed Bridge\West POClRevised Ped Bridge DlF Agreement.doc -7- 4 10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Slate of California County 01 ~,,1>~~y') On l)..C'2M be".. 'Z:ll 2m'L before me, 0.. personally appeared \< ~ " +- A-d,e n )(1- - - - :-~~~n;~ f f Naby NlIc':,* _.... i Ian DIego CclwlIv - _ _ _ ~~~~_~13.:~f }~. M(:\V'c:.. L.o"..-to No-b~,(.. Name ilI'dTllIII 01 OllIcer (_4. .J,...oo.. Notaly Neme(.) 01 Signer\s) B"jlersonally known to me o proved to me on the basis of satisfectory evidence to be the personW-whose name($). is/ar.!l subscribed to the within instrument and acknowledged to me that helshollMy executed the same in hi~ authorized capaci!y(ieet; and that by hislller/tt1eir signature(Sj" on the instrument the person(sl. or the entity upon behan 01 which the person(a} acted, executed the instrument. S my hand and 0 .. a. I ~ / o OPTIONAL Though the intormstlon beIorv is not required by law, it may prove valUllbIIJ to persons relying on thB cfocument and cooId prevent fraudulent remGllal and reattachment of this form 10 another document. Description of Attached Document Title or Type of Document: Document Date: Signer{s) Other Than Named Above: Capacity(les} Claimed by Signer Signer's Name: o Individual o Corporate OIIicer - Trtle(s): o Partner - 0 Limited 0 General o Attorney-In-Fact D Trustee D Guardian or Conservator D Other. Signer Is Representing: Number of Pages: Top of Ihunb !lere Cl1199N.uon.fNolllry~on.t3500t SomJwe., P.o.&.2.olO2.o.-r'h,CAe13,s-2402'_.r.I~.llfg Prod. No. SIlO' Recrdet:C"ToI-F_1-f1OO.a76-6ll:2.7 4-11 STATE OF CALlFORNIA ) ) S.S. COUNTY OF SAN DIEGO ) On the 7'" day of February, 2005, before me, the undersigned, personally appeared SOHAlB AL-ALGHA, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. .~"!:~._*!~ ~~.~O . 'i. ...~__ -c-, - '- .......". ~ .- ." Jr _~ ~ ,-;;. ,,-:"- ~.';~1t- -;=-+. ~ .;,...,.~." :; t..-'::. --:~::.,~>. ~:C~~c;::' ~'~'_ ~~' <c"J"', ;:-:;1' ,- .~./ '/" \. . . ",,-:. - /' -' ,~ - --.0 ......". ,.~- ~. ... -..0':>_ ,_~~' -,-);{.. .If-, a;e -<) {i.- -::- ~ J, /l-",~ ~ ,0. ~ Susan Bigelo';,MMC .~ City Clerk of the City of Chula Vista 4 1? ~ :: f. 'r-i j ~.j ~ ~l -! ~". :}l,',",::-'.. . :~ir;;<. -', ; / v" " - \" \~-;"., -\J '\ ....~"..,. t: /.1: Iii! OTAY RANCH \1 r- 1<: HIGHSC~~OL '!'I: "I , i ' , 'VIL~~Ge 2 ! , i_ill! " ~ I 'I' \ \ \ ! ' ; , " '" ."",', EXHIBI'I\ A :---' '" ,----- ~\~~~"~~H)PEDESTRIAN BRfDGES , ',' I ',I C', \ h I' 4-H EXHIBIT B Legal Description of Property Parcel 3 of Parcel Map No. 18471 in the City of Chula Vista, County of San Diego, State of California, recorded on May 10,2000 as File No. 2000-241067 -9- 4 14 OT A Y RANCH PEDESTRIAN BRIDGE DEVELOPMENT IMP ACT FEE AGREEMENT BY AND BETWEEN THE CITY OF CHULA VISTA AND OTA Y PROJECT, L.P. ,,, This agreement is made this J.Q.-day of~, 2003 by and between Otay Project L.P. ("Developer") and the City of Chula Vata, a California Municipal Corporation ("City") with reference to the facts set forth below, which recitals constitute a part of the Agreement. Recitals A. WHEREAS, On December 17, 2002, City Council adopted the Pedestrian Bridge Development Impact Fee, Ordinance No. 2892, to pay for Pedestrian Bridge Improvements as a condition of issuance of Building Permits in Olay Ranch. B. WHEREAS, Developer has requested authorization from the City through a written resolution approved by the City Council to construct certain Pedestrian Bridge Facilities between Village 5 and 6 (Facilities) which are described in the request attached hereto as Exhibit A; and /0 C. WHEREAS, on June 3: 2003 the City Council approved Developer's request for authorization pursuant to Resolution No. .<'b:e'.; -.)5...,--; and D. WHEREAS, Ordinance No. 2892 provides that the City Council may impose . other conditions on the authorization among those conditions provided for in the Ordinance. E. WHEREAS, Ordinance No. 2892 requires a written agreement setting forth the conditions on such authorization. NOW, THEREFORE, BE IT RESOLVED that the Parties agree as follows: I. Developer shall prepare all plans and specifications and submit same to the City for approval. 2. Developer shall secure and dedicate any right-of-way required for the improvement work. 3. Developer shall secure all required permits and environmental clearances necessary for construction of the improvements. 4. Developer shall provide perfOlmance bonds in a form and amount, and with a surety sati~factorY to the City. - I - 4-15 7Z /[0:)3 ..J :G L. 5. Developer shall pay all City fees and costs. 6. Developer further understands and agrees that City, (as "indemnitee") or any officer or employee thereof, shall not be liable for any bodily injury, death, or property damage, including thereto hazardous materials and property takings claims occasioned by reason of the acts or omissions of Developer, it's subcontractors or suppliers, its agents or employees, or Indemnitee (which are not the result of Indemnitee's sole negligence or willful misconduct), related to the construction of the Facilities. Developer further agrees to defend, indemnify, protect and hold the Indemnitee, its officers and employees, harmless from any and all claims, demands, causes of action, liability, costs and expense (including, without limitation, reasonable attorney's fees) or loss for bodily injury, death or property damages, including thereto hazardous materials and property takings claims because of or arising out of Developer's construction of the Facilities or the acts or omissions of Developer, its subcontractors or suppliers, its agents or employees, or Indemnitee, related thereto; provided, however, that Developer shall have no obligation to indemnify, defend, protect or hold Indemnitee harmless from any such losses, claims, demands, causes of action, liability, damages, costs or expenses which arise out of the sole negligence or willful misconduct of the Indemnitee or any officer or employee thereof. Developer further agrees to defend, indemnify, protect and hold the Indemnitee harmless from any such losses, claims, demands, damages, causes of action, liability, costs and expenses to the extent that they have arisen due to the sole negligence or willful misconduct of Indemnitee. 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 construction of the Facilities 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 construction of the Facilities. The approval of plans for the Facilities 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 said work and related improvements. 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 Facilities. 7. Developer shall advance all necessary funds for the Facilities, including design and construction. The City will not be responsible for any of the costs of constructing the Facilities. - 2 - A.-:-J-.U__ 8. Developer shall secure at least three (3) qualified bids for work to be done. The construction contract shall be granted to the lowest qualified bidder. Any claims for additional payment for extra work or charges during construction shall be justified and shall be documented to the satisfaction of the Director of Engineering. 9. Developer shall provide a detailed cost estimate which itemizes those costs of the construction attributable to the improvements. The estimate is preliminary and subject to final determination by the Director of Engineering upon completion of Facilities. 10. Upon complying with conditions set forth in E.I through E.5 above, the developer shall be entitled to an immediate credit for 50 percent of the estimated cost of the construction attributable to the Facilities. Said immediate credit may be applied to the developer's obligation to pay Otay Ranch Pedestrian Bridge Development Impact Fees for building permits issued after the establishment of the credit. The developer shall specify those building permits to which the credit is to be applied at the time the developer submits the building permit applications ] 1. After the developer has received valid bids for the project which comply with E.8 above, entered into binding contracts for the construction of the project, and met the conditions set forth in E. 10 above, to the satisfaction ofthe city manager's designee, the amount of the immediate credit shall be increased to 75 percent of the bid amount attributable to the Facilities. The developer shall specify those building permits to which the credit is to be applied at the time the developer submits the building permit applications. 12. When all work has been completed to the satisfaction of the city, the developer shall submit verification of payments made for the construction of the Facilities to the city. The city manager's designee shall make the final determination on expenditures, which are eligible for credit. 13. After final determination of eligible expenditures has been made by the city manager's designee and the developer has complied with the conditions set forth in E.I through E.l 2 above, as determined by the city, the final amount of Otay Ranch Pedestrian Bridge Development lmpact Fee credits shall be determined by the city manager's designee. The developer shall receive additional credit against the fee obligation in an amount equal to the difference between the final expenditure , .. 0 .. A- J2m. ___.. ..._.......___.___. determination and the amount of the 75 percent immediate credit used, if any. 14. At the time building permits are issued for the developer's project, the city will incrementally apply credit, which the developer has accrued in lieu of collecting the required Otay Ranch Pedestrian Bridge Development Impact Fees. The amount of the credit to be applied to each building permit shall be based upon the fee schedule in effect at the time of the building permit issuance. The city manager's designee shall convert such credit to an ED U basis for residential development and/or a gross acre basis for commercial or industrial development for purposes of determining the amount of credit to be applied to each building permit. 15. If the total eligible construction cost tor the Facilities is more than the total Otay Ranch Pedestrian Bridge Development Impact Fees which will be required for the developer's project the developer may use the excess as credit against future Otay Ranch Pedestrian Bridge Development Impact Fee obligations. The city may, in its discretion, enter into an agreement with the developer to convert excess credit into EDU and/or gross acre credits for use against future development impact fee obligations at the fee rate in effect on the date of the agreement. 16. Whenever constructing a DIF-eligible pedestrian bridge using assessment district or community facility district financing generates an Otay Ranch Pedestrian Bridge Development Impact Fee credit, the credit shall only be applied to the Otay Ranch Pedestrian Bridge Development Impact Fee obligations within that district. l7. Developer agrees to comply with requirements of Ordinance Nos. 2767 and 2892. Next page is signature page to Otay Ranch Pedestrian Bridge Development Impact Fee Agreement - 4- . A:::li____ SIGNATURE PAGE TO OT A Y RANCH PEDESTRIAN BRIDGE DEVELOPMENT IMPACT FEE AGREEMENT CITY OF CHULA VISTA OtayProject LP. a California limited partnership ~:i~ Director of Engineering By: Otay Ranch Development, LLC 'Dcl'W~~.liability company) Authorized e er By: Dated~2003 Approved as to form by G--~ Ann Moore City Attorney J:\Engineer\LANDDEV\DlF's\PED BRIDGE FEES\development impact fee agreement - 5- 4-19 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT "I County of , On Narne(li) gf SigMr(s} r)( personally known to me 6 proved to me on the basis of satisfactory evidence f:,..--...----.--f MORA I(AY KEllER _ @ Commission 111295364 z I' NClt~!V pu.hUc ... CaRfomta ~ j ,.:_nn D,,'I),O Counly 1 M'(....omm. f->o:~ Fsb?5,:nJ5 _ _ _ _ _ ~.t"~t""}""'~~.'.':''''-''' to be the person(~ whose name()l1 ~rJ subscribed to th~" wittjiR, instrument and acknowledged to m~~~th~ executed the same in ChWhQf/their/.~thorizel} capacity(i!s), and that by ~~r/th"'r signatur~ on the instrument the persoa(s), or the entity upon behalf of which the person(s)l acted, executed the instrument. Place Notary Seal Above OPTIONAL Though the information below ;s not required by Jaw, it may prove valuable to persons ff1/ying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document TWe or Type of Document: ., Decument Dale: Number of Pages: Signer(s) Other Than Named Above: I. Capacity(!es) Claimed by Signer Signer's Name: o Individual o Corporate Officer - Tille(s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or Conservator o Other: RIGHT THUMGPr~INl or SIGNFR Top of thumb here I, I' Signer Is Representing: C ,98fiHationll NoWy.l.Mociationo935Q 0, SoIoAve., p.o. 8m; 2402 oChlIs..or1h. CA91313-2<<l2-_.naIionanolary.org' Prll4 No. 5llO7 '" Recxdlr. Cd Tg(J.FrM 1-8Q0087H827 4-20 I,; EXHIBiT A ii / '-. . -',.' " _',. . J " \' ,,_. ...o:t:AY RAN~H .~~~ltrAN-BRIDG~\<\ \?:/ '''~E~~tk~_~~~.~~~\\\<'( "---/ .~ <:- . / ":,.. ".~.. - \ \, '-'_d"::' \."'" .</.> "'.... \ - .' ./ / /-'/ .' ,: " ,.,'-, . ~:<"~\, \,,~\, \ \ \ , ". . \ \ \ \ " "\." .' . ',< / '''.-. /' '~( .;>.~> . / / \",v,/~/VILLAGE !Y/ I! / :i / .// ,. , '. '. ~ ' ; /{\;...\:::\ f-'! ! (5:2\b~:\ ,\.-'.......- ./ / / ..,/ " ,,',: \ .5f~\..... / /'/ // /' / ./' '\ / \ '\ E T/OL YMefC "\ '\ \.,/. .' /"- \lPARKwAY/BRIDG~.. 1 \ ". , , ,.', -,I ! /; .' "/'\('/'~':"'.' . ..." --"",,",' , ""r-.7..' ", ".,/ '.. // \ , \ / ~\ - ~ '\ / \"', ?'~1l. \, , \ r \, \ A) " . \~.i ". '0 VILLAGE 6 . 2\ ~..,.".'.... \ . ~~ ~"", . '\ .\., .~ " ./ ,'" '\,,, /,,'/ ',< \\< ',,-;<V\...>.- ",.. ",. \ '-,,/ /'//' . '/ . '.,/..".- ) " \ \ /-A /-, // \ -' --, \.:-:=\ / ''''-, \. ..-.' '~\ ;^"'{, , \ \.-- \ ~/,\ . - \ \ ------ ~~ . \ . \ ".c--- ./ " ~\ '\ ,- <'\ .' \'" , , \ \. \ '-- /\/<~: '\ \,)-/:,/~. ,./,./',\. ...,...' " c' ;/ (/ '\ ...--.,.- ..------ ..// >/ /~\ . \ ______~/,/ i........- / ': \--. .... .-- ./ \ \ \ / ./ ,\ c''''' \ /' / .//\ ~\' ,/ --5' ',. -,/' ....~-~- -- -- .----', " , 'v. '\..-.--- \ \........ ..... '--,':---- -, 4-21 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008 BUDGET AND APPROPRIATING $1,228,169.00 FROM THE AVAILABLE FUND BALANCE IN OTA Y RANCH VILLAGES 1, 2, 5, AND 6 PEDESTRIAN BRIDGE DEVELOPMENT IMPACT FEE TO REIMBURSE OTAY PROJECT, L.P. FOR THE CONSTRUCTION OF THE EAST AND WEST OLYMPIC P ARKW A Y PEDESTRIAN BRIDGES WHEREAS, the Otay Ranch Pedestrian Bridge Development Impact Fee (DIF) program sets a procedure whereby a developer may receive authorization, reimbursement and/or credit for construction of eligible pedestrian bridges (Ordinance 2892); and WHEREAS, Otay Project, L.P. and the City entered into the Otay Ranch Pedestrian Bridge Development Impact Fee Agreement (Agreement), as amended; and WHEREAS, the developer, Otay Project, L.P., was authorized to construct certain Pedestrian Bridge Facilities between Villages 5 and 6 and Pedestrian Bridge Facilities between Villages 1 and 2 pursuant to Resolution No. 2003-255 and 2005-016; and WHEREAS, Otay Project, L.P. has constructed said facilities pursuant to the terms of Ordinance 2892 and the Agreement and is eligible for reimbursement from the Pedestrian Bridge DIF Fund; and, WHEREAS, Otay Project, L.P. has submitted its reimbursement requests in accordance with the Agreement and the Engineering and General Services Department has reviewed these requests and determined eligible construction costs; and WHEREAS, City staff has determined that the amount of eligible costs are: $1,169,103.26 for the West Pedestrian Bridge and $774,273.13 for the East Pedestrian Bridge, for a total amount of$I,943,376.39; and WHEREAS, the Pedestrian Bridge DIF has an available fund balance of$I,228,169.00, to reimburse the Developer for the remaining eligible costs; and WHEREAS, the total eligible construction costs for these two facilities exceeds the amounts available from the funding sources, CFDs and Pedestrian Bridge DIF fund, according to Section 13 of the Agreement, the Developer may then apply the balance as a credit against future Otay Ranch Pedestrian Bridge Development Impact Fee obligations. J:\Allomey\FINAL RESOSI1008\04 22 08\#4]ed Bridge Fund Amendment {105M Redlir4_'m22.doe Resolution No. 2008- Page 2 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista amends the Fiscal Year 2008 budget and appropriates $1,228,169.00 from the available fund balance in the Otay Ranch Villages 1,2, 5, and 6 Pedestrian Bridge Development Impact Fee funds to reimburse Otay Project, L.P. for the construction of the East and West Olympic Parkway Pedestrian Bridges. Presented by: Approved as to form by: Jack Griffin Director of Engineering and General Services ~) ~~ Moor City Attorney J:\Attomey\RESO\FINANCE\Ped Bridge Fund Amendment (JDSM RedlineL04-22-o8.do04- 2 3 ITEM TITLE: SUBMITTED BY: REVIEWED BY: CITY COUNCIL AGENDA STATEMENT ~I'f:.. em OF .~CHUlA VISTA 4/22/08, Item ~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH PACIFIC MUNICIP AL CONSULT ANTS FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED FORTY THOUSAND DOLLARS ($40,000) FOR ADDITIONAL AUDITING AND ENGINEERING SERVICES REQUIRED FOR THE UPDATE OF THE POGGI CANYON BASIN GRAVITY SEWER DEVELOPMENT IMPACT FEE AND CLOSURE OF VARIOUS ASSESSMENT DISTRICT IMPROVEMENT FUNDS DIRECTOR OF ENG~RING AND GENERAL SERVICES ~ CITYMANAGER ~~ ~\j ASSISTANT CITY ~ANR ER ~~ 4/5THS VOTE: YES 0 NO ~ SUMMARY On May 5, 2007, the City retained Pacific Municipal Consultants (PMC) to provide consultant auditing and engineering services required to facilitate the closure of various assessment district improvement funds and the update of the Poggi Canyon Development Impact Fee (Poggi DIF). Since then, as work on the Poggi DIF update proceeded, it became apparent that additional work would need to be done beyond what was defined in the original scope of work in order to complete the project. As a result, staff is recommending that PMC's contract be amended and the contract amount increased by $22,030 to facilitate the completion of the Poggi DIF update. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it does not involve a physical change to the environment; therefore, pursuant to Section 15060( c )(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary RECOMMENDATION Council adopt resolution. 5-1 4/22/08, Item2- Page 2 of5 BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION This contract with Pacific Municipal Consultants is for the completion of two major efforts: A. Closure of various Assessment District Improvement Funds. B. The update of the Poggi Canyon Basin Gravity Sewer DIP. A. Assessment District Fund Closures (No Change in Scope and Fee) In addition, to the Poggi Canyon DIF update, PMC was also required to assist the City in completing the closure of two assessment district improvement funds, AD 90-2 (Otay Valley Road) and AD 94- I (Eastlake Greens II). This involved the review of various assessment districts, identifying outstanding issues that required resolution prior to the closing of the improvement funds, preparing the Council Agenda Statements and presenting instructional materials on the steps necessary to properly close assessment districts. PMC was contracted to complete this work for a total amount not to exceed $25,000. This element of the Contract is not being amended as part of the process and current budgeted funds will be sufficient to complete the tasks specified in the scope of services. B. Poggi Canyon DIF Update (Requires Change in Scope and Fee) The Poggi Canyon Sewer Basin DIF was established on November 25, 1997 to facilitate construction of the Poggi Canyon Trunk Sewer, which was needed to serve properties within the Poggi Canyon Basin (See Exhibit A). The Poggi DIF was established based on the basin plan that was prepared by Wilson Engineering, which defined the benefit area, the alignment and sizes of the facilities that would be needed to serve that area. Since then, all the reaches of the Poggi Canyon Trunk Sewer as defined in the original basin plan have been constructed. However, through additional studies, other facilities have been identified that would be needed to facilitate development within the benefit area. It is now necessary to update the DIF to include these additional improvements to the list of covered facilities (DIP eligible facilities). The update is also necessary to ensure that a.) Fees are more fairly and equitably distributed amongst the remaining properties within the Poggi Canyon Basin, b.) Sufficient funding is available to complete the required improvements and c.) To update the fund balance and land use projections. To accomplish these tasks, on May 7, 2007 the City retained PMC to prepare all necessary analysis and documentation in support of an impact fee program meeting the requirements of Government Code 66000 et seq. Specifically, PMC's contract involved the following: . Updating the land use, the final construction cost of the completed facilities (i.e Poggi Canyon Trunk Sewer and portions of the Poggi Canyon Trunk Sewer Extension), and the list/cost of eligible facilities . Auditing the Poggi DIF Fund, to identify any outstanding credits or obligations for the construction of eligible sewer improvements . Determining if there were any refunds due to any developers or property owners (or others) 5-2 4/22/08, Item3- Page 3 of 5 . Evaluating the Poggi Canyon Trunk Sewer line's ability to support the basin buildout based on the revised land use projections and identifying any remaining sewer reaches to be constructed. . Preparing the Final Report and calculating the new Poggi DIF amount. PMC was contracted to complete this work for a total amount not to exceed $17,970. Proposed First Amendment - Additional Services Required Staff is recommending the contract amendment, which will provide an additional $22,030 for the following additional consultant services: . Review the recently completed Sewer Study for the Eastern Urban Center (EUC) prepared by PBS&J and the Sewer Study for Villages 2, 3 and Planning Area 18B prepared by Wilson Engineering and incorporate the findings of those studies into the DIF Update. Prepare a comprehensive map of the Poggi Canyon Sewer Basin, which shows the revised number of units within each of the major projects. This will significantly aid the administration of the Poggi DIF, and approval process for major builders who submit plans for their projects to ensure that their submittals are consistent with the revised basin plan. Update development status tables utilizing the most current data from the City's GIS and Permits Plus databases. Re-analyze the system to refine the established capacity thresholds. Attend briefing meetings with City staff and other stakeholders. Consultant shall revise the Poggi DIF analysis to include the cost of the sewer line in Olympic Parkway between SR 125 and the EastLake land swap parcel. . . . . . Waiver of the Selection Process PMC is a local San Diego firm that had done satisfactory work for the City on a variety of assessment district projects. In addition, some of PMC's staff had extensive institutional knowledge of the development within the Poggi Canyon Basin, having worked on a variety of projects within that basin. Coincidentally, the City made the determination that it was necessary to update the Poggi Canyon DIF at about the same time that the decision was made to close out some of the assessment districts. Upon reviewing all the available options for completing these two un-related projects, it was determined that the most cost-effective way of completing these projects would be to combine them under the same contract and retain PMC to complete both projects, since they were in the unique position of having the staff that the City would have relied upon to complete these projects. Consequently, on May 7, 2007 shortly after the completion of the upgrades to Reach 205 of the Poggi Canyon Trunk Sewer (SW226), the last major facility that was identified in the 1997 Poggi Canyon Basin Plan, staff approved an agreement between the City of Chula Vista and PMC (See Attachment 1) to provide the needed services for the two projects (Poggi DIF Update - $17,970 and Assessment District Closures - $25,000) for a total combined contract of $42,970. Since then, as work on the Poggi DIF Update project progressed, it became apparent that additional work would need to be done beyond what was defined in the original scope of work in order to complete the DIF update. The additional tasks were requested by the City to facilitate future administration of the DIF without consultant assistance. To accomplish these tasks, PMC's contract 5-3 4/22/08, Item~ Page 4 of 5 needs to be amended to increase the contract amount by $22,030 for a revised total of $40,000 for the Poggi DIP update (See Attachment 2). This represents a combined total contract amount of $65,000 for both projects. The original contract was approved by the City's Purchasing Manager, however, since this amendment would result in a total contract amount that exceeds $50,000, the amendment would require Council approval. The work being done by PMC is a specialized service, in a niche market. In addition, PMC's staff by virtue of their work experience, have over 30 years of combined institutional knowledge of development activity in the Poggi Canyon Basin, a rare combination of skill and knowledge base. Thus, PMC is in a unique position to provide this service at a very competitive cost, which is the reason they were selected for the project. It is also the reason for staff's recommendation that their contract be amended to provide the additional service. Consultant Payments The City has paid a total of $14,089.50 for both efforts, which is commensurate with the level of work completed to date. Contract Extension Under the terms of the original agreement, PMC was required to complete all the tasks within six months from the effective date of the agreement (i.e. by November 7,2007). However, there were many issues beyond their control, which necessitated the extension of the contract term. Consequently, the Interim Purchasing Agent authorized the extension of the contract term by an additional six-month period ending May 7, 2008 (See Attachment 3). With the addition of these new tasks, there is a need to further extend the contract term to allow for the provision of services necessary to facilitate the implementation of the revised fee. If the amendment is approved tonight, the contract will expire in November 7, 2008. This extension will allow adequate time to complete the DIF report, get input from City management and the development community and then bring the item to Council for consideration. Conclusion It is staff s opinion that the original contract amount and the costs associated with the additional services cumulatively represent the costs that are necessary to provide for adequate completion of these proj ects. To date, staff has been satisfied with the work completed by PMC on both projects. The Consultant has been very responsive to questions from City staff and is readily accessible when required for proj ect meetings. This first amendment is an extension of the work provided for in the original agreement. PMC has been very proactive by bringing staff s attention to discrepancies in the technical studies prepared by other consultants for some of the projects in the Poggi Canyon Basin. It was as a result of some of these findings during the project meetings that it was decided that these additional tasks were vital for the completion and future administration of the DIF. Based on the analysis completed to date by PMC there is an indication that this effort could result in the reduction of the Poggi Canvon Basin Gravitv Sewer DIF (currently $400IEDU). In light of the current downturn in development, staff is recommending that PMC's contract be amended so that they could finalize their analysis and complete the project, especially since it could have a beneficial impact in reducing the cost of development in that portion of the eastern territories. It will not be 5-4 4/22/08, Item~ Page 5 of5 cost-effective to pursue the retention of a new consultant, or to go through another selection process at this time. Based on the issues articulated above, staff recommends that the agreement between the City of Chula Vista and PMC, be amended to increase the contract amount by $22,030 to facilitate the provision of additional services necessary to complete the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found a conflict exists, in that Councilmember McCann has property holdings within 500 feet of the boundaries of the property which is the subject of this action. FISCAL IMPACT Council approval of this resolution and staff recommendation will authorize the expenditure of $40,000 of Poggi DIF Funds for the completion of the Poggi DIF Update. In addition, the City will also be spending $25,000 for the closure of various assessment district improvement funds. The costs associated with the Poggi DIF update are funded utilizing the balance of funds in the Poggi Canyon Trunk Sewer Improvement Project (Reach 205 Upgrades - SW226). That project was funded with Poggi Canyon Basin DIF funds. That project was the last remaining facility to be constructed based on the original basin plan; consequently, this update was begun as an extension of staff effort to closeout the project and update the basin plan. The remaining balance of funds in the project account is sufficient to facilitate this contract amendment; therefore, the approval of this amendment would not require additional appropriations from the Poggi Canyon DIF. Also, there will be no impact to the General Fund as a result of this amendment. ATTACHMENTS Attachment I - Original agreement between the City and Pacific Municipal Consultants Attachment 2 - First Amendment to the agreement between the City and Pacific Municipal Consultants Attachment 3 - Letter to PMC extending Contract Term to May 7,2008 Exhibit A - Poggi Canyon Sewer Basin Prepared by: Anthony Chukwudolue, Senior Civil Engineer, Engineering and General Services Department J:\EngineerIAGENDA\CAS2008\04-15-08\AII3 PMC 1st Amendment.lp.doc 5-5 ATTACHMENT Parties and Recital Page(s) Agreement between City of Chula Vista and Pacific Municipal Consultants For the provision of Auditing and Engineering Services required for the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF) and Closure of Various Assessment District Improvement Funds. This agreement ("Agreement"), dated "5 ~ l-oi 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-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Pacific Municipal Consultants (A California Corporation), 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 Chula Vista is desirous to retaining a firm to provide auditing and engineering services in order to ensure the timely completion of the Poggi. Canyon Basin Gravity Sewer Development Impact Fee Update and closure of various Assessment District Improvement Funds; and., Whereas, staff has received a proposal from PMC to provide consultant services necessary to prepare the Poggi Canyon Basin Gravity Sewer Development Impact Fee study and provide other related services necessary to complete the impact fee program and closure of various Assessment District Improvement Funds; and, Whereas, City staff has determined the proposal to be responsible and has negotiated an agreement based on the proposal; and, Whereas, City staff cannot perform the work outlined below due to lack of available staff to provide auditing of financed public improvements, and that the approval of this agreement shall result in enhanced continuity of the project and expedite the timely completion of the project; and, Whereas, City staff has been satisfied with the work completed by PMC on other similar projects under a different contract, and engaging another consultant at this advanced stage of the project is impractical and would most likely carry significantly higher costs due to the additional time required to become familiar with all of the project issues; 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 5-6 Page 1 fl..' within the time frames herein provided all in accordance with the terms and conditions of this Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) 5-7 Page 2 n._1 Obligatory Provisions Pages NOW, TIIEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defmed 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 lO(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. 5-8 Page 3 OLoJ F. Insurance Consultant must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to co=encement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Coverage must be at least as broad as: (1) Insurance Services Office Co=ercial General Liability coverage (claim Form CG0001). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: 1. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Errors & Liability: Liability or Omissions $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Co=ercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this projectllocation or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee $1,000,000 each occurrence 5-9 Page 4 ~w Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminRte such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim Rrlministration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: (1) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. (2) The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance. (3) The insurance policy required by this clause will not be canceled by Consultant or its insurer, except after written notice post marked thirty (30) days' prior to the City. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. (5) Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. 5-10 Page 5 1"'1, ~ (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date; the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (4) A copy of the claims reporting requirements must be submitted to the City forreview. Acceptability of Insurers ,~,,;; Insurance is to be placed with licensed insurers admitted to transact business in the State of . California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. Subcontractors Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subject to all of the requirements included in these specifications. G. Security for Performance (1) Performance Bond In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, htto://www.fms.treas.gov/c570. and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the 5-11 Page 6 IJ}.) limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, 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 Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, 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. H. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the DefIned Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, lies 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 9, and with the further understanding that delay in the provision of these materials beyond thirty (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 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth 5-12 Page 7 '" , in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkrnark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 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 l7(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term This Agreement shall terminate when Consultant has completed all tasks outlined in Section 8 of Exhibit A, or within six months of Effective Date of Agreement, whichever is earlier. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("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 cali be shown that such delays did or will delay the progress of the work. 5-13 Page 8 ,., , 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to bea "Consultant" for the purposes of the Political Reform Act conflicrof 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 14 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 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 that 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 5-14 Page 9 () , any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. 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 twelve months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve 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 that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and Consultant' s employee~, subcontractors or other persons, agencies or firms for whom Consultant is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. With respect to losses arising from Consultant's professional errors or omissions, Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Consultant's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Consultant's obligations under this Section shall not be limited by any prior or subsequent declaration by the Consultant. Consultant's obligations under this Section shall survive the termination of this Agreement. For those professionals who are required to be licensed by the state (e.g. architects and engineers), the following indemnification provisions should be utilized: 5-15 Page 10 ",} (1) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Consultant, or Consultant's employees, agents, and officers, arising out of any sei-vices performed involving this project, except liability for Professional Services covered under- Section X.2, the Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. The Consultant's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole wi11fu1 misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to the Consultant's professional obligation, work or services involving this Project, the Consultant agrees to indemnify, defend and hold harmless the City, its agents, officers and. employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, losses or payments for injury to any person or property, caused directly or indirectly from the negligent acts, errors or omissions of the Consultant or Consultant's employees, agents or officers; provided, however, that the Consultant's duty to indemnify shall not include any claims or liability arising from the negligence or willful misconduct of the City, its agents, officers and employees. 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 5-16 Page 11 ?.,J shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. '10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any , satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 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 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 will not withhold state or federal income tax, 5-17 Page 12 (hJ social security tax or aIlY other payroll tax, aIld Consultant shall be solely responsible for the payment of same aIld shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing 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 a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 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 15 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. 5-18 Page 13 ~....; 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 LawNenue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) 5-19 Page 14 {JvJ Signature Page to Agreement between City ofChula Vista and Pacific Municipal Consultants For the provision of Auditing and Engineering Services required for the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF) and Closure of Various Assessment District Improvement Funds 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: 5-1 -07 City of Chula Vista r oks, Acting Purchasing Agent Attest: 1~ &M~ Susan Bigelow,'-city Clerk r Approved as to form: '-I~ _tb L1 d.-fr Ann Moore, City Attorney Dated: L\/l.."\-Ol Pacific Municipal Consultants By: ~~C-- Philip O. Carter, President Exhibit List to Agreement ( X ) Exhibit A. 5-20 Page 15 OuJ Exhibit A to Agreement between City ofChula Vista and Pacific Municipal Consultants 1. Effective Date of Agreement: ,-5 -7 ~o 7 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, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: , a [insert business form] (n Cityn) 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Pacific Municipal Consultants 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ( X ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 10461 Old l'lacerville Road, SlJite 110 Sacramento, California 95827 Voice Phone (916) 361-8384 Fax Phone (916) 361-1574 5-21 Page 16 0..) 7. General Duties: Consultant's task is to 1) update the land use, eligible facilities and costs, 2) identify credits for the construction of eligible sewer improvements, 3) identify refunds (if any), 4) identify the sewer reaches remaining to be constructed, and 5) reco=end new fee (if applicable) that would ensure that there are adequate funds to construct all the improvements required to facilitate the buildout of the basin for the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF) Update. This project is intended to identify all necessary analysis and documentation in support of an impact fee program to meet the requirements of Gove=ent Code 66000 et seq. In addition., Consultant shall assist the City with the closure of Assessment Districts 94-1 and 90-2. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Task 1 Conduct Startup Meeting and Initiate Data Collection i. Consultant shall meet with City staff within two weeks of contract approval to discuss and refine the scope of services, assumptions, timeline, and roles of the various stakeholders in this project. ii. Consultant shall collect all available data and develop additional data required to fully support the update of the impact fee program. Task 2 Evaluation of required facilities i. Consultant shall review the Wastewater Master Plan., the Sewer Studies for Villages 2, 3, 7, and EastemUrban Center to evaluate the adequacy of existiog facilities to support build out of the basin. ii. Consultant shall explore the feasibility of amending the list ofDIF eligible facilities to ioclude the Poggi Canyon Extension. Task 3 Update Land Use Data i. Consultant shall verify the ultimate Equivalent Dwelliog Units (EDU) tributary to the Poggi Canyon Sewer Basin usiog the Draft Poggi Sewer DIF Update prepared by the City as the basis. Consultant shall compare this data to the City's Major Project Development Status report, City's permit records, and the City's GIS database. Consultant shall convert the data from the land use analysis to Basin EDUs and present it in a table showiog existing, ultimate and remaining EDUs. Task 4 Determioe Project Costs 1. Consultant shall obtaio the relevant documentation regarding costs. Consultant shall prepare a summary of project costs to include previously identified projects, new 5-22 Page 17 ~uI projects, engineering, Hc1ministrative costs, and the cost of portions of the Poggi Canyon Basin Sewer. Task 5 Fee Calculation and Analysis 1. Consultant shall calculate and determine the impact fees based upon updated land use (EDUs), updated costs and the additional project costs. Consultant shall also prepare a table that reflects the future revenues anticipated to be generated and the currently available revenues to corroborate the fee calculation. Task 6 Determine Credits and Refunds i. Consultant shall summarize the developer credits (earned and amount used) in a table based upon the City's permit system data and file memorandums. Consultant shall identify the refund amounts due to the developer/builder andlor CFD exclusive of interest earnings based upon City finance and permit records. Task 7 Draft Impact Fee Report i. Consultant shall prepare and provide a draft report that documents fee study results, including, but not limited to, a description of the overall methodology, findings, supporting justification, reco=ended impact fees and fee calculations that provide the legal nexus between impact fee reco=endations and new development. 11. Consultant shall present information at briefing meetings with the City staff, stakeholders (if required), and the City Manager. In addition, upon completion of the Draft Impact Fee Report, Consultant shall be prepared to present the study, including all above elements and Impact Fee reco=endations, at up to two meetings with the City staff and the development co=unity. Task 8 Prepare and Present Final Report i. Based upon information from City staff, development co=unity or other stakeholder groups regarding the Draft Impact Fee Report, Consultant shall prepare a Final Report that includes ten (10) copies and one (1) reproducible (unbound) copy of the Final Report. Consultant shall provide a disk with the Final Report in MS Word format and spreadsheets in Excel format. Consultant shall assist staff in presenting the Final Report and reco=ended Impact Fees to the City Council and members of the public at one public hearing during a regular City Council meeting. 5-23 Page 18 (7,w Task 9 Assistance with Preparation of Fee Resolutions 1. Consultant shall review the agenda statement and ordinance (or resolution) for the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF') Update prior to the Council meeting. Task 10 Close Improvement Funds i. Consultant shall assist the City with the closure of Assessment Districts AD 94-1 and 90-2. Consultant shall prepare the Council agenda report and resolution required to close the Assessment Districts, for approval of . the City Attomey. Consultant shall prepare and present instructional materials on the steps necessary to properly close assessment districts. Notwithstanding the provisions in Section 12, Ownership. Publication. Reproduction and Use of Material, of this Agreement, City acknowledges that the Final Impact Fee Report prepared by Consultant pursuant to this Agreement deals specifically with the Poggi Canyon Basin Gravity Sewer Development Impact Fee Update. City agrees not to represent that this Final Report was prepared by Consultant for any other purpose or project. B. Date for Co=encement of Consultant Services: ex) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No.1: Complete Tasks 1 through 7 within five weeks from the Effective Date of Agreement. Deliverable No.2: Submit a Final Report as stated in Task 8 that includes ten (10) copies and one (1) reproducible (unbound) copy of the Final Report. Consultant shall provide a disk with the Final Report in MS Word format and spreadsheets in Excel format within three weeks after the Deliverable No.1 is accepted by the City. Deliverable No.3: Consultant shall review the -Council agenda report(s) and resolution(s), for City Attorney approval, for the for the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF') Update prior to the Council meeting. . Deliverable No.4: Consultant shall prepare the Council agenda report(s) and resolution(s), for City Attorney approval, for the closures of AD 5-24 Page 19 I7vJ 94-1 and AD 90-2 within six months from the Effective Date of Agreement. D. Date for completion of all Consultant services: Upon completion of all Tasks, or six months from Effective Date of Agreement, whichever is earlier. 9. Materials Required to be Supplied by City to Consultant: i. Studies identified in Task 2(i). ii. Major Project Development Status Report iii. City permit records (upon request) iv. Fund data (upon request) v. CIP data (upon request) 10. Compensation: A. (X) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as shown in Section 8 - Scope of Work Tasks 1 through Task 9, 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: Amount: $17,970, payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee' Deliverable No.1, as accepted by the City Deliverable No.2, as accepted by the City Deliverable No.3, as accepted by the City 50% 45% 5% ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. 5-25 Page 20 ~".J B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not co=ence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase l. 2. 3. Fee for Said Phase $ $ $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given' phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as shown in Section 8 - Scope of Work Task 10 and, 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 herein below according to the following terms and conditions: (1) (X) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of 5-26 Page 21 pvJ the Defined Services herein required of Consultant for $25,000, including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to (" Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Employee Project Manager Project Engineer Public Finance Coordinator Name of Consultant PMC PMC PMC . Hourly Rate $140.00 $130.00 $130.00 ( ) Hourly rates may increase by 6% for services rendered after [month], 20-, if delay in providing services is caused by City. II. 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: ( ) None, the compensation includes all costs. () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to. exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, notto exceed $ () Long Distance Telephone Charges, not to exceed $ () Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ Cost or Rate $ $ $ $ $ $ $ $ $ $ 12. Contract Administrators: City: Anthony Chukwudolue, Senior Civil Engineer, Public Services Building 276 Fourth Avenue, Chula Vista, CA 91910, (619) 476-5368 5-27 Page 22 OvJ Consultant: Philip O. Carter, President Pacific Municipal Consultants 10461 Old P1acerville Road, Suite 110 Sacramento, CA 95827 . Telephone: (916) 361-8384 Fax: (916) 361-1574 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No. 1. Investments and sources of income. ( ). Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject fo the regUlatory, permit or licensing authority of the department. ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale ofreal 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's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman- N/ A 5-28 Page 23 rvJ 16. Permitted Subconsultants: 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly, based on Deliverables of Paragraph 10-C ( ) Quarterly (X) Other: Based on Deliverables of Paragraph lO-C. B. Day of the Period for submission of Consultant's Billing: (X )First of the Month ( ) 15th Day of each Month ( ) End of the Month ( ) Other: B. City's Account Number: 2602226551. C. 18. 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: (X) Retention Percentage: 10% ( ) Retention Amount: $ Retention Release Event: (X ) Completion of All Consultant Services ( ) Other: J:\EngineerISEWERI2006\PoggiCynUpdateIPMC Agreementlp.doc 5-29 Page 24 Pu' THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~i~ fl. ~~1r---- Ann Moore City Attorney Dated: 'III (., / () i L ( First Amendment to the Agreement Between The City Of Chula Vista and Douglas R. Newman for Professional Services related to the Chula Vista Research Project Outreach Initiative 5-30 . f) f:-\':--ecc't"'\I')">,Bf1-T' b- FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND PACIFIC MUNICIPAL CONSULTANTS For the provision of Auditing and Engineering Services required for the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF) and Closure of Various Assessment District Improvement Funds. RECITALS WHEREAS, the Purchasing Agent, on behalf of the City of Chula Vista, approved an agreement between the City of Chula Vista (City) and Pacific Municipal Consultants (Consultant) for the provision of auditing and engineering services required for the update of the Poggi Canyon Basin Gravity Sewer DIF and closure of various assessment district improvement funds, effective May 7, 2007 (Agreement); and, WHEREAS, the term of the Agreement was for six months, terminating on November 7, 2007; and WHEREAS, on November 7, 2007, the Purchasing Agent sent a letter to Consultant extending the term of the Agreement until May 7,2008; and WHEREAS, additional work needs to be done beyond what was defined in the original scope of work in order to complete the update of the Poggi Canyon Basin Gravity Sewer DIF. NOW, THEREFORE, the City and Consultant agree as follows: L Section 4, Term, is deleted in its entirety and replaced with the following: "This Agreement shall terminate on November 7, 2008." 2. Exhibit A, Paragraph 8. Scope of Work and Schedule, A. Detailed Scope of Work, Task 2 E~aluation of required facilities, delete ii. in its entirety and replace with the following: "Consultant shall review the Wastewater Master Plan, Sewer Study for Village 7, the recently completed Sewer Studies for Villages 2 and 3, and the Eastern Urban Center to evaluate the adequacy of existing facilities on the Poggi Canyon Trunk sewer line from Reach P270 to Main Street to support build out of the basin. Consultant shall incorporate the findings of that analysis into the DIF Update as directed by the City Engineer." I 5-31 3. Exhibit A, Paragraph 8. Scope of Work and Schedule, A. Detailed Scope of Work, Task 3 Update Land Use Data, add the following: "ii Consultant shall prepare the EDU Tables using the most current data for FY 2007/08 as directed by the City Engineer. iii. Consultant shall prepare a comprehensive map of the Poggi Canyon Sewer Basin, which shows the revised number of units within each of the major projects as directed by the City Engineer." 4. Exhibit A, Paragraph 8. Scope of Work and Schedule, A. Detailed Scope of Work, Task 4 Determine Project Costs, add the following: "ii. Consultant shall obtain the relevant documentation regarding the cost of the sewer line in Olympic Parkway between SR 125 and the EastLake land swap parcel and incorporate those costs into the DIF update." 5. Exhibit A, Paragraph 8. Scope of Work and Schedule, A. Detailed Scope of Work, after Task 1 0 add the following: "Task II Additional Services. Consultant shall perform the following additional services only upon written authorization from the Director of Engineering and General Services. i. Consultant shall quantifY the additional impacts on the Poggi Canyon Trunk sewer line from Reach P270 to Main Street resulting from proposed development in Villages 2, 3, PA 18b, and the Eastern Urban Center." 6. Exhibit A, Section 10. Compensation, A. Single Fixed Fee Arrangement, Single Fixed Fee Amount, delete "$17,970" and replace with "$34,480". After "Deliverable No.3, as accepted by the City. . . 5%, add the following: "For performance of the Defmed Services by Consultant as shown in Section 8 - Scope of Work Task II, and only upon written authorization from the Director of Engineering and General Services, City shall pay a single fixed fee of$5,520." All other terms of the Agreement shall remain in full force and effect. [Next Page is Signature Page.] 2 5-32 SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AGREEMENT BETWEEN CITY OF CHULA VISTA AND PACIFIC MUNICIPAL CONSULTANTS For the provision of Auditing and Engineering Services required for the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF) and Closure of Various Assessment District Improvement Funds. IN WITNESS WHEREOF, City and Consultant have executed this First Amendment to the Agreement indicating that they have read and understood the First Amendment and indicate their full and complete consent to its terms: Dated: ,2008 City ofChula Vista By: Cheryl Cox, Mayor Attest: Donna Norris, Interim City Clerk Approved as to form: Ann Moore, City Attorney Dated: Pacific Municipal Consultants '1'ti~ hilip . Carter, President By: Exhibit List to First Amendment to Agreement: (X) Agreement between the City of Chula Vista and Pacific Municipal Consultants dated May 7, 2007 (X) Letter Extending Term of Agreement dated November 7, 2007 J:\Attomey\ELlSA\AGREEMENTS\Pacific Municipal Consultants 1st Amendment FINAL.doc 3 5-33 ~v~ -..- ~--- ---- ~~~~ ATTACHMENT ..3 CllY OF CHUlA VISTA DEPARTMENT OF ENGINEERING November 7, 2007 FileNo.0735-10-HX075 Pacific Municipal Consultants (PMC) 6020 Cornerstone Court West, Suite 350 San Diego, CA 92121 Attention: Donna Snider, Project Engineer RE: Contract Extension: POggi Sewer DIP Update! Assessment Dis~ct Fund Closures This letter shall s~e as our approval to extend the "agreement between the City of Chula Vista and Pacific Municipal Consultants for the provision of auditing and engineering services required for the completion of the remaining phases and tasks involved in the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIP) and closure of various assessment district improvement funds" from November 7,2007 to May 7, 2008. The project shall be completed on a time and materials basis in accordance with the terms of the agreement (copy attached) dated May 7,2007. All other terms and conditions of the agreement remain in full force and effect. If you have any questions regarding this matter, please contact Anthony Chukwudolue at (619) 476-5368. .sj~1lvYU Suz Brooks Acting Purchasing Agent ~~ Attachments Frank Rivera, Principal Civil Engineer Anthony Chukwudolue, Senior Civil Engineer Luis Pelayo, Associate Civil Engineer Tessa Quicho, Administration Analyst II J:\Engineer\sEWER\2006\PoggiCynUpdate'IExtension-PMC.lp.doc 276 FOURTH AVENUE 1 CHULA VISTA. CALIFORNIA 91910.26311 (619) 691.S021 @Pall COlI"'''''' .~<'l't~ P:1p.' 5-34 EXHiBIT It "',~ .' \...~, '/' I>~,/~ IJR= \~T 0<~~ ~ p\;:: ~O~- $I ~71 ~~o;~v ~ H ~~;c~\\V )' ~\ - i~J ~ W/ . -:s~ "'~ _3 7!i ~\"'5I",,,. . 1-'-Yc1r:.F)~ w':'::::/ ~rlJ~ ~~ / ..... ~" \ k ~ ~ i~ ~""':"-r ~l...l ~ ~.''". ::t:: ;~0 ~_~~ JJ.. <!-.~.. rJ X....' " r'""" 41r~ ~)- ") ~~\R4,~ r3'\ t\\~ !lfii~.- "1\ ) ~ l- lL. it /' ",' ~ 8, i <( ~.~ .~x'r ~~'/ ~\ ~ ~ I ~\ \ ~,~ .. ~/ \ - [\ ~ I [UJ -t-l-'--- )..~ ~. 11\'-) -~ , ~ \\( ~~. ~yV.Y~ ~ ~ r--. t.""\ -I~ i ~ ". J '- \ L 'I n- ~ -of ~ r17 C1 - W ~ ~ '1 ~ I-:i(\i /~ ~~9!F L: [\ ~ ~ ~0-:. \: C::;>~ ~LtIl i"l< I . .~ '" ~::yo ~ ~~~V? I " ' ~ . 0' ~.:c\ (I',;.s- w \ ,-=f "."-~ ' ~ ~ . "3)...- '....;\\-\.\:....:<;:f- '~:f / "V- r.)~ ~j; '"' \\ \ ~ ~ ~ 4J-l-lt ~ LV ~.,\~",_C~~~ fI -~ ~~._:~:::.~~~ II \-~~\ ~#' \-7~- ;~ffi '---------- , I j l. I il J, ~~..~,] ~n~l H i~ .!I!i'E~S %~R~j ~nd!HH ! ~8nlniin ~ jDl]O[J~ III ~EJ i 1 \ H~( 0> 0 ^ a: >-1-'-1 c 8 'a' m o "- z 5-35 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH PACIFIC MUNICIPAL CONSULTANTS FOR A TOTAL CONTRACT AMOUNT NOT TO EXCEED FORTY THOUSAND DOLLARS ($40,000) FOR ADDITIONAL AUDITING AND ENGINEERING SERVICES REQUIRED FOR THE UPDATE OF THE POGGI CANYON BASIN GRAVITY SEWER DEVELOPMENT IMP ACT FEE AND CLOSURE OF VARIOUS ASSESSMENT DISTRICT IMPROVEMENT FUNDS WHEREAS, the Purchasing Agent, on behalf of the City of Chula Vista, approved an agreement between the City and Pacific Municipal Consultants (Consultant) for auditing and engineering services required for the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee (DIF) and the closure of various assessment district improvement funds, effective May 5, 2007 (Agreement); and WHEREAS, the term of the Agreement was for six months, terminating on November 7, 2007; and WHEREAS, on November 7, 2007, the Purchasing Agent sent a letter to Consultant extending the term of the Agreement until May 7, 2008; and WHEREAS, additional work needs to be done beyond what was defined in the original scope of work in order to complete the update of the Poggi Canyon Basin Gravity Sewer DIF. WHEREAS, staff recommends the City Council waive the formal consultant selection process outlined in Municipal Code section 2.56.110 because Consultant's proposed additional scope of work for this First Amendment is a natural extension of its on-going work for the City, making it impractical to solicit proposals. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it waives the formal consultant selection process and approves a First Amendment to the Agreement with Pacific Municipal Consultants for a total contract amount not to exceed forty thousand dollars ($40,000) for additional auditing and engineering services required for the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee and closure of various Assessment District Improvement funds. Presented by: Approved as to form by: Jack Griffin Director of Engineering and General Services H:\ENGINEER\RESOS\Resos2008\04-15-08\PMC 1st Amendment revised by ec.doc -I~~, {;1~ Ann Moore City Attorney 5-36 CITY COUNCIL AGENDA STATEMENT 4/22/08, Item b SUBMITTED BY: REVIEWED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATED MATERIALS AND FUNDS FROM THE FRIENDS OF THE LIBRARY AND THE CHULA VISTA PUBLIC LIBRARY FOUNDATION, TRANSFERRING REMAINING FUNDS FROM LB139 TO LB140 FOR THE PURPOSE OF RE-CARPETING THE CHILDREN'S AREA OF THE CIVIC CENTER BRANCH LIBRARY AND AMENDING THE FY08 CIP PROGRAM DIRECTOR OF ENGINEE G AND GENERAL SERVICES (5( CITY MANAGER ASSISTANT CITY ~ 4/STHS VOTE: YES [8J NO D ITEM TITLE: SUMMARY The Friends of the Chula Vista Library and the Chula Vista Public Library Foundation are donating materials and funds to complete the re-carpeting of the Children's Room at the Civic Center Branch Library. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section l5060(c) (3) of the State Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION The Friends of the Chula Vista Library and the Chula Vista Public Library Foundation have agreed to donate $10,500 each or $21,000 total towards the replacement of the carpet in the Children's Room to complete the entire flooring improvements in a Capital Improvement Project (LB139) at the Civic Center Library. Re-carpeting the Children's Room was originally to be included in LB139. However, this area was omitted from that project due to insufficient funds. 6-1 4/22/08, Item f.p Page 2 of 3 The balance of the flooring improvements, consisting of re-carpeting the entrance through the reference sections, was completed satisfactorily and accepted by the City in December of2007. Subsequently, City staff reviewed the informal bids received for the original contract which included a line item for the Children's Room re-carpeting. The summary of these bids is as follows: CONTRACTOR Village Carpets - El Cajon, CA Howard's Rug Company - San Diego Ca Coastal Flooring Inc. - Chula Vista, CA BID $ 22,075.00 $24,659.00 $26,479.00 The apparent lowest responsive bid by Village Carpets of $22,075 is below the project estimate of $25,000. The contractor's license has been verified and remains in good standing. After reviewing the informal bids and considering the generous donation, staff recommends transferring the remaining funds from LBl39 to LBl40 and award a contact contract to Village Carpets in the amount of $22,075. The Friends of the Chula Vista Library and the Chula Vista Public Library Foundation intend to purchase the material directly from Village Carpets so it can be ordered and available on site in time to be installed by Memorial weekend. So as not to disrupt the public activities within the library during normal business hours, the work will be completed during non-business hours. Wage Statement The funding for this project is the Residential Construction Tax Fund (RCT), thus prevailing wage is not required. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that the decision concerns repairs, replacement, or maintenance of existing City facilities and, therefore, there is not a material financial effect of the decision on the property holdings of the City Council pursuant to California Code of Regulations sections I 8704.2(b)(2) and l8705.2(b)(I). FISCAL IMPACT There is no impact to the General Fund as there are sufficient remaining funds in the project and donations necessary for completion. At this time, staff is recommending amending the FY08 CIP Program, establishing a new Capital Improvement Project, LBl40 entitled Children's Area Carpeting at the Civic Center Library appropriating the donation funds and transferring the remaining balance in LBl39 to LB140. A breakdown of project costs is as follows: 6-2 4/22/08, Item~ Page 3 00 FUNDS REQUIRED FOR CONSTRUCTION TOTAL FUNDS REQUIRED FOR CONSTRUCT $22,075.00 2,207.50 2,523.50 $26,806.00 A. Contract Amount B. Contingencies (approx. 10% per Council policy) C. Stafftime FUNDS AVAILABLE FOR CONSTRUCTION Donated funds Transfer from LB139 to New ClP, LB140. TOTAL FUNDS AVAILABLE FOR CONSTRUCT $21,000.00 $5,806.00 $26, 806.00 ATTACHMENTS 1. Village Carpet Estimate Prepared by: Gordon Day, Building Project Manager, Engineering & General Services M:IGeneral ServiceslGS AdministrationlCouncil AgendaILB140 Childrens Area Carpeting at Civic Center Lib IChildren 's Room Re-Carpeting Al13.doc 6-3 ATTACHMENT I FFUF.NDS OF THE LIBRARY --CH[ILA VISTA CIVIC CENTER BRANC ----:350 F-;; I REE-r--- Vll.,LAGE CARPETS integrity l.serviu I Yl\lue Floorln~ERICA Alpine 1834 A'plr~ Blvd., Suite E, Alpin~. CA 91901 Phone 619.445.4352 I Fax 619.445.4155 Santee 235 Town Center Pkwy.. Suite L. Sante.e. CA 92071 Phone 619.562.HiS5l Fax 619.562.1256 EI Caj,," 1425 N. 1\'II~gnolia Aver'lLlCl, El Calicn, CA 92020 Phone 619 401.6472 I FII)t 619.401.6n9 Cant. Lie.. # 5958S9 o ~or"e'r'Date , I Telephone ,,'~:" '.' ': (~,."",,:it, - PO Number ~- -CG"&''lTSO' ---- 02f2f.108 --.---"- In"~~:'~ r.nlocLOescriptiof.l-- -Duanlitl'- _, ..P..rir:e 1="["'0.;0"--- I p.!ca~RD 921-a~2S PRIORITY 2 ~~ILDKEN5 LIa~Y , _.._-.JjP "::>;;>nof'l'=l!:' .,.n~~~~0l-1tNG; i __'_--s7'!'2--s-:--?a'rn~'i1t'f"4t~L~~1' ~::.:::S, :f2l:'~R t:'"\p~----Et--CZ;~E~S- __II -- ARS.1l,., :5: ,~ :':nL~~>-__-!~,_"M~p;;.~!,~LAA' E:l<-P"ESS -::--=-:~ i ,-= UPHOLSTERED CARP~T I~O~R COUNTERS ~~ BASE ~~TERIALS. PRIORIrY 2 TOTAL ~ $22,075.00 MATS~I.~ PAYME~rr DUS ~ ~$l7.892.B3, I ~u LlJ.;:,:::-UQ/f'J..l UJ: .ltl^..L'::',~J.~~;N-' \l~CESSA-~_a!llllllJ:l.G...,OL>:bRl1.E:r. - ~ _ i I I i _S_- -1 I -'- -1-- n1\lT" _..._---;;.:::: sr :.J~':'~rRJFi~ C"'~~~_,."TQ"'!Ul~01'f B~D i~~LUD~~: ~~u~~uw~ ~~~~~~&!~U~, ~~~U ~~np~~ T~$"'~TT~~~n~ ^9 ~~~QP~~ Rh~~ S.:XSE:, AtID SPZCIAt"TY r.v'\BOR UN!lSR cot."NTERS, BAL,ANCE DUE. UPON CON?LETION = $It, lS2 .1.7 .,...UU\l1< "!0I.LE9JLOiQQ.s..n!!J....Y.I.lILAGE: CA..~rE:r~L.PORnl~ ;_,MERICA.! ---'-' .----.--- Payment to be made as follows: The ClI~t..,mer agrees to pay \Image. Carpets and tn.~eriQrs III full withlfllO days from the date or billing. If net !:laid within 10 days, Interest thr.r~ol'l i:lt the rele of lB'l', cer annum (\'% ptt month) wlll ac:t1'Ue (rom tne dabe:.o1' billing untll paid. In the evtf'\1lt b~ome5 necessary to amploy counsel to enforce. c.olle.ction o(t.l'1!! b.,limce due, the wstometi:l/:lrp.!!S to p'Y,J",'tln\'l1d1l"'"~ ,-- 2:10PM- hU rpil!prl ills ;I\I!!f2l.!'~ tQjI~.1:~~li~.. All work I:CI be camplll!tad In:' WCIXltlal"lll.e rna.'1t\t'J 1I~ldln9 Ie aandiOrd practlco. Any al!'t/'tlti.::m 'Jt r.I<:'Iiatlet'l IrQ'" a~avt~g.d<J(\.~ inval\ll~ ,4l.I:1Sn1!!l1.w.<Q1 bt u:~~.~av~:titi~lI}flHI~~Sl'.tollroml! a/\ e:aa th;lrge av~ i%nd "tCIve the r".::tImat~. All a~riVM"~ cenUnge"t upon *,1I.es. ;y,:<:l<#Jlt$ (It :!r".u~'S btYl=l"J oc.~~!.@I. 1 O,QUO. 00 BOl3 GEORGE Service: 4,182.16 Mise Charges: 0.00 Sales Tax: 1,286.96 Est Del Date: 03/15108 INVOICE TOTAL: $22,075.00 Dale Delivered: Less Payment(s): 0.00 8ALAI~CE DUE: $22,075.00 Oate'JC~~ ~uthoriZ.cc1 slgn;at;ut" eD _C~~,J , ~ ;J~ :..........=::--.... Accepl,ance of Proposal _ The above: prlcesl spl!dflcationS and conditionS "J'e sot1!ilatrory nnd are hereby aceeptet!. You are: aut"Ol'b:ed to do the welt\( as 5ped/led. Payml!f\t will be: m.ade .as DUtlined aboye, Sh;lmll:LrC Note: This proposal may be wJl:hdrawn by us IftlOtacceptcd .....Ithln:. Sl9n~tlre 6-4 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATED MATERlALS AND FUNDS FROM THE FRlENDS OF THE LIBRARY AND THE CHULA VISTA PUBLIC LIBRARY FOUNDATION, TRANSFERRlNG REMAINING FUNDS FROM LB 139 TO LBl40 FOR THE PURPOSE OF RE-CARPETING THE CHILDREN'S AREA OF THE CIVIC CENTER BRANCH LIBRARY AND AMENDING THE FY08 CIP PROGRAM WHEREAS, on November 13,2007, City Council awarded a contract to Village Carpets for flooring improvements at the Civic Center Branch Library; and WHEREAS, as a separate line item in the bids received, the option to re-carpet the "Children's Room" was included, but funds were not available to add it to the contract; and WHEREAS, the Friends of the Chula Vista Library and the Chula Vista Public Library Foundation have agreed to donate $10,500 each or $21,000 total towards the replacement of the carpet in the Children's Room to complete the entire project; and WHEREAS, specifications were prepared in-house and the three original contractors were invited to re-submit informal bids as follows: CONTRACTOR Village Carpets - El Cajon, CA Howard's Rug Company - San Diego Ca Coastal Flooring Inc. - Chula Vista, CA BID $ 22,075.00 $24,659.00 $26,479.00 and; WHEREAS, the apparent lowest bid by Village Carpets bid of $22,075 is below the project estimate of$25,000; and WHEREAS, after reviewing the low bid, staff recommends awarding a contract to Village Carpets in the amount of $22,075. NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula Vista accept donated materials and funds from the Friends of the Library and the Chula Vista Public Library Foundation. BE IT FURTHER RESOLVED that the City Council transfer remaining funds from LB 139 to LB 140 for the purpose of re-carpeting the children's area of the Civic Center Branch Library. H:\ENG1NEER\RESOS\Resos200B\04-22-08\Civic Clr Recarpel Reso-REVISED, 4-2Z-0S.dS _ 5 Resolution No. 2008- Page 2 BE IT FURTHER RESOLVED that the City Council amend the Fiscal Year 2008 CIP program. Presented by Approved as to form by Jack Griffin Director of Engineering and General Services ~1~\\\.~ , Ann Moore City Attorney H:\ENGlNEER\RESOS\Resos2008\04-22-08\Civic Or Recarpel Reso_REVISED, 4-22-08.dO _ 6 CITY COUNCIL AGENDA STATEMENT 4/22/08, Item t SUBMITTED BY: REVIEWED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "EAST H STREET SEWER MANHOLE REHABILITATION, IN THE CITY OF CHULA VISTA, (SW- 250A)" PROJECT TO ZONDIROS CORPORATION, IN THE AMOUNT OF $70,300 DIRECTOR OF ENGINEERING AND GENERAL SERVICES '\...~ CITY MANAGER <:::J ASSIST ANT CITY MANAGER c7-} 4/5THS VOTE: YES 0 NO [gJ ITEM TITLE: SUMMARY At 2:00 p.m. on Thursday, April 3, 2008, the Director of Engineering and General Services received sealed bids for the "East H Street Sewer Manhole Rehabilitation, in the City of Chula Vista (SW-250A)" project. This project provides for the removal of 19 existing manhole frames and covers and replacement with new manhole frames with locking covers along East "H" Street between Kernel Place and Regulo Place. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Class 1 categorical exemption pursuant to Section 15301 [Existing Facilities] of the State CEQA Guidelines. Therefore, no further environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION General This project provides for the removal of 19 existing manhole frames and covers and replacement with new manhole frames with locking covers along East "H" Street, between Kernel Place and Regulo Place. Removal and replacement of existing, damaged concrete backfill surrounding each manhole frame is also required. This failure of the pavement adjacent to the manholes has 7-1 4/22/08, ItemL Page 2 of 3 led to poor drivability. The subject improvements would remedy this problem on this high- volume roadway. The proposed work includes all labor, materials, equipment, transportation, protection of existing improvements and traffic control necessary for the project and other work necessary to render the new improvements complete and workable. Bidding Process Engineering and General Services' staff prepared specifications and advertised the project. Staff received and opened bids for the project on April 3, 2008. Six contractors purchased bid packages. Several contractors indicated they did not submit bids based on the small value of the project. One bid was received as follows: Contractor Zondiros Corporation - San Marcos, CA Base Bid Amount $ 70,300.00 The bid submitted by Zondiros Corporation is above the Engineer's estimate of $67,000.00 by $3,300.00, or approximately 4.9%. Staffs bid estimate was based on average prices for similar type of work completed during the last three years. Staff checked references provided by the contractor. All references were verified and their work has been determined to be satisfactory. Their Contractor's License No. 766708 is clear and current. Staff has reviewed the bid and is recommending awarding the contract to Zondiros Corporation in the amount of$70,300.00. I>isclosure Statement Attachment "1" is a copy of the Contractor's I>isclosure Statement. Wage Statement Contractors bidding this project were not required to pay prevailing wages to persons employed by them for the work under this project. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries ofthe property that is the subject of this action. FISCAL IMPACT FUNDS REQUIRED FOR PROJECT A. Construction Contract Award Amount (Zondiros Corporation) B. Contingencies (approximately 10% of construction costs) C. City Staff Costs (Environmental, I>esign, Inspection, Survey, Traffic) I>. City Oversight (i.e.: Soil testing, Admin Costs, Real Property Services, Public Works, etc.) TOTAL FUNDS REQUIRED FOR PROJECT $70,300.00 $7,030.00 $19,567.63 $7,030.00 $96,897.00 7-2 4/22/08, Item~ Page 3 of 3 FUNDS AVAILABLE FOR PROJECT Sewer Facility Replacement Fee (Portion ofPro'ect SW250 - Total roject a pro nation of$I,507,473) TOTAL FUNDS AVAILABLE FOR PROJECT $ 96,897.00 $ 96,897.00 There is no impact on the General Fund for these sewer improvements project. Upon completion of the project, the improvements will require only routine City maintenance, which is funded from the Sewer Service Fund. The unused portion of the Sewer Facility Replacement Fund shall be utilized in subsequent phases of the City's Sewer Rehabilitation Program. ATTACHMENTS 1 - Contractor's Disclosure Statement Prepared by: Alan Reyes. P.E., Assaciate Civil Engineer, General Services M:IGeneral ServiceslGS AdministrationlCouncil AgendalSW250A 1A113 - SW-250A Rev 04-04-08.doc 7-3 ATTACHMENT I CITY OF CHULA VISTA DISCLOSURE STATEMENT Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: I. List the names of all persons having a [mancial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. /6M ?,/"-.JOf)2..0.$ eMf c;, ~( 2. If any person" identified pursuant to (1) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporation/partnership) entity. 3. lfany person" identified pursuant to (1) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 4, Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. c:..- If) M 2or-JJ); /2fl<) C~<<:. \:)~ 5, Has any person" associated with this contract had any financial dealings with an official". of ~ City of Chula Vista as it relates to this contract within the past 12 months? Yes_ No~ 14 M:\General Services\De5ign\SW~250A\SW~250A East H Street Sewer Rehab Contract - Final Draft.doc 7-4 If Yes, briefly describe the nature of the fmancial interest the official"'''' may have in this contract. 6. Have you made a contribution of more than $2So...within the past twelve (12) months to a current member of the Chula Vista City Council? No LYes _ If yes, which Council member? 7. Have you provided more than $340 (or an item of equivalent value) to an official" of the City ofChula Vista in the past twelve (12) months? ~cludes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No":"-' If Yes, which official" and what was the nature of item provided? Date: 412>\V8 Print or type name of Contract r/ Applicant * Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council member, Planning Conunissioner, Member of a board, commission, or committee of the City, employee, or staff members. 15 M:\General Services\Design\SW-250A\SW-250A East H Street Sewer Rehab Contract - Final Draft.doc 7-5 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "EAST H STREET SEWER MANHOLE REHABILITATION IN THE CITY OF CHULA VISTA (CIP #SW-250A)" PROJECT TO ZONDIROS CORPORATION IN THE AMOUNT OF $70,300.00 WHEREAS, the project will replace existing manhole frames and covers at various locations on East H Street in the City of Chula Vista with new frames with locking covers and rehabilitate existing pavement adjacent to these manholes; and WHEREAS, the project will include all labor, materials, equipment, transportation, protection of existing improvements and traffic control necessary for the project and other work necessary to render the new improvements complete and workable; and WHEREAS, City staff has prepared specifications for the "East H Street Sewer Manhole Rehabilitation in the City ofChula Vista, California" project and advertised the project; and WHEREAS, on April 3, 2008, the Director of Engineering and General Services received one sealed bid as follows: Contractor Zondiros Corporation - San Marcos, CA Base Bid Amount $70,300.00 WHEREAS, the bid from Zondiros Corporation of $70,300 is $3,300 (4.9%) above the Engineer's estimate of $67,000; and WHEREAS, staff has verified the references provided by the contractor; and WHEREAS, staff has reviewed the bid and is recommending awarding the contract to Zondiros Corporation of San Marcos, California. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept bids and award contract for the "East H Street Sewer Manhole Rehabilitation in the City of Chula Vista (CIP #SW-250A)" project to Zondiros Corporation in the amount of$70,300.00. Presented by: Approved as to form by: Jack Griffin Director of Engineering and General Services . fi'~iC.J\.~ (~\\ Ann Moore . City Attorney H:\ENGINEER\RESOS\Resos2001M4-22.08\SW250A Reso 04.Q4-08.doc 7-6 CITY COUNCIL AGENDA STATEMENT ~ \'f:.. CITY OF ~ CHULA V1SfA APRIL 22, 2008, Item ~ SUBMITTED BY: REVIEWED BY: RESOLUTION AUTHORIZING AND APPROVING THE BORROWING OF FUNDS FOR FISCAL YEAR 2008/2009, THE ISSUANCE AND SALE OF 2008/2009 TAX AND REVENUE ANTICIPATION NOTES THEREFOR AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES TRANS FINANCING PROGRAM DIRECTOR OF FINANCE/T " SURER 0V ~. 'lL.., CITY MANAGER ITEM TITLE: 4/5THS VOTE: YES D NO 0 SUMMARY In order to address cash shortfalls that are projected to occur in the General Fund during Fiscal Year 2008/2009 due to thc cyclical nature of some of our major revenue sources, it is recommended that the City once again take advantage of the opportunity to bOITOW money on a short-term basis at potentially no cost by issuing Tax and Revenue Anticipation Notes (TRANs) through thc pooled financing program sponsored by Califomia Statewide Communities Development Authority (CSCDA). TRANs are recommended as an altemative to bOITowing from other City Funds. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed actIvity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 (b)(4) of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Adopt the resolutions which: 1. Authorize the borrowing of a maximum of $35 million for fiscal year 2008/2009 by issuance of TRANs through the CSCDA TRANs Program dated July 1, 2008 and with a maturity not to exceed 13 months; 8-1 APRIL 15,2008, ItemL Page20f3 2. Authorize execution of various financing documentation, including a purchase agreement and a Trust Agreement, draft versions of which are on file in the Finance Department. 3. Authorize the Director of Finance and the Assistant Director of Finance to sign the financing documentation in connection with the issuance. 4. Approve the team of financing experts selected by CSCDA. BOARDS/COMMISSION RECOMMENDA nON Not Applicable DISCUSSION The California Statewide Communities Development Authority (CSCDA) Tax and Revenue Anticipation Notes ("TRANs") Program was developed to assist local governments to finance short term cash flow deficits which occur due to the irregular receipt of certain taxes and/or revenues, and the ongoing requirement for regular disbursements of operating expenses. A prime example is property tax revenues, where the first large apportionment is not received by the City until mid-December. California Communities has issued over $7 billion in TRANs, serving more than 150 local agencies since 1993. The City has issued TRANs in previous fiscal years, the most recent being fiscal year 2007-08 in the amount of$15.5 million. TRANs are an inexpensive method of financing short-term cash shortfalls. Basically, money is borrowed through the municipal market by issuing a one year note at short-term tax exempt rates and the proceeds are invested until needed to cover shortfalls. All money borrowed, plus interest, is repaid near the end of the fiscal year from any unrestricted revenues of the City. With the difference in the interest rate earned vs. paid, there is often the opportunity to actually earn a small amount of arbitrage (net eamings based on the difference in the interest rate paid vs. earned) on this type of borrowing. Arbitrage is legal when issued in accordance with Federal tax regulations related to the sizing and issuance of tax-exempt short-term notes. The CSCDA pooled program, which employs a technically skilled finance team to ensure a successful transaction, saves both time and money when compared to stand-alone borrowings. The experienced group of financial experts working on the program for fiscal year 2008/2009 include Orrick, Herrington & Sutcliffe as bond counsel, and Lehman Brothers, J P Morgan, Merrill Lynch, and EJ. De La Rosa & Co. as the underwriting team. For additional information, we have included as Attachment A, TRANs Frequently Asked Questions from the CSCDA website. 8-2 APRIL 15,2008, Item-8-- Page30f3 DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. FISCAL IMP ACT Our preliminary cash flow projections for fiscal year 2008/2009 indicate that the General Fund could reach a negative cash balance of $31 million in November 2008. Under current Federal tax laws, the City may borrow on a tax-exempt basis an amount not to exceed the projected maximum deficit plus a reasonable working capital reserve, which conservatively results in a maximum legal borrowing amount of $35 million. The estimated interest cost of TRANs is $542,500 assuming a rate of 1.55%, and $52,500 in issuance costs. Estimated revenue from investing the proceeds of the borrowing until needed is conservatively projected to be at least equal to the cost of the borrowing. Therefore, the net cost of the TRANs issue is estimated to be zero. ATTACHMENTS A. Frequently Asked Questions Prepared by: Eric Adachi. Associate Accountant. Finance Department 8-3 Attachment A Page 1 of2 FREQUENTLY ASKED QUESTIONS What are TRANs? TRANs are Tax and Revenue Anticipation Notes, also known as TANs (Tax Anticipation Notes) and RANs (Revenue Anticipation Notes.) Why are TRANs Issued? TRAN s are issued by local governments to finance short term cash flow deficits which occur due to the irregular receipt of certain taxes and/or revenues, and the ongoing requirement for regular disbursements of operating expenses. What are the benfits of issuing TRANs? There are two primary benefits of issuing TRANs. First, TRANs are an inexpensive method of financing short-term cash shortfalls. Second, TRANs usually produce additional income through arbitrage earnings. What is Arbitrage? Arbitrage is a gain which occurs when the cost of borrowing funds is lower than reinvestment earnings. How do TRANs produce arbitrage earnings? TRANs are issued at tax-exempt borrowing rates which are typically one to two percentage points lower than available reinvestment rates. Is it legal to earn arbitrage on TRANs? Yes - provided the TRANs are issued in accordance with federal tax regulations relating to the sizing and issuance of tax-exempt short-term notes. How are TRANs issued? TRANs are permitted under Government Code S53850 and are authorized when the governing body adopts a resolution. Most local governments engage a bond attorney to 8-4 Page 2 of2 prepare documentation, and use the services of an investment professional for the placement or underwriting of the notes. What are the advantages of issuing TRANs through the CSCDA Program? The CSCDA program provides competitive costs of issuance, greater access to the financial markets through a larger combined issuance, and a streamlined process for issuing TRANs which saves California local governments' staff time. The CSCDA Program also offers two maturity options; 12 and 13 month maturities. SOURCE: California Communities Website 8-5 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORlZING AND APPROVING THE BORROWING OF FUNDS FOR FISCAL YEAR 2008-2009; THE ISSUANCE AND SALE OF A 2008-2009 TAX AND REVENUE ANTICIPATION NOTE THEREFORE AND PARTICIPATION IN THE CALIFORNIA COMMUNITIES TRANS FINANCING PROGRAM WHEREAS, local agencies are authorized by Section 53850 to 53858, botb inclusive, of the Government Code of the State of California (tbe "Act") (being Article 7.6, Chapter 4, Part 1, Division 2, Title 5 of the Government Code) to borrow money by the issuance of temporary notes; and WHEREAS, the legislative body (the "Legislative Body") of the local agency specified in Section 21 hereof (the "Local Agency") has determined that a sum (tbe "Principal Amount"), not to exceed the Maximum Amount of Borrowing specified in Section 21 hereof which Principal Amount is to be confirmed and set in the Pricing Confirmation (as defined in Section 4 hereof); is needed for tbe requirements of the Local Agency, to satisfy obligations of the Local Agency, and tbat it is necessary tbat said Principal Amount be borrowed for such purpose at this time by tbe issuance of a note or notes tberefore in anticipation of the receipt of taxes, income, revenue, cash receipts and other moneys to be received by the Local Agency for the general fund of the Local Agency attributable to its fiscal year ending June 30, 2009 ("Repayment Fiscal Year"); and WHEREAS, the Local Agency hereby determines to borrow, for the purposes set forth above, the Principal Amount by the issuance of the Note, as hereinafter defined; and WHEREAS, it appears, and this Legislative Body hereby finds and determines, that the Principal Amount, when added to the interest payable thereon, does not exceed eighty-five percent (85%) of the estimated amount of the uncollected taxes, income, revenue (including, but not limited to, revenue from the state and federal governments), cash receipts and other moneys of the Local Agency attributable to tbe Repayment Fiscal Year, and available for tbe payment of tbe principal of the Note and the interest tbereon; and WHEREAS, no money has heretofore been borrowed by or on behalf of the Local Agency through the issuance of tax and revenue anticipation notes or temporary notes in anticipation of tbe receipt of, or payable from or secured by, taxes, income, revenue, cash receipts or other moneys for the Repayment Fiscal Year; and WHEREAS, pursuant to Section 53856 of the Act, certain moneys which will be received by the Local Agency during and attributable to the Repayment Fiscal Year can be pledged for the payment of the principal of the Note and the interest thereon (as hereinafter provided); and J:\Auomey\RESO\FINANCEIBorrowing orrunds for FY 2008-2009 04-15-08 (Reso}.doc - 8-6 Resolution No. 2008- Page 2 WHEREAS, the Local Agency has determined that it is in the best interests of the Local Agency to participate in the California Communities Cash Flow Financing Program (the "Program"), whereby participating local agencies (collectively, the "Issuers") will simultaneously issue tax and revenue anticipation notes; and WHEREAS, the Local Agency desires to have its Note marketed together with some or all of the notes issued by the Issuers participating in the Program; and WHEREAS, the California Statewide Communities Development Authority (the "Authority") has sponsored the Program and, on behalf of the Issuers, has engaged the underwriter appointed in Section 20 hereof (the "Underwriter"), for the purpose of structuring one or more pools of notes or series of note participations (referred to herein as the "Note Participations", the "Series" and/or the "Series of Note Participations") distinguished by whether and what type(s) of Credit Instrument (as hereinafter defined) secures notes comprising each Series, by the principal amounts of the notes assigned to the Series, by whether interest on the Series of Note Participations is a fixed rate of interest or a variable rate of interest swapped to a fixed rate, by whether interest on the Series of Note Participations is includable in gross income for federal income tax purposes, or by other factors, all of which the Local Agency hereby authorizes the Underwriter to determine; and WHEREAS, the Program requires the Issuers participating in any particular Series to deposit their tax and revenue anticipation notes with a trustee, pursuant to a trust agreement (the "Trust Agreement") among such Issuers, the Local Agency, the Authority and Wells Fargo Bank, National Association, as trustee (the "Trustee"); and WHEREAS, the Program requires the Trustee, pursuant to the Trust Agreement, to execute and deliver the Note Participations evidencing and representing proportionate, undivided interests in the payments of principal of and interest on the tax and revenue anticipation notes issued by the Issuers comprising such Series; and WHEREAS, the Local Agency desires to have the Trustee execute and deliver a Series of Note Participations which evidence and represent interests of the Owners thereof in the Note and the Notes issued by other Issuers in such Series; and WHEREAS, as additional security for the owners of the Note Participations, all or a portion of the payments by all of the Issuers of their respective notes mayor may not be secured either by an irrevocable letter (or letters) of credit or policy (or policies) of insurance or other credit instrument (or instruments) (collectively, the "Credit Instrument") issued by the credit provider or credit providers designated in the Trust Agreement, as finally executed (collectively, the "Credit Provider"), which may be issued pursuant to a credit agreement or agreements or commitment letter or letters designated in the Trust Agreement (collectively, the "Credit Agreement") between the Issuers and the respective Credit Provider; and J:\AttomeyIRESQ\FINANCE\Borrowing of funds for FY 2008-2009 04-15-08 (Reso).doc - 8-7 Resolution No. 2008- Page 3 WHEREAS, the net proceeds of the Note may be invested by the Local Agency in Permitted Investments (as defined in the Trust Agreement) or in any other investment permitted by the laws of the State of California, as now in effect and as hereafter amended, modified or supplemented from time to time; and WHEREAS, the Program requires that each participating Issuer approve the Trust Agreement and the alternative Credit Instruments, if any, in substantially the forms presented to the Legislative Body, or, in the case of the Credit Instruments, if any, if not presented, in a form which complies with such requirements and standards as may be determined by the Legislative Body, with the final form and type of Credit Instrument and corresponding Credit Agreement, if any, determined upon execution of the Pricing Confirmation by the Authorized Representative; and WHEREAS, pursuant to the Program each participating Issuer will be responsible for its share of: (a) the fees of the Trustee and the costs of issuing the applicable Series of Note Participations; and, (b) if applicable, the fees of the Credit Provider, the Issuer's allocable share of all Predefault Obligations and the Issuer's Reimbursement Obligations, if any (each as defined in the Trust Agreement); and WHEREAS, pursuant to the Program, the Note and the Notes issued by other Issuers participating in the same Series (all as evidenced and represented by a Series of Note Participations) will be offered for sale through negotiation with the Underwriter pursuant to the terms and provisions of a purchase agreement, which shall be in substantially the same form as the purchase agreement presented to this rpeeting (the "Purchase Agreement"); and WHEREAS, the Trust Agreement provides, among other things, that for the benefit of Owners of Note Participations and the Credit Provider, if any, the Local Agency shall provide notices of the occurrence of certain enumerated events, if deemed by the Local Agency to be material; and WHEREAS, the Local Agency has determined that, in order to reduce interest costs, it may be desirable to enter into one or more interest rate swaps; and WHEREAS, it is necessary to engage the services of certain professionals to assist the Local Agency in its participation in the Program. NOW, THEREFORE, this Legislative Body hereby finds, determines, declares and resolves as follows: Section 1. Recitals. All the above recitals are true and correct. Section 2. Authorization of Issuance. This Legislative Body hereby determines to borrow solely for the purpose of anticipating taxes, income, revenue, cash receipts and other moneys to be received by the Local Agency for the general fund of the Local Agency attributable to the Repayment Fiscal Year, by the issuance of a note or notes, pursuant to the provisions of Sections 53850, et seq., of the Act, designated the Local Agency's "2008 Tax and Revenue J:\AttomeyIRESO\FINANCE\Borrowing of funds for FY 2008-2009 04-15-08 (Reso).doc - 8-8 Resolution No. 2008- Page 4 Anticipation Note," with an appropriate series designation if more than one note is issued (collectively, the "Note"), to be issued in the form of a fully registered note or notes in the Principal Amount thereof, to be dated the date of its delivery to the initial purchaser thereof, to mature (without option of prior redemption) not more than thirteen (13) months thereafter on a date indicated on the face thereof and determined in the Pricing Confirmation (the "Maturity Date"), and to bear interest, payable on its Maturity Date (and if the Maturity Date is more than twelve (12) months from the date of issuance, payable on the interim interest payment date set forth in the Pricing Confirmation) and computed upon the basis of a 360-day year consisting of twelve, 30-day months, or a 365 or 366 day year, as the case may be, and actual days elapsed, at a rate or rates, if more than one Note is issued, not to exceed 12 percent per annum as determined in the Pricing Confirmation and indicated on the face of the Note (the "Note Rate"). If the Note as evidenced and represented by the Series of Note Participations is secured in whole or in part by a Credit Instrument or such Credit Instrument secures the Note in whole or in part and all principal of and interest on the Note is not paid in full at maturity or if payment of principal and/or interest on the Note is paid (in whole or in part) by a draw under, payment by or claim upon a Credit Instrument which draw or claim is not fully reimbursed on such date, such Note shall become a Defaulted Note (as defined in the Trust Agreement), and the unpaid portion thereof (including the interest component, if applicable) thereof (or the portion (including the interest component, if applicable) thereof with respect to which a Credit Instrument applies for which reimbursement on a draw, payment or claim has not been fully made) shall be deemed outstanding and shall continue to bear interest thereafter until paid at the Default Rate (as defined in the Trust Agreement). If the Note as evidenced and represented by the Series of Note Participations is unsecured in whole or in part and the Note is not fully paid at maturity, the unpaid portion thereof (or the portion thereof to which no Credit Instrument applies which is unpaid) shall be deemed outstanding and shall continue to bear interest thereafter until paid at the Default Rate. In each case set forth in the preceding two sentences, the obligation of the Local Agency with respect to such Defaulted Note or unpaid Note shall not be a debt or liability of the Local Agency prohibited by Article XVI, Section 18 of the California Constitution and the Local Agency shall not be liable thereon except to the extent of any available revenues attributable to the Repayment Fiscal Year, as provided in Section 8 hereof. The percentage of the Note as evidenced and represented by the Series of Note Participations to which a Credit Instrument, if any, applies (the "Secured Percentage") shall be equal to the amount of the Credit Instrument divided by the aggregate amount of unpaid principal of and interest on notes (or portions thereof) of all Issuers of Notes comprising such Series of Note Participations, expressed as a percentage (but not greater than 100 percent) as of the maturity date. Both the principal of and interest on the Note shall be payable in lawful money of the United States of America. The Note shall be issued in conjunction with the note or notes of one or more other Issuers as part of the Program and within the meaning of Section 53853 of the Act. Anything in this Resolution to the contrary notwithstanding, the Pricing Confirmation (defined below) may specify that a portion of the authorized Principal Amount of the Note shall be issued as a taxable Note the interest on which is includable in the gross income of the holder thereof for federal income tax purposes (a "Taxable Note"). In such event, the Taxable Note shall be issued with an appropriate series designation and other terms reflecting such taxability of interest income, including without limitation, a taxable Note Rate and a taxable J:\Attomey\RESO\FlNANCEIBorrowing of funds for FY 2008_2009_04_15-08 (Reso).doc 8-9 Resolution No. 2008- Page 5 Default Rate; the term Note, and other terms as appropriate, shall be deemed to include or refer to such Taxable Note; and the agreements, covenants and provisions set forth in this Resolution to be performed by or on behalf of the Local Agency shall be for the equal and proportionate benefit, security and protection of the holder of any Note without preference, priority or distinction as to security or otherwise of any Note over and other Note. Section 3. Form of Note. The Note shall be issued in fully registered form without coupons and shall be substantially in the form and substance set forth in Exhibit A, as attached hereto and by reference incorporated herein, the blanks in said form to be filled in with appropriate words and figures to be inserted or determined at closing. Section 4. Sale of Note: Delel!ation. The Note Participations (which evidence an interest in the Note which shall be delivered to the Trustee) shall be sold to the Underwriter pursuant to the terms and provisions of the Purchase Agreement. The form of the Purchase Agreement, including the form of the Pricing Confirmation set forth as an exhibit thereto (the "Pricing Confirmation"), presented to this meeting is hereby approved. The authorized representatives set forth in Section 21 hereof (the "Authorized Representatives") are each hereby authorized and directed to execute and deliver the Purchase Agreement in substantially said form, with such changes thereto as such Authorized Representative shall approve, such approval to be conclusively evidenced by his or her execution and delivery thereof; provided, however, that the Note Rate shall not exceed 12 percent per annum, and that the Local Agency's pro rata share of Underwriter's discount on the Note, when added to the Local Agency's share of the costs of issuance ofthe Note Participations, shall not exceed 1.0 percent of the Principal Amount of the Note and the Principal Amount shall not exceed the Maximum Amount of Borrowing. Delivery of an executed copy of the Pricing Confirmation by fax or telecopy shall be deemed effective execution and delivery for all purposes. Section 5. Prol!ram Approval. The Note shall be combined with notes of other Issuers into a Series as set forth in the Preliminary Official Statement, hereinafter mentioned, and shall be sold simultaneously with such other notes of that Series supported by the Credit Instrument (if any) referred to in the Pricing Confirmation, and shall be evidenced and represented by the Note Participations which shall evidence and represent proportionate, undivided interests in the Note in the proportion that the face amount of the Note bears to the total aggregate face amount of the Note and the notes issued by other Issuers which the Series of Note Participations represent. Such Note Participations may be delivered in book-entry form. The forms of Trust Agreement and alternative general types and forms of Credit Agreements, if any, presented to this meeting are hereby approved, and the Authorized Representative is hereby authorized and directed to execute and deliver the Trust Agreement and a Credit Agreement, if applicable, which shall be identified in the Pricing Confirmation, in substantially one or more of said forms (a substantially final form of Credit Agreement to be delivered to the Authorized Representative following the execution by the Authorized Representative of the Pricing Confirmation), with such changes therein as said officer shall require or approve, such approval of this Legislative Body and such officer to be conclusively evidenced by the execution of the Trust Agreement and the Credit Agreement, if any. A description of this undertaking is set forth in the Preliminary Official Statement and will also be l:\Altamey\RESO\FINANCE\BolTOwing of funds for FY 2008-2009_04-15-08 (Reso).doc 8-10 Resolution No. 2008- Page 6 set forth in the Final Official Statement. The Authorized Representative is hereby authorized and directed to comply with and carry out all of the provisions of the Trust Agreement with respect to continuing disclosure; provided, however, that failure of the Local Agency to comply with the Continuing Disclosure Agreement, as defined in Article II of the Trust Agreement, shall not be considered an Event of Default hereunder. Any Credit Agreement identified in the Pricing Confirmation but not at this time before the Legislative Body shall include reasonable and customary terms and provisions relating to fees, increased costs of the Credit Provider payable by the Local Agency, negative and affirmation covenants of the Local Agency and events of default. The form of the Preliminary Official Statement presented to this meeting is hereby approved, and the Underwriter is hereby authorized and directed to cause to be mailed to prospective bidders the Preliminary Official Statement in connection with the offering and sale of the Note Participations. Anyone of the Authorized Representatives of the Local Agency is hereby authorized and directed to provide the Underwriter with such information relating to the Local Agency as they shall reasonably request for inclusion in the Preliminary Official Statement and Official Statement. Upon inclusion of the information relating to the Local Agency therein, the Preliminary Official Statement is, except for certain omissions permitted by Rule 15c2-12 of the Securities Exchange Act of 1934, as amended (the "Rule"), hereby deemed final within the meaning of the Rule; provided that no representation is made as to the information contained in the Preliminary Official Statement relating to the other Issuers or any Credit Provider. If, at any time prior to the end of the underwriting period, as defined in the Rule, any event occurs as a result of which the information contained in the Preliminary Official Statement relating to the Local Agency might include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Local Agency shall promptly notify the Underwriter. The Authority is hereby authorized and directed, at or after the time of the sale of any Series of Note Participations, for and in the name and on behalf of the Local Agency, to execute a final Official Statement in substantially the form of the Preliminary Official Statement presented to this meeting, with such additions thereto or changes therein as the Authority may approve, such approval to be conclusively evidenced by the execution and delivery thereof. The Trustee is authorized and directed to execute Note Participations on behalf of the Local Agency pursuant to the terms and conditions set forth in the Trust Agreement, in the aggregate principal amount specified in the Trust Agreement, and substantially in the form and otherwise containing the provisions set forth in the form of the Note Participations contained in the Trust Agreement. When so executed, the Note Participations shall be delivered by the Trustee to the purchaser upon payment of the purchase price thereof, pursuant to the terms of the Trust Agreement. Subject to Section 8 hereof, the Local Agency hereby agrees that if the Note as evidenced and represented by the Series of Note Participations shall become a Defaulted Note, the unpaid portion (including the interest component, if applicable) thereof or the portion (including the interest component, if applicable) to which a Credit Instrument applies for which full reimbursement on a draw, payment or claim has not been made by the Maturity Date shall be deemed outstanding and shall not be deemed to be paid until: (i) any Credit Provider providing a J:\AttomeyIRESO\FINANCElBorrowing of funds for FY 2008-2009 04-15-08 (ResO).doc - 8-11 Resolution No. 2008- Page 7 Credit Instrument with respect to the Series of Note Participations, and therefore, if applicable, all or a portion of the Local Agency's Note, if any, has been reimbursed for any drawings, payments or claims made under or from the Credit Instrument with respect to the Note, including interest accrued thereon, as provided therein and in the applicable Credit Agreement; and, (ii) the holders of the Series of the Note Participations which evidence and represent the Note are paid the full principal amount represented by the unsecured portion of the Note plus interest accrued thereon (calculated at the Default Rate) to the date of deposit of such aggregate required amount with the Trustee. For purposes of clause (ii) of the preceding sentence, holders of the Series of Note Participations will be deemed to have received such principal amount upon deposit of such moneys with the Trustee. The Local Agency agrees to payor cause to be paid, in addition to the amounts payable under the Note, any fees or expenses of the Trustee and, to the extent permitted by law, if the Local Agency's Note as evidenced and represented by the Series of Note Participations is secured in whole or in part by a Credit Instrument, any Predefault Obligations and Reimbursement Obligations (to the extent not payable under the Note), (i) arising out of an "Event of Default" hereunder (or pursuant to Section 7 hereof) or (ii) arising out of any other event (other than an event arising solely as a result of or otherwise attributable to a default by any other Issuer). In the case described in (ii) above with respect to Predefault Obligations, the Local Agency shall owe only the percentage of such fees, expenses and Predefault Obligations equal to the ratio of the principal amount of its Note over the aggregate principal amounts of all notes, including the Note, of the Series of which the Note is a part, at the time of original issuance of such Series. Such additional amounts will be paid by the Local Agency within twenty-five (25) days of receipt by the Local Agency ofa bill therefor from the Trustee. Section 6. No Joint Oblil!:ation: Owners' Ril!:hts. The Note shall be marketed and sold simultaneously with the notes of other Issuers and shall be aggregated and combined with notes of other Issuers participating in the Program into a Series of Note Participations evidencing and representing an interest in several, and not joint, obligations of each Issuer. The obligation of the Local Agency to Owners is a several and not a joint obligation and is strictly limited to the Local Agency's repayment obligation under this Resolution and the Note, as evidenced and represented by such Series of Note Participations. Owners of Note Participations, to the extent of their interest in the Note, and the Credit Provider, if any, shall be treated as owners of the Note and shall be entitled to all the rights and security thereof in accordance with the Trust Agreement; including the right to enforce the obligations and covenants contained in this Resolution and the Note. The Local Agency hereby recognizes the right of the Owners and the Credit Provider, if any, acting directly or through the Trustee to enforce the obligations and covenants contained in the Note, this Resolution and the Trust Agreement. The Local Agency shall be directly obligated to each Owner for the principal and interest payments on the Note evidenced and represented by the Note Participations without any right of counterclaim or offset arising out of any act or failure to act on the part of the Trustee. J:\Allomey\RESO\FINANCE\Borrowing of funds for FY 2008_2009_04_15_08 (Resol.doc 8-12 Resolution No. 2008- Page 8 Section 7. Disposition of Proceeds of Note. The moneys received from the sale of the Note allocable to the Local Agency's share of the costs of issuance (which shall include any issuance fees in connection with a Credit Instrument applicable to the Note, if any) shall be deposited in the Costs of Issuance Fund held and invested by the Trustee under the Trust Agreement and expended on costs of issuance as provided in the Trust Agreement. The moneys received from the sale of the Note (net of the Local Agency's share of the costs of issuance) shall be deposited in the Local Agency's Proceeds Subaccount within the Proceeds Fund hereby authorized to be created pursuant to, and held and invested by the Trustee under, the Trust Agreement for the Local Agency and said moneys may be used and expended by the Local Agency for any purpose for which it is authorized to expend funds upon requisition from the Proceeds Subaccount as specified in the Trust Agreement. Amounts in the Proceeds Subaccount are hereby pledged to the payment of the Note. The Trustee will not create subaccounts within the Proceeds Fund, but will keep records to account separately for proceeds of the Note Participations allocable to the Local Agency's Note on deposit in the Proceeds Fund that shall constitute the Local Agency's Proceeds Subaccount. Section 8. Source of Pavment. The principal amount of the Note, together with the interest thereon, shall be payable from taxes, income, revenue (including, but not limited to, revenue from the state and federal governments), cash receipts and other moneys which are received or held by the Local Agency for the general fund of the Local Agency and are attributable to the Repayment Fiscal Year and which are available for payment thereof. As security for the payment of the principal of and interest on the Note, the Local Agency hereby pledges certain Unrestricted Revenues (as hereinafter provided, the "Pledged Revenues") which are received or held by the Local Agency for the general fund of the Local Agency and are attributable to the Repayment Fiscal Year, and the principal of the Note and the interest thereon shall constitute a first lien and charge thereon and shall be payable from the first moneys received by the Local Agency from such Pledged Revenues, and, to the extent not so paid, shall be paid from any other taxes, income, revenue, cash receipts and other moneys of the Local Agency lawfully available therefor (all as provided for in Sections 53856 and 53857 of the Act). The term "Unrestricted Revenues" shall mean all taxes, income, revenue (including, but not limited to, revenue from the state and federal governments), cash receipts, and other moneys, intended as receipts for the general fund of the Local Agency attributable to the Repayment Fiscal Year and which are generally available for the payment of current expenses and other obligations of the Local Agency. The Noteholders, Owners and Credit Provider shall have a first lien and charge on such Unrestricted Revenues as herein provided which are received or held by the Local Agency and are attributable to the Repayment Fiscal Year. In order to effect the pledge referenced in the preceding paragraph, the Local Agency hereby agrees and covenants to establish and maintain a special account within the Local Agency's general fund to be designated the "2008 Tax and Revenue Anticipation Note Payment Account" (the "Payment Account") and further agrees and covenants to maintain the Payment Account until the payment ofthe principal of the Note and the interest thereon. Notwithstanding the foregoing, if the Local Agency elects to have Note proceeds invested in Permitted Investments to be held by the Trustee pursuant to the Pricing Confirtnation, a subaccount of the J:\AlIomey\RESO\FINANCE\Borrowing of funds for FY 2008.2009_04-15-08 (Rc$O).doc 8-13 Resolution No. 2008- Page 9 Payment Account (the "Payment Subaccount") shall be established for the Local Agency under the Trust Agreement and proceeds credited to such account shall be pledged to the payment of the Note. The Trustee need not create a subaccount, but may keep a record to account separately for proceeds of the Note so held and invested by the Trustee which record shall constitute the Local Agency's Proceeds Subaccount. Transfers from the Payment Subaccount shall be made in accordance with the Trust Agreement. The Local Agency agrees to transfer to and deposit in the Payment Account the first amounts received in the months specified in the Pricing Confirmation as Repayment Months (each individual month a "Repayment Month" and collectively "Repayment Months") (and any amounts received thereafter attributable to Repayment Fiscal Year) until the amount on deposit in the Payment Account, together with the amount, if any, on deposit in the Payment Subaccount, and taking into consideration anticipated investment earnings thereon to be received by the Maturity Date, is equal in the respective Repayment Months identified in the Pricing Confirmation to the percentage of the principal and interest due on the Note specified in the Pricing Confirmation. In making such transfer and deposit, the Local Agency shall not be required to physically segregate the amounts to be transferred to and deposited in the Payment Account from the Local Agency's other general fund moneys, but, notwithstanding any commingling of funds for investment or other purposes, the amounts required to be transferred to and deposited in the Payment Account shall nevertheless be subject to the lien and charge created herein. Anyone of the Authorized Representatives of the Local Agency is hereby authorized to approve the determination of the Repayment Months and percentages of the principal and interest due on the Note required to be on deposit in the Payment Account and/or the Payment Subaccount in each Repayment Month, all as specified in the Pricing Confirmation, by executing and delivering the Pricing Confirmation, such execution and delivery to be conclusive evidence of approval by this Legislative Body and such Authorized Representative; provided, however, that the maximum number of Repayment Months shall be six and the maximum amount of Pledged Revenues required to be deposited in each Repayment Month shall not exceed 50 percent (50%) of the aggregate principal and interest due on the Note. In the event on the day in each such Repayment Month that a deposit to the Payment Account is required to be made, the Local Agency has not received sufficient unrestricted revenues to permit the deposit into the Payment Account of the full amount of Pledged Revenues to be deposited in the Payment Account from said unrestricted revenues in said month, then the amount of any deficiency shall be satisfied and made up from any other moneys of the Local Agency lawfully available for the payment of the principal of the Note and the interest thereon, as and when such other moneys are received or are otherwise legally available. Any moneys placed in the Payment Account or the Payment Subaccount shall be for the benefit of: (i) the holder of the Note and the owner of the Note; and, (ii) (to the extent provided in the Trust Agreement) the Credit Provider, if any. The moneys in the Payment Account and the Payment Subaccount shall be applied only for the purposes for which such Accounts are created until the principal of the Note and all interest thereon are paid or until provision has been made for the payment of the principal of the Note at maturity with interest to maturity (in accordance with the requirements for defeasance of the Note Participations as set forth in the Trust Agreement) and, if applicable, (to the extent provided in the Trust Agreement J:\AttomeyIRESO\F1NANCE\Borrowillgoffunds for FY 2008.2009 04-15-08 (Reso).doc - 8-14 Resolution No. 2008- Page 10 and, if applicable, the Credit Agreement) the payment of all Predefault Obligations and Reimbursement Obligations owing to the Credit Provider. The Local Agency hereby directs the Trustee to transfer on the Note Payment Deposit Date (as defined in the Trust Agreement), any moneys in the Payment Subaccount to the Note Participation Payment Fund (as defined in the Trust Agreement). In addition, on the Note Payment Deposit Date, the moneys in the Payment Account shall be transferred by the Local Agency to the Trustee, to the extent necessary (after crediting any transfer pursuant to the preceding sentence), to pay the principal of and/or interest on the Note, to make payments to a Swap Provider, if any, as defined in the Trust Agreement, pursuant to a Swap Agreement, if any, as defined in the Trust Agreement, or to reimburse the Credit Provider for payments made under or pursuant to the Credit Instrument. In the event that moneys in the Payment Account and/or the Payment Subaccount are insufficient to pay the principal of and interest on the Note in full when due, such moneys shall be applied in the following priority: first, to pay interest on the Note; second, to pay principal of the Note; third, to reimburse the Credit Provider for payment, if any, of interest with respect to the Note; fourth, to reimburse the Credit Provider for payment, if any, of principal with respect to the Note; and, fifth, to pay any Reimbursement Obligations of the Local Agency and any of the Local Agency's pro rata share of Predefault Obligations owing to the Credit Provider. Any moneys remaining in or accruing to the Payment Account and/or the Payment Subaccount after the principal of the Note and the interest thereon and any Predefault Obligations and Reimbursement Obligations, if applicable, have been paid, or provision for such payment has been made, shall be transferred to the general fund of the Local Agency, subject to any other disposition required by the Trust Agreement, or, if applicable, the Credit Agreement. Nothing herein shall be deemed to relieve the Local Agency from its obligation to pay its Note in full on the Maturity Date. Moneys in the Proceeds Subaccount and in the Payment Subaccount shall be invested by the Trustee pursuant to the Trust Agreement as directed by the Local Agency in Permitted Investments as described in and under the terms of the Trust Agreement. Any such investment by the Trustee shall be for the account and risk of the Local Agency, and the Local Agency shall not be deemed to be relieved of any of its obligations with respect to the Note, the Predefault Obligations or Reimbursement Obligations, if any, by reason of such investment of the moneys in its Proceeds Subaccount or the Payment Subaccount. The Local Agency shall promptly file with the Trustee and the Credit Provider, if any, such financial reports at the times and in the forms required by the Trust Agreement. At the written request of the Credit Provider, if any, the Local Agency shall, within ten (10) Business Days following the receipt of such written request, file such report or reports to evidence the transfer to and deposit in the Payment Account required by this Section 8 and provide such additional financial information as may be required by the Credit Provider, if any. Section 9. Execution of Note. Anyone of the Authorized Representatives of the Local Agency or any other officer designated by the Legislative Body shall be authorized to execute the Note by manual or facsimile signature and the Secretary or Clerk of the Legislative Body of the Local Agency or any duly appointed assistant thereto shall be authorized to countersign the Note by manual or facsimile signature. Said officers of the Local Agency are J:\Altomey\RESO\FINANCE\Borrowing of funds for FY 2008-2009 04-15-08 (Reso),doc - 8-15 Resolution No. 2008- Page 11 hereby authorized to cause the blank spaces of the Note to be filled in as may be appropriate pursuant to the Pricing Confirmation. Said officers are hereby authorized and directed to cause the Trustee, as registrar and authenticating agent, to accept delivery of the Note pursuant to the terms and conditions of the Purchase Agreement and Trust Agreement. In case any officer whose signature shall appear on any Note shall cease to be such officer before the delivery of such Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as if such officer had remained in office until delivery. The Note need not bear the seal of the Local Agency, if any. Section 10. Representations and Covenants of the Local Al!encv. The Local Agency makes the following representations for the benefit of the holder of the note, the owners of the Note Participations and the Credit Provider, if any. (A) The Local Agency is duly organized and existing under and by virtue of the laws of the State of California and has all necessary power and authority to: (i) adopt this Resolution and perform its obligations thereunder; (ii) enter into and perform its obligations under the Purchase Agreement; and, (iii) issue the Note and perform its obligations thereunder. (B) Upon the issuance of the Note, the Local Agency shall have taken all action required to be taken by it to authorize the issuance and delivery of the Note and the performance of its obligations thereunder, and the Local Agency has full legal right, power and authority to issue and deliver the Note. (C) The issuance of the Note, the adoption of the Resolution and the execution and delivery of the Purchase Agreement, Trust Agreement and Credit Agreement, if any, and compliance with the provisions hereof and thereof will not conflict with or violate any law, administrative regulation, court decree, resolution, charter, by-laws or other agreement to which the Local Agency is subject or by which it is bound. (D) Except as may be required under blue sky or other securities laws of any state or Section 3(a)(2) of the Securities Act of 1933, there is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory authority having jurisdiction over the Local Agency required for the issuance and sale of the Note or the consummation by the Local Agency of the other transactions contemplated by this Resolution, except those the Local Agency shall obtain or perform prior to or upon the issuance of the Note. (E) The Local Agency has (or will have prior to the issuance of the Note) duly, regularly and properly adopted a preliminary budget for the Repayment Fiscal Year setting forth expected revenues and expenditures and has complied with all statutory and regulatory requirements with respect to the adoption of such budget. The Local Agency hereby covenants that it shall: (i) duly, regularly and properly prepare and adopt its final budget for the Repayment. Fiscal Year; (ii) provide to the Trustee, the Credit Provider, if any, the Underwriter, promptly upon adoption, copies of such final budget and of any subsequent revisions, modifications or amendments thereto; and, (iii) comply with all applicable laws pertaining to its budget. J:\Atlomey\RESO\F1NANCE\BoITOwing of funds for FY 2008-2009 04-15..08 (Reso).doc - 8-16 Resolution No. 2008- Page 12 (F) The sum of the principal amount of the Local Agency's Note plus the interest payable thereon, on the date of its issuance, will not exceed fifty percent (50%) of the estimated amounts ofthe Local Agency's uncollected taxes, income, revenue (including, but not limited to, revenue from the state and federal govermnents), cash receipts, and other moneys to be received by the Local Agency for the general fund of the Local Agency attributable to the Repayment Fiscal Year all of which will be legally available to pay principal of and interest on the Note. (0) The Local Agency: (i) has not defaulted within the past twenty (20) years, and is not currently in default, on any debt obligation; and, (ii) to the best knowledge of the Local Agency, has never defaulted on any debt obligation. (H) The Local Agency's most recent audited financial statements present fairly the financial condition of the Local Agency as of the date thereof and the results of operation for the period covered thereby. Except as has been disclosed to the Underwriter and the Credit Provider, if any, there has been no change in the financial condition of the Local Agency since the date of such audited financial statements that will in the reasonable opinion of the Local Agency materially impair its ability to perform its obligations under this Resolution and the Note. The Local Agency agrees to furnish to the Underwriter, the Authority, the Trustee and the Credit Provider, if any, promptly, from time to time, such information regarding the operations, financial condition and property of the Local Agency as such party may reasonably request. (I) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, arbitrator, governmental or other board, body or official, pending or, to the best knowledge of the Local Agency, threatened against or affecting the Local Agency questioning the validity of any proceeding taken or to be taken by the Local Agency in connection with the Note, the Purchase Agreement, the Trust Agreement, the Credit Agreement, if any, or this Resolution, or seeking to prohibit, restrain or enjoin the execution, delivery or performance by the Local Agency of any of the foregoing, or wherein an unfavorable decision, ruling or finding would have a materially adverse effect on the Local Agency's financial condition or results of operations or on the ability of the Local Agency to conduct its activities as presently conducted or as proposed or contemplated to be conducted, or would materially adversely affect the validity or enforceability of, or the authority or ability of the Local Agency to perform its obligations under, the Note, the Purchase Agreement, the Trust Agreement, the Credit Agreement, if any, or this Resolution. (J) Upon issuance of the Note and execution of the Purchase Contract, this Resolution, the Purchase Contract and the Note will constitute legal, valid and binding agreements of the Local Agency, enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy ot other laws affecting creditors' rights generally, the application of equitable principles if equitable remedies are sought, the exercise of judicial discretion in appropriate cases and the limitations on legal remedies against local agencies, as applicable, in the State of California. J:\Allomey\RESO\FINANCE\BolTowingoffunds for FY 2008-2009 04-15-08 (Reso).doc - 8-17 Resolution No. 2008- Page 13 (K) The Local Agency and its appropriate officials have duly taken, or will take, all proceedings necessary to be taken by them, if any, for the levy, receipt, collection and enforcement of the Pledged Revenues in accordance with law for carrying out the provisions of this Resolution and the Note. (L) The Local Agency shall not incur any indebtedness secured by a pledge of its Pledged Revenues unless such pledge is subordinate in all respects to the pledge of Pledged Revenues hereunder. (M) So long as the Credit Provider, if any, is not in payment default under the Credit Instrument, the Local Agency hereby agrees to pay its pro rata share of all Predefault Obligations and all Reimbursement Obligations attributable to the Local Agency in accordance with provisions of the Credit Agreement, if any, and/or the Trust Agreement, as applicable. Prior to the Maturity Date, moneys in the Local Agency's Payment Account and/or Payment Subaccount shall not be used to make such payments. The Local Agency shall pay such amounts promptly upon receipt of notice from the Credit Provider that such amounts are due to it. (N) So long as any Note Participations executed and delivered in connection with the Notes are Outstanding, or any Predefault Obligation or Reimbursement Obligation is outstanding, the Local Agency will not create or suffer to be created any pledge of or lien on the Note other than the pledge and lien of the Trust Agreement. Section 11. Tax Covenants. The Local Agency will not take any action or fail to take any action if such action or failure to take such action would adversely affect the exclusion from gross income of the interest payable on the Note under Section 103 of the Internal Revenue Code of 1986 (the "Code"). Without limiting the generality of the foregoing, the Local Agency will not make any use of the proceeds of the Note or any other funds of the Local Agency which would cause the Note to be an "arbitrage bond" within the meaning of Section 148 of the Code, a "private activity bond" within the meaning of Section l4l(a) of the Code, or an obligation the interest on which is subject to federal income taxation because it is "federally guaranteed" as provided in Section l49(b) of the Code. The Local Agency, with respect to the proceeds of the Note, will comply with all requirements of such sections of the Code and all regulations of the United States Department of the Treasury issued or applicable thereunder to the extent that such requirements are, at the time, applicable and in effect. The Local Agency hereby: (i) represents that the aggregate face amount of all tax-exempt obligations (including any tax-exempt leases, but excluding private activity bonds), issued and to be issued by the Local Agency during calendar year 2008, including the Note, is not reasonably expected to exceed $5,000,000; or. in the alternative. (ii) covenants that the Local Agency will take all legally permissible steps necessary to ensure that all of the gross proceeds of the Note will be expended no later than the day that is six (6) months after the date of issuance of the Note so as to satisfy the requirements of Section l48(f)(4)(B) of the Code. Notwithstanding any other provision of this Resolution to the contrary, upon the Local Agency's failure to observe, or refusal to comply with, the covenants contained in this Section 11, no one other than the holders or former holders of the Note, the Owners or the J:\Attomey\RESO\FINANCE\Bormwing of funds for FY 2008-2009 04-15-08 (Reso).doc - 8-18 Resolution No. 2008- Page 14 Trustee on their behalf shall be entitled to exercise any right or remedy under this Resolution on the basis of the Local Agency's failure to observe, or refusal to comply with, such covenants. The covenants contained in this Section 11 shall survive the payment ofthe Note. The provisions of this Section 11 shall not apply to a Taxable Note. Section 12. Events of Default and Remedies. If any of the following events occur, it is hereby defined as and declared to be and to constitute an "Event of DefauIt": (a) Failure by the Local Agency to make or cause to be made the transfers and deposits to the Payment Account, or any other payment required to be paid hereunder, including payment of principal and interest on the Note, on or before the date on which such transfer, deposit or other payment is due and payable; (b) Failure by the Local Agency to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Resolution, for a period of fifteen (15) days after written notice, specifying such failure and requesting that it be remedied, is given to the Local Agency by the Trustee or the Credit Provider, if applicable, unless the Trustee and the Credit Provider shall agree in writing to an extension of such time prior to its expiration; (c) Any warranty, representation or other statement by or on behalf of the Local Agency contained in this Resolution or the Purchase Agreement (including the Pricing Confirmation) or in any requisition or any financial report delivered by the Local Agency or in any instrument furnished in compliance with or in reference to this Resolution or the Purchase Agreement or in connection with the Note, is false or misleading in any material respect; (d) A petition is filed against the Local Agency under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect and is not dismissed within thirty (30) days after such filing, but the Trustee shall have the right to intervene in the proceedings prior to the expiration of such thirty (30) days to protect its and the Owners' interests; (e) The Local Agency files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to the filing of any petition against it under such law; or J:\Attomey\RESO\FINANCE\Borrowing offllods for FY 2008-2009_04-15-08 {Reso).doc 8-19 Resolution No. 2008- Page 15 (t) The Local Agency admits insolvency or bankruptcy or is generally not paying its debts as such debts become due, or becomes insolvent or bankrupt or makes an assigmnent for the benefit of creditors, or a custodian (including without limitation a receiver, liquidator or trustee) of the Local Agency or any of its property is appointed by court order or takes possession thereof and such order remains in effect or such possession continues for more than thirty (30) days, but the Trustee shall have the right to intervene in the proceedings prior to the expiration of such thirty (30) days to protect its and the Owners' interests; Whenever any Event of Default referred to in this Section 12 shall have happened and be continuing, the Trustee shall, in addition to any other remedies provided herein or by law or under the Trust Agreement, have the right, at its option without any further demand or notice, to take one or any combination of the following remedial steps: (a) Without declaring the Note to be immediately due and payable, require the Local Agency to pay to the Trustee, as holder of the Note, an amount equal to the principal of the Note and interest thereon to maturity, plus all other amounts due hereunder, and upon notice to the Local Agency the same shall become immediately due and payable by the Local Agency without further notice or demand; and (b) Take whatever other action at law or in equity (except for acceleration of payment on the Note) which may appear necessary or desirable to collect the amounts then due and thereafter to become due hereunder or to enforce any other of its rights hereunder. Notwithstanding the foregoing, if the Local Agency's Note is secured in whole or in part by a Credit Instrument or if the Credit Provider is subrogated to rights under the Local Agency's Note, as long as the Credit Provider is not in default of its payment obligations under the Credit Instrument, the Credit Provider shall have the right to direct the remedies upon any Event of Default hereunder, and the Credit Provider's prior consent shall be required to any remedial action proposed to be taken by the Trustee hereunder. If the Credit Provider is not reimbursed for any drawing, payment or claim, as applicable, used to pay principal of and interest on the Note due to a default in payment on the Note by the Local Agency, or if any principal of or interest on the Note remains unpaid after the Maturity Date, the Note shall be a Defaulted Note, the unpaid portion (including the interest component, if applicable) thereof or the portion (including the interest component, if applicable) to which a Credit Instrument applies for which reimbursement on a draw, payment or claim has not been made shall be deemed outstanding and shall bear interest at the Default Rate until the Local Agency's obligation on the Defaulted Note is paid in full or payment is duly provided for, all subject to Section 8 hereof. Section 13. Trustee. The Trustee is hereby appointed as paying agent, registrar and authenticating agent for the Note. The Local Agency hereby directs' and authorizes the payment by the Trustee of the interest on and principal of the Note when such become due and J:\Altomey\RESO\F1NANCE\Borrowingoffunds for FY 2008-2009 04-15-08 {Reso}.doc - 8-20 Resolution No. 2008- Page 16 payable, from the Payment Account held by the Trustee in the name of the Local Agency in the manner set forth herein. The Local Agency hereby covenants to deposit funds in such account at the time and in the amount specified herein to provide sufficient moneys to pay the principal of and interest on the Note on the day on which it matures. Payment of the Note shall be in accordance with the terms of the Note and this Resolution. The Local Agency hereby agrees to maintain as paying agent, registrar and authenticating agent of the Note, the Trustee under the Trust Agreement. Section 14. Aooroval of Actions. The aforementioned Authorized Representatives of the Local Agency are hereby authorized and directed to execute the Note and cause the Trustee to authenticate and accept delivery of the Note, pursuant to the terms and conditions of this Resolution and the Trust Agreement. All actions heretofore taken by the officers and agents of the Local Agency or this Legislative Body with respect to the sale and issuance of the Note and participation in the Program are hereby approved, confirmed and ratified and the Authorized Representatives and agents of the Local Agency are hereby authorized and directed, for and in the name and on behalf of the Local Agency, to do any and all things and take any and all actions and execute any and all certificates, agreements and other documents which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Note in accordance with, and related transactions contemplated by, this Resolution. The Authorized Representatives of the Local Agency referred to in Section 21 hereof are hereby designated as "Authorized Local Agency Representatives" under the Trust Agreement. In the event that the Note or a portion thereof is secured by a Credit Instrument, anyone of the Authorized Representatives of the Local Agency is hereby authorized and directed to provide the Credit Provider, with any and all information relating to the Local Agency as such Credit Provider may reasonably request. Section 15. Proceedinl!s Constitute Contract. The provisions of the Note and of this Resolution shall constitute a contract between the Local Agency and the registered owner of the Note and the Credit Provider, if any, and such provisions shall be enforceable by mandamus or any other appropriate suit, action or proceeding at law or in equity in any court of competent jurisdiction, and shall be irrepealable. The Credit Provider, if any, is a third party beneficiary of the provisions of this Resolution and the Note. Section 16. Limited Liabilitv. Notwithstanding anything to the contrary contained herein or in the Note or in any other document mentioned herein, the Local Agency shall not have any liability hereunder or by reason hereof or in connection with the transactions contemplated hereby except to the extent payable from moneys available therefor as set forth in Section 8 hereof. Section 17. Amendments. At any time or from time to time, the Local Agency may adopt one or more Supplemental Resolutions with the written consents of the Authority and the Credit Provider, if any, but without the necessity for consent of the owner of the Note for any one or more of the following purposes: J:\Attomey\RESQ\FiNANCE\Borrowing of funds for FY 2008-2009 04-15-08 (Reso).doc . - 8-21 Resolution No. 2008- Page 17 (a) To add to the covenants and agreements of the Local Agency in this Resolution, other covenants and agreements to be observed by the Local Agency which are not contrary to or inconsistent with this Resolution as theretofore in effect; (b) To add to the limitations and restrictions in this Resolution, other limitations and restrictions to be observed by the Local Agency which are not contrary to or inconsistent with this Resolution as theretofore in effect; (c) To confirm, as further assurance, any pledge under, and the subjection to any lien or pledge created or to be created by, this Resolution, of any monies, securities or funds, or to establish any additional funds or accounts to be held under this Resolution: (d) To cure any ambiguity, supply any omission, or cure or correct any defect or inconsistent provision in this Resolution; or (e) To amend or supplement this Resolution in any other respect; provided, however, that any such Supplemental Resolution does not adversely affect the interests of the owner of the Note or of the Note Participations executed and delivered in connection with the Notes. Any modifications or amendment of this Resolution and of the rights and obligations of the Local Agency and of the owner of the Note or of the Note Participations executed and delivered in connection with the Notes may be made by a Supplemental Resolution, with the written consents of the Authority and the Credit Provider, if any, and with the written consent of the owners of at least a majority in principal amount of the Note and of the Note Participations executed and delivered in connection with the Notes outstanding at the time such consent is given; provided, however, that if such modification or amendment will, by its terms, not take effect so long as the Note or any or of the Note Participations 'executed and delivered in connection with the Notes remain outstanding, the consent of the owners of such Note or of the Note Participations executed and delivered in connection with the Notes shall not be required. No such modification or amendment shall permit a change in the maturity of the Note or a reduction of the principal amount thereof or an extension of the time of any payment thereon or a reduction of the rate of interest thereon, or a change in the date or amounts of the pledge set forth in this Resolution, without the consent of the owners of such Note or the owners of all of the Note Participations executed and delivered in connection with the Notes, or shall reduce the percentage of the Note or the owners of all of the Note Participations executed and delivered in connection with the Notes, the consent of the owners of which is required to effect any such modification or amendment, or shall change or modify any of the rights or obligations of the Trustee without its written assent thereto. Section 18. Severabilitv. In the event any provision of this Resolution shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. J:\Auomey\RESO\FINANCE\Barrowingof funds for FY 2008_2009_04_)5_08 (Reso).doc 8-22 Resolution No. 2008- Page 18 Section 19. Appointment of Bond Counsel. The Local Agency approves and consents to the appointment of the law firm of Orrick, Herrington & Sutcliffe LLP, Los Angeles. California as Bond Counsel for the Program. The Local Agency acknowledges that Bond Counsel regularly performs legal services for many private and public entities in connection with a wide variety of matters, and that Bond Counsel has represented, is representing or may in the future represent other public entities, underwriters, trustees, rating agencies, insurers, credit enhancement providers, lenders, financial and other consultants who may have a role or interest in the proposed financing or that may be involved with or adverse to Local Agency in this or some other matter. Given the special, limited role of Bond Counsel described above, the Local Agency acknowledges that no conflict of interest exists or would exist, waives any conflict of interest that might appear to exist, and consents to any and all such relationships. Section 20. Appointment of Underwriter. The Local Agency approves and consents to the appointment of J.P. Morgan Securities, Inc. and Lehman Brothers, as co-senior managers, together with such co-underwriters, if any, identified in the Purchase Contract, as Underwriter for the Program. Section 21. Resolution Parameters. (a) Name of Local Agency: City ofChula Vista (b) Maximum Amount of Borrowing: $35,000,000 (c) Authorized Representatives: (1) Director of Finance & Treasurer (2) Assistant Director of Finance (3) City Manager Section 22. Effective Date. This Resolution shall take effect from and after its date of adoption. Presented by Approved as to form by Maria Kachadoorian Director of Finance (J.~ Ann Moore City Attorney J:\Attomey\RESO\F1NANCE\Borrowing of Funds for FY 2008-2009 04-15-08 (Reso).doc - 8-23 EXHIBIT A FORM OF NOTE CITY OF CHULA VISTA 2008 TAX AND REVENUE ANTICIPATION NOTE, SERIES_1 Interest Rate Maturitv Date Date of Original Issue July 1,2008 First Repavment Date Second Repavment Date Third Repavment Date _% (Total of principal and interest due on Note at maturity) _% (Total of principal and interest due on Note at maturity) _% (Total of principal and interest due on Note at maturity)' REGISTERED OWNER: PRINCIPAL AMOUNT: FOR VALUE RECEIVED, the Local Agency designated above (the "Local Agency") acknowledges itself indebted to and promises to pay to the registered owner identified above, or registered assigns, on the maturity date set forth above, the principal sum specified above in lawful money of the United States of America, and to pay interest thereon on each Interest Payment Date, as defined in the Trust Agreement, at the rate of interest specified above (the "Note Rate"). Principal of and interest on this Note are payable in such coin or currency of the United States as at the time of payment is legal tender for payment of private and public debts, such principal to be paid upon surrender hereof at the principal corporate trust office of Wells Fargo Bank, National Association in Los Angeles, California, or its successor in trust (the "Trustee"). Interest is payable as specified in the Trust Agreement. Interest shall be calculated on the basis of a 360.day year, consisting of twelve, 30.day months, in like lawful money from the date hereof until the maturity date specified above and, if funds are not provided for payment at maturity, thereafter on the basis of a 360.day year for actual days elapsed until payment in full of said principal sum. Both the principal of and interest on this Note shall be payable only to the registered owner hereof upon surrender of this Note as the same shall fall due; provided, however, no interest shall be payable for any period after maturity during which the holder hereof fails to properly present this Note for payment. If the Local Agency fails to pay this Note when due or the Credit Provider (as defined in the Resolution hereinafter described), if any, is ] If more than one series is issued under the Program in the Repayment Fiscal Year. 1 Number of Repayment Dates and percentages to be determined in Pricing Confirmation (as defined in the Resolution). J:\Altomey\RESO\FINANCE\8orrowingoffunds for FY 2008.2009 04-15-08 (Exh. A).doc - 8-24 not reimbursed in full for the amount drawn on or paid pursuant to the Credit Instrument (as defined in the Resolution) to pay all or a portion of this Note on the date of such payment, this Note shall become a Defaulted Note (as defined and with the consequences set forth in the Resolution). It is hereby certified, recited and declared that this Note (the "Note") represents the authorized issue of the Note in the aggregate principal amount made, executed and given pursuant to and by authority of certain resolutions of the Legislative Body of the Local Agency duly passed and adopted heretofore, under and by authority of Article 7.6 (commencing with Section 53850) of Chapter 4, Part 1, Division 2, Title 5 of the California Government Code (collectively, the "Resolution"), to all of the provisions and limitations of which the owner of this Note, by acceptance hereof, assents and agrees. The principal of the Note, together with the interest thereon, shall be payable from taxes, income, revenue, cash receipts and other moneys which are received by the Local Agency for the general fund of the Local Ag,ency and are attributable to the Repayment Fiscal Year, as defined in the Resolution, and which are available for payment thereof. As security for the payment of the principal of and interest on the Note, the Local Agency has pledged the first amounts of unrestricted revenues of the Local Agency received on the last day of the Repayment Months (as defined in the Resolution) identified in the Pricing Confirmation (as defined in the Resolution) (and any amounts received thereafter attributable to the Repayment Fiscal Year) until the amount on deposit in the Payment Account (as defined in the Resolution) in each such month, is equal to the corresponding percentages of principal of and interest due on the Note as set forth in the Pricing Confirmation (such pledged amounts being hereinafter called the "Pledged Revenues"), and the principal of the Note and the interest thereon shall constitute a first lien and charge thereon and shall be payable from the Pledged Revenues, and to the extent not so paid shall be paid from any other moneys of the Local Agency lawfully available therefor as set forth in the Resolution. The full faith and credit of the Local Agency is not pledged to the payment of the principal or interest on this Note. The Local Agency and the Trustee may deem and treat the registered owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and interest due hereon and for all other purposes, and the Local Agency and the Trustee shall not be affected by any notice to the contrary. It is hereby certified that all of the conditions, things and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of California and that the amount of this Note, together with all other indebtedness of the Local Agency, does not exceed any limit prescribed by the Constitution or statutes of the State of California. 1:\Attomey\RESO\F1NANCE\Borrowio!l: offullds for FY 2008-2009 04_15_08 (Exh. A).doc - 8-25 IN WITNESS WHEREOF, the Legislative Body of the Local Agency has caused this Note to be executed by the manual or facsimile signature of a duly Authorized Representative of the Local Agency and countersigned by the manual or facsimile signature of the Secretary or Clerk of the Legislative Body as ofthe date of authentication set forth below. CITY OF CHULA VISTA By: Title: Countersigned By: Title: J:\Attomey\RESO\FINANCE\Borrowing offunds for FY 2008-2009_04-15.08 (Exh. A).dOCS _ 26 [STATEMENT OF INSURANCE]3 3 To be used only if Credit Instrument is a policy of municipal bond insurance. J:\Attomey\RESQ\FINANCE\BoJTl)wing of funds for FY 2008-2009 04-15-08 (Exh. A}.do<;; - 8-27 CITY COUNCIL AGENDA STATEMENT ~\~ CITY OF '~CHULA VISTA April 22, 2008 Item ~ SUBMITTED BY: REVIEWED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY MANAGER AND/OR HIS DESIGNEE TO COMPLETE ALL NECESSARY APPLICATION PROCESSES AND TO ENTER INTO A FIVE-YEAR LEASE PURCHASE AGREEMENT WITH NECESSARY PARTIES FOR THE ACQUISITION OF MEDICAL RESUSCITATION EQUIPMENT MANUFACTURED BY ZOLL MEDICAL CORPORATION FOR USE BY THE FIRE DEPARTMENT, APPROVING THE FINANCING OF THE LEASE PURCHASE AGREEMENT THROUGH KANSAS STATE BANK OF MANHATTAN, AND AUTHORIZING THE MAYOR TO SIGN ALL NECESSARY;1xREEMENTS FIRE CHIEp..r CITY MANAGER ITEM TITLE: 4/5THS VOTE: YES NO X SUMMARY The Chula Vista Fire Department delivers quality Basic Life Support (BLS) services to residents, visitors, and employees every day. A vital component of this service heavily relies on the resuscitative equipment that is carried on all apparatus. Such essential equipment includes cardiac defibrillators, Auto-Pulse devices, and portable suction units. The industry standard for the service life of this equipment is five years. The Fire Department is requesting authorization to enter into a five-year lease purchase agreement to acquire for the acquisition of medical resuscitation equipment from Zoll Medical Corporation in order to replace existing equipment that is beyond its useful performance life. Financing for the lease-purchase of this equipment is to be provided by Kansas State Bank of Manhattan. No budget amendment is required for acquisition of this equipment in fiscal year 2007-2008 because the Fire Department has sufficient funds to make the initial payments under the proposed financing agreement. 9-1 April 22, 2008 Item ~ Page 2 ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act [CEQA] and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it does not involve a physical change to the environment; therefore, pursuant to Section 15060[c][3] of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary . RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSIONS RECOMMENDATION Not Applicable. DISCUSSION The current age of the Fire Department's automatic external defibrillators (AED) has reached the seven-year mark. The Department currently does not have Auto-Pulse devices. Together, the AED and Auto-Pulse comprise the "standard of care," and are considered the comprehensive cardiac resuscitative package. In addition, the Fire Department currently uses manually operated suction units for airway management. These manually operated suction units presently carried are limited in their ability and application to provide proper and effective airway management capabilities. This is especially true when managing a patient's airway during advanced life support (ALS) interventions. The Fire Department is recommending authorization to replace its configuration of resuscitative equipment in an effort to come into alignment with industry standards. A more detailed description of the equipment that is proposed for replacement is as follows: Portable Suction Units Current suction units are a manually hand-held apparatus that creates vacuum each time a handle is squeezed. Unlike modem power-operated suction units, the current manually-operated suction units cannot provide constant, uninterrupted suctioning; nor are they capable of maintaining airway patency in those patients whom have had advanced airway adjuncts inserted. The suction units required are battery powered, self-contained, and accept both rigid and/or soft suction catheters. This capability allows emergency medical technicians (EMTs) to perform both orpharyngeal (non-intubated patients), and tracheal (intubated patients) suctioning. Auto-Pulse & Defibrillators Sudden cardiac arrest is the abrupt loss of heart function. If untreated, it leads to death within minutes. Each year in the United States, over 250,000 people die from out-of-hospital sudden cardiac arrest. In the City of Chula Vista, there are approximately 173 deaths from sudden cardiac arrest each year. 9-2 April 22, 2008 Item ~ Page 3 The survival rate is only five percent, and this rate has not improved in 30 years. The problem is that four out of five victims collapse at home. By the time EMTs arrive with a defibrillator, most sudden cardiac arrest patients cannot be shocked successfully because too much time has passed. The only treatment for these patients is CPR and drug therapy. While bystander CPR is effective in improving a patient's chances of survival, manual CPR in general is very inefficient. This is especially important to professional rescuers, who may need to deliver CPR for 20 to 40 minutes. Many times, this includes moving the patient down stairs and during transport to the hospital. During manual CPR, the heart only receives 10 to 20 percent of its normal blood flow. The brain gets 30 to 40 percent. In order to restart the heart, it is essential to circulate oxygen and medications to the heart muscle. Without circulation, the odds of successful resuscitation are very poor. While the minimal flow provided by manual CPR is adequate for bystanders to help sustain life until professional help arrives, full circulation is needed by Emergency Medical Services (EMS) ifresuscitation efforts are going to be effective. Because defibrillation is most effective in the first three to four minutes, AEDs are placed where they can help cardiac arrest victims who collapse in public places. However, eighty percent of sudden cardiac arrests occur at home, and survival decreases seven to ten percent every additional minute. After discovering a loved one who is pulse-less and not breathing, distraught family members sometimes panic and may even call a neighbor or relative before calling 911. By the time the dispatcher collects the information from the caller, dispatches EMS, we respond, and actually arrive at the patient's side, six to twelve minutes may have passed. Even the most efficient EMS systems in the country cannot overcome these built-in response time limitations. Once the time window for defibrillation has been missed, the only hope for the patient is to circulate oxygen and medications to the heart and brain while attempt to restart the heart. We need the right tools to succeed. What is needed is improvement in the ability to circulate blood to the heart and brain during cardiac arrest. The most critical survival aspect of cardiac care is the ability to deliver continuous, uninterrupted high-quality cardiac compressions (CPR). To overcome the limitations of manual CPR, EMTs and paramedics need a more effective tool to provide 100-110 percent blood flow to the heart and brain for patients of all sizes, without fatigue. By delivering automated, computerized chest compressions throughout treatment, a better effort of circulating oxygen and medications to the heart and brain can be achieved. Most importantly, the Auto- Pulse maintains circulation throughout treatment, including during transport to the hospital. Survival rates increased from five (5) percent to 33-37 percent using the Auto-Pulse. The return of spontaneous circulation (ROSe) has improved to 74 percent. An important safety benefit to EMS personnel is that they can wear their seat belt in the back of the ambulance while performing CPR. The only hope for sudden cardiac arrest victims is to bring advanced technologies to the patient in the field. Many advances have been made over the years, including public CPR training, advancing care to the paramedic level and, most recently, placing AEDs in public areas where they are the most effective. The Auto-Pulse device provides the missing link in the treatment of cardiac arrest. They provide a powerful new tool than enable greater levels of circulation to sudden cardiac arrest patients, including the 80 percent who collapse at home. 9-3 April 22, 2008 Item q Page 4 This, in conjunction with AEDs, the Auto-Pulse, has become the "standard of care" in cardiac resuscitation. Acquisition of the Auto-Pulse is an investment that will increase the Fire Department's ability to save lives. Approval to move forward with this equipment acquisition is requested as the current status of the Fire Department's AED's includes two documented Class-l recalls by the FDA: sporadic unreliability and one documented unit failure. Currently four "loaner" units are on front line apparatus because these AED's are no longer functional as a result of their performance life being past industry standards by two years. Chula Vista Municipal Code Section 2.56.140 authorizes the purchasing agent to participate in cooperative bids with other government agencies for the purchase of materials of common usage provided that such items are purchased through a competitive process that the purchasing agent determines to be consistent with good purchasing practices. The pricing from loll Medical Corporation is from a County of Los Angeles Fire Department competitive bid, specifically County of Los Angeles Solicitation No. 208423 approved in 2002. The current amendment extending this bid with loll Medical Corporation expires August 15,2008. Staff is recommending purchasing this equipment manufactured by loll Medical Corporation based on the determination of the City's Purchasing Agent that County of Los Angeles Solicitation No. 208423 is consistent with good purchasing practices and is in compliance with Chula Vista Municipal Code Section 2.56.140. loll Medical Corporation, through its affiliate P&L Capital, has also provided the City a cost effective financing option that will allow the City to acquire this equipment via a five-year lease purchase agreement. These financing terms will be extended to the City by the Kansas State Bank of Manhattan upon the successful completion of an application process. The total amount to be fmanced for purchasing this equipment is $764,224.42, and will result in monthly payments of $14,351.29 over a five-year period. Included in this amount are an extended warranty and a preventative maintenance agreement that will also be acquired. The loll Medical Corporation price quote is Attachment 1. The fmancing application is Attachment 2. The financing agreement is Attachment 3. Staff is recommending acquiring the AED and Auto-Pulse equipment manufactured by loll Medical Corporation, as this equipment configuration will provide the Fire Department the ability to upgrade this equipment from Basic Life Support (BLS) capability, to Advanced Life Support (ALS) capability. This will be a necessary option should the Fire Department launch a paramedic program in the future. In addition, the loll Medical Corporation products to be purchased also offer the following unique features: Mainstream Capnography - This allows users to determine the level of effectiveness of CPR procedures and patient response. Masimo Set Pulse Oximetry - This is provides the best industry standard for measuring oxygen saturation levels in patients necessary to determine the patient's oxygen needs and treatment requirements. 9-4 April 22, 2008 Item l Page 5 Protocol Assist Markers - This feature allows for emergency medical procedures to be time stamped for evaluation and documentation. Rescue Net Code Review - Allows for emergency medical response data to be transferred from equipment to records management systems. AED Mode - This is a safety feature that provides for functionality in BLS or ALS modes depending the level of training of the user. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500-foot rule found in California Code of Regulations section 18704.2(a)(I) is not applicable to this decision. FISCAL IMPACT The total cost to purchase this equipment is $764,224.42. The Fire Department is recommending acquiring this equipment through a five-year lease purchase agreement that will result in monthly payments in the amount of$14,351.29. There will be no fiscal impact for fiscal year 2007-2008 as funds in the amount of $28,702.58 from the Fire Department budget will be used to pay the monthly lease purchase payments for the balance of the current fiscal year. Funds to pay the ongoing lease purchase payments will be included in the Fire Department's fiscal year 2008- 2009 budget. The Department will purchase the suction units for the amount of $16,940 with current fiscal year 2007-2008 budgeted funds. The Fire Department is projecting to make these purchases and still remain within projected mid-year Council adopted savings levels. Attachment 1: Attachment 2: Attachment 3: Zoll Medical Corporation Price Quote P & L Capital Financing Application Financing Agreement with Kansas State Bank of Manhattan 9-5 ZOLLo ,.- TO: Chula Vista Fire Department ---..~ (Juld'..:IJlJ'::~ 2rJfi'" Ready ZOLL Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Telefax Advam:inCJ ..u.lih..lion. TodiIy." 447 F Street Chula Vista, CA 91910-3715 Attn: Chief John Davidson QUOTATION 13517 V:2 DATE: February 19, 2008 email: idavidson@ci.chula-vista.ca.us TERMS: Net 30 Days Ouote w/eanuo FOB: Shippin9 Point Freight: Prepay and Add ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE 1 50101730020164013 E Series AED with 12-lead with 1.step patient cable, 20 $25,285.00 $18,205.20 $364,100.00 . Sp02 ( comes with EtC02 port) with reusable sensor and 4' cable, Integrated Bluetooth, NIBP with Adult.Plus cuff and hose and Noninvasive Pacing Includes Manual Override, AC Power, Printer, Protocol Assist Codemarkers and GPS Clock Auto Sync, TriM ode Display, 3-lead ECG patient cable, universal cable, ready for one (1) SurepowerTM Rechargeable Lithium Ion Battery with built in AC Charger ordered separately, RS232 data transfer port, Roll Cage and Rapid Cable Deployment System or Rugged SottPack Carry Case, AC power cord, 12" AC extension power cord, one package of recorder paper, two PCMC1A slots, Operator's Manual. and standard one (1) year warranty for EMS use. 1a 8000-0312 E Series Only CAPNO 5 Mainstream C02 Sensor and 20 $4,500.00 $3,240.00 $64,800.00 . Cable 2 8050-0030-01 SurePower'lll Charging Station 10 $2,195.00 $1,581.06 $15,810.00 . .4 Charging bays . Multiple chemistry compatible . 200 watt capacity . Graphic driven user interface . RS-232 communication port 3 8019-0535-01 SurePowerN Rechargeable Lithium Ion Battery Pack 60 $450.00 $324.00 $19,440.00 . . 5.8 Ah Capacity . High density lithium ion chemistry . RunTime™ Indicator . Automatic calibration ready . Stores history of use and maintenance This quote is made subject to ZOLL's standard commercial terms and conditions (ZOLL T's + C's) which Paae 1 Subtotal $464,150.00 accompan this uote. An urchase order P.O. issued in res onse to this uotation will be deemed to y q yp () p q incorporate ZOLL T's + C's. Any modification of the ZOLL T's + C's must be set forth or referenced in the customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by this quote and the customer's P.O unless set forth in or referenced by either document. 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES WILL BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 60 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES ADDITIONAL. 6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT AFPROVAL BEFORE ACCEPTANCE BY ZOLL. 7. PURCHASE ORDERS TO BE FAXED TO ZOLL CUSTOMER SERVICE AT 978-421-0015. 8. ALL DISCOUNTS OFF LIST PRiCE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. g. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 1 Catherine Prophet Sr. EMS Territory Manager 800-242-9150, x9570 9-6 Attachment 1 ZOLLo ,.- ----.. (ILlI~kll!h>, 21)11:3 Retul.v ZOll Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Telefax AdvanGincr ....II....it..tiGn. TQdlty." TO: Chula Vista Fire Department 447 F Street Chula Vista, CA 91910-3715 Attn: Chief John Davidson QUOTATION 13517 V:2 emall: idavidson@ci.chula-vista.ca.us DATE: February 19, 2008 TERMS: Net 30 Days Quote w/Caono FOB: Shippin9 Point Freight: Prepay and Add ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE 4 8778- 0107 4 Year Extended Warranty 20 $3,400.00 $3,400.00 $68,000.00 (at time of equipment sale) 4a 8778- 4222 4 Year, 2 Preventative Maintenance 20 $1,600.00 $1,600.00 $32,000.00 (at time of equipment sale) 5 8012-0206 12~lead ECG Simulator 1 $995.00 $717.00 $717.00 . 6 8700-0700-01 AutoPulse<El System - Generates consistent and 11 $10,995.00 $10,995.00 $120,S45.00 uninterrupted chest compressions, offering improved blood flow during cardiac arrest. Includes Backboard, User Guide, Quick Reference Guide, Shoulder Restraints, Backboard Cable Ties, Head Immobilizer, Grip Strips, In-service Training DVD, and one year warranty. 7 8700-0702-01 Autopulse@ Battery - Original equipment Nickel-metal 33 $575.00 $575.00 $18,975.00 Hydride (NiMH) battery for use with the AutoPulse Platform. 8 8700-0703-01 AutoPulse@BatteryCharger, U.S.- Charges and 11 $1,795.00 $1,795.00 No Charge conditions up to two batteries and automatically assesses battery charge level. Includes User Guide and U.S. power cord. 9 8700-0706-01 LifeBancl@ 3 pack - Single-use chest compression band. 11 $375.00 $375.00 $4,125.00 (3 per packase) 10 8700-0705-01 Autopulse@Soft Carry Case - Soft-sided carrying case 11 $395.00 $395.00 $4,345.00 holds AutoPulse Platform, spare battery, spare LifeBand and Shoulder Restraints. 11 7800-1003 MRL Quest AED Trade-In 20 ($200.00) ($4,000.00) .. This quote is made subject to ZOLL's standard commercial terms and conditions (ZOLL T's + C's) which Paae 2 Subtatal $709,257.00 accom an this uote. An urchase order P.O. issued in res onse to this uotation will be deemed to p y q yp () p q incorporate ZOLL T's + Cts. Any modification of the ZOLL T's + C's must be set forth or referenced in the customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by this quote and the customer's P.O unless set forth in or referenced by either document 1. DELIVERY Will BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES Will BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 60 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES ADDITIONAL. 6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOlL. 7. PURCHASE ORDERS TO BE FAXED TO ZOll CUSTOMER SERVICE AT 978-421-0015. 8. All DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 2 Catherine Prophet Sr. EMS Territory Manager 800-242-9150, x9570 9-7 ZOLLo ",- --. CJuldJ..:1J1J\..:'.2IJlJ'S Remfy ZOLL Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Telefax AdvaBGinV "'IIUSCit..dGn. Tod.y." TO: Chula Vista Fire Department 447 F Street Chula Vista, CA 91910-3715 Attn: Chief John Davidson QUOTATION 13517 V:2 DATE: February 19, 2008 email: idavidson4i>ci.chula-vista.ca.us TERMS: Net 30 Days Quote w/Canno FOB: Shippin9 Point Freight Prepay and Add ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE Estimated Sales Tax (CA 7.75%) ..... $54.957.42 ""'Trade-In Value valid if all units purchased are in good operational and cosmetic condition, and include all standard accessories such as paddles, cables, etc. Customer assumes responsibility for shipping trade-in equipment to ZOlL Chelmsford within 60 days of receipt of new equipment. Customer agrees to pay cash value for trade~in equipment not shipped to ZOLL on a timely basis. *Reflects Discount Pricing This quote is made subject to ZOll's standard commercial terms and conditions (ZOll rs + C's) which TOTAL $764,224.42 accompany this quote. Any purchase order (P.O.) issued in response to this quotation wm be deemed to incorporate ZOll T's + C's. Any modification of the ZOll T's + C's must be set forth or referenced in the customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by this quote and the customer's P.O unless set forth in or referenced by either document 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES WILL BE F.O.B. SHiPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 60 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES ADDITIONAL. 6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOlL. 7. PURCHASE ORDERS TO BE FAXED TO ZOll CUSTOMER SERVICE AT 978-421-0015. 8. All DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 3 Catherine Prophet Sr. EMS Territory Manager 800-242-9150. x9570 9-8 P&LCAPITAL Chula Vista Fire Department Finance Solution: ZOLL Medical .. This transaction mllst be designated as tax-exempt lInder Section 103 of the lntel'llaJ Revenue Code of 1986 as amended. '" LESSEE'S TOTAL AMOUNT OF TAX-EXEMPT DEBT TO BE ISSUED IN THIS CALENDAR YEAR WJLL NOT EXCEED THE $10,000,000 LIMIT. o This is a tinal1.cc!owllership lease. No J'esidual value. D Fixed interest I1lte for the (5) yon; term. Lease Basis: Payment: $764.224.42 $14,351.30 per man th for 60 mon ths _ Pr~ra111: Rcqulrements: First Payment: Documentation Fee: $1.00J>.iELoot. _ _ _ _ updated appltcatlon, tmanc!als as hsted 011 appllcatlon Due one month from close o (110 additional fees) Tim If you have allY questions regarding this finance solution, please Accepted (signed) ( )' ive me a call to discuss t~- Printed name! Title Maria Kachadoorian, Director of FinancefTreasurer Date '1//& lOf- t , This. is lllJl'OflOSal only nnd is not II commitment to nmmcc. This l)TOl108R.lls suhjec.t fo c.redlt review nud npproval null pl'opel' execution or llIutulllly llcccptflhlc ducumcnh~tiOI1. . Lease quote is vl1lid for 30 days afur dule on proposnl. 041D41U8 r&L Capital Tim Mathison 4131 South 143" Circle*Omaha*NE*68137 800-<i98-1686 tax-402-758-1259 timfilJ.olcapita].coll1 www.plcapital.com Attac~...t 2 P&LCAPITAl MUNICIPAL CREDIT APPLICATION Please complete the application and return with the requested financial info/1llatiol1. GENERAL INFORMATION Le al Name of Lessee: Cit of Chula Vista Address: 276 Fourth Ave, Ci : Chula Vista Count: San Die 0 Contact Person: Pablo Quilantan Phone: 619 585-5693 Email Address:Puilantanci.chula-vista.ca.us Alternative Contact Person: James S. Geerin Date municipality was established: State: CA Zl : 91910 Title: Administrative Services ManaQer Fax: 619 585-5685 11tle: Fire Chief Phone: 619 409-5858 Does the lessee self-insure for property & liability insurance? Self Insured TRANSACTION INFORMATION Total Cost of E ul ment/Pro ect: $764 224.42 "'Down Pa ment: $0 Trade In: $0 Other: $0 Amount to Finance: $$764,224.42 Delivery Date: TSD Arrears Semi-Annual Annual What fund will the remain in lease a ments be made from? General Fund EQUIPMENT DESCRIPTION Equipment Description - including make and model (please attach brochure if available): AED and Auto Pulse Equipment: see attached quote New E uJ ment: 181 Yes D No Refurbished: D Yes No Replacement: 181 Yes D No If not a re lacement, wh is the e ui ment needed? Su out Included: Yes 0 No Soft Costs Included: Yes D No Ph s~callocation of e ui ment after delive : Describe the essential use of the equipment being purchased: Equipment will be used for Advance Life Support applications If no, list aQe of equipment or date manufactured: Year: A!=Ie of current equipment: Year urchased: Amount of buyout inciuded: $ Amount of soft oosls included shi in, software and sales tax: $54,967.42 BUILDING PROJECT Is the ro'ect an addition renovation or a new buildin ? No Does the lessee own the land? DVes DNa Is the land included in the financin ? Yes ...DNa If yes, what is the cost of the land? N/A What is the physical address of the new proiect? N/A Please provide the current building's age, estimated market value, square feet, and brief description of facility layout: NJA Please provide a brief description of the addition, renovation, or new building: N/A What is the essential use for the new project? N/A 9-10 FINANCIAL INFORMATION lIthe lessee's expenditures exceeded revenues for anyone of the last three years, please explain why and what measures were taken to correct the shortfall: The city has had a structural budget problem that has caused the city to use its reserves. In order to correct this the city has cut spending in the current fiscai year by approximately $8 million and Is proposing a $25 million reduction from its fiscal year 2007-08 budget of $f86 miliion to its proposed fiscel year 2008-09 budget of $141 million. Have the re uested lease a menls been included in the operating budget? Yes 0 No Will the lessee issue more than $10000,000 in Tax-Exem t Debt in this Calendar Year? Yes 0 No Has the lessee defaulted or non-a ro riated 011 a nor lease or bond? 0 Yes [8J No Can any of the invested assets either directly or through an investment pool in derivatives, inverse floaters, reverse repurchase a reements or an other invesbment be characterized as a 'Hi h Risk''? DYes 0.No DEMOGRAPHICS Po ulation in 2004:208 768 2005: 216 999 2006: 223 533 2007: 227 723 Please list the major employers in the city and the number of people employed: 1.Sweetwater High Schaal District 4,515 3. Southwestern CommunityColiege 2,503 5. City of Chula Visla 1,661 2. CV Elementa School District1., 708 4. Rohr/BF Goodrich 1 903 Has the munici alit been rated b a ma"or ratin Ratin :A- Agency: Standard and Poors TAX LEVY INFORMATION Please Indicate the tax/milllevy lor each yaar, 2004-05: $18.7 miliion 2005-06: $22.1 million 2006-07: $25.2 miliion Budget 2007-08: $30.3 million Are there any voter imposed restrictions an taxing or spending? ~Yes DNa If es lease ex [ain: Pro osition 13 limits fa ert tax increases to 1 % of the assessed value of the ro ert Please indicate the assessed value for each year. 2004-05: $15.4 billion 2005-05: $18.5 biilion 2006-07: $21.3 biilion Bud et 2007-08: $24.9 billion Please indicate the percentage of taxes actualiy coliected far each year. 2004-05: 98.81% 2005-06: 98.57% 2006-07: 97.85% B~d~t 2007-08: 96% Who are the three largest taxpayers end what percent of taxes do they represent? 1. Rohr InclBF Goodrich 0.46% 2. Essel Vitan LLP 0.45% 3. BRE Pro erties 0.37% FINANCIAL INFORMATION REQUIRED; ALL OF THESE ITEMS ARE LOCATED ON THE CITY OF CHULA VISTA WEBSITE WWW.CHULAVISTACA.GOV .{ Complete copies of the last three (3) years audited financial statements v" Current "interim" financial statements (if the most recent audit is more than 6 months old) .{ A co of the current fiscal ear's bud et Failure to consummate this transaction once credit approved with lease documents drafted and delivered to the lessee will result in a lost deal fee being assessed to the lessee. If the transaction is funded by Baystone Financial Group, this fee will NOT be charged. "'Proof of down payment is required prior to any payment of tease proceeds to the vendor, unless otherwfse negotiated. Typed Name Marla Kechadoorlan and Title: Director of FinancefTreasurer Date: 0411~!?.9._Q.(L_ Tim Mathison - Sales manager - P&L Capital 4131 S 143rd Cir, Omaha, NE 68137; 800.658.6239; Fax 402-758-1259 Tim@pigaojt,l.com BAYSTONE FINANCIAL>. GROUP Together. we keep communities running. Sent via Email: tim@olcaoita/.com April 16, 2008 Tim Mathison P & L Capital Re: Financing for New ZoU Defibrillators, City of Chula Vista Dear Mr. Mathison: Please find the enclosed docwnentation for your review and completion. An instruction sheet has been included as a guide to assist you with the process. Once you have completed and returned the required documentation to Baystone Financial Group, the transaction can be funded. The docwnentation has been filled out according to the terms and amount shown on the formal proposal. If you have questions or comments, please feel free to call us. Kansas State Bank is listed as Lessor in this Lease with Option to Purchase Agreement. Baystone Financial Group is the exclusive originator, marketing agent and selling agent for Kansas State Bank of Manhattan. Baystone Financial Group is an affiliate of the bank under Federal Banking Laws. For your convenience, we have listed the documentation that we require before Mav 4. 2008: **THIS DOCUMENTATION SENT OUT PRIOR TO CREDIT APPROV AL** ./ D The Lease WrrH ALL FXHlBlTS EXECUTED CnRRF:CTLY ./ D 8038 IRS Form ./ D Lessee Acknowledgement ./ D Insurance Memo Please note that a documentation fee of $350.00 wiD be due from the Lessee if this transaction is not funded. Additional fees may be charged by Lessor if Lessor incurs additional costs in documentation processing, legal negotiation, analysis and credit processing. This fee will NOT be charged if the transaction is funded by Kansas State BanklBaystone Financial Group. If you have any questions regarding the above documentation, please feel free to contact me. Sincerely, lenni Braddock Documentation Associate 'Specialists in Lease Finance' Manhattan Chicago ~ Phoenix 1680 Charles Place, Manhattan, Kansas 66502; 800.752.3562; 785.587.4050; Fax 785.537.4806 E.mail: baystone@baystone.net; Website: www.baystone.net Attachn~knl ~ *OPTIONAL* 'As an additional payment option for Lessee, we are now providing the option of ACH (Automatic Clearing House). By completing this form, Lessee is authorizing Lessor to withdraw said payment amount on said date. Debit Authorization I hereby authorize Kansas State Bank Lease Department to initiate debit entries to the account indicated below at the financial institution named below and to debit the same to such account for: Lease Number Payment Amount Frequency of Payments Annual 0 Semi-AnnualD $14,351.29 Quarterl Monthl 0 Day of Month (please choose one) Beginning Month Year 1stD 5th 0 15th 0 2o'hD I acknowledae that the oriaination of ACH transactions to this account must comolv with the provisions of U.S. law. Financial Institution Name Branch Address City State Zip Routing Number Account Number Type of Account o Checking o Savings This authority is to remain in fuli force and effect until Kansas State Bank has received written notification from any authorized signer of the account of its termination in such time and manner as to afford Kansas State Bank a reasonable opportunity to act on it. Lessee Name on Contract Ci of Chula Vista Signature and Title Printed Signature and Title Tax 10 Number Date PLEASE A IT ACH COPY OF A VOIDED CHECK TO THIS FORMI USA Patriot Act USA Patriot Act requires identity verification for ali new accounts. This means that we may require information from you to aliow us to make a proper identification. 9-13 Documentation Instructions The instructions listed below should be followed when completing the enclosed documentation. Documentation comoleted imomoerlv will de/av fundino. If you have any questions regarding the instructions or the documentation, please call us. ALL ORIGINAL DOCUMENTATION MUST BE RETURNED TO BAYSTONE FINANCIAL GROUP PRIOR TO FUNDING. I. LEASE WITH OPTION TO PURCHASE AGREEMENT DThe Agreement .( Sign and type name and title DExhibit A, Description of Equipment .( Type complete equipment description, (if unavailabie, leave blank) .( Type the location where the equipment will be located after delivery/installation. DExhibit B, Payment Schedule .( Sign and type name and title DExhibit C, Acceptance of Obligation .( Sign and type name and title DExhibit D, Lessee Resolution .( Type in the date of the meeting in which the purchase was approved. .( Print or type the name and title of the individual(s) who is authorized to execute the Agreement .( The secretary, chairman or other authorized board member of the Lessee must sign the resolution where indicated. .( A third individual must attest the Resolution where indicated. DExhibit E, Officers Certificate .( Fill in all of the blanks necessary .( Sign and type name and title DExhibit F, Certificate of Acceptance .( PLEASE KEEP THE ACCEPTANCE CERTIFICATE UNTIL YOU RECEIVE THE EQUIPMENT. WE WILL THEN NEED THE ORIGINAL AT THA T TIME. DExhibit G, Void Payment Request Form .( Sign and type name and title DExhibit G, Payment Request Form PLEASE KEEP THE PA YMENT REQUEST FORM UNTIL YOU NEED TO REQUEST FUNDS FROM THE VENDOR PA YABLE ACCOUNT DOpinion of Counsel .( Request that your legal counsel retype the Opinion of Counsel to his/her letterhead, sign and date it. .( Leaal counsel shall not alter the oDinion. If counsel would like changes made to the opinion, he/she must first contact Baystone Financial Group. DBank Qualified Certificate .( Sign and type name and title II. 8038 - IRS FORM .( In Box 2, type employer identification number .( Sign and type name and title III. CERTIFICATE OF INSURANCE .( Complete the memo attached stating who your insurance carrier & # is. 9-14 CA Standard VPA 102307 LEASE WITH OPTION TO PURCHASE AGREEMENT Lessee: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Lessor: Kansas State Bank of Manhattan 1010 Westloop, P.O. Box 69 Manhattan, Kansas 66505-0069 Dated as of April 16, 2008 This Lease With Option to Purchase Agreement dated as of the date listed above is between Lessor and Lessee listed directly above. Lassor desires to finance the purchase of the Equipment described in Exhibit "A" to Lessee and Lessee desires to finance the purchase of the Equipment from Lessor subject to the terms and conditions of this Agreement which are set forth below. I. Definitions: Section 1.01 Definitions. The following terms will have the meanings indicated below unless the context clearly requires otherwise: "Additional Schedule" refers to the proper execution of additional Schedules to Exhibit A, Exhibit S, Exhibit C and Exhibit D as well as other exhibits or documents that may be . required by the Lessor all of which relate to a lease of additional Equipment "Agreement" means this Lease with Option to Purchase Agreement and all Exhibits attached hereto. "Budget Year" means the Lessee's fiscal year. "Commencement Date" is the date when Lessee's obligation to pay rent begins. "Equipment" means all of the items of Equipment listed on Exhibit "A" and all replacements, restorations, modifications and improvements. "Legally Available Funds. means funds that the governing body of Lessee duly appropriates or are othelWise legally available for the purpose of making Rental Payments under this Agreement, including monies held in the Vendor Payable Account to the extent that such moneys are used to prepay Rental Payments or Purchase Option Price. "Lessee" means the entity listed above as Lessee and which is leasing the Equipment from Lessor under the previsions of this Agreement "Lessor" means the entity originally listed above as Lessor or any of its assignees. "Lease Term" means the Original Term and all Renewal Terms. "Original Term" means the period from the Commencement Date until the end of the Budget Year of Lessee. 'Partial Prepayment Date" means the first Rental Payment date that occurs on or after the eartier of (a) the twenty-four month (24) anniversary of the Commencement Date or (b) the date on which Lessee has accepted all the Equipment and all of the Equipment has been paid for from the Vendor Payable Account. "Purchase Price" means the total cost of the Equipment, including all delivery charges, installation charges, legal fees, financing costs, recording and filing fees and other costs necessary to vest full, clear legal title to the Equipment in Lessee, subject to the security interest granted to and retained by Lessor as set forth in this Agreement, and othelWise incurred in connection with the financing of ll1is Equipment "Renewal Term" means the annual term which begins at the end of the Original Term and which is simultaneous with Lessee's Budget Year. "Rental Payments" means the payments Lessee is required to make under this Agreement as set forth on Exhibit "B~. MState" means the state in which Lessee is located. 'Surplus Amount" means any amount on deposit in the Vendor Payable Account on the Partial Prepayment Date. 'Vendor Payable Accounf' means the separate account of that name established pursuant to Section X of this Agreement II. Lessee Warranties Section 2 01. Lessee reoresents warrants and covenants as follows for the benefit of Lessor or its assionees: (a) Lessee is an "issuer of tax exempt obligations" because Lessee is the State or a political subdivision of the State within the meaning of Section 103(a) of the Internal Revenue Coda of 1986, as amended, (the "Code") or because Lessee is a constituted authority or district authorized to issue obligations on behalf of the State or political subdivision of the State within the meaning of Treasury Regulation 1.103-1(b). (b) Lessee is authorized under the Constitution and laws of the State to enter into this Agreement, and has used such authority to properly exeC1..lte and deliver this Agreement Lessee has followed all proper procedures of its goveming body in executing this Agreement. The Officer of Lessee executing this Agreement has the authority to execute and deliver this Agreement. This Agreement constitutes a legal, valid, binding and enforceable obligation of ll1e Lessee in accordance with its terms. (c) Lessee has complied with all statutory laws and regulations that may be applicable to the execution of this Agreement (d) Lessee shall use the Equipment only for essential, traditional government purposes. (e) Should the IRS disallow the tax-exempt status of the Interest Portion of the Rental Payments as a result of the failure of the Lessee to use the Equipment for governmental purposes, then Lessee shall be required to pay additional sums to the Lessor or its assignees so as to bring the after tax yield to the same level as the Lessor or its assignees would attain if the transaction continued to be tax-exempt. (1) Should the Lessee cease to be an issuer of tax exempt obligations or if the obligation of Lessee created under this Agreement ceases to be a tax exempt obligation for any reason, then Lessee shall be required to pay additional sums to the Lessor or its assignees so as to bring the after tax yield on this Agreement to the same level as the Lessor or its assignees would attain if the transaction continued to be tax-exempt. (g) Lessee has never non-appropriated funds under an Agreement similar to this Agreement (h) Lessee will submit to the Secretary of the Treasury an information reporting statement as required by the Code. (i) Upon request by Lessor, Lessee will provide Lessor with current financial statements, reports, budgets or other relevant fiscal information. U) Lessee shall retain the Equipment free of any hazardous substances as defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et. seq. as amended and supplemented. (k) Lessee presently intends to continue this Agreement for the Original Term and all Renewal Terms as set forth on Exhibit "8" hereto. The official of Lessee responsibie for budget preparation will include in the budget request for each Budget Year the Rental Payments to become due in such Budget year, and will use all reasonable and lawful means available to secure the appropriation of money for such Budget Year sufficient to pay the Rental Payments coming due therein. Lessee reasonably believes that moneys can and will lawfully be appropriated and made available for this purpose. III. Acquisition of Equipment, Rental Payments and the Purchase Option Price Section 3.01. Acouisition Installation and Acceotance Lessee shail be solely responsible for the ordering of the Equipment and for the delivery and installation of the Equipment. _Lessor shall have no liability for any delay in delivery or failure by the supplier to deliver any Equipment or to fill any purchase order. Lessee will payor cause the supplier to pay all transportation, packing, taxes, duties, insurance, installation, testing and other charges in connection with the delivery, installation and use of the Equipment As soon as practicable after the receipt of the Equipment, Lessee shall fumish Lessor with an Acceptance Certificate. Execution of the Acceptance Certificate by any employee, official or agent of Lessee having managerial, supervisory or procurement authority with respect to Equipment of the same general type as the Equipment shall constitute acceptance of the Equipment on behalf of the Lessee. By making a Rental Payment after its receipt of the -Equipment pursuant to this Agreement, Lessee shall be deemed to have accepted the Equipment on the date of such Rental Payment for purposes of this Agreement All Rental Payments paid prior to delivery of the Acceptance Certificate shall be credited to Rental Payments as they become due as shown on the Rental Payment Schedule attached as Exhibit B hereto. Section 3.02. Rental Pavments. Lessee shall pay Rental Payments exclusively to Lessor or its assignees in lawful, legaily available money of the United States of America. The Rental Payments shall be sent to the location specified by the Lessor or its assignees. The Rental Payments shall be payable solely from Legally Available Funds, shall constitute a current expense of the Lessee and shall not constitute an indebtedness of the Lessee. The Rental Payments are due as set forth on Exhibit B. Lessor shall have the option to charge interest at the highest lawful rate on any Rental Payment received later than the due date for the number of days that the Rental Payment(s) were late, plus any additional accrual on the outstanding balance for the number of days that the Rental Payment(s) were late. Lessor shall also have the option, on monthly payments only, to charge a late fee of up to 10% of the monthly Rental Payment that is past due. The Rental Payments will be payabie without notice or demand at the time and in the Amounts Section 3.04. Purchase Ootion Price. Upon thirty (30) days written notice, Lessee shall have the option to pay, in addition to the Rental Payment, the corresponding Purchase Option Price which is listed on the same line on Exhibit B. This option is only available to the Lessee on the Rental Payment date and no partial prepayments are allowed. If Lessee chooses this option and pays the Purchase Option Price to Lessor then Lessor will transfer any and all of its rights, title and interest in the Equipment to Lessee. Sedion 3.05. Lease Term The Lease Term of the Agreement shall be the Original Term and all Renewal Terms until all the Rental Payments are paid as set forth on Exhibit B except as provided under Section 4.01 and Section 9.01 below. If, after the end of the budgeting process which occurs at the end of the Original Term or any Renewal Term, Lessee has not non~appropriated as provided for in this Agreement then the Lease Term shall be extended into the next Renewal Term and the Lessee shall be obligated to make all the Rental Payments that come due during such Renewal Term. Section 3.06 Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER WARRANTY IMTH RESPECT TO THE EQUIPMENT. LESSOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE ARISING OUT OF THE INSTALLATION, OPERATION, POSSESSION, STORAGE OR USE OF THE EQUIPMENT BY LESSEE. IV. Non-Appropriation Section 4.01 Non~ADDroDriation. If insufficient funds are available in Lessee's budget for the next Budget Year to make the Rental Payments for the next Renewal Term and the funds to make such Rental Payments are othelWise unavailable by any lawful means whatsoever, then Lessee shall have the option to non-appropriate the funds to pay the Rental Payments for the next Renewal Term. Lack of a sufficient appropriation shall be evidenced by the passage of an ordinance or resolution by the goveming body of Lessee specifically prohibiting Lessee from performing its obligations under this Agreement and from using any moneys to pay the Rental Payments due under this Agreement for a designated Budget Year and ail subsequent Budget Years. If Lassee chooses this option, then all Obligations of the Lessee under this Agreement regarding Rental Payments for aU remaining Renewal Terms shall be terminated at the end of the then current Original Term or Renewal Term without penalty or liability to the Lessee of any kind provided that if Lessee has not delivered possession of the Equipment to Lessor as provided herein and conveyed to Lessor or released its interest in the Equipment by the end of the last Budget Year for which Rental Payments were paid, the termination shall nevertheless be effective but Lessee shall be responsible for the payment of damages in an amount equal to the amount of the Rental Payments thereafter coming due under Exhibit "B" which are ,attributable to the number of days after such Budget Year during which Lessee fails to take such actions and for any other loss suffered by Lessor as a result of Lessee's failure to take such actions as required. Lessee shall immediately nottfy the Lessor as soon as the decision to non~appropriate is made. If such non~appropriation occurs, then Lessee shall deliver the Equipment to Lessor as provided below In Section 9.04. Lessee shall be liable for all damage to the Equipment other than normal wear and tear. If Lessee falls to deliver the Equipment to Lessor, then Lessor may enter the premises where the Equipment is located and take possession of the Equipment and charge Lessee for costs incurred. V. Insurance, Damage, Insufficiency of Proceeds Section 501. Insurance. Lessee shall maintain both casualty insurance and liability insurance at its own expense with respect to the Equipment Lessee shall be solely responsible for selecting the insurer(s) and for making all premium payments and ensuring that all policies are continuously kept in effect during the period when Lessee is required to make Rental Payments. Lessee shall provide Lessor with a Certificate of Insurance which lists the Lessor and/or assigns as a loss payee and an additional insured on the policies with respect to the Equipment (a) Lessee shall insure the Equipment against any loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State and any other risks reasonably required by Lessor in an amount at least equal to the then applicable Purchase Option Price of the Equipment Alternatively, Lessee may insure the Equipment under a blanket insurance policy or policies. (b) The liability insurance shall insure lessor from liability and property damage in any form and amount satisfactory to Lessor. (c) Lessee may self~insure against the casualty risks and liability risks described above. If Lessee chooses this option, Lessee must furnish Lessor with a certificate and/or other documents which evidences such coverage. (d) All insurance policies issued or affected by this Section shan be so written or endorsed such that the Lessor and its assignees are named additional insureds and loss payees and that all losses are payable to Lessee and Lessor or its assignees as their interests may appear. Each policy issued or affected by this Section shall contain a provision that the insurance company shall not cancel or materially modify the policy without first giving thirty (30) days advance notice to Lessor or its assignees. Lessee shall furnish to Lessor certificates evidencing such coverage throughout the Lease Term. Section 502. Damaoe to or Destruction of EauiDment Lessee assumes the risk of loss or damage to the Equipment. If the Equipment or any portion thereof is lost, stolen, damaged, or destroyed by fire or other casualty, Lessee will immediately report all such losses to all possible insurers and take the proper procedures to attain aU insurance proceeds. At the option of Lessor, Lessee shall either (1) apply the Net Proceeds to replace, repair or restore the Equipment or (2) apply the Net Proceeds to the applicable Purchase Option Price. For purposes of this Section and Section 5.03, the term Net Proceeds shall mean the amount of insurance proceeds collected from all applicable insurance policies after deducting all expenses incurred in the collection thereof. Section 5 03. Insufficiencv of Net Proceeds. If there are no Net Proceeds for whatever reason or if the Net Proceeds are insufficient to pay in full the cost of any replacement, repair, restoration, modification or improvement of the Equipment, then Lessee shall, at the option of Lessor, either (1) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds or (2) apply the Net Proceeds to the Purchase Option Price and pay the deficiency, if any, to the Lessor. . Sedion 5 04. Lessee Neclicence. Lessee assumes all risks and liabilities, whether or not covered by insurance, for loss or damage to the Equipment and for injury to or death of any person or damage to any property whether such injury or death be with respect to agents ar employees of Lessee or of third parties, and whether such property damage be to Lessee's property or the property of others (including, without limitation, liabilities for loss or damage related to the release or threatened release of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act or similar or successor law or any state or local equivalent now existing or hereinafter enacted which in any manner arise out of or are incident to any possession, use, operation, condition or storage of any Equipment by Lessee) which is proximately caused by the negligent conduct of Lessee, its officers, employees and agents. Lessee hereby assumes responsibility for and agrees to reimburse Lessor for all liabilities, obligations, losses. damages, penalties, claims, actions, costs and expenses (including reasonable attorneys' fees) of whatsoever kind and nature, imposed on, incurred by or asserted against Lessor that in any way relate to or arise out of a claim, suit or proceeding, based in whole or in part upon the negligent conduct of Lessee, its officers, employees and agents, to the maximum extent permitted by law. VI. TItle and Security Interest Section 6.01 Title. Title to the Equipment shall vest in Lessee when Lessee acquires and accepts the Equipment Title to the Equipment will automatically transfer to the Lessor in the event Lessee non~appropriates under Section 4.01 or in the event Lessee defaults under Section 9.01. In either of such events, Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the passage of legal title to the Equipment to Lessor. Section 6.02. Securitv Interest. To secure the payment of all Lessee's obligations under this Agreement, Lessee hereby grants to Lessor a security interest under the Uniform Commercial Code constituting a first lien on the Equipment descnbed more fully on Exhibit "An. The security interest established by this section includes not only aU additions, attachments, repairs and replacements to the Equipment but also all proceeds therefrom. Lessee authorizes Lessor to prepare and record any Financing Statement required under the Uniform Commercial Code to perfect the Security Interest created hereunder. VII. Assignment Section 7.01. Assionment bv Lessor. All of Lessors rights, title and/or interest in and to this Agreement may be assigned and reassigned in whole or in part to one or more assignees or sub-assignees (including a Registered Owner for Lease Participation Certificates) by Lessor at any time without the consent of Lessee. No such assignment shall be effective as against Lessee until the assignor shall have filed with Lessee written notice of assignment identifying the assignee. Lessee shall pay aU Rental Payments due hereunder relating to such Equipment to or at the direction of Lessor or the assignee named in the notice of assignment. Lessee shall keep a complete and accurate record of ail such assignments. Section 7.02. Assicnment bv Lessee. None of Lessee's right, title and interest under this Agreement and in the Equipment may be assigned by Lessee unless Lessor approves of such assignment in writing before such assignment occurs and only after Lessee first obtains an opinion from nationally recognized counsei stating that such aSSignment will not jeopardize the tax~exempt status of the obligation. VIII. Maintenance of Equipment Section 801. Lessee shall keep the Equipment in good repair and working order. Lessor shall have no obligation to inspect, test, service, maintain, repair or make improvements or additions to the Equipment under any circumstances. Lessee will be liable for all damage to the Equipment. other than normal wear and tear, caused by Lessee, its employees or its agents. Lessee shall pay for and obtain all permits, licenses and taxes necessary for the installation, operation, possession, storage Or use of the Equipment. If the Equipment includes any titled vehicle(s), then Lessee is responsible for obtaining such title(s) from the State and also for ensuring that Lessor is listed as First Lienholder on all of the title(s}. If any fees are required to be paid by the California Debt & Investment Advisory Commission then such fees shall be paid directly from the Lessee to the California Debt & Investment Advisory Commission. Lessee shall not use the Equipment to haul, conveyor transport hazardous waste as defined in the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq, Lessee shall not during the term of this Agreement create, incur or assume any levies, liens or encumbrances of any kind with respect to the Equipment except those created by this Agreement. Lessee agrees that Lessor or its Assignee may execute any additional documents including financing statements, affidavits, notices, and simiiar instruments, for and on behalf of Lessee which Lessor deems necessary or appropriate to protect Lessor's interest in the Equipment and in this Agreement. The Equipment is and shall at all times be and remain personal property. Lessee shall allow Lessor to examine and inspect the Equipment at all reasonable times. 9 -1 6 IX. Default Section 9.01. Events of Default defined. The following events shall constitute an "Event of Default" under this Agreement: (a) Failure by Lessee to pay any Rental Payment listed on Exhibit "8" for fifteen (15) days after such payment is due according to the Payment Date listed on Exhibit "B". (b) Failure to pay any other payment required to be paid under this Agreement at the time specified herein and a continuation of said failure for a period of fifteen (15) days after written notice by Lessor that such payment must be made. If Lessee continues to fail to pay any payment after such period, then Lessor may, but will not be obligated to, make such payments and charge Lessee for all costs incurred plus interest at the highest lawful rate. (c) Failure by Lessee to observe and perform any warranty, covenant, condition, promise or duty under this Agreement for a period of thirty (30) days after written notice specifying such failure is given to Lessee by Lessor, unless Lessor agrees in writing to an extension of time. Lessor will not unreasonably withhold its consent to an extension of time if corrective action is instituted by Lessee. Subsection (c) does not apply to Rental Payments and other payments discussed above. (d) Any statement, material omission, representation or warranty made by Lessee in or pursuant to this Agreement which proves to be false, incorrect or misleading on the date when made regardless of Lessee's intent and which materially adversely affects the rights or security of Lessor under this Agreement. (e) Any proviSion of this Agreement which ceases to be valid for whatever reason and the loss of such provision would materially adversely affect the rights or seClJIity of Lessor. (f) Lessee admits in writing its inability to pay its Obligations. Lessee defaults on one or more of its other obligations. Lessee applies or consents to the appointment of a receiver or a custodian to manage its affairs. Lessee makes a general assignment for the benefit of creditors. Section 9.02. Remedies on Default \NtIenever any Event of Default exists, Lessor shall have the right to take one or any combination of the following remedial steps: (a) With or without terminating this Agreement, lessor may declare all Rental Payments and other amounts payable by lessee hereunder to the end of the then current 8udget Year to be immediately due and payable. (b) With or without tenninating this Agreement, Lessor may require Lessee at Lessee's expense to redeliver any or all of the Equipment to Lessor as provided below in Section 9.04. Such delivery shall take place within fifteen (15) days after the event of default occurs. If Lessee fails to deliver the Equipment, Lessor may enter the premises where the Equipment is located and take possession of the Equipment and charge Lessee for cost incurred. NotINithstanding that Lessor has taken possession of the Equipment, Lessee shall still be Obligated to pay the remaining Rental Payments due up until the end of the then current Original Term or Renewal Term. Lessee will be liable for any damage to the Equipment caused by Lessee or its employees or agents. (c) Lessor may retain alt amounts credited to the Vendor Payable Account and Lessee shall have no further interest therein. (d) Lessor may take whatever action at law or in equity that may appear necessary or desirable to enforce its rights. Lessee shall be responsible to Lessor for ail costs incurred by lessor in the enforcement of its rights under this Agreement including, but not limited to, reasonable attomey fees. Section 9.03 No Remedv Exclusive. No remedy herein conferred upon or reselVed to lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or shall be construed to be a waiver thereof. Section 9.04 Return of Eauioment and Storaoe. (a) Surrender: The Lessee shall, at its own expense, surrender the Equipment to the Lessor in the event of a default or a non-appropriation by delivering the Equipment to the Lessor to a location accessible by common carrier and designated by Lessor. In the case that any of the Equipment consists of software, Lessee shall destroy all intangible items constituting such software and shall deliver to Lessor all tangible items constituting such software. At Lessors request, Lessee shall also certify in a form acceptable to Lessor that Lessee has complied with the above software retum provisions and that they will immediately cease using the software and that they shall permit Lessor and/or the vendor of the software to inspect Lessee's locations to verify compliance with the terms hereto. (b) Delivery: The Equipment shall be delivered to the location designated by the Lessor by a common carrier unless the Lessor agrees in writing that a common carrier is not needed. When the Equipment is delivered into the ClJstody of a common carrier, the Lessee shall arrange for the shipping of the item and its insurance in transit in accordance with the Lessor's instructions and at the Lessee's sole expense. Lessee at its expense shall completeiy sever and disconnect the Equipment or Its component parts from the Lessee's property all without liability to the Lessor. Lessee shall pack or crate the Equipment and all of the component parts of the Equipment carefully and in accordance with any recommendations of the manufacturer. The Lessee shall deliver to the Lessor the plans, specifications operation manuals or other warranties and documents furnished by the manufacturer or vendor on the Equipment and such other documents in the Lassee's possession relating to the maintenance and methods of operation of such Equipment (c) Condition: \NtIen the Equipment is surrendered to the Lessor it shall be in the condition and repair required to be maintained under this Agreement It will also meet all legal regUlatory conditions necessary for the Lessor to sell or lease it to a third party and be free of all liens. If Lessor reasonably determines that the Equipment or an item 01 the Equipment, once it is returned, is not in the condition required hereby, Lessor may cause the repair, service, upgrade, modification or overhaul of the Equipment or an item of the Equipment to achieve such condition and upon demand, Lessee shall promplIy reimburse Lassor for all amounts reasonably expended in connection with the foregoing. (d) Storage: Upon written request by the Lessor, the Lessee shall provide free storage for the Equipment or any item of the Equipment for a period not to exceed 60 days after the expiration of its lease term before returning it to the Lessor. The Lessee shall arrange for the insurance described to continue in full force and effect with respect to such item during its storage period arid the Lessor shall reimburse the Lessee on demand for'the incremental premium cost of providing such insurance. X. Vendor Payable Account Section 10.01. Establishment of Vendor Pavable Account. On the date that the Lessor executed this Agreement, which is on or after the date that the Lessee executes this Agreement, Lessor agrees to (i) make available to Lessee an amount sufficient to pay the total Purchase Price for the Equipment by establishing a separate, non-interest bearing account (the 'Vendor Payable Accounf), as agent for Lessee's account, with a financial institution that Lessor selects that is acceptable to Lessee (inCluding Lessor or any of its affiliates) and (H) to deposit an amount equal to such Purchase Price as reflected on Exhibit B in the Vendor Payable Account Lessee hereby further agrees to make the representations, warranties and covenants relating to the Vendor Payable Account as set forth in Exhibit C attached hereto. Upon Lassee's delivery to Lessor of a Payment Request Form in the form set forth in Exhibit G attached hereto, Lessee authorizes Lessor to withdraw funds from the Vendor Payable Account from time to time to pay the Purchase Price, or a portion thereof, for each item of Equipment as it is delivered to Lessee. The Payment Request Form must be signed by an authorized individual acting on behalf of lessee. The authorized individual or individuals designated by the Lessee must sign the Payment Request Form Signature Card which will be kept in the possession of the Lessor. Section 10.02 Down Payment. Prior to the disbursement of any funds from the Vendor Payable Account, the Lessee must either (1) deposit all the down payment funds that the Lessee has committed towards the purchase of the Equipment into the Vendor Payable Account or (2) Lessee must provide written verification to the satisfaction of the lessor that all the down payment funds lessee has committed towards the purchase af the Equipment have already been spent or are simultaneously being spent with the funds requested from the initial Payment Request Form. For purposes of this Section, the down payment funds committed towards the Equipment from the Lessee are the down payment funds that were represented to the Lessor at the time this transaction was submitted for credit approval by the Lessee to the Lessor. Section 10.03. Disbursement uoon Non-Aoorooriation If an Event of Non.appropriation occurs prior to the Partial Prepayment Date, the amount then on deposit In the Vendor Payable Account shall be retained by the Lessor and Lessee will have no interest therein. Section 10.04. Surolus Amount. Any Surplus Amount then on deposit in the Vendor Payable Account on the Partial Prepayment Date shall be applied to pay on such Partial Prepayment Date a portion of the Purchase Option Price then applicable. Section 10.05. Recalculation of Rental Pavments Upon payment of a portion of the Purchase Option Price as provided in Section 10.04 above, each Rental Payment thereafter shall be reduced by an amount calculated by Lessor based upon a fraction the numerator of which is the Surplus Amount and the denominator of which is the Purchase Option Price on such Partial Prepayment Date. Within15 days after such Partial Prepayment Date, Lessor shall provide to Lessee a revised Exhibit B to this Agreement, which shaH take into account such payment of a portion of the Purchase Option Price thereafter and shall be and become thereafter Exhibit B to this Agreement. Notwithstanding any other provision of this Section 10, this Agreement shall remain in full force and effect with respect to all or the portion of the Equipment accepted by Lessee as provided in this Agreement. and the portion of the principai component of Rental Payments remaining unpaid after the Partial Prepayment Date plus accrued interest thereon shall remain payable in accordance with the terms of this Agreement, including revised Exhibit 8 hereto which shall be binding and conclusive upon Lessor and Lessee. XI. Miscellaneous Section 11 01 Notices. All notices shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, to the parties at their respective places of business as first set forth herein or as the parties shall designate hereafter in writing. Section 11.02. Bindino Effect. This Agreement shall inure to the benefit of and shall be binding upon Lessee and Lessor and their respective successors and assigns. Section 11.03. Severabilitv. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 11 04. Amendments Addenda Chanoes or Modifications. This Agreement may be amended, added to, changed or modified by written agreement duly executed by Lessor and Lessee. Section 11.05. Execution in Counteroarts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 11.06. Caotions. The captions or headings in this Agreement do not define, gwt, 'scribe the scope or intent of any provisions or sections of this Agreement. Section 11_07. Master Lease. This Agreement can be utilized as a Master lease Agreement. This means that the lessor and the Lessee may agree to the lease of additional Equipment under this Agreement at some point in the future by executing one or more Additional Schedules to Exhibit A, Exhibit S, Exhibit C and Exhibit D as well as other exhibits or documents that may be required by lessor. Additional Schedules will be consecutively numbered on each of the exhibits which make up the Addition~1 Schedule arid all the terms and conditions of the Agreement shall govem each Additional Schedule. Section 11.08. !;.nt!re Writino. This Agreement constitutes the entire writing between Lessor and Lessee. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements, representations, conditions, or warranties, express or implied, which are not specified herein regarding this Agreement or the Equipment leased hereunder. Any terms and conditions of any purchase order or other documents submitted by Lessee in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement will not be binding on Lessor and will not apply to this Agreement. Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representative~ listed below. CITY OF CHULA VISTA KANSAS STATE BANK OF MANHATTAN Signature Signature Typed Name and Title Typed Name and Title 9-18 Schedule (01) EXHIBIT A DESCRIPTION OF EQUIPMENT RE: Lease With Option to Purchase Agreement dated as of April 16, 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) Below is a detailed description of all the items of Equipment including quantity, model number and serial number where appiicable: New Zoll Defibrillators Physical Address of Equipment after Delivery: 9-19 Schedule (01) EXHIBIT B PAYMENT SCHEDULE RE: Lease With Option to Purchase Agreement dated as of April 16, 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) Date of First Payment: May 25, 2008 Original Balance: $764,224.42 Total Number of Payments: Sixty (60) Number of Payments Per Year: Twelve (12) Pmt Due Rental Applied to Applied to .Purchase No. Date Payment Interest Principal Option Price 1 25-May-08 $14,351.29 $3,055.72 $11,295.57 Not Available 2 25-Jun-08 $14,351.29 $3,010.55 $11,340.74 Not Available 3 25-Jul-08 $14,351.29 $2,965.21 $11,386.08 Not Available 4 25-Aug-08 $14,351.29 $2,919.68 $11,431.61 $743,901.81 5 25-Sep-08 $14,351.29 $2,873.97 $11,477.32 $731,596.25 6 25-0ct-08 $14,351.29 $2,828.08 $11,523.21 $719,256.85 7 25-Nov-08 $14,351.29 $2,782.00 $11,569.29 $706,883.52 8 25-Dec-08 $14,351.29 $2,735.74 $11,615.55 $694,476.16 9 25-Jan-09 $14,351.29 $2,689.30 $11,661.99 $682,034.68 10 25-Feb-09 $14,351.29 $2,642.67 $11,708.62 $669,558.99 11 25-Mar-09 $14,351.29 $2,595.85 $11,755.44 $657,048.99 12 25-Apr-09 $14,351.29 $2,548.85 $11,802.44 $644,504.58 13 25-May-09 $14,351.29 $2,501.66 $11,849.63 $631,925.68 14 25-Jun-09 $14,351.29 $2,454.28 $11,897.01 $619,312.19 15 25-Jul-09 $14,351.29 $2,406.71 $11,944.58 $606,664.01 16 25-Aug-09 $14,351.29 $2,358.95 $11,992.34 $593,981.05 17 25-Sep-09 $14,351.29 $2,311.00 $12,040.29 $581,263.21 18 25-0ct-09 $14,351.29 $2,262.86 $12,088.43 $568,510.39 19 25-Nov-09 $14,351.29 $2,214.52 $12,136.77 $555,722.50 20 25-Dec-09 $14,351.29 $2,165.99 $12,185.30 $542,899.45 21 25-Jan-10 $14,351.29 $2,117.27 $12,234.02 $530,041.13 22 25-Feb-10 $14,351.29 $2,068.35 $12,282.94 . $517,147.45 23 25-Mar-10 $14,351.29 $2,019.24 $12,332.05 $504,218.32 24 25-Apr -1 0 $14,351.29 $1,969.93 $12,381.36 $491,253.63 25 25-May-10 $14,351.29 $1,920.42 $12,430.87 $478,253.29 26 25-Jun-10 $14,351.29 $1,870.72 $12,480.57 $465,217.20 27 25-Jul-10 $14,351.29 $1,820.82 $12,530.47 $452,145.26 28 25-Aug-10 $14,351.29 $1,770.72 $12,580.57 $439,037.37 29 25-Sep-10 $14,351.29 $1,720.41 $12,630.88 $425,893.43 30 25-0ct-10 $14,351.29 $1,669.91 $12,681.38 $412,713.35 31 25-Nov-10 $14,351.29 $1,619.20 $12,732.09 $399,497.02 32 25-Dec-10 $14,351.29 $1,568.29 $12,783.00 $386,244.35 33 25-Jan-11 $14,351.29 $1,517.18 $12,834.11 $372,955.23 34 25-Feb-11 $14,351.29 @1,ttfi.86 $12,885.43 $359,629.57 Schedule (01) EXHIBIT B PAYMENT SCHEDULE (Continued) RE: Lease With Option to Purchase Agreement dated as of April 16, 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) Pmt Due Rental Applied to Applied to 'P u rchase No. Date Payment Interest Principal Option Price 35 25-Mar-11 $14,351.29 $1,414.34 $12,936.95 $346,267.26 36 25-Apr-11 $14,351.29 $1,362.62 $12,988.67 $332,868.20 37 25-May-11 $14,351.29 $1,310.68 $13,040.61 $319,432.30 38 25-Jun-11 $14,351.29 $1,258.54 $13,092.75 $305,959.45 39 25-Jul-11 $14,351.29 $1,206.19 $13,145.10 $292,449.55 40 25-Aug-11 $14,351.29 $1,153.63 $13,197.66 $278,902.50 41 25-Sep-11 $14,351.29 $1,100.86 $13,250.43 $265,318.19 42 25-0ct-11 $14,351.29 $1,047.88 $13,303.41 $251,696.53 43 25-Nov-11 $14,351.29 $994.68 $13,356.61 $238,037.41 44 25-Dec-11 $14,351.29 $941.28 $13,410.01 $224,340.72 45 25-Jan-12 $14,351.29 $887.66 $13,463.63 $210,606.37 46 25-Feb-12 $14,351.29 $833.82 $13,517.47 $196,834.25 47 25-Mar-12 $14,351.29 $779.78 $13,571.51 $183,024.25 48 25-Apr-12 $14,351.29 $725.51 $13,625.78 $169,176.28 49 25-May-12 $14,351.29 $671.03 $13,680.26 $155,290.22 50 25-Jun-12 $14,351.29 $616.33 $13,734.96 $141,365.98 51 25-Jul-12 $14,351.29 $561.41 $13,789.88 $127,403.45 52 25-Aug-12 $14,351.29 $506.27 $13,845.02 $113,402.52 53 25-Sep-12 $14,351.29 $450.91 $13,900.38 $99,363.09 54 25-0ct-12 $14,351.29 $395.33 $13,955.96 $85,285.05 55 25-Nov-12 $14,351.29 $339.53 $14,011.76 $71,168.29 56 25-Decc 12 $14,351.29 $283.51 $14,067.78 $57,012.71 57 25-Jan-13 $14,351.29 $227.26 $14,124.03 $42,818.20 58 25-Feb-13 $14,351.29 $170.78 $14,180.51 $28,584.66 59 25-Mar-13 $14,351.29 $114.08 $14,237.21 $14,311.98 60 25-Apr-13 $14,351.29 $57.16 $14,294.13 $0.00 City of Chula Vista Signature Typed Name and Title *Assumes a1l Rental Payments due to date are paid 9-21 Schedule (01) EXHIBIT C ACCEPTANCE OF OBLIGATION TO COMMENCE RENTAL PAYMENTS UNDER EXHIBIT B RE: Lease With Option to Purchase Agreement dated as of ADril 16. 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) I, the undersigned, hereby certify that I am a duly qualified representative of Lessee and that I have been given the authority by the governing body of Lessee to sign this Acceptance of Obligation to commence Rental Payments with respect to the above referenced Agreement. I hereby certify that: 1. The Equipment described on Exhibit A has not been delivered, installed or available for use as of the Commencement date of this Agreement. 2. Lessee acknowledges that Lessor has agreed to deposit into a Vendor Payable Account an amount sufficient to pay the total purchase price (the "Purchase Price") for the Equipment so identified in such Exhibit A; 3. The principal amount of the Rental Payments in the Exhibit B accurately refiects the Purchase Price; 4. Lessee agrees to execute a Payment Request Form authorizing payment of the Purchase Price, or a portion thereof, for each withdrawal of funds from the Vendor Payable Account. Notwithstanding that the Equipment has not been delivered to or accepted by, Lessee on the date of execution of the Agreement, Lessee hereby warrants that: (a) Lessee's obligation to commence Rental Payments as set forth in ExhiM B is absolute and unconditional as of the Commencement Date and on each date set forth in Exhibit B thereafter, subject to the terms and conditions of the Agreement; (b) immediately upon delivery and acceptance of all the Equipment, Lessee will notify Lessor of Lessee's final acceptance of the Equipment by delivering to Lessor the "Acceptance Certificate" in the form set forth in ExhiM F attached to the Agreement; (c) in the event that any Surplus Amount is on deposit in the Vendor Payable Account when an Event of Non-appropriation under the Agreement occurs, then those amounts shall be applied as provided in Section 10 of the Agreement; (d) regardless of whether Lessee delivers a final Acceptance Certificate, all Rental Payments paid prior to delivery of all the Equipment shall be credited to Rental Payments as they become due under the Agreement as set forth in Exhibit B. City of Chula Vista Signature Typed Name and Title 9-22 Schedule (01) EXHIBIT 0 LESSEE RESOLUTION RE: Lease With Option to Purchase Agreement dated as of April 16, 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) At a duly called meeting of the Governing Body of the Lessee (as defined in the Agreement) held on the following resolution was introduced and adopted: BE IT RESOLVED by the Goveming Body of Lessee as follows: 1. Determination of Need. The Governing Body of Lessee has determined that a true and very real need exists for the acquisition of the Equipment described on Exhibit A of the Lease With Option to Purchase Agreement dated as of April 16,2008, between Citv of Chula Vista (Lessee) and Kansas State Bank of Manhattan (Lessor). 2. Approval and Authorization. The Governing Body of Lessee has determined that the Agreement, substantially in the form presented to this meeting, is in the best interests of the Lessee for the acquisition of such Equipment, and the Governing Body hereby approves the entering into of the Agreement by the Lessee and hereby designates and authorizes the following person(s) to execute and deliver the Agreement on Lessee's behalf with such changes thereto as such person(s) deem(s) appropriate, and any related documents, including any Escrow Agreement, necessary to the consummation of the transaction contemplated by the Agreement. Authorized Indivldual(s): (Printed or Typed Name and Title of individual(s) authorized to execute the Agreement) 3. Adoption of Resolution. The signatures below from the designated individuals from the Governing Body of the Lessee evidence the adoption by the Governing Body of this Resolution. Signature: (Signature of Secretary, Board Chairman or other member of the Governing Body) Typed Name & Title (Typed Name and Title of individual who signed directly above) Attested By: (Signature of one addttionai person who can witness the passage of this Resolution) Typed Name & Title: (Typed Name and Title of individual who signed directly above) 9-23 Schedule (01) EXHIBIT E OFFICERS CERTIFICATE RE: Lease With Option to Purchase Agreement dated as of ADril 16. 2008. between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) . I, the undersigned, hereby certify that I am a duly qualified representative of Lessee and that I have been given the authority by the governing body of Lessee to sign this Officers Certificate with respect to the above referenced Agreement. I hereby certify that: 1. Lessee has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to pay all Rental Payments required to be paid under the Agreement during the current Budget Year of Lessee, and such moneys will be applied in payment of all Rental Payments due and payable during such current Budget Year. 2. Lessee has obtained insurance coverage as required under the Agreement from an insurer qualified to do business in the State. 3. No event or condition that constitutes or would constitute an Event of Default exists as of the date hereof. 4. The governing body of Lessee has approved the authorization, execution and delivery of this Agreement on its behalf by the authorized representative of Lessee who signed the Agreement. 5. Please list the Source of Funds (Fund Item in Budget) for the Rental Payments that come due under Exhibit B of this Agreement. If the above Source of Funds is solely a grant type fund, then the Lessee, by signing below, hereby authorizes the General Fund of the Lessee as a backup source of funds from which the Rental Payments can be made. City of Chula Vista Signature Typed Name and Title 9-24 Schedule (01) EXHIBIT F CERTIFICATE OF ACCEPTANCE RE: Lease With Option to Purchase Agreement dated as of ADril 16. 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) I, the undersigned, hereby certify that I am a duly qualified representative of Lessee and that I have been given the authority by the governing body of Lessee to sign this Certificate of Acceptance with respect to the above referenced Agreement. I hereby certify that: 1. The Equipment described on Exhibit A has been delivered and installed in accordance with Lessee's specifications. 2. Lessee has conducted such inspection and/or testing of the Equipment as it deems necessary and appropriate and hereby acknowledges that it accepts the Equipment for all purposes. 3. Lessee has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to pay all Rental Payments required to be paid under the Agreement during the current Budget Year of Lessee, and such moneys will be applied in payment of all Rental Payments due and payable during such current Budget Year. 4. Lessee has obtained insurance coverage as required under the Agreement from an insurer qualified to do business in the State. 5. No event or condition that constitutes or would constitute an Event of Default exists as of the date hereof. 6. The governing body of Lessee has approved the authorization, execution and delivery of this Agreement on its behalf by the authorized representative of Lessee who signed the Agreement. City of Chuta Vista Signature Typed Name and Title 9-25 Schedule (01) EXHIBIT G PAYMENT REQUEST FORM VOID TO BE UTILIZED AS A SIGNATURE CARD ONLY RE: Lease With Option to Purchase Agreement dated as of ADril 16. 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) In accordance with Section 10.01, by executing this Payment Request Form the Lessee hereby represents that the Payee or Payees iisted below who are requesting payment have deiivered the Equipment or a portion of the Equipment or performed the services to the satisfaction of the Lessee and that the amounts requested beiow by the Payee or Payees are proportionate with the value of the Equipment delivered or services rendered by the Payee or Payees. The Lessee hereby represents and warrants for all purposes that: 1. Pursuant to the invoice attached hereto, the amount to be disbursed is $ consistent with the Agreement between Lessee and Vendor. 2. Payment is to be made to: Payee: and this amount is 3. Partial Disbursement. The undersigned certifies that the foilowing documents are attached to this Payment Request Form when there is a request for a partial release of funds from the Vendor Payable Account to pay for a portion of the Equipment: (1) Invoice from the Vendor, (2) copy of the agreement between Lessee and Vendor (if requested by the Lessor), (3) Insurance Certificate (if applicable), (4) front and back copy of the original MSOiTitle listing Kansas State Bank and/or its assigns as the first lien holder (if applicable). By executing this Payment Request Form and attaching the documents as required above, the Lessee shall be deemed to have accepted this portion of the Equipment for all purposes under the Agreement, including, without limitation, the obligation of Lessee to make the Rental Payments with respect thereto in a proportionate amount of the total Rental Payment. 4. Final Disbursement. The undersigned certifies that the following documents are attached to this Payment Request Form when there is a final release of funds from the Vendor Payable Account: (1) Final Vendor Invoice, (2) Signed Acceptance Exhibit F of the Lease, (3) Insurance Certificate, (4) front and back copy of the original MSOiTitle listing Kansas State Bank and/or its assigns as first lien holder (if applicable). By executing this Payment Request Form and attaching the documents as required above, the Lessee shall be deemed to have accepted the Equipment for all purposes under the Agreement, including, without limitation, the Obligation of Lessee to make the Rental Payments with respect thereto. 5. No amount set forth in this Payment Request Form was included in any Payment Request Form previously submitted. 6. Each disbursement hereby requested has been incurred and is a proper charge against the Vendor Payable Account. No amount hereby requested to be disbursed will be paid to Lessee as reimbursement for any expenditure paid by Lessee more than 60 days prior to the date of execution and delivery of the Agreement. By executing this Payment Request Form Lessee certifies that Lessee is the title owner to the Equipment, or a portion thereof, and that in the event that any third party makes a claim to such title that Lessee will take all measures necessary to secure titie including, without limitation, the appropriation of add~ional funds to secure title to the Equipment, or a portion thereof, and keep the Lease in full force and effect. Please forward this document and any correspondence relating to vendor payment to: Baystone Financial Group / Kansas State Bank of Manhattan, Attn: Documentation Dept. 1680 Charles Place, Manhattan KS, 66502. Fax: 785-537-4806. Please call 800-752-3562 if you have any questions. CITY OF CHULA VISTA Signature Typed Name and Title Signature of additional authorized individual (optional) of Lessee Signature Typed Name and Title 9-26 Schedule (01) EXHIBIT G PAYMENT REQUEST FORM RE: Lease With Option to Purchase Agreement dated as of Aoril 16. 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) In accordance with Section 10.01, by executing this Payment Request Form the Lessee hereby represents that the Payee or Payees listed below who are requesting payment have deiivered the Equipment or a portion of the Equipment or performed the services to the satisfaction of the Lessee and that the amounts requested below by the Payee or Payees are proportionate with the value of the Equipment delivered or services rendered by the Payee or Payees. The Lessee hereby represents and warrants for ali purposes that: 1. Pursuant to the invoice attached hereto, the amount to be disbursed is $ consistent with the Agreement between Lessee and Vendor. 2. Payment is to be made to: Payee: and this amount is 3. Partial Disbursement The undersigned certifies that the foliowing documents are attached to this Payment Request Form when there is a request for a partiai release of funds from the Vendor Payable Account to pay for a portion of the Equipment: (1) invoice from the Vendor, (2) copy of the agreement between Lessee and Vendor (if requested by the Lessor), (3) Insurance Certificate (if applicable), (4) front and back copy of the original MSOlTitle listing Kansas State Bank and/or its assigns as the first lien holder (if applicable). By executing this Payment Request Form and attaching the documents as required above, the Lessee shali be deemed to have accepted this portion of the Equipment for ali purposes under the Agreement, including, without limitation, the obligation of Lessee to make the Rental Payments with respect thereto in a proportionate amount of the total Rental Payment. 4. Final Disbursement. The undersigned certifies that the foliowing documents are attached to this Payment Request Form when there is a final release of funds from the Vendor Payable Account: (1) Final Vendor Invoice, (2) Signed Acceptance Exhibit F of the Lease, (3) Insurance Certificate, (4) front and back copy of the original MSOlTitle listing Kansas State Bank and/or its assigns as first lien holder (if applicable). By executing this Payment Request Form and attaching the documents as required above, the Lessee shali be deemed to have accepted the Equipment for ali purposes under the Agreement. including, without limitation, the obligation of Lessee to make the Rental Payments with respect thereto. 5. No amount set forth in this Payment Request Form was included in any Payment Request Form previously submitted. 6. Each disbursement hereby requested has been incurred and is a proper charge against the Vendor Payable Account. No amount hereby requested to be disbursed will be paid to Lessee as reimbursement for any expenditure paid by Lessee more than 60 days prior to the date of execution and delivery of the Agreement. By executing this Payment Request Form Lessee certifies that Lessee is the title owner to the Equipment, or a portion thereof, and that in the event that any third party makes a claim to such title that Lessee wili take ali measures necessary to secure title including, without limitation, the appropriation of additional funds to secure title to the Equipment, or a portion thereof, and keep the Lease in fuli force and effect. Please forward this document and any correspondence relating to vendor payment to: Baystone Financial Group / Kansas State Bank of Manhattan, Attn: Documentation Dept. 1660 Charles Place, Manhattan KS, 66502. Fax: 785-537-4806. Please cali 800-752-3562 if you have any questions. CITY OF CHULA VISTA Signature Typed Name and Title 9-27 OPINION OF COUNSEL (Must be re-tvoed onto attornev's letterhead) (Date, must be on or after the meeting date listed on Exhibit 0, Lessee Resolution) Kansas State Bank of Manhattan 1010 Westloop, P.O. Box 69 Manhattan, Kansas 66505-0069 RE: Lease With Option To Purchase Agreement dated as of April 16. 2008. between Kansas State Bank of Manhattan (Lessor) and the City of Chula Vista (Lessee) Ladies and Gentlemen: As counsel to Lessee I have reviewed the Lease With Option To Purchase Agreement dated April 16. 2008. Based on my knowledge as counsel for Lessee, and upon my review of the Agreement, I am of the opinion that: 1. Lessee is a political subdivision of the State of California, or a constituted authority authorized to issue obligations on behalf of a political subdivision of the State. 2. Lessee has the requisite power and authority to purchase the Equipment and to execute and deliver the Agreement and to perform its obligations under the Agreement. The Agreement and the other documents either attached hereto or required herein have been duly authorized, approved and executed by and on behalf of Lessee, and the Agreement is a legal, valid and binding obligation of Lessee enforceable in accordance with its terms. 3. The authorization, approval and execution of the Agreement and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, public bidding laws and all other applicable state and federal laws. 4. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or governmental body that challenges the authority of the Lessee or any of the Lessee's officers or employees to enter into the Agreements. 5. The above opinion is for the sole benefit of the Lessor listed above and can only be relied upon by the Lessor or any permitted assignee or subassignee of Lessor under the agreement. (Signature of Counsel for City of Chula Vista) 9-28 Schedule (01\ BANK QUALIFIED CERTIFICATE RE: Lease With Option to Purchase Agreement dated as of April 16, 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) Whereas, Lessee hereby represents that it is a "Bank Qualified" Issuer for the calendar year in which this Agreement is executed by making the following designations with respect to Section 265 of the Internal Revenue Code. (A "Bank Qualified Issuer" is an issuer that issues less than ten million ($10,000,000) dollars of tax-exempt obligations during the calendar year). Now, therefor, Lessee hereby designates this Agreement as follows: 1. Designation as Qualified Tax-Exempt Obligation. Pursuant to Section 265(b)(3)(B)(i) of the Internal Revenue Code of 1986 as amended (the "Code"), the Lessee hereby specifically designates the Agreement as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3) of the Code. In compliance with Section 265(b)(3)(D) of the Code, the Lessee hereby represents that the Lessee will not designate more than $10,000,000 of obligations issued by the Lessee in the calendar year during which the Agreement is executed and delivered as such "qualified tax-exempt obligations". 2. Issuance Limitation. In compliance with the requirements of Section 265(b)(3)(C) of the Code, the Lessee hereby represents that the Lessee (including all subordinate entitles of the Lessee within the meaning of Section 265(b)(3)(E) of the Code) reasonably anticipates not to issue in the caiendar year during which the Agreement is executed and delivered, obligations bearing interest exempt from federal income taxation under Section 103 of the Code (other than "private activity bonds" as defined in Section 141 of the Code) in an amount greater than $10,000,000. City of Chula Vista Signature Typed Name and Title 9-29 LESSEE ACKNOWLEDGEMENT RE: Lease With Option to Purchase Agreement dated as of ADril 16. 2008, between Kansas State Bank of Manhattan (Lessor) and City of Chula Vista (Lessee) Lessee hereby acknowledges that it has ordered or caused to be ordered the equipment that is the subject of the above- mentioned Agreement. Please complete the below information, attach another page if necessary... Vendor Name: Phone: Contact Person: Equipment: Amount of Equipment: Vendor Name: Phone: Contact Person: Equipment: Amount of Equipment: Vendor Name: Phone: Contact Person: Equipment: Amount of Equipment: Lessee will immediately notify Lessor if any of the information listed above is changed. 9-30 INSURANCE REQUIREMENTS Pursuant to Article V in the Lease With Option to Purchase Agreement, you have agreed to provide us evidence of insurance covering the property in the Agreement. A Certificate of Insurance naming all insured parties and coverages must be returned to us as soon as possible, but no later than the date on which delivery of equipment occurs. If vou have not taken possession of the equipment. please complete the Insurance Memo included with the documentation. In the case of self-insurance, the amounts of liability and physical damage coverage are to be listed on some form of certificate supplied by you. In addition, information regarding the nature of your self-insurance pro!1;lam should also be forwarded to us as soon as possible. INSURANCE REQUIREMENTS BY KANSAS STATE BANK OF MANHATTAN: 1. LIABILITY ~ Minimum of$I,OOO,OOO.OO combined single-limit on bodily injury and property damage. ~ Kansas State Bank and/or Its Assigns MUST be listed as additionalinsured and loss payee. 2. PHYSICAL DAMAGE ~ All risk caverage to guarantee proceeds sufficient to pay the applicable Purchase Option Price as set forth in Exhibit B of the Agreement. Kansas State Bank and/or Its Assigns MUST be listed as additional insured and loss payee. ~ The deductible amounts on the insurance policy should not exceed (to be determined upon credit appraval) 3. ENDORSEMENT ~ Lessor will receive at least thirty (30) days written notice from Insurer prior to alteration, cancellation or reduction of insurance caverage. PLEASE FAX THE CERTIFICATE TO US AS SOON AS POSSIBLE AT (785) 537-4806, AND MAIL THE ORIGINAL TO: Kansas State Bank and/ or Its Assigns P.O. Box 69, 1010 Westloop Manhattan, Kansas 66505-0069 YOUR ASSISTANCE IS GREATLY APPRECIATED TO COMPLETE THIS TRANSACTION, IF YOU HAVE ANY QUESTIONS, PLEASE GIVE US A CALL AT (800) 752-3562. City of Chula Vista Insurance Company: Agent's Name: Telephone Number. Fax Number: Address: 9-31 " Kansas State Bank 1010Westloop, f>.O. Box 69 Manhattan, KS 66505-0069 TIN~J1CCJE DATE: April 16, 2008 To: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Re: Financing for New Zoll Defibrillators DESCRIPTION AMOUNT First rental payment due May 25, 2008. $14,351.29 SUBTOTAL $14,351.29 SALES TAX SHIPPING & HANDLING TOTAL DUE $14,351.29 Make all checks payable to: Kansas State Bank of Manhattan If you have any questions concerning this invoice, call: Jenni Braddock @ (800) 752- 3562. 9-32 Form 8038-G (Rev. November 2000) Information Return for Tax-Exempt Governmental Obligations > Under Intemal Revenue Code section 149(e) ). See separate instructions Caution: If the issue price is under $100,000, use Form 803B-GG. OMB No. 1545-0720 Department of the Treaswy Inlema! RevenueSenrice Reporting Authority 1. Issuer's name City of Chula Vista If Amended Return, check here D 2. lssuer'~ employer identification number 3. Number and street (or PO Box if mail is not delivered to street address) 276 Fourth Avenue 5. City, town, or post office, state, and ZIP code Chula Vista, California 91910 RoorrVSuite 4. Report number 3 6. Date of issue 7. Name of issue Lease with 0 tion to Purchase A eement 9. Name and title of officer or legal representative whom the IRS may call for more infonnation 8. CUSIP number 10. Telephone no. of officer or legal representative Type of Issue (check applicable box(es) and enter the issue price) See instructions d attach schedule 11. 0 Education . . 11 12. 0 Health and hospital 12 13. 0 Transportation 13 14. 0 Public safety . . . 14 15. 0 Environment (including sewage bonds) 15 16. 0 Housing . . 16 17. 0 Utilities . . . 17 18. 0 Other, Describe > 18 19. If obiigations are TANs or RANs, check box > 0 If obligations are BANs, check box > 0 20. If obligations are in the form of a lease or installment sale, check box > 0 Description of Obligations. Complete for the entire issue for which this form is bein filed. (a) Fina! Maturity date (b) Issue price (c) Stated redemption price at maturity (d) Weighted avg. maturity (e) Yield $ Uses of Proceeds of Bond Issue (including underwriters' discount) 22. Proceeds used for accrued interest. . . . 23. Issue price of entire issue (enter amount from iine 21, coiumn (b)) 24. Proceeds used for bend issuance costs (including underwriters' discount) 24 25. Proceeds used for credit enhancement . . . . . . . 25 26. Proceeds allocated to reasonably required reserve or repiacement fund 27. Proceeds used to currentiy refund prior issues. 28. Proceeds used to advance refund prior issues 29. Total (add lines 24 through 28). . . . . . . . . . . 30. Nonrefunding proceeds ofthe issue (subtract line 29 from line 23 and enter amount Description of Refunded Bonds (Complete this art on for refundin bonds.) 31. Enter the remaining weighted average maturity of the bonds to be currently refunded 32. Enter the remaining weighted average maturity of the bonds to be advance refunded 33. Enter the last date on which the refunded bonds wiil be called 34. Enter the date(s) the refunded bonds were issued. ..... Miscellaneous ears > > > > years years 35. Enter the amount of the state volume cap allocated to the issue under section 141 (b)(5) 35 36 a Enter the amount of gross proceeds invested or to be invested in a guaranteed inveslment contract(see in_.) 36a b Enter the final maturity date of the guaranteed inveslment contract > 37. Pooled financlngs: (a) Proceeds of this issue that are to be used to make loans to other govemmental units 137. I b If this issue is a loan made from the proceeds of another tax-exempt issue, check box > 0 and enter the name of the issuer > and the date of the issue > 38. If the issuer has designated the issue under section 265(b)(3)(B}(i)(III) (small issuer exception), check box. > 0 39. If the issuer has eiected to pay a penaity in lieu of arbitrage rebate, check box. . . > 0 40. If the issuer has identified a hedqe, check box. > CJ Under penalties of pe~ury, 1 declare that I have examined this return and accompanying schedules and statements, and, to the best of my knowledge and belief, they are true, correct, and complete. Please Sign Here Signature of issuer's authorized representative Date Cat No. 637738 Type or print name and title Form B038-G (Rev. 11-2000) 9-33 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY MANAGER AND/OR HIS DESIGNEE TO COMPLETE ALL NECESSARY APPLICATION PROCESSES AND TO ENTER INTO A FIVE- YEAR LEASE PURCHASE AGREEMENT WITH NECESSARY PARTIES FOR THE ACQUISITION OF MEDICAL RESUSCITATION EQUIPMENT MANUFACTURED BY ZOLL MEDICAL CORPORATION FOR USE BY THE FIRE DEPARTMENT, APPROVING THE FINANCING OF THE LEASE PURCHASE AGREEMENT THROUGH KANSAS STATE BANK OF MANHATTAN, AND AUTHORIZING THE MAYOR TO SIGN ALL NECESSARY AGREEMENTS WHEREAS, the City of Chula Vista Fire Department delivers quality Basic Life Support (BLS) services to residents, visitors, and employees every day; and WHEREAS, a vital component of this service heavily relies on the resuscitative equipment that is carried on all fire and rescue apparatus; and WHEREAS, such essential equipment includes cardiac defibrillators, Auto-Pulse devices, and portable suction units; and WHEREAS, the industry standard for the service life of this equipment is five years; and WHEREAS, the Fire Department is requesting authorization to enter into a five-year lease purchase agreement to acquire medical resuscitation equipment manufactured by Zoll Medical Corporation in order to replace existing equipment that is beyond its useful performance life; and WHEREAS, Chula Vista Municipal Code section 2.56.140 authorizes the purchasing agent to participate in cooperative bids with other government agencies for the purchase of materials of common usage provided that such items are purchased through a competitive process that the purchasing agent determines to be consistent with good purchasing practices; and WHEREAS, information regarding pricing regarding the medical resuscitation equipment manufactured by Zoll Medical Corporation is from a competitive bid by the Los Angeles County Fire Department, specifically County of Los Angeles Solicitation No. 208423 approved in 2002; and J:\Atlomey\RESO\AGREEMENTS\Zoll Medical Corp defibs 5-year lease_04-22-08.doc 9 _ 3 4 Resolution No. 2008- Page 2 WHEREAS, the quote obtained by Zoll Medical Corporation regarding pncmg of twenty automatic electronic defibrillators, other necessary operating equipment, and necessary extended warranties and preventative maintenance agreements, dated February 19, 2008, was based on the pricing Zoll provided to the Los Angeles County Fire Department from Solicitation No. 208423; and WHEREAS, Fire Department staff is recommending acquiring this equipment from Zoil Medical Corporation based on the determination of the City's Purchasing Agent that County of Los Angeles Solicitation No. 208423 is consistent with good purchasing practices and is in compliance with Chula Vista Municipal Code Section 2.56.140; and WHEREAS, the total amount to be financed for purchasing this equipment is $764,224.42, and this purchase amount will result in monthly payments of $14,351.29 over a five-year period, through a lease purchase agreement with Kansas State Bank of Manhattan; and WHEREAS, financing terms are being extended to the City upon the successful completion of an application process with Kansas State Bank of Manhattan; and WHEREAS, the Fire Department will align its emergency equipment configuration with industry standards and increase its capability to serve the community and save lives by acquiring this equipment; and WHEREAS, staff is recommending acquiring the AED and Auto-Pulse equipment from Zoll Medical Corporation, as this equipment configuration will provide the Fire Department the ability to upgrade this equipment from Basic Life Support (BLS) capability to Advanced Life Support (ALS) capability; and WHEREAS, this will be a necessary option should the Fire Department launch a paramedic program in the future. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby authorize the City Manager and/or his designee to complete all necessary application processes and to enter into a five-year lease purchase agreement with necessary parties for the acquisition of medical resuscitation equipment manufactured by Zoll Medical Corporation; and NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby approve the financing of the five-year lease purchase agreement through Kansas State Bank of Manhattan and authorizes ongoing funding for the lease purchase payments in the estimated amount of$14,351.29 a month to be included in the Fire Department's budget for fiscal year 2008-2009 and subsequent fiscal years for the duration of the five-year agreement; and J:\Anorney\RESOIAGREEMENTSlZoll Medical Corp delibs 5-year leasc_04-22-08.doc 9- 35 Resolution No. 2008- Page 3 NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby authorize the Mayor to sign all necessary agreements for the acquisition and financing of the medical resuscitation equipment manufactured by Zoll Medical Corporation and to be financed through Kansas State Bank of Manhattan for use by the Fire Department. Presented by Approved as to form by James S. Geering Fire Chief (Interim) 9r^1rfJ~~ 1\un Moore City Attorney J:\Allomcy\RESO\AGREEMENTSlZoll Medical Corp dcfibs5-year leasc_04-22-08.dCK: 9 - 36 CITY COUNCIL AGENDA STATEMENT ~!~ CllYOF "~CHUlA VISTA APRIL 22, 2008, Item~ ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING ANOTHER DESIGNATED PERIOD FOR TWO YEARS ADDITIONAL SERVICE CREDIT DIRECTOR OF HUMAN RESOURCESiJ12-- CITY MANAGER /0.111/ ASSISTANT CIT{~A~ER cy) SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES D NO ~ SUMMARY In an effort to significantly reduce the fiscal year 2009 general fund budget by reducing the number of benefited employees throughout the organization, staff is proposing that Council grant another Two Years Additional Service Credit for eligible employees, and provide for a limited medical incentive program for those that retire during the prescribed window period. The proposal is to offer this benefit only to Local Miscellaneous employees, in all departments of the City and Police and Fire Department managers. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed actIvIty for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it does not involve a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council adopt the Resolution. BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION 10-1 APRIL 22, 2008, Item J1L Page 2 of 4 On October 16, 2007, the City Council of the City of Chula Vista approved a Resolution of Intention to provide Two Years Additional California Public Employees Retirement System (CalPERS) Service Credit for Local Miscellaneous members and Local Safety members (police and Fire). An Emergency Ordinance was adopted on November 6,2007. Sixty-two employees took advantage of this early retirement incentive. Numerous efforts are being implemented to reduce expenditures in fiscal year 2009. It is recommended that the City offer another Two Years Additional Service Credit pursuant to Government Code section 20903 for Local Miscellaneous members and police and fire department management employees in the classifications of Police Chief, Police Captain, Fire Chief, Deputy Fire Chief and Fire Battalion Chief, who retire during the designated period of May 5, 2008, through August 5, 2008. The City is also proposing a lirnited medical incentive program, offered only for the first 30 days of the retirement window to further encourage eligible employees to retire by June 5, 2008, to help minimize, prevent pending layoffs and to reduce personnel costs. Government Code section 20903 provides Two Years Additional CalPERS Service Credit to members who retire during a designated period. The City must certify that if any early retirements are granted after receipt of service credits pursuant to Section 20903, it is the City's intention that any vacancies created or at least one vacancy in any position in any department or other organizational unit remain permanently unfilled, thereby resulting in an overall reduction in the workforce of the department or organizational unit. Window Period An eligible employee may apply for the benefit during the designated window period, which cannot be less than ninety days, nor more than 180 days. Staff is proposing a ninety-three-day window period from May 5, 2008, through August 5, 2008. Eligibility To be eligible, the following criteria must be met: . member must have at least five years of CalPERS service credit; . member must be employed for at least one day during the designated period; . member must retire during the designated period; . member cannot receive credit under this section if member is receiving any unemployment insurance payments; . if a retired member subsequently reenters membership, additional service credit is forfeited. Medical Incentive To further encourage as many eligible employees as possible to retire within the first 30 days of the designated period, so the City may realize the greatest potential salary savings and mitigate layoffs, in addition to the Two Years Additional Service Credit, staff is 10-2 APRIL 22, 2008, Item ~ Page 3 of 4 proposing a medical incentive program, under the City's Retiree Health Plan. Under this program, the City will pay the cost of the medical insurance premium for Employee Only coverage as follows: Retiring between 05/05/08 - 06/05/08 Retiring between 06/06/08 - 08/05/08 Medical Incentive through 12/31/09 No Medical Incentive Provided Upon retirement, employees are required to enroll in Medicare Part A and Part B once they become eligible. Any medical insurance premiums for any eligible dependents will be the employee's responsibility. Non-benefited, unclassified hourly employees are not eligible for the medical incentive program. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section I 8704.2(a)(l) is not applicable to this decision. FISCAL IMPACT Government Code Section 7507 requires that the estimated present value of the additional employer contributions for the proposed contract amendments be made public at a public meeting at least two weeks prior to the adoption of the Resolution. The estimated amount is based on the members' annual reportable compensation, cost factors established by CalPERS actuaries and the fact that the City contracts for a Post-Retirement Survivor allowance. If all 233 eligible employees opt to take the Two Year Additional Service Credit and retire during the designated period, the estimated cost will be: Miscellaneous Plan Additional Employer Contribution: Annual Cost: Rate Increase in Employer Contribution: $10,985,707 (over twenty years) $829,736 0.99% Additionally, if all 233 eligible employees retire under this program, the annual base salary savings would be approximately $24.8 million annually. However, during the previous Two Year Service Credit offering, only 20 percent of the eligible employees retired. Assuming only 10 percent acceptance rate, both the employer costs and salary savings would be reduced proportionately. Again, assuming 10 percent of eligible employees retire, the annual net savings to the City's General Fund is estimated at $2.48 million. A final list of employees who applied for retirement pursuant to the offer will be presented to CalPERS after the expiration of the application window. CaIPERS will include the cost of the Two Years Additional Service Credit in the City's employer contribution rate commencing with the fiscal year starting two years after the end of the designated period. The increase in employer contribution will be amortized over twenty years. 10-3 APRIL 22, 2008, Item~ Page 4 of 4 The estimated cost of the medical incentive program is $80,125 over nineteen months, if 10 percent of eligible retirees took the coverage for the full nineteen months. However, the City is saving approximately $163,875 in cafeteria plan flexible benefits for this same group. We will be able to accurately identify the final costs once all eligible employees separate from the City and retire. In addition to the budgetary impacts, there will be an impact to the City's unfunded liability for other post-employment benefits (OPEB). The Finance Department will determine the OPEB unfunded liability in order to comply with the Governmental Accounting Standards Board Pronouncement 45. CONTRACT AMENDMENT PROCESS A contract amendment between the City of Chula Vista and CalPERS to grant a designated period is not required. ATTACHMENTS For signature: 1. Resolution to Grant Another Designated Period for Two Years Additional Service Credit 2. Certification of Governing Body's Action (PERS-CON-12) 3. Certification of Compliance with Government Code Section 7507 (PERS CON- 12A) 4. Certification of Compliance with Government Code Section 20903 Signature not required: 5, Estimated Present Value of Additional Employer Contribution. Prepared by: Marcia Raskin, Director of Human Resources 10-4 ^ ,J-.. ' . rt-rl lAC llmer'\--- CITY COUNCIL OF THE CITY OF CHULA VISTA RESOLUTION TO GRANT ANOTHER DESIGNATED PERIOD FOR TWO YEARS ADDITIONAL SERVICE CREDIT WHEREAS, the City Council of the City of Chula Vista is a contracting Public Agency of the Public Employees' Retirement System; and WHEREAS, said Public Agency desires to provide another designated period for Two Years Additional Service Credit, Section 20903, based on the contract amendment included in said contract which provided for Section 20903, Two Years Additional Service Credit, for eligible members; NOW, THEREFORE, BE IT RESOLVED, that said City Council does seek to add another designated period, and does hereby authorize this Resolution, indicating a desire to add a designated period from through for eligible members in the Adopted and approved this day of CITY COUNCIL OF THE CITY OF CHULA VISTA BY Presiding Officer Attest: Clerk/Secretary (Rev. 1/96) 10-5 At+-ochlY\en+- 2.. CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM Actuarial and Employer Services Branch Public Agency Contract Services P.O. Box 942709 Sacramento, CA 94229-2709 (888) CalPERS (225-7377) CERTIFICATION OF GOVERNING BODY'S ACTION I hereby certify that the foregoing is a true and correct copy of a Resolution adopted by the of the (governing body) (public agency) on (date) Clerk/Secretary Title PERS-CON-12 (rev. 1/96) 10-6 CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM Actuarial and Employer Services Branch Public Agency Contract Services P.O. Box 942709 Sacramento, CA 94229-2709 (888) CalPERS (225-7377) ~c\,mei\+ 3 CERTIFICATION OF COMPLIANCE WITH GOVERNMENT CODE SECTION 7507 I hereby certify that in accordance with Section 7507 of the Government Code the future annual costs as determined by the System Actuary for the increase in retirement benefit( s) have been made public at a public meeting of the of the (governing body) (public agency) on which is at least two weeks prior to the adoption of the (date) Resolution / Ordinance. Clerk/Secretary Title Date PERS-CON-12A (rev. 1/96) 10-7 p" J, '4. T-7'~o'.f"("enf' \ CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM Actuarial and Employer Services Sranch Public Agency Contract Services P.O. Box 942709 Sacramento, CA 94229-2709 CERTIFICATION OF COMPLIANCE WITH GOVERNMENT CODE SECTION 20903 In accordance with Govemment Code Section 20903 and the contract between the Public Employees' Retirement System, the City Council of the City of Chula Vista hereby certifies that: 1. Because of an impending curtailment of, or change in the manner of performing service, the best interests of the agency will be served by granting such additional service credit. 2. The added cost to the retirement fund for all eligible employees who retire during the designated window period will be included in the contracting agency's employer contribution rate for the fiscal year that begins two years after the end of the designated period. 3. It has elected to become subject to Section 20903 because of impending mandatory transfers, demotions, and layoffs that constitute at least 1 percent of the job classification, department or organizational unit, as designated by the goveming body, resulting from the curtailment of, or change in the manner of performing, its services. 4. Its intention at the time Section 20903 becomes operative is to keep all vacancies created by retirements under this section or at least one vacancy in any position in any department or other organizational unit permanently unfilled thereby resulting in an overall reduction in the work force of such department or organizational unit. THEREFORE, the City Council of the City of Chula Vista hereby elects to provide the benefits of Government Code Section 20903 to all eligible members who retire within the designated period, through CITY COUNCIL OF THE CITY OF CHULA VISTA BY Presiding Officer Attest: Clerk/Secretary Date 10-8 2yr certification-PA (Rev. 4/04) City of Chula Vista List of Benefited Employees (Mise) =>age 49 50-54 49 0.63 $40,130.02 50-54 49 0.63 $43,797.17 50-54 49 0.63 $83,494.59 50-54 49 0.63 $60,269.39 50-54 49 0.63 $30,532.81 50-54 50 0.63 $52,908.71 50-54 49 0.63 $95,792.53 50~54 49 0.63 $43,797.17 50-54 49 0.63 $26,435.35 50-54 50 0.63 $60.269.39 50-54 50 0.63 $36,369.66 50-54 50 0.63 $63,178.15 50-54 50 0.63 $39,815.69 50-54 50 0.63 $69,617.78 50-54 50 0.63 $30,057.46 50-54 50 0.63 $42,369.00 50-54 50 0.63 $10,898.92 50-54 50 0.63 $42,369.00 50-54 50 0.63 $93,867.23 50-54 50 0.63 $27,757.06 50-54 50 0.63 $35,295.62 50~54 50 0.63 $46,149.67 50-54 50 0.63 $29,704.31 50-54 50 0.63 $69,617.78 50-54 50 0.63 $57,345.89 50-54 50 0.63 $45,832.22 50~54 50 0.63 $27,137.07 50-54 50 0.63 $27,003.90 50-54 50 0.63 $38,042.55 50-54 50 0.63 $33,308.57 50-54 50 0.63 $29,624.87 50-54 51 0.63 $45,228.46 50-54 51 0.63 $50,215.18 50-54 51 0.63 $31,291.86 50-54 51 0.63 $26,435.35 50-54 51 0.63 $53,449.91 50-54 51 0.63 $50,524.77 50-54 51 0.63 $28,231.42 50-54 51 0.63 $60,153.09 50-54 51 0.63 $24,548,54 50-54 51 0.63 $49,809.29 50-54 51 0.63 $25,233.72 50-54 51 0.63 $50,215.18 50~54 51 0.63 $34,480.39 50-54 51 0.63 $63,178.15 50-54 51 0.63 $26,435.35 50-54 51 0.63 $41,288.90 50-54 51 0.63 $36,143.45 50-54 51 0.63 $24,548.54 50-54 51 0.63 $30,532.81 50~54 51 0.63 $66,483.31 50-54 51 0.63 $55,236.96 50-54 51 0.63 $139,020.34 50-54 51 0.63 $49,809.29 50-54 51 0.63 $54,937.54 50-54 51 0.63 $37,928.55 50-54 51 0.63 $65,129.01 50-54 51 0.63 $95,792.53 50-54 51 0.63 $33,308.57 50-54 51 0.63 $63,178.15 50-54 51 0.63 $29,663.69 50-54 51 0.63 $30,073.19 04/17/2008 10-9 A-!-\uch')'Oe(\ J-- 5 Page 1 City of Chula Vista List of Benefited Employees (Mise) =>age 49 04/17/2008 50-54 51 0.63 $42,369.00 50-54 51 0.63 $36,842.72 50-54 51 0.63 $33,308.57 50-54 51 0.63 $37,954.75 50-54 52 0.63 $30,057.46 50-54 52 0.63 $36.842.72 50-54 52 0.63 $43,797.17 50-54 52 0.63 $31,920.69 50-54 52 0.63 $41,953.44 50-54 52 0.63 $90,247.58 50-54 52 0.63 $55,388.15 50-54 53 0.63 $29,989.32 50-54 52 0.63 $39,815.69 50-54 52 0.63 $36,369.66 50-54 52 0.63 $47,288.08 50-54 52 0.63 $54,137,05 50-54 52 0.63 $34,480.39 50-54 53 0.63 $63,178.15 50-54 52 0.63 $73,316.88 50-54 52 0.63 $41,164.74 50-54 52 0.63 $36,639.28 50-54 52 0.63 $31,920.69 50-54 52 0.63 $27,003.90 50-54 52 0.63 $80,329.65 50-54 52 0.63 $38,084.48 50-54 52 0.63 $71,538.18 50-54 52 0.63 $45,546.72 50-54 52 0.63 $100,255.10 50-54 52 0.63 $24,548.87 50-54 52 0.63 $27,757.06 50-54 52 0.63 $49,809.29 50-54 52 0.63 $41,721.33 50-54 53 0.63 $36,639.28 50-54 53 0.63 $54,790.28 50-54 53 0.63 $54,381.27 50-54 53 0.63 $54,274.15 50-54 54 0.63 $36,481.21 50-54 53 0.63 $54,274.15 50-54 53 0.63 $34,480.39 50-54 53 0.63 $83,479.69 50-54 53 0.63 $12,274.35 50-54 53 0.63 $33,308.57 50-54 53 0.63 $27,757.06 50-54 53 0.63 $27,292.85 50-54 53 0.63 $50,215.18 50-54 54 0.63 $22,516.77 50-54 53 0.63 $27,757.06 50-54 53 0.63 $27,003.90 50-54 53 0.63 $37,928.55 50-54 54 0.63 $34,480.39 50-54 54 0.63 $27,003.90 50-54 54 0.63 $24,548.87 50-54 54 0.63 $27,003.90 50-54 54 0.63 $27,757.06 50-54 54 0.63 $32,764.10 50-54 54 0.63 $28,296.12 50-54 54 0.63 $141,750.06 50-54 54 0.63 $54,937.54 50-54 54 0.63 $54,274.15 50-54 54 0.63 $54,790.28 50-54 54 0.63 $28,354.11 50-54 54 0.63 $25,233.72 10-10 Page 2 City of Chula Vista List of Benefited Employees (Mise) =>age 49 04/17/2008 50-54 54 0.63 $54,937.54 50-54 54 0.63 $52,908.71 50-54 54 0.63 $49,809.45 50-54 54 0.63 $42,307.25 50-54 54 0.63 $27,757.06 50-54 54 0.63 $41,953.44 55-59 55 0.72 $35,490.87 55-59 55 0.72 $39,343.26 55-59 55 0.72 $72,203.60 55-59 55 0.72 $61,085.61 55-59 55 0.72 $61,367.53 55-59 55 0.72 $38,066.93 55-59 55 0.72 $61,085.61 55-59 55 0.72 $62,785.76 55-59 55 0.72 $28,055,85 55-59 55 0.72 $38,066.93 55-59 55 0.72 $39,339.71 55-59 55 0.72 $37,816.46 55-59 55 0.72 $100,910.35 55-59 55 0.72 $46,078.16 55-59 55 0.72 $31,722.35 55-59 55 0.72 $17,175.79 55-59 55 0.72 $53,724.90 55-59 55 0.72 $109,476.99 55-59 56 0.72 $50,053.91 55-59 56 0.72 $36,480.79 55-59 56 0.72 $72,203.60 55-59 56 0.72 $34,351.39 55-59 56 0.72 $62,027.60 55-59 56 0.72 $39,343.26 55-59 56 0.72 $51,689.66 55-59 56 0.72 $48,351.14 55-59 56 0.72 $91,805.69 55-59 56 0.72 $28,838.53 55-59 56 0.72 $39,343.26 55-59 56 0.72 $41,306.80 55-59 56 0.72 $26,739.65 55-59 56 0.72 $43,883.99 55-59 57 0.72 $39,707.37 55-59 57 0.72 $31,722.35 55-59 57 0.72 $137,492.60 55-59 57 0.72 $84,856.45 55-59 57 0.72 $62,785.76 55-59 57 0.72 $36,480.79 55-59 57 0.72 $76,566.30 55-59 57 0.72 $61,085.61 55-59 57 0.72 $62,785.76 55-59 57 0.72 $30,369.27 55-59 57 0.72 $54,043.52 55.59 57 0.72 $36,615.76 55-59 57 0.72 $89,098.96 55-59 57 0.72 $31.191.83 55-59 57 0.72 $45,862.88 55-59 57 0.72 $51,689.66 55-59 58 0.72 $27,085.59 55-59 58 0.72 $63,300.74 55-59 58 0.72 $27,179.19 55-59 58 0.72 $36,270.75 55-59 58 0.72 $31,191.83 55-59 59 0.72 $123,743,32 55-59 58 0.72 $16,357.91 55-59 58 0.72 $33,947.78 10-11 Page 3 City of Chula Vista List of Benefited Employees (Mise) =>age 49 55-59 59 0.72 $84,960.53 55-59 59 0.72 $61,085.61 55-59 59 0.72 $50,053.91 55-59 59 0.72 $76,566.30 55-59 60 0.72 $28,838.53 55-59 59 0.72 $50,053.91 55-59 59 0.72 $62,617.46 60-64 60 0.73 $29,800,31 60-64 60 0.73 $29,239.07 60-64 61 0.73 $46,356.94 60-64 61 0.73 $50,749.10 60-64 60 0.73 $47,698.83 60-64 60 0.73 $46,718.13 60-64 60 0.73 $53,310.64 60-64 60 0.73 $49,413.10 60-64 60 0.73 $13,260.38 60-64 60 0.73 $65,145.62 60-64 60 0.73 $49,022.68 60-64 61 0.73 $51,585.74 60-64 61 0.73 $40,005.66 60-64 61 0.73 $34,327.23 60-64 61 0.73 $55,762.48 60-64 61 0.73 $43,948.95 60-64 61 0,73 $34,456.29 60-64 61 0.73 $32,330.53 60-64 61 0.73 $64,179.92 60-64 61 0.73 $138,124.48 60-64 63 0.73 $116,168.61 60-64 62 0.73 $32,162.94 60-64 62 0.73 $38,311.51 60-64 62 0.73 $53,055.93 60-64 62 0.73 $63,657.78 60-64 62 0.73 $46,135.64 60-64 63 0.73 $73,206.43 60-64 63 0.73 $46,356.94 60-64 63 0.73 $96,282.69 60-64 64 0.73 $32,162,94 60-64 65 0.73 $31,690.34 60-64 65 0.73 $14,619.53 65+ 67 0.65 $80,436.56 65+ 68 0.6S" $13,017.39 65+ 69 0.65 $28,638.23 65+ 72 0.65 $51,949.92 Add'l Employer Contributions $10,985,707.75 Divide Add'l Employer Contributions by 13.24 (20yr amortization factor) $829,736.24 Divide 20yr amortization amount by annual payroll plan $83,891,371 0.99% 04/17/2008 10-12 Page 4 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING ANOTHER DESIGNATED PERIOD FOR TWO YEARS ADDITIONAL SERVICE CREDIT WHEREAS, the City Council of the City ofChula Vista is a contracting Public Agency of the Public Employees' Retirement System; and WHEREAS, said Public Agency desires to provide another designated period for Two Years Additional Service Credit, section 20903, based on the contract amendment included in said contract which provided for section 20903, in Two Years Additional Service Credit, for eligible members; and NOW, THEREFORE, BE IT RESOLVED the City Council ofthe City ofChula Vista does hereby grant a period for Two Years Additional Service Credit pursuant to Government Code section 20903 from May 5, 2008, through August 4, 2008, for all local miscellaneous and police department and fire department managers in the classifications of Police Chief, Police Captain, Fire Chief, Deputy Fire Chief and Fire Battalion Chief, members of the California Public Employees Retirement System (CaIPERS). Presented by Approved as to form by Marcia Raskin Director of Human Resources ~OI\~~ Ann Moore City Attorney J :\Altorney\RESO\6ENEFITS\ Two-year service credil_ 04-22-08.doc 10-13 ITEM TITLE: SUBMITTED BY: REVIEWED BY: CITY COUNCIL AGENDA STATEMENT April 22, 2008 ItemL RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE AGREEMENT WITH DOUGLAS R. NEWMAN RELATED TO THE WORK OF THE NATIONAL ENERGY CENTER FOR SUSTAINABLE COMMUNITIES AND THE CHULA VISTA RESEARCH PROJECT TO ANALYZE HOW THE RESULTS OF THE CHULA VISTA RESEARCH PROJECT RELATE SPECIFICALLY TO CALIFORNIA'S GLOBAL WARMING SOLUTIONS ACT OF 2006 (AB 32) AND INCREASING THE CONTRACT AMOUNT BY TEN THOUSAND DOLLARS ($10,000) ECONOMIC DEVELOPMENT OFFICER ()') CITY MANAGER "7 I -Fi:; r D tZ. <Sj 4/5THS VOTE: YES D NO ~ SUMMARY Since March of 2006, staff has been working with the National Energy Center for Sustainable Communities (NECSC) to advance responsible use of energy resources through the planning efforts of three master-planned developments in eastern Chula Vista (the Chula Vista Research Project) and the Los Vecinos and Creekside Vistas projects. The resulting recommendations establish a precedent for a comprehensive approach to energy conservation, efficiency demand management and alternative energy at the individual building and community infrastructure level. The City previously -entered into an Agreement with Douglas Newman to publish and disseminate the results of the research of the NECSC. This amendment will analyze the results of the CVRP as they relate specifically to the State of California's Global Warming Solutions Act of 2006 (AB32), and will assist both the City and the State in implementing their respective energy and climate change policies. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines, therefore, pursuant to Section 15060( c )(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. 11-1 April 22, 2008, Item1L- Page 2 of3 RECOMMENDATION That the Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION A primary goal of the Chula Vista Research Project (CVRP) was to disseminate the results of the NECSC research both regionally and nationally so that other communities could benefit from the research and individual projects. Funding provided by the California Energy Commission and the U.S. Department of Energy will produce a set of reference guides on sustainable community development practices based on extensive modeling of alternative design options that maximize the use of renewable and advanced energy technologies and systems. The guides are intended for public and private development professionals, financial institutions and State and local government agencies. Mr. Newman has begun to implement a detailed outreach plan to distribute and promote the guides utilizing funding from the San Diego Gas & Electric (SDG&E) Partnership Grant Program (Program) administered by the City's Conservation and Environmental Services Department. The Program was adopted by the City on September 19, 2006, and requires staff to provide public education and specific energy services that reduce kilowatt and therm consumption at the local government, commercial and residential level through December 31, 2008. The State of California has adopted the AB 32, Executive Order S-3-05, the California Energy Action Plan and the Integrated Energy Policy Report of 2007. The City Council recently adopted seven recommendations presented by the City's Climate Change Working group to reduce the community's greenhouse gas emissions or carbon footprint in order to meet the City's 2010 greenhouse gas emissions reduction targets. The proposed contract amendment will analyze the results of the CVRP as they relate specifically to the State of California's Global Warming Solutions Act of 2006 (AB32), and will assist both the City and the State in implementing their respective energy and climate change policies. More specifically, the amendment will highlight the City's sustainable urban energy planning and explain how these techniques can contribute to closing the gap between mandatory requirements, utility programs, and codes and standards in striving to cost-effectively achieve greenhouse gas emission reductions and energy savings throughout California. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations Section 1 8704.2(a)(l) is not applicable to this decision. FISCAL IMPACT There is no fiscal impact to the General Fund as a result of adopting this recommendation. To date, funding in the amount of$158,000 has been appropriated for this agreement in the City's Conservation Fund under the San Diego Gas & Electric Energy Partnership Grant Program, as approved and adopted on December 12, 2006, for costs associated with the 11-2 ApriI22,2008,hem~ Page 3 of3 scope of work contemplated in the subject agreement. Funds in the amount of$IO,OOO are currently available in the Conservation Fund and will be allocated to allow for the commencement of the amended scope of work contemplated in Attachment No. 1. ATTACHMENTS I. First Amendment to the Agreement between the City of Chula Vista and Douglas R. Newman for Professional Services related to the Chula Vista Research Project Outreach Initiative Prepared by: Craig Ruiz, Principal Economic D<Nelopment Specialist 11-3 THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL L-/it~ (~/~ Ann Moore City Attorney Dated: '-I / lIP / () 1 j ( First Amendment to the Agreement between the City of Chula Vista and Pacific Municipal Consultants for the provision of Auditing and Engineering Services required for the update of the Poggi Canyon Basin Gravity Sewer Development Impact Fee and closure of various Assessment District Improvement Funds 11-4 ~RSTAMENDMENTTOTHEAGREEMENTBETWEEN THE CITY OF CHULA VISTA AND DOUGLAS R. NEWMAN For Professional Services related to the Chula Vista Research Project Outreach Initiative RECITALS WHEREAS, the City and Douglas R. Newman (Consultant) entered into an agreement (Agreement) dated December 3, 2007, for the preparation and execution of a detailed outreach plan to disseminate the Chula Vista Research Project (CVRP) Reference Guides; and WHEREAS, the City and Consultant desire to utilize the services of Larisa Dobriansky as a subconsultant to assist in establishing the value proposition of sustainable urban energy planning and to explain how the techniques described in the Reference Guides can contribute to closing the gap between mandatory requirements, utility programs, and codes and standards in striving to cost-effectively capture the economic potential for greenhouse gas emission reductions and energy savings within California. NOW, THEREFORE, the City and Consultant agree as follows: AGREEMENT 1. Exhibit A, Paragraph 8. Scope of Work and Schedule, A. Detailed Scope of Work, after "2008 Schedule, October through December - deliver presentations at conferences" insert the following: "Subconsultant shall perform the following tasks: Task 5 - Subconsultant shall review and document the process in which the Reference Guides and case studies were developed, consulting with the City, San Diego Gas & Electric, the California Energy Commission, the National Energy Center for Sustainable Communities, the Burnham-Moores Center, San Diego State University and the Otay Land Company and McMillin Development Company. Task 6 - Subconsultant shall research the status of sustainable urban energy planning in California generally, but with particular focus upon the San Diego region to delineate the processes developed in the City and the San Diego region as models. Task 7 - Subconsultant shall evaluate the Reference Guides and case studies in light of California's energy and climate priorities as reflected in AB-32, the Governor's Executive Order, the Energy Action Plan, the 2007 Integrated Energy Policy Report and the various proceedings in which climate and energy implementation strategies are being formulated. 11-5 Task 8 - Draft the White Paper on Sustainable Urban Energy Planning. The White Paper shall draw from the Reference Guides and case studies to explain the importance of establishing sustainable urban energy planning processes in California to help capture the economic potential within the State for greenhouse emissions reductions and energy savings. The White Paper shall explain what sustainable urban energy planning means; how it changes the traditional role oflocal and regional govermnents with respect to strategic growth management and land-use development; how it extends beyond "smart growth" planning; how it can be institutionalized building upon existing local and regional govermnent decision-making frameworks; and how it would concretely contribute to achieving California's energy and climate goals. In addition, the White Paper shall review the importance of the decision support tools and methods described in the Reference Guides to increase the analytical capability oflocal and regional officials, along with utilities, developers, financiers and others to first, assess systematically the costs and benefits of alternative urban design and siting scenarios, and second, to structure and fund effective local energy-related programs, measures and partnerships to overcome technical, institutional and other barriers to reducing per capita energy consumption and greenhouse gas emissions. Finally, the White Paper shall discuss the value of such decision support tools in promoting innovative fmancing schemes with the private sector and in underpinning decisions to attract investment in infrastructure that can accommodate advanced and emerging energy technologies. Deliverable - White Paper on Sustainable Urban Energy Planning Task 9 - Subconsultant shall draft a report entitled Recommendations to Advance Sustainable Urban Energy Planning in California. Based on the Reference Guides and case studies, this Report shall offer recommendations concerning how sustainable urban energy planning could be advanced within California, taking into account existing local and regional planning frameworks and using processes developed in the City and the San Diego region as models. Also, this Report shall set forth policy and implementation recommendations for the Climate Action Team, the AB-32 Economic and Technology Advancement and Market Advisory Committees arising from the Los Vicinos and Creekside Vistas development projects undertaken through partnerships between the City, San Diego Gas & Electric, the California Energy Commission and the developers. This Report shall incorporate input received at the Outreach Planning Workshop. Deliverable - Recommendations to Advance Sustainable Urban Energy Planning in California." 2. Exhibit A, Paragraph 8. Scope of Work and Schedule, B. Date for Commencement of Consultant Services, add the following: "The Effective Date of this First Amendment is April I, 2008." 3. Exhibit A, Paragraph 8. Scope of Work and Schedule, C. Dates or Time Limits for Delivery of Deliverables, after "Deliverable No.4: No later than December 3 L 2008" add the following: "Deliverable No.8: No later than September 30. 2008. Deliverable No.9: No later than September 30. 2008." 2 11-6 4. Exhibit A, Paragraph 10. Compensation, Single Fixed Fee Amount, delete "One Hundred Fifty-Eight Thousand Dollars ($158,000.00)" and replace with the following: "One Hundred Sixty-Eight Thousand Dollars ($168,000.00)". 5. Exhibit A, Paragraph 16, Permitted Subconsultants, delete "N/A" and replace with the following: "Larisa Dobriansky". All other terms of the Agreement shall remain in full force and effect. [Next Page is Signature Page.] 3 11-7 SIGNATURE PAGE TO THE FIRST AMENDMENT TO THE AGREEMENT BETWEEN CITY OF CHULA VISTA AND DOUGLAS R. NEWMAN For Professional Services related to the Chula Vista Research Project Outreach Initiative IN WITNESS WHEREOF, City and Consultant have executed this First Amendment to the Agreement indicating that they have read and understood the First Amendment and indicate their full and complete consent to its tenns: Dated: ,2008 City ofChula Vista By: Cheryl Cox, Mayor Attest: Donna Norris, Interim City Clerk Approved as to form: Ann Moore, City Attorney Dated: "/~ /,.;:;' - C i\ c:"- .- {--- ~~~-r r____ ~'lj uugra~ R:Newm~ J By:' Exhibit List to First Amendment to Agreement: (X) Agreement between the City ofChula Vista and Douglas R, Newman dated December 3, 2007 J'lAttoml.:y\ELlSAIAGREEMENTS\Douglas R. Newman Agreement first Amendment.doc 4 11-8 First Amendment to the Agreement between City of Chula Vista and Douglas R. Newman for Professional Services related to the Chula Vista Research Project Outreach Initiative This First Amendment is entered into effective as of April 1. 2008, by and between the City of Chula Vista (City) and Douglas R. Newman (Consultant) with reference to the following facts: WHEREAS, the City and Consultant entered into an agreement (Original Agreement), dated December 3,2007, whereby Consultant provides consulting services to the City for professional services related to the Chula Vista Research Project Outreach Initiative; and WHEREAS, the City and Consultant now desire to amend the Original Agreement to allow for the Consultant to utilize the services of Larisa Dobriansky as a subconsultant to assist in the preparation of the Outreach Initiative, establishing the value proposition of sustainable urban energy planning and to explain how the techniques described in the reference guides can contribute to closing the gap between mandatory requirements, utility programs, and codes and standards in striving to capture cost-effectively the economic potential for greenhouse gas emission reductions and energy savings within California. NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the parties set forth herein, the Agency and Consultant do hereby mutually agree as follows: 1. Section 8 of Attachment A of the Original Agreement, entitled Scope of Work and Schedule is hereby amended as follows: A. Consultant Detailed Scope of Work: Task 1 - Consultant shall conduct a workshop in the San Diego Region to develop outreach plan components and an implementation strategy that will engage professional associations and special interest organizations across the State in the delivery of the resource guides to their constituents. Consultant shall determine the participants who shall include senior representatives of California investor-owned and municipal utilities, the design-development- building and finance industries, and local municipal authorities. Dellverables - An Outreach Planning Workshop, and an Outreach Plan & Implementation Strategy. Task 2 - Consultant shall negotiate with professional and trade organizations to obtain their commitment to assist in the distributing of the Resource Guides to their members. Distribution will take place via transmission of electronic file versions of the guides to their members, special articles about the guides in regular newsletters and or opportunities to present and distribute the guides at their conferences. Deliverables - A minimum of 5 Participant Commitments to assist with the distribution of Resource Guides. 11-9 Task 3 - Consultant shall design and compose the outreach/marketing components for the reference guides (conversion of the guides into appealing text and graphic layouts suitable for the targeted lay audiences). The specific components will be determined by the workshop and co- designed with SDG&E and City of Chula Vista staffs. Oeliverables - - One branded set of hardcopy/printed guides; - A CD version of the guides suitable for duplication; - Promotional ad-coPY suitable for placement in magazines & websites; - A promotional multi-media presentation and script; - A joint Chula Vista - California Energy Commission - SDG&E Press Release; - A joint media event to announce the guides in the San Diego Region & Sacramento; - An opinion/editorial piece for media outlets; Task 4 - Prepare and deliver promotional speeches at a minimum of 5 key conferences in the State of California during 2008. Oeliverables - Presentation of Reference Guides at a minimum of 5 Conferences in California 2008 Schedule December 2007 - Arrange planning workshop logistics & recruit participants January 2008 - Conduct workshop & schedule fall speaking engagements February & March - secure partner commitments & resources April through July - design & compose outreach components August & September - print & package guides & outreach materials October - conduct media events & distribute guides & outreach materials October through December - deliver presentations at conferences B. Subconsultant Detailed Scope of Work: Task 1 - Review and document the process in which the Reference Guides and case studies were developed, consulting with the municipality of Chula Vista, San Diego Gas & Electric, the California Energy Commission, the National Energy Center for Sustainable Communities, the Burnham-Moores Center, San Diego State University and the developers. Task 2 - Research the status of sustainable urban energy planning in California generally, but with particular focus upon the San Diego region to delineate the processes developed in Chula Vista and the San Diego region as models. Task 3 - Evaluate the Reference Guides and case studies in light of California's energy and climate priorities as reflected in AB-32, the Governor's Executive Order, the Energy Action Plan, the 2007 Integrated Energy Policy Report and the various proceedings in which climate and energy implementation strategies are being formulated. Task 4 - Draft the first deliverable on the Sustainable Urban Energy Planning Process underpinning the two Chula Vista development projects. 11-10 Task 5 - Draft the second deliverable articulating next steps in advancing sustainable urban energy planning and policy and implementation strategy recommendations, taking into account the inputs at the workshops held in connection with the Chula Vista Research Projects, as well as the workshop for the Outreach Plan. Deliverables. 1. White Paper on Sustainable Urban Energy Planning: The first deliverable would draw from the Reference Guides and case studies to explain the importance of establishing sustainable urban energy planning processes in California to help capture the economic potential within the State for greenhouse emissions reductions and energy savings. Among other things, this White Paper would explain what sustainable urban energy planning means; how it changes the traditional role of local and regional governments with respect to strategic growth management and land- use development; how it extends beyond "smart growth" planning; how it can be institutionalized building upon existing local and regional government decision- making frameworks; and how it would concretely contribute to achieving California's energy and climate goals. In particular, this document would review the importance of the decision support tools and methods described in the Reference Guides to increase the analytical capability of local and regional officials, along with utilities, developers, financiers and others, to: (1) assess systematically the costs and benefits of alternative urban design and siting scenarios; and (2) structure and fund effective local energy-related programs, measures and partnerships to overcome technical, institutional and other barriers to reducing per capita energy consumption and greenhouse gas emissions. In addition, the White Paper would discuss the value of such decision support tools in promoting innovative financing schemes with the private sector and in underpinning decisions to attract investment in infrastructure that can accommodate advanced and emerging energy technologies. 2. Recommendations to Advance Sustainable Urban Enerqv Planninq in California: Based on the Reference Guides and case studies, the second deliverable would offer recommendations concerning how sustainable urban energy planning could be advanced within California, taking into account existing local and regional planning frameworks and using processes developed in Chula Vista and the San Diego region as models. Also, this deliverable would set forth policy and implementation recommendations for the Climate Action Team, the AB-32 Economic and Technology Advancement and Market Advisory Committees and other venues, arising from the two Chula Vista development projects undertaken through partnerships between the municipality, San Diego Gas & Electric, the California Energy Commission and the developers. 2008 Schedule: April and May - Attend workshops for the Chula Vista Research Project and Outreach Plan: perform research on the status of sustainable urban energy planning in California and particularly in the San Diego region: review and document the urban energy planning process undertaken in connection with the Chula Vista Research project; research the relevant authorities reflecting California's energy and climate priorities and ascertain the status of the relevant agency proceedings and venues. 11-11 June and July - Develop the two document deliverables. August and September - Print and package deliverables with guides and outreach materials. 2. Section 10 of Attachment A of the Oriainal Aareement. entitled Compensation is hereby amended as follows: _10. 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: . Single Fixed Fee Amount: One Hundred Sixtv Eiaht Thousand Dollars ($168.000.00), payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee (X) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. 11-12 Phase 1. 2. 3. Fee for Said Phase $ $ $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. ( ) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) ( ) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant oftime and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. 11-13 Rate Schedule Name of Consultant Hourly Rate Category of Employee $ $ ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 3. Section 16 of Attachment A of the Oriainal Aareement. entitled Permitted Subconsultants is hereby amended as follows: Larisa Dobriansky [Remainder of page intentionally left blank] 11-14 Signature Page to First Amendment to the Agreement between City of Chula Vista and Douglas R. Newman for Consulting Services related to the Chula Vista Research Project Outreach Initiative 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: ,2008 City of Chula Vista by: Suzanne Brooks, Purchasing Agent Approved as to form: Ann Moore, City Attorney Dated: By: Douglas R. Newman 11-15 Agreement between City of Chula Vista and Douglas R. Newman for Professional Services related to the Chula Vista Research Project Outreach Initiative Ibis agreement ("Agreement"), dated December 3, 2007 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-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, the National Energy Center for Sustainable Communities (NECSC) was founded by the City ofChula Vista, San Diego State University (SDSU); and the Gas Technology Institute (GTI), and with the support of the U.S. Department of Energy; and Whereas, the NECSC's mission is to promote healthier and more productive communities by integrating cleaner energy systems and energy-smart planning and design into new development and redevelopment projects; and Whereas, the NECSC executes its mission through collaborative research, demonstration and capacity-building (education and training) initiatives among government agencies, universities, utilities, companies and nongovernmental organizations across the nation; and Whereas, the NECSC is currently undertaking the Chula Vista Research Project (CVRP), which will research technologies, plans, public policies and market-feasible business models for energy- and resource-efficient community development in Chula Vista; and Whereas, the NECSC is collaborating with government agencies, companies and utilities to create a national demonstration site for energy-smart community development through the ultimate creation of up to 20-30 showcase technology, land use and management practice demonstration sites across the City of Chula Vista; and. Whereas, the NECSC and its partners has received to date over one million dollars in contract research funding from the U.S. Department of Energy, the California Energy Commission and San. Diego Gas and Electric Company to conduct research on the CVRP and related proj ects; and Whereas, the NEeSC intends to publish the results of the research in the form of reference guides based on the extensive modeling of alternative design options that maximize the use of 11-16 Page 1 ,c. .Cn) renewable and advanced energy-efficient technologies and systems that will allow development professionals and government agencies throughout California to utilize and incorporate the research findings into other development projects; and Whereas, on September 19,2006, the City Council accepted the grant for the San Diego Gas & Electric (SDG&E) Partnership Program; and Whereas, Mr. Newman is the Director of the National Energy Center for Sustainable Communities, a joint partnership between the City of Chula Vista, SDSU and GT! that is advancing energy-efficient community development in California -the subject matter of the CVRP reference guides; and Whereas, Mr. Newman holds Masters Degrees in urban and regional plRnning and public policy and atlministration and served as a senior program manager for the U.S. Environmental Protection Agency and the National Oceanic and Atmospheric Administration, where he was responsible for national outreach programs similar in nature to proposed CVRP Outreach Initiative. Additionally, Mr. Newman has successfully designed and managed two previous projects on related subjects for the City of Chula Vista - SDG&E Energy Efficiency Partnership Program; and Whereas, Mr. Newman has had an intimate involvement in creating, negotiating, and managing the CVRP from start to finish, and his principal authorship of its final technical reports and the reference guides that will be disseminated through the proposed outreach initiative; and Whereas, Mr. Newman warrants and represents that he is experienced and staffed in a manner such that he is 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; and (End of Recitals. Next Page starts Obligatory Provisions.) 11-17 Page 2 NOW, TIIEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services (" Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 1 O(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. 11-18 Page 3 F. Insurance Consultant must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to co=encement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Coverage must be at least as broad as: (I) Insurance Services Office Co=ercial General Liability coverage (occurrence Form CG0001). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: 1. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Liability or Errors & Omissions Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Co=ercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee $1,000,000 each occurrence Deductibles and Self-Insured Retentions 11-19 Page 4 Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: (1) The City ofChula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. (2) The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance. (3) The insurance policy required by this clause must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. (5) Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. 11-20 Page 5 (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum offive (5) years after completion of contract work. . (4) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. Subcontractors Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subject to all of the requirements included in these specifications. G. Security for Performance (I) Performance Bond In the event that Exhibit A. at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, htto://www.fms.treas.e:ov/c570. and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the 11-21 Page 6 limits so required. Form must be satisfactory to the Risk Ma.1iager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, 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 Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, 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. H. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (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 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth 11-22 Page 7 in Exhibit A, Paragraph 10, 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 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 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 17(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term This Agreement shall terminate when the Parties have complied with all executory provisions hereof. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("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 uuless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer 11-23 Page 8 If Consultant is designated on Exluoit A, Paragraph 14, 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 14 of Exhibit A, or ifnone 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 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 that 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 14. . 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 11-24 _ Page 9 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 twelve months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve 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 that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and Consultant's employees, subcontractors or other persons, agencies or ftrms for whom Consultant is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. With respect to losses arising from Consultant's professional errors or omissions, Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Consultant's indemnillcation shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Consultant's obligations under this Section shall not be limited by arty prior or subsequent declaration by the Consultant. Consultant's obligations under this Section shall survive the termination of this Agreement. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemniftcation provisions should be utilized: (1) Indemnillcation and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Consultant, or Consultant's employees, agents, and officers, arising 11-25 Page 10 out of any services performed involving this project, except liability for Professional Services covered under Section 7.2, the Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. The Consultant's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to the Consultant's professional obligation, work or services involving this Project, the Consultant agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant and its agents in the performance of services under this agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the agents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City. 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. 11-26 Page 11 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. lfthe Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 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 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 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. 11-27 Page 12 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim bas 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 ofwbich 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 a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 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 15 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 ifpersona1ly served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certifIed, with return receipt 11-28 Page 13 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 LawNenue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) 11-29 Page 14 Signature Page to Agreement between City ofChula Vista and Douglas R. Newman for Professional Services related to the Chula Vista Research Project Outreach Initiative 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: J/i!>/o1 I ' City ofChula Vista By: o~ fA e~ Cheryl C~, M or Attest: ~ I~~ "--/ I City Clerk Approved as to form: ~~.t0 ..J;~ ~ Ann Moore, City Attorney ~/;t//()fJ Dated: ~..~~ .-..' D{, . an '-... -:J- / Exhibit List to Agreement ( X ) Exhibit A ( X ) Exhibit B - Agreement to Jointly Deliver the 2006-2008 City of Chula Vista Energy Efficiency and Conservation Outreach Program between the City Of Chula Vista and San Diego Gas & Electric Company, dated July 25, 2006 ( X) Exhibit C - Nondisclosure 11-30 Exhibit A to Agreement between City of Chula Vista and Douglas R. Newman 1. Effective Date of Agreement: December 3, 2007 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, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: ("City") , a [insert business form] 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Douglas R. Newman 5. Business Form of Consultant: ( X ) Sole Proprietorship ( ) Partnership ( ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 5415 N. Sheridan Road Suite 1711 Chicago, lL 60640 Voice Phone: (773) 899-0801 11-31 Page 16 7. General Duties: Consultant will prepare and execute a detailed outreach plan to disseminate the Chula Vista Research Project (CVRP) Reference Guides to local and state government agencies and private development companies across the State of California during the 2008 calendar year. This initiative will be designed as a peer-to-peer program for energy efficiency to conform to the SDG&E's Partnership fund requirements. Consultant shall abide by each and every term and condition of the Agreement to Jointly Deliver the 2006-2008 City of Chula Vista Energy Efficiency and Conservation Outreach Program between the City Of Chula Vista and San Diego Gas & Electric Company, dated July 25, 2006, a copy of which is attached hereto as Exhibit B to this Agreement and the Disclosure Agreement, attached hereto as Exhibit C to this Agreement. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Task 1 _ Consultant shall conduct a workshop in the San Diego Region to develop outreach plan components and an implementation strategy that will engage professional associations and special interest organizations across the State in the delivery of the resource guides to their constituents. Consultant shall determine the participants who shall include senior representatives of California investor-owned and municipal utilities, the design-development- building and finance industries, and local municipal authorities. Deliverables - An Outreach Planning Workshop, and an Outreach Plan & Implementation Strategy. Task 2 _ Consultant shall negotiate with professional and trade organizations to obtain their commitment to assist in the distributing of the Resource Guides to their members. Distribution will take place via transmission of electronic file versions of the guides to their members, special articles about the guides in regular newsletters and or opportunities to present and distribute the guides at their conferences. Deliverables - A minimum of 5 Participant Commitments to assist with the distribution of Resource Guides. Task 3 _ Consultant shall design and compose the outreach/marketing components for the reference guides (conversion of the guides into appealing text and graphic layouts suitable for the targeted lay audiences). The specific components will be determined by the workshop and co-designed with SDG&E and City of Chula Vista staffs. Deliverables - _ One branded set ofhardcopyfprinted guides; _ A CD version of the guides suitable for duplication; _ Promotional ad-copy suitable for placement in magazines & websites; _ A promotional multi-media presentation and script; _ A joint Chula Vista - California Energy Commission - SDG&E Press Release; Page 17 11-32 _ A joint media event to announce the guides in the San Diego Region & Sacramento; _ An opinion/editorial piece for media outlets; Task 4 _ Prepare and deliver promotional speeches at a minimum of 5 key conferences in the State of California during 2008. Deliverables - Presentation of Reference Guides at a minimum of 5 Conferences in California 2008 Schedule December 2007 - Arrange planning workshop logistics & recruit participants January 2008 - Conduct workshop & schedule fall speaking engagements February & March - secure partner commitments & resources April through July - design & compose outreach components August & September - print & package guides & outreach materials October - conduct media events & distribute guides & outreach materials October through December - deliver presentations at conferences B. Date for Commencement of Consultant Services: ( X ) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery ofDeliverables: Deliverable No.1: No later than January 31. 2008 Deliverable No.2: No later than March 31. 2008 Deliverable No.3: No later than Julv 31. 2008 Deliverable No.4: No later than December 31. 2008 D. Date for completion of all Consultant services: No later than December 31, 2008 9. Materials Required to be Supplied by City to Consultant: N/A 10. Compensation: A. (X) Single Fixed Fee Arrangement. Page 18 11-33 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: One Hundred Fifty Eight Thousand Dollars ($158.000.00), payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee (X) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not co=ence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. PnH<:e 1. 2. 3. Fee for Said Phase $ $ $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest Page 19 11-34 free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim. payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. ( ) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: . (1) ( ) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials A.rrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Category of Employee Rate Schedule Name of Consultant Hourly Rate $ $ $ $ $ Page 20 11-35 ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (X) None, the compensation includes aU costs. Cost or Rate $ $ $ $ $ $ $ $ $ $ () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, not to exceed $ () Long Distance Telephone Charges, not to exceed $ () Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: City: Craig Ruiz, Principal Community Development Specialist City of Chula Vista Community Development Department 276 Fourth Avenue Chula Vista, CA 91910 Consultant: Douglas Newman 5415 N. Sheridan Road Suite 1711 Chicago, IL 60640 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. Page 21 11-36 ( ) FPPC Filer ( ) Category No. 1. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: N/A 15. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: N/A 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: 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: Page 22 11-37 C. City's Account Number: 18. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ ( ) 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: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: H:Attomey/2ptylS Page 23 11-38 AGREEMENT TO JOlNTL Y DELIVER THE 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM BETWEEN CITY OF CHULA VISTA and SAN DIEGO GAS & ELECTRIC COMPANY Dated: July 25, 2006 This program is funded by California utility customers under the alllSpices oithe California Public Utilities Commission. 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-39 THIS AGREEMENT TO JOlNTL Y DELIVER THE 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM (the "Agreement"), dated July 25,2006, is effective as of January 1, 2006 ("Effective Date'') by and among SAN DIEGO GAS & ELECTRIC COMPANY ("SDG&E"), and THE CITY OF CHULA VISTA ("City"). SDG&E and City may be referred to herein individually as a "Party" and collectively as the "Parties." REClT ALS WHEREAS, on September 22, 2005 the California Public Utilities Commission (the "Commission'') in D.05-09-043 authorized certain energy efficiency programs to be delivered to California utility customers for the years 2006 through 2008 and the continuation of programs where local governmental entities partnered with utilities to deliver energy efficiency information and education to utility customers; WHEREAS, SDG&E submitted applications for the implementation of energy efficiency programs which included the 2006-2008 City of Chula Vista Energy Efficiency and Conservation Outreach Program (hereinafter referred to as the "Program"), involving the delivery of energy efficiency funding, incentives, information, training and materials to City, its residents, developers, and South Bay cities in SDG&E's service territory; WHEREAS, the Parties desire to set forth the terms and conditions under which the Program for the 2006 through 2008 program years shall be implemented; NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. DEFlNITIONS 1.1. Agreement: This document and all exhibits attached hereto and incorporated herein, and as amended from time to time. 1.2. ALJ: The Administrative Law judge assigned to the Commission's Energy Efficiency Rulemaking (R.OI-08-028) or its successor proceeding. 1.3. Amendment: A future document executed by the authorized representatives of all Parties which changes or modifies the terms of this Agreement. 104. Authorized Budget: The Commission-approved total for performance of the Authorized Work is $2,193,225.00 as set forth in the Concept Paper. 1.5. Business Day: The period from one rnidnight to the following midnight, excluding Saturdays, Sundays, and holidays. 2 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-40 1.6. Calendar Day: The period from one midnight to the following midnight, including Saturdays, Sundays, and holidays. Unless otherwise specified, all days in this Agreement are Calendar Days. 1.7. Concept Paper: The Parties' plans for implementing the Program in SDG&E's service territory, approved by the Commission, and is attached hereto and incorporated herein as Exhibit A. U. Contractor: An entity contracting directly or indirectly with a Party, or any subcontractor thereof subcontracting with such Contractor, to furnish services or materials as part of or directly related to such Party's Authorized Work obligations. City's Contractors shall be selected from SDG&E's approved list, where applicable, and shall not include City's contract stafflabor for the Program. 1.9. Eligible Customers or Customers: Customers eligible for Program services are SDG&E customers. 1.10. Energy Efficiency Measure (or Measure): As such term is used in the Commission's Energy Efficiency Policy Manual, Version 3, August 2005, a program or measure approved by the Commission to reduce energy consumption (whether electrical energy or gas energy). 1.11. EM& V: Evaluation, Measurement and Verification of the Program pursuant to Commission requirements. 1.12. Gas Surcharge: The funds collected from gas utility ratepayers pursuant to Section 890 et al. of the Califomia Public Utilities Code for public purposes programs, including energy efficiency programs approved by the Commission. 1.13. Program Expenditures: Actual (Le., no mark-up for profit, ailm;n;strative or other indirect costs), reasonable expenditures that are directly identifiable to and required for the Authorized Work, up to the amounts budgeted in the Concept Paper's budget worksheets for such Authorized Work. 1.14. Public Goods Charge (pGC): The funds collected from electric utility ratepayers pursuant to Section 381 of the California Public Utilities Code for public purposes programs, including energy efficiency programs approved by the Commission. In addition, all terms used in the singular will be deemed to include the plural, and vice versa. The words "herein," "hereto," and "hereunder" and words of similar import refer to this Agreement as a whole, including all exhibits or other attachments to this Agreement, as the same may from time to time be amended or supplemented, and not to any particular subdivision contained in this Agreement, except as the context clearly requires otherwise. "Includes" or 3 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-41 "including" when used herein is not intended to be exclusive, or to limit the generality of the preceding words, and means "including without limitation." The word "or" is not exclusive. 2. PURPOSE The Program is funded by California utility ratepayers and is administered by SDG&E under the auspices of the Commission. The purpose of this Agreement is to set forth the terms and conditions under which the Parties will jointly implement the Program. The Program and work authorized pursuant to this Agreement is not carried on for profit. This Agreement is not intended to and does not form any ''partnership'' within the meaning of the California Uniform Partnership Act of 1994 or otherwise. 3. PROGRAM DESCRIPTION The Energy Efficiency and Conservation Outreach Program ("ECO Program") is being offered by SDG&E and the City. The ECO Program aims to enable City, its residents, developers, and South Bay cities to implement energy efficiency and conservation measures by overcoming existing barriers. South Bay includes City, Coronado, Imperial Beach, National City and unincorporated areas of the San Diego County. The ECO Program also aims to increase public awareness about energy efficiency and conservation through non-traditional education and outreach outlets and channels used by cities and San Diego County. The ECO Program will enable target customers to implement energy efficiency and conservation measures by overcoming barriers that they face. The target customers and barriers for each customer include: . City of Chula Vista: The City does not have adequate resources to assign dedicated staff to pursue and implement energy efficiency projects on a consistent basis. . Residents: Residents do not have a clear understanding of what programs are available to them and which programs they qualify for. Residents also need face-to- face assistance to access and participate in energy efficiency programs. . Condominium Conversion Developers: Developers do not have the appropriate motivations to enhance the energy efficiency level of condominium conversion projects beyond Title 24 compliance. . South Bay Cities: South Bay cities lack policies, procedures and plans to institutionalize energy efficiency and conservation measures into how they do business. 4. AUTHORlZED WORK 4 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-42 4.1. Scope. The work authorized by the Commission for the Program is set forth in the Concept Paper for the service territory of SDG&E ("Authorized Work") and shall be performed by the Parties pursuant to the tenns of this Agreement. 4.2. Objectives. Major objectives ("Objectives") for the Program are as follows: 4.2.1. City EnerlIT Efficient Facilities Showcase Proiect. Reduce the City of Chula Vista's energy use by 5% per year for a cumulative reduction of 15% by 2008 relative to 2005 energy use. 4.2.2. ECO Exhibit Proiect. Increase public awareness by assisting up to 160 people per day, with access to information through the implementation of up to four (4) Eco Exhibits and/or active participation in energy efficiency and conservation programs. 4.2.3. EnerlIT Efficient Housing Proiect. Encourage condominium conversion developers to upgrade the energy efficiency of converted units by committing to complying with applicable Title 24 requirements and by further incorporating measures that go beyond Title 24 requirements by at least 10% or by reducing energy use for each unit by an average of 515 kW-hr and 15 th=s per month. At least 500 condominiums per year will be targeted for upgrades for a total of 1,500 energy efficient condominiums by 2008, provided., however, the Parties may agree on a replacement program that would be designed during the program cycle, which design shall require the mutual agreement of both Parties and shall comply with Commission procedures. 4.2.4. Municioal EnerlIT BMPs Education Proiect. Sponsor and coordinate at least four (4) energy efficiency and conservation workshops for cities every year. The goal of the workshop series is to initially assist South Bay cities develop energy action plans to manage energy. By the fourth workshop, participating cities will have an Energy Action Plan to reduce their energy use. Workshops will be targeted to East County cities in 2007 and North County cities in 2008. The Program shall meet the objectives and goals set forth in the Concept Paper. 5. OBLIGATIONS OF THE PARTIES 5.1. Generallv. Each Party shall perform its Authorized Work obligations within the Authorized Budget and in conformance with the deliverables, schedules (including the Objectives) and the budgets associated with such Authorized Work as set forth in the Concept Paper, and shall furnish the required labor, equipment and material with the degree of skill and care that is required by current professional standards. 5 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-43 5.2. Additional Obligations of Citv. 5.2.1. City shall obtain the approval of SDG&E when developing Program marketing materials prior to any distribution, publication, circulation or dissemination in any way to the public. In addition, all advertising, marketing or otherwise printed or reproduced material used to implement, refer to or is in any way related to the Program must contain the following language: "This program is funded by California utility ratepayers and !Itlministered by San Diego Gas & Electric Company, under the auspices of the California Public Utilities Commission." 5.2.2. City will communicate regularly with the program representative of SDG&E, and shall advise SDG&E of any problems or delay associated with City's Authorized Work obligations. 5.3. Additional Obligations of SDG&E. 5.3.1. SDG&E will be actively involved in all aspects of Program delivery. SDG&E will use its reasonable efforts to add value to the Program by dedicating the human resources necessary to implement the Program successfully and providing in-kind services support for the Program's marketing and outreach activities. 5.3.2. SDG&E shall provide, at no cost to the Program, informational and educational materials on SDG&E's statewide and local energy efficiency programs to City to enable City to implement the Program. 5.3.3. SDG&E shall provide a program representative on a part-time basis, who will be the point of contact between City and SDG&E for the Program. 5.4. EM&V. Once the Commission has approved and issued an evaluation, measurement and verification ("EM&V") plan for the Program, such EM&V plan shall be attached to this Agreement as Exhibit B and shall be incorporated herein by this reference. Any subsequent changes or modifications to such EM&V plan by the Commission shall be automatically incorporated into Exhibit B. 6. ADMINlS1RATlON OF PROGRAM 6.1. Decision-makiDl1 and Approval. 6.1.1. Unless otherwise set forth in this Agreement, the following actions and tasks require 11nanimous approval of the Parties (which approval may be withheld by each such Party in its sole and absolute discretion): 6 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-44 a. Any action that materially deviates from the Concept Paper. b. Any action that materially impacts the Concept Paper's schedule or the Program. c. Any action that materially impacts the Program's budget set forth in the Concept Paper. d. Selection of any Contractor not previously approved by SDG&E. 6.1.2. Unless otherwise specified in this Agreement, the Parties shall document all material Program decisions, including, without limitation, all actions specified in Section 6.1.1 above, in meeting minutes or, if taken outside a meeting, through written communication, in all cases which shall be maintained in hard copy form on file by the Parties for a period of no less than ten (10) years after the expiration or termination of this Agreement. 6.2. Regular Meetings. During the Term of this Agreement, the Parties shall meet on a regular basis, which shall occur no less than quarterly, at a location reasonably agreed upon by the Parties, and shall engage in routine weekly communication to review the status of the Program's deliverables, schedules and the budgets, and plan for upcoming Program implementation activities. Any decision-making shall be reached and documented in accordance with the requirements of Section 6.1.2 above. 6.3. Coordinating the PrOgram Activities. Each Party shall be responsible for (i) coordinating the implementation of its Authorized Work obligations with the other Party, and eii) monitoring the overall progress of the Authorized Work, to ensure that the Program remains on target, (including achieving the Program's energy savings and demand reduction goals), on schedule (including pursuant to the Objectives set forth in Section 4.2), and meets all reporting and other filing requirements. 6.4. Regular Communication. The Parties agree to communicate regularly with the other Parties and to advise the other Party of any problems associated with successful implementation of the Program. 6.5. Coordinating with Other Ener~ Efficiencv Programs. As applicable, SDG&E shall coordinate with other existing or selected programs (including programs targeting low-income customers) to enhance consistency in incentives and other Program details, minimio,e duplicative administrative costs and enhance the possibility that programs can be marketed together to avoid duplicative marketing expenditures. All Parties will coordinate with other energy programs to maximize customer satisfaction and energy savings. 6.6. Non-Responsibilitv for Other Parties. Notwithstanding anything contained in this Agreement in the contrary, a Party shall not be responsible for the performance or non- performance hereunder of any other Party, nor be obligated to remedy any other Party's defaults or defective performance. 7 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11 -45 7. DOUBLE DIPPING PROHIBITED. In performing its respective Authorized Work obligations, a Party shall implement the following mechanism and shall take other practicable steps to m;n;mi7ce double-dipping: 7.1. Prior to providing incentives or services to an Eligible Customer, City shall obtain a signed form from such Eligible Customer stating that: 7.1.1. Such Eligible Customer has not received incentives or services for the same measure from any other SDG&E program or from another utility, state, or local program; and 7.1.2. Such Eligible Customer agrees not to apply for or receive incentives or services for the same measure from another utility, state, or local program. City shall keep its Eligible Customer-signed forms for at least ten (10) years after the expiration or termination of this Agreement. 7.2. City shall not knowingly provide an incentive to an Eligible Customer, or make payment to a Contractor, who is receiving compensation for the same product or service either through another ratepayer funded program, or through any other funding source. 7.3. City represents and warrants that it has not received, and will not apply for or accept, incentives or services for any measure provided for herein or offered pursuant to this Agreement or the Program from any other utility, state or local program. 7.4. The Parties shall take reasonable steps to minimize or avoid the provision of incentives or services for the same measures provided under this Program from another program or other funding source ("double-dipping''). 8. REPORTING 8.1. Reuorting Requirements. The Parties shall implement those reporting requirements set forth in Exhibit C attached hereto and incorporated herein by this reference, as approved by the Commission and as the same may be amended from time to time, or until the Commission otherwise requires or issues different or updated reporting requirements for the Program, in which case and at which time such Commission- approved reporting requirements shall replace the requirements set forth in Exhibit C in their entirety. 8.2. Commission ReoortinlZ Requirements Manual. All reports shall be submitted in accordance with the requirements of the latest version of the Commission's Reporting Requirements Manual (currently Version 3, August 2005) and any other reporting 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-46 o . protocol established by Commission staff. The Parties shall use their best efforts to provide any additional information as requested by SDG&E or by Commission staff. 9. PAYMENTS 9.1. Authorized Budget. No Party shall be entitled to compensation in excess of the total amounts approved by the Commission in the Authorized Budget for such Party's Authorized Work obligations. However, if SDG&E executes any fund shift in accordance with Section 9.4 below, then each Party shall be entitled to compensation up to, but not exceeding, the Authorized Budget, as revised to reflect such fund shift, for such Party's Authorized Work obligations. 9.2. Pro= Expenditures. Each Party shall be entitled to spend PGC or Gas Surcharge Program Funds on Program Expenditures incurred by such Party. 9.3. Payment to City. In order for City to be entitled to PGC or Gas Surcharge funds for Program Expenditures: 9.3.1. City shall invoice SDG&E quarterly, in advance and no later than the 15th day of the flIst calendar month of each calendar quarter, for all reasonable projected Program Expenditures for such quarter ("Quarterly Invoice"), together with all such documentation reasonably required by SDG&E to evidence the calculation of such projected Program Expenditures and all such other documentation required to be attached thereto as described in Section 9.3.2 below. With respect to the quarter in progress at the time of execution of this Agreement, City shall submit, by the 15th day of the month in which such execution occurred (or if such 15th day has passed, then the 15th day of the following month), such Quarterly Invoice for such quarter in progress (together with all such documentation). 9.3.2. At the end of each calendar quarter of the term of this Agreement, City shall provide an accounting of all Program Expenditures that actually incurred by City during the course of such quarter. City shall calculate the difference between the actual Program Expenditures incurred by City during the quarter just passed and the amount advanced by SDG&E under Section 9.3.1 in respect of such quarter. If such actual Program Expenditures incurred by City during such quarter is greater than such amount advanced by SDG&E for such quarter, then City's Quarterly Invoice for the following calendar quarter shall include a charge in the amount of such difference. If the actual Program Expenditures incurred by City during such quarter is less than such amount advanced by SDG&E for such quarter, then City's Quarterly Invoice for the following calendar quarter shall include a credit in the amount of the amount of such difference. As a condition to payment by SDG&E in respect of a 9 2006-2008 CITY OF CHULA VlSTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-47 Quarterly Invoice, City shall include with such Quarterly Invoice all such documentation reasonably required by SDG&E evidencing the accounting set forth in this Section 9.3.2 for the previous calendar quarter. 9.3.3. Upon the expiration or earlier termination of this Agreement or the Program, City shall provide a true-up of Program Expenditures during the entire term of the Program and shall provide (or shall have provided) no later than thirty (30) days after the effective date of such expiration or earlier termination all such documentation reasonably requested by SDG&E to evidence all Program Expenditures incurred by City during the term of the Agreement and the Program. If the total actual Program Expenditures incurred by City during the term of the Program is greater than the total amount of Program Expenditures paid by SDG&E during the term of the Program, then City shall deliver an invoice SDG&E in the amount of such difference at the same time City delivers the documentation described above in this Section 9.3.3. If the total actual Program Expenditures incurred by City during the term of the Program is less than the total amount of Program Expenditures paid by SDG&E during the term of the Program, then City shall refund the difference to SDG&E within thirty (30) calendar days after the effective date of such expiration or earlier termination. 9.3.4. SDG&E shall pay all invoices within thirty (30) calendar days after receipt such invoice and all documentation and accountings required to be delivered with such invoice as set forth in this Section 9.3, exclusive of any disputed items. 9.3.5. City shall submit monthly and quarterly reports to SDG&E, in a format reasonably acceptable to SDG&E and containing such information as may be required for the reporting requirements set forth in Section 8 above ("Periodic City Reports"), by the tenth (10~ Calendar Day of the calendar month following performance, setting forth all Program Expenditures incurred during the prior calendar month or quarter, as applicable. 9.3.6. Documentation necessary to substantiate the Program Expenditures shall include, without limitation, the following: a. Incentives: Subject to the provisions of Section 7, for each incentive paid to Eligible Customers or Contractors (other than point of purchase programs): (i) Eligible Customer or Contractor name, address and telephone number; (ii) the type and quantity of each measure installed or received; (iii) the amount of each incentive paid, and 10 ZOO6-Z008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-48 (iv) the date each payment was provided or each measure was installed or received. b. Labor: For each of the Program's budget categories applicable to City (e.g. Direct Implementation), a list of individuals and total hours worked and labor rate(s) for each person during the month in each budget category. c. Equipment and Material: A list of equipment and material used and/or installed in the performance of the Authorized Work during the month, and supporting documentation for the cost incurred by City therewith. d. Overhead items other than travel/training/conferences: Supporting documentation for overhead items such as rent, computer equipment, facility charges, is required and shall be provided in accordance with the provisions of Exhibit C. However, such information must be provided upon request by either SDG&E or the Commission. e. Travel/Training/Confereoce: Supporting documentation for all travel-related expenditures. While original receipts need not be submitted, a detailed expense report for all travel expenses should be provided, which includes airfare, mileage, meals, lodging, parking, etc, in the format approved by SDG&E. A detailed travel expense report should include the following information: name of person incurring expense, reason for expense, date(s) incurred and type of expense (e.g. airfare, airport parking, rental car, other parking, mileage, meals, hotel, other costs, if any). f. Contractor Costs: Copies of all Contractor invoices. If only a portion of the Contractor costs applies to the Program, City shall clearly indicate the line items or percentage of the invoice amount that should be applied to the Program, as provided in Exhibit C. g. Marketing: A copy of each distinct marketing material produced, with quantity of a given marketing material produced and the method of distribution. 9.3.7. City understands that only those costs listed in the Allowable Cost Table set forth in Exhibit C can be submitted for payment. All invoices submitted to SDG&E must report all Program Expenditures using the allowable cost items included on the Allowable Cost Table set forth in Exhibit C. 11 2006-2008 CITY OF CHULA VlSTAENERGYEFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-49 9.3.8. SDG&E reserves the right to reject any City invoiced amount for any of the following reasons: a. The invoiced amount, when aggregated with previous Program Expenditures, exceeds the amount budgeted therefor in the Authorized Budget for such Authorized Work. b. There is a reasonable basis for concluding that such invoiced amount is unreasonable or is not directly identifiable to or required for the Authorized Work, the Concept Paper or th~ Program. c. Such invoiced amount, in SDG&E's sole discretion, contains charges for any item not authorized under this Agreement or by the Commission, or is deemed untimely, unsubstantiated or lacking proper documentation. 9.3.9. Should SDG&E reject any Program Expenditure of City, City invoice or Periodic City Report, SDG&E may request such additional performance required from City, modification required to City's invoice or such other action as may be required of City, and any continuing dispute therefrom shall be resolved in accordance with the procedures set forth in Section 14. 9.3.10. City shall maintain for a period of not less than ten (10) years all documentation reasonably necessary to substantiate the Program Expenditures, including, without limitation, the documentation set forth in Section 9.3.6(a) through (g) above. City shall promptly provide, upon the reasonable request by SDG&E, any documentation, records or information in connection with the Program or its Authorized Work. 9.4. Shifting Funds Across Budget Categories. SDG&E may shift Program funds among budget categories (e.g. Administrative and Direct Implementation) as set forth in the Concept Paper to the maximum extent permitted under, and in accordance with, Commission decisions and rulings therefor to which this Program relates. 9.5. Reasonableness of Exuenditures. Each Party shall bear the burden of ensuring that its Program Expenditures are objectively reasonable. The Commission has the authority to review all Program Expenditures for reasonableness. Should the Commission, at any time, issue a finding of unreasonableness as to any Program Expenditure, and require a refund or return of the PGC or Gas Surcharge funds paid in the reimbursement of such Program Expenditure, the Party who incurred such Program Expenditure and received reimbursement under this Agreement shall be solely and severally liable for such refund or return. 12 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-50 9.6. Refund of PGC or Gas Surcharge Funds. With respect to any amount subject to refund to the Commission pursuant to any subsequent Commission decision or ruling, should the Commission determine that a refund is due and seeks to recover such refund, the amount due shall be returned as directed by the Commission, within 30 days of receipt of written notice that payment is owed, as follows: (1) if the refund is attributable to an overpayment of Program funds to a Party, then that Party shall be solely liable for such refund; (2) if the refund is attributable to an unreasonable expenditure, then the Party who (i) incurred such Program Expenditure and received reimbursement therefor under this Agreement, or (ii) was otherwise entitled to receive reimbursement under this Agreement but did not actually receive reimbursement due to receipt of an equivalent offset, shall be solely liable for such refund; (3) for any other refund, each Party shall be solely liable for its pro-rata share, determined by calculating the percentage of the total overall Program Expenditures represented by each Party's reimbursements of Program Expenditures (both actual reimbursements and those to which the Party was otherwise entitled but did not receive due to receipt of an equivalent offset). Nothing in this provision is intended to limit a Party's right to pursue aclministrative or other remedies available with respect to a Commission decision or ruling. A Party's approval of any action which is. the responsibility of another Party under this Agreement shall not shift the corresponding responsibility with respect to any overpayment or unreasonable Program Expenditure. Notwithstanding the foregoing, any overpayment of Program funds to a Party (the "Receiving Party") shall be immediately due and payable by the Receiving Party, upon demand therefor, to the Party who made the overpayment, and the Party who made the overpayment shall have the right to set the overpayment off from any other Program funds payable to the Receiving Party, if possible, or otherwise pursue any available remedies for the recovery of the overpayment. 10. END DATE FOR PROGRAM AND ADMINISTRATIVE ACTIVITIES. Unless this Agreement is terminated pursuant to Section 24 below, and subject to the Objectives, the Parties shall complete all Program Administrative activities (as defined by the Concept Paper) and reporting requirements by no later than March 31, 2009, and all Direct Implementation activities (as defined by the Concept Paper) by no later than December 31, 2008, in each case unless otherwise agreed to by the Parties or so ordered by the Commission. 11. FINAL INVOICES All Parties must submit final invoices no later than March 31, 2009. 12. INDEMNITY 12.1. Indemnitv bv City. City shall indemnify, defend and hold harmless SDG&E, and its successors, assigns, affiliates, subsidiaries, current and future parent companies, officers, directors, agents, and employees, from and against any and all expenses, claims, losses, damages, liabilities or actions in respect thereof (including reasonable attorneys' 13 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-51 fees) to the extent arising from (a) City's negligence or willful misconduct in City's activities under the Program or performance of its obligations hereunder, or (b) City's breach of this Agreement or of any representation or warranty of City contained in this Agreement. 122. Indemnity bv SDG&E. SDG&E shall indemnify, defend and hold harmless City and its successors, assigns, affiliates, subsidiaries, current and future parent companies, officers, directors, agents, and employees, from and against any and all expenses, claims, losses, damages, liabilities or actions in respect thereof (including reasonable attorneys' fees) to the extent arising from (a) SDG&E's negligence or willful misconduct in SDG&E's activities under the Program or performance of its obligations hereunder or (b) SDG&E's breach of this Agreement or any representation or warranty of SDG&E contained in this Agreement. 12.3. LIMITATION OF LIABILITY. NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF OR UNDER-UTILIZATION OF LABOR OR FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROmS, COST OF REPLACEMENT POWER OR CLAIMS FROM CUSTOMERS, RESULTING FROM A PARTY'S PERFORMANCE OR NONPERFORMANCE OF THE OBLIGATIONS HEREUNDER., OR IN THE EVENT OF SUSPENSION OF THE AUTHORIZED WORK OR TERMINATION OF THIS AGREEMENT. 13. OWNERSlilP OF DEVELOPMENTS The Parties acknowledge and agree that SDG&E, on bebalf of its ratepayers, shall own all data, reports, information, manuals, computer programs, works of authorship, designs or improvements of equipment, tools or processes (collectively "Developments") or other written, recorded, photographic or visual materials, or other deliverables produced in the performance of this Agreement; provided, however, that Developments do not include equipment or infrastructure purchased for research, development, education or demonstration related to energy efficiency. Although City shall retain no ownership, interest or title in the Developments except as may otherwise be provided in the Concept Paper, it will have a permanent, royalty free, non- exclusive license to use such Developments for the City's internal use and at the City's sole but reasonable discretion for the residents and businesses within the City's current and future municipal boundaries. 14. DISPUTE RESOLUTION 14.1. Disoute Resolution. Except as may otherwise be set forth expressly herein, all disputes arising under this Agreement shall be resolved as set forth in this Section 14. 14 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERV ATWN OUTREACH PROGRAM AGREEMENT 11-52 14.2. Negotiation and Mediation. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between the Parties' authorized representatives. The disputing Party shall give the other Parties written notice of any dispute. Within twenty (20) days after delivery of such notice, the authorized representatives shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to exchange information and to attempt to resolve the dispute. If the matter has not been resolved within thirty (30) days of the first meeting, any Party may initiate a mediation of the dispute. The mediation shall be facilitated by a mediator that is acceptable to all Parties and shall conclude within sixty (60) days of its commencement, unless the Parties agree to extend the mediation process beyond such deadline. Upon agreeing on a mediator, the Parties shall enter into a written agreement for the mediation services with each Party paying a pro rate share of the mediator's fee, if any. The mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association; provided, however, that no consequential damages shall be awarded in any such proceeding and each Party shall bear its own legal fees and expenses. 14.3. Confidentiality. All negotiations and any mediation conducted pursuant to Section 14.2 shall be confidential and shall be treated as compromise and settlement negotiations, to which Section 1152 of the California Evidence Code shall apply, which Section is incorporated in this Agreement by reference. 14.4. Iniunctive Relief. Notwithstanding the foregoing provisions, a Party may seek a preliminary injunction or other provisional judicial remedy if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 14.5. Continuing Obligation. Each Party shall continue to perform its obligations under this Agreement pending fmal resolution of any dispute arising out of or relating to this Agreement. 14.6. Failure of Mediation. If, after good faith efforts to mediate a dispute under the terms of this Agreement as provided in Section 14.2 above, the Parties cannot agree to a resolution of the dispute, any Party may pursue whatever legal remedies may be available to it at law or in equity, before a court of competent jurisdiction and with venue as provided in Section 34. 15. REPRESENTATIONS AND WARRANTIES City represents, warrants and covenants, as of the Effective Date and thereafter during the Term of this Agreement that: 15.1. The Authorized Work performed by City and its Contractors shall comply with the applicable requirements of all statutes, acts, ordinances, regulations, codes, and standards of federal, state, local and foreign governments, and all agencies thereof. 15 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11,..53 15.2. The Authorized Work performed by City and its Contractors shall be free of any claim of trade secret, trade mark, trade name, copyright, or patent infringement or other violations of any proprietary rights of any person. 15.3. City shall conform to the applicable employment practices requirements of (Presidential) Executive Order 11246 of September 24, 1965, as amended, and applicable regulations promulgated thereunder. 15.4. City shall contractually require each Contractor it hires to perform the Authorized Work to indemnify SDG&E to the same extent City has indemnified SDG&E under the terms and conditions of this Agreement. 15.5. City shall retain, and shall cause its Contractors to retain, all records and documents pertaining to its Authorized Work obligations for a period of not less than five (5) years beyond the termination or expiration of this Agreement. 15.6. City shall contractually require all of its Contractors to provide SDG&E reasonable access to relevant records and staff of Contractors concerning the Authorized Work. 15.7. City will take all reasonable measures, and shall require its Contractors to take all reasonable measures, to ensure that the Program funds in its possession are used solely for Authorized Work, which measures shall include the highest degree of care that City uses to control its own funds, but in no event less than a reasonable degree of care. 15.8. City will maintain, and shall require its Contractors to maintain, insurance coverage or self insurance coverage in reasonable and customary coverage and amounts at all times during the Term of this Agreement. a. 16. PROOF OF INSURANCE 16.1. Evidence of Coverae:e. Upon request at any time during the Term of this Agreement, City shall provide evidence that its insurance policies (and the insurance policies of any Contractor, as provided in Section 15.8) are in full force and effect, and provide the coverage and limits of insurance that City has represented and warranted herein to maintain at all times during the Term of this Agreement. 16.2. Self-Insurance. If City is self-insured, City shall upon request forward documentation to SDG&E that demonstrates to SDG&E's satisfaction that City self- insures as a matter of normal business practice before commencing the Authorized Work. SDG&E will accept reasonable proof of self-insurance comparable to the above requirements. 16 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-54 17. CUSTOMER CONFIDENTIALITY REQUIREMENTS 17.1. Non-Disclosure. City, its employees, agents and Contractors shall not disclose any Confidential Customer Information (defined below) to any third party during the Term of this Agreement or after its completion, without City having obtained the prior written consent of SDG&E, except as provided by law, lawful court order or subpoena and provided City gives SDG&E advance written notice of such order or subpoena. 17.2. Confidential Customer Information. "Confidential Customer Information" includes, but is not limited to, a SDG&E customer's name, address, telephone number, account number and all billing and usage information, as well as any SDG&E customer's information that is marked confidential. If City is uncertain whether any information should be considered Confidential Customer Information, City shall contact SDG&E prior to disclosing the customer information. 17.3. Non-Disclosure Agreement. Prior to any approved disclosure of Confidential Customer Information, SDG&E may require City to enter into a nondisclosure agreement. 17.4. Commission Proceedinl!s. This Section 17 does not prohibit City from disclosing non-confidential information concerning the Authorized Work to the Commission in any Commission proceeding, or any Commission-sanctioned meeting or proceeding or other public forum. 17.5. Return of Confidential Information. Confidential Customer Information (including all copies, backups and abstracts thereof) provided to City by SDG&E, and any and all documents and materials containing such Confidential Customer Information or produced by City based on such Confidential Customer Information (including all copies, backups and abstracts thereof), during the performance of this Agreement shall be returned upon written request by SDG&E. 17.6. Remedies. The Parties acknowledge that Confidential Customer 1-uormation is valuable and unique, and that damages would be an inadequate remedy for breach of this Section 17 and the obligations of City are specifically enforceable. Accordingly, the Parties agree that in the event of a breach or threatened breach of this Section 17 by City, SDG&E shall be entitled to seek and obtain an injunction preventing such breach, without the necessity of proving damages or posting any bond. Any such relief shall be in addition to, and not in lieu of, money damages or any other available legal or equitable remedy. 17.7. Public Records Act. Notwithstanding the foregoing, SDG&E understands that all information provided to the City may be subject to public review pursuant to the California Public Records Act (California Government Code Section 6250 et seq.), which 17 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-55 provides that records in the custody of a public entity might be disclosed unless the information being sought falls into one or more of the exemptions to disclosure set out in Government Code Sections 6254 through 6255. As a result, City may be obligated to disclose any information provided to the City to any party that requests it to the extent permitted under the California Public Records Act. 18. TIME IS OF THE ESSENCE The Parties hereby acknowledge that time is of the essence in performing their obligations under the Agreement. Failure to comply with deadlines stated in this Agreement may result in termination of this Agreement, payments being withheld or other Program modifications as directed by the Co=ission. 19. CUSTOMER COMPLAINT RESOLUTION PROCESS City shall develop and implement a process for the management and resolution of customer complaints in an expedited manner including, but not limited to: (a) ensuring adequate levels of professional customer service staff; (b) direct access of customer complaints to supervisory and/or management personnel; (c) documenting each customer complaint upon receipt; and (d) elevating any complaint that is not resolved within five (5) days of receipt by City. 20. RESTRICTIONS ON MARKETING 20.1. Use of Commission's Name. No Party may use the name of the Commission on marketing materials for the Program without prior written approval from the Commission staff. In order to obtain this written approval, SDG&E must send a copy of the planned materials to the Commission requesting approval to use the Commission name and/or logo. Notwithstanding the foregoing, the Parties shall disclose their source of funding for the Program by stating prominently on marketing materials that the Program is "funded by California ratepayers under the auspices of the California Public Utilities Commission." 20.2. Use of SDG&E's Names. City must receive prior review and written approval from SDG&E for the use of SDG&E's name or logo on any marketing or other Program materials (which approval may be withheld at SDG&E's sole and absolute discretion). City shall allow twenty (20) days for SDG&E review and approval. 20.3. Use of City Name. SDG&E must receive prior written approval from City for use of City's name or logo on any marketing or other Program materials (which approval may be withheld at City's sole and absolute discretion). SDG&E shall allow twenty (20) days for such City review and approval. 21. RIGHT TO AUDIT 1& 21106-200B CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-56 City agrees that SDG&E and/or the Commission, or their respective designated representatives, shall have the right to review and to copy any records or supporting documentation pertaining to City's performance of this Agreement or the Authorized Work, during normal business hours, and to allow reasonable access in order to interview any employees of City who might reasonably have information related to such records. Further, City agrees to include a similar right of SDG&E and/or the Commission to audit records and interview staff in any subcontract related to performance of City's Authorized Work or this Agreement. 22. STOP WORK PROCEDURES SDG&E may suspend City's Authorized Work being for good cause, such as concerns related to funding, implementation or management of the Program, safety concerns, fraud, or excessive Customer complaints, by notifying City in writing to suspend its Authorized Work being performed in its service territory. City shall stop work immediately, and may resume its Authorized Work only upon receiving written notice from SDG&E that it may resume its Authorized Work. 23. MODIFICATIONS Changes to this Agreement shall only be made by mutual agreement of all Parties through a written amendment to this Agreement signed by all Parties. 24. TERM AND 1ERMINATION 24.1. Term. This Agreement shall be effective as of January 1, 2006. Subject to Section 36 below and Section 10 above, this Agreement shall continue in effect until March 31, 2009 ("Term") unless otherwise earlier terminated in accordance with the provisions of Section 24.2, 24.3 or 29 below or any other provisions of this Agreement. 24.2. Termination for Breach. Any Party may terminate this Agreement in the event of a material breach by the other Party of any of the material terms or conditions of this Agreement, provided such breach is not remedied within sixtf (60) days notice to the breaching Party thereof from the non-breaching Party or otherwise cured pursuant to the dispute resolution provisions set forth in Section 14 herein. 24.3. Termination for Convenience. SDG&E and the City of Chula Vista shall each have the right to terminate this Agreement, at their sole convenience and without first obtaining the other Party's prior consent., by providing at least thirty (30) days' prior written notice to the other Party setting forth the effective date of such termination. 24.4. Effect of Termination. 19 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-57 24.4.1. In the event of termination of this Agreement, the Parties shall be entitled to PGC and/or Gas Surcharge Funds for all Program Expenditures incurred or accrued pursuant to contractual or other legal obligations for Authorized Work up to the effective date oftennination of this Agreement, provided that any Periodic City Reports or other reports, invoices, documents or information required under this Agreement or by the Commission are submitted in accordance with the terms and conditions of this Agreement. The provisions of this Section 24.4.1 shall be a Party's sole compensation resulting from any termination of this Agreement. 24.4.2. In the event of termination of this Agreement, City and SDG&E shall stop any Authorized Work in progress and take action as directed by the other Party to bring the Authorized Work to an orderly conclusion, and the Parties shall work cooperatively to facilitate the termination of operations and any applicable contracts for Authorized Work. SDG&E shall, within 30 days, make payment to the City for any Program Expenditures incurred by City prior to the effective date of the termination, unless otherwise prohibited by law or CPUC action. 25. WRITTEN NOTICES Any written notice, demand or request required or authorized in connection with this Agreement, shall be deemed properly given if delivered in person or sent by facsimile, nationally recognized overnight courier, or first class mail, postage prepaid, to the address specified below, or to another address specified in writing by a Party as follows: City: The City of Chula Vista Michael Meacham, Director Conservation & Environmental Services Department 276 Fourth Avenue Chula Vista, CA 91910 (619) 407-3545 telephone (619) 409-5884 facsimile mmeacham cLchula-vistaca.us SDG&E: San Diego Gas & Electric Company Risa Baron, Energy Programs Supervisor 8306 Century Park Ct San Diego, CA 92123-1530 (858) 654-1103 telephone (858) 654-1175 facsimile rbaron@semprautilities.com Notices shall be deemed received (a) if personally or hand-delivered, upon the date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m., or otherwise on the Business Day following personal delivery; (b) if mailed, three (3) Business Days after the date the notice is postmarked; (c) if by facsimile, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing Party; or (d) if by overnight courier, on the Business Day following delivery to the overnight courier within the time limits set by that courier for next-day delivery. 20 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-5.8 26. CONTRACTS Each Party shall, at all times, be responsible for its Authorized Work obligations, and acts and omissions of Contractors and persons directly or indirectly employed by such party for services in connection with the Authorized Work. 27. RELATIONSHIP OF THE PARTIES The Parties shall act in an independent capacity and not as officers or employees or agents of each other. This Agreement is not intended to and does not form any "partnership" within the meaning of the California Uniform Partnership Act of 1994 or otherwise. 28. NON-DlSCRIMlNATION CLAUSE No Party shall unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, and denial of family care leave. Each Party shall ensure that the evaluation and treatment of its employees and applicants for employment are free from such discrimination and harassment, and shall comply with the provisions of the Fair Employment and Housing Act (Gove=ent Code Section 12990 (a)-(f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Govermnent Code Section 12990 (a)-(t), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Each Party represents and warrants that it shall include the substance of the nondiscrimination and compliance provisions of this clause in all subcontracts for its Authorized Work obligations. 29. COJvlMlSSION AUTHORITY TO MODIFY This Agreement shall at all times be subject to the discretion of the Commission, including, but not limited to, review and modifications, excusing a Party's performance hereunder, or termination as the Commission may direct from time to time in the reasonable exercise of its jurisdiction. In addition, in the event that any ruling, decision or other action by the Commission adversely impacts the Program, as determined at their respective sole discretion, SDG&E and the City shall each have the right to terminate this Agreement (subject, however, to the provisions of Sections 24.4 and 36) by providing at least ten (10) days' prior written notice to City setting forth the effective date of such termination. SDG&E shall, within 30 days, make payment to the City for any Program Expenditures incurred by City prior to the effective date of the termination, unless otherwise prohibited by law or CPUC action. 21 2006-2008 CITY OF CHULA VlSTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-59 30. NON-WANER None of the provisions of this Agreement sball be considered waived by any Party unless such waiver is specifically stated in writing. 31. ASSIGNMENT No Party shall assign this Agreement or any part or interest thereof, without the prior written consent of the other Party, and any assignment without such consent shall be void and of no effect. Notwithstanding the foregoing, if SDG&E is requested or required by the Commission to assign its rights and/or delegate its duties hereunder, in whole or in part, such assignment or delegation shall not require City's consent, and SDG&E shall be released from all obligations hereunder arising after the effective date of such assignment, both as principal and as surety. 32. FORCE MAJEURE Failure of a party to perform its obligations under this Agreement by reason of any of the following sball not constitute an event of default or breach of this Agreement: strikes, picket lines, boycott efforts, earthquakes, fires, floods, war (whether or not declared), revolution, riots, insurrections, acts of God, acts of government (including, without limitation, any agency or department of the United States of America), acts of terrorism, acts of the public enemy, scarcity or rationing of gasoline or other fuel or vital products, inability to obtain materials or labor, or other causes which are reasonably beyond the control of such Party. 33. SEVERABILITY In the event that any of the terms, covenants or conditions of this Agreement, or the application of any such term, covenant or condition, shall be held invalid as to any person or circumstance by any court, regulatory agency, or other regulatory body having jurisdiction, all other terms, covenants, or conditions of this Agreement and their application shall not be affected thereby, but shall remain in full force and effect, unless a court, regulatory agency, or other regulatory body holds that the provisions are not separable from all other provisions of this Agreement. 34. GOVERNING LAW; VENUE This Agreement shall be interpreted, governed, and construed under the laws of the State of California as if executed and to be performed wholly within the State of California. Any action brought to enforce or interpret this Agreement shall be filed in San Diego County, California. 35. SECTION HEADINGS Section headings appearing in this Agreement are for convenience only and shall not be construed as interpretations of text. 22 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-60 36. SURVN AL Notwithstanding completion or of this Agreement, the Parties shall continue to be bound by the provisions of this Agreement which by their nature or terms survive such completion or termination. Such provisions shall include, but are not limited to, Sections g, 9,12,13,14, 17, 21,34,36 and 37 of this Agreement. 37. ATTORNEYS' FEES Except as otherwise provided herein, in the event of any legal action or other proceeding between the Parties arising out of this Agreement or the transactions contemplated herein, each Party in such legal action or proceeding shall bear its own costs and expenses incurred therein, including reasonable attorneys' fees. 38. COOPERATION Each Party agrees to cooperate with the other Parties in whatever manner is reasonably required to facilitate the successful completion of this Agreement. 39. ENTIRE AGREEMENT This Agreement (including the Exhibits hereto) contains the entire agreement and understanding between the Parties and merges and supersedes all prior agreements, representations and discussions pertaining to the Authorized Work. 40. APPROVALS Unless otherwise set forth in herein, approvals required of a Party shall not be unreasonably withheld by such Party. 41. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument. (Signature page follows) 23 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-61 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives. CITY: THE CITY OF muLA VISTA J~ Jt~ - Attest: Susan Bigelow, City Clerk: f ~/(~lc. Ste 0 Padilla, Mayor SDG&E: SAN DJEG? GAS. S /" & LECTmC COMPANY ~~ Na1be: Anne Sheo Smith Title: Sr. Vice President. Customer Service 24 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-62 EXHIBIT A 2006-2008 CONCEPT PAPER 2006-2008 Energy Efficiency Concept Paper City of Chula Vista & San Diego Gas & Electric Initiative Conservation Outreach Program (ECO Program) 1. Proiected Pro..-ralll Bud"et 2006 2007 2008 !Administration Administrative Overheads $ 36,554 $ 36,554 $ 36 554 Administrative Other $ 255,876 $ 255 876 $ 255,876 Marketino & Outreach $ - $ - $ - Direct Imolementation Incentives $ - $ - $ - Activitv $ 438,645 $ 438 645 $ 438,645 Installation $ - $ . $ - Hardware & Materiais $ - $ - $ - Rebate Processino & Insoection $ - $ - $ - EM&V $ - $' - $ - Total $ 731,075 $ 731,075 $ 731,075 2. IIlImacts Savings identified in this paper are estimated based on the Energy Efficient Housing Project component. The kW, kWh and therm savings along with incentives and rebates for City ofChula Vista retrofit projects for City facilities are included in the SDG&E Energy Savings Bid Program (see City Energy Efficient Facilities Showcase Project below). There are no projected kW, kWh and therm direct savings for the ECO Exhibit and the Municipal Energy BMPs Education Projects. 3. Program Cost ElIectiveness Attached 4. Program Descriptors The Energy Efficiency and Conservation Outreach Program (ECO Program) is being offered by San Diego Gas & Electric Company, (SDG&E) and the City of Chula Vista (Chula Vista). The ECO Program aims to enable Chula Vista, residents, developers, and Southbay cities to implement energy efficiency and conservation measures by overcoming existing barriers. Southbay includes Chula Vista, Coronado, Imperial Beach, National City and unincorporated areas of the San Diego County. The ECO Program also aims to increase public aWlU"eness about energy efficiency and conservation through non-traditional education and outreach outlets and channels used by cities and the County. 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-63 5. Program Statement The ECO Program will enable target customers to implement energy efficiency and conservation measures by overcoming barriers that they face. The target customers and barriers for each customer include: . City of Chula Vista: The City does not have adequate resources to assign dedicated staff to pursue and implement energy efficiency projects on a consistent basis. . Residents: Residents do not have a clear understanding of what programs are available to them and which programs they qualify for. Residents also need face-to-face assistance to access and participate in energy efficiency programs. . Condominium Conversion Developers: Developers do not have the appropriate motivations to enhance the energy efficiency level of condominium conversion projects beyond Title 24 compliance. . Southbay Cities: Southbay Cities lack policies, procedures and plans to instinrtionalize energy efficiency and conservation measures into how they do business. 6. Program Rationale . City Energy Efficient Facilities Showcase Project: Chula Vista has over 100 City owned buildings and infrastructure that consume electricity and natural gas. The City has about 550 electricity and natural gas meters and uses approximately 18 million kW-brs of electricity and approximately 800,000 therms of natural gas annually. Due to addition of new City buildings and infrastructure, the City's energy use is projected to increase by at least 5% in 2006. The City's annual energy budget is approximately $3.4 million. The City's actual energy costs are also projected to increase due to new City load and rising energy rates. Although the City has aggressively pursued energy efficiency retrofits to reduce energy use, to reduce cost, to improve maintenance and to reduce its impact on the environment, there are still many opportunities to improve how the City uses energy. An opportunity to position City facilities to participate in SDG&E's demand response programs also exists. The ECO Program seeks to enable the City to manage its energy use more effectively and consistently by providing funding to the City for dedicated energy staff. . ECO Exhibit Project: Chula Vista has co-sponsored Hard-te-Reach lighting events with SDG&E for the past three years at various City venues. Year after year, an average of600 households (.01% of Cbula Vista's housing stock) participate in the one-day events to exchange their inefficient incandescent light bulbs for more efficient compact fluorescent lights. Approximately 15% of the participating households also sign up for SDG&E programs available to low income and senior citizens. The City believes that the success of the events can be attributed to effective execution of a marketing plan developed by SDG&E and City staff; face-te-face assistance from SDG&E and City staff and customer convenience. The mobile ECO Exlnbits aims to provide face-to-face assistance and convenience on a more predictable basis by placing the staffed ECO Exhibits in high !taffic community locations. The City's believes that it can reach more than the .01 % of the households in the City by providing a predictable location where residents can go to for assistance on energy issues. . Energy Efficient Housing Project: There are currently about 800 apartment units at various stages of the condominium conversion process by the City's Planning and Building Department. The Chula Vista Planning and Building department estimates that at least 500 units per year will undergo. conversions from apartments to condominiums from 2006 to 2008 in. There is an untapped potential for energy efficiency since condominium conversion developers are not often required to meet the most current Title 24 requirements. Under this project, condominium conversion projects with three or more units will be eligible for expedited plan review and permitting if they commit to incorporating energy efficiency measures to exceed Title 24 requirements by at least 10% or if they incorporate measures to reduce the average energy use for each unit by 515 kW-br and 15 therms per month. Note: SDG&E, along with the City of Cbula Vista, City of San Diego, and the County of San Diego will continue to review various options for implementing Title 24 guidelines. Where necessary, standard thresholds may be applied Although it is preferred that program participants not receive utility incentives payments, in exchange for expedited approval of their requested building permits or land use, ability to participate in 26 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-64 both the expedite and incentive programs may be considered. Both strategies will be reviewed during the initial phases of the program. . MlIDicipal Energy BMPs Education Project: Stafffrom Southbay cities have continually expressed their desire to participate in energy efficiency programs available from SDRBO and SDG&E. Unfortunately, due to competing priorities, staff from South bay cities have not dedicated time or resources to pursuing potential energy retrofit projects. Staff believes that the major barrier to participating in energy efficiency programs is their City's lack of policies related to energy management The goal of the Municipal Energy BMPs Education project workshop series is to assist cities develop energy action plans for Council adoption to manage energy more effectively. The City of Chula Vista's C02 Reduction Plan will be used as a model for the workshops. By the end of the fourth workshop, participating cities will have an Energy Action Plan to reduce their energy use. 7. Program Outcomes The program is a savings, education and outreach program, which will deliver net energy savings, peak demand savings and sustained efficiency at City facilities, for residents, multi-family housing units and at other Cities. The desired outcomes of the ECO Partoership are to: o Enable the City to pursue energy efficiency projects and implement demand response at City owned facilities, o Enable residents to take action by educating residents about energy efficient technology and energy conservation best management practices, o Enable and motivate developers to invest in energy efficiency upgrades for multi-dwelling units by expediting the City's plan review and permitting process, o Enable Southbay cities to institutionalize energy efficiency and conservation into their practices by providing a step-by-step approach to developing and implementing locally adopted policies. 8. Program Strategy The City will assign an Energy Administrator to oversee general management of the ECO Program. The Energy Administrator will be responsible for coordinating with SDG&E, SDRBO and other third party provider staff to ensure ECO Program projects work plans are developed and implemented to meet established goals and objectives. The Energy Administrator will also coordinate efforts with internal and external partoers to develop effective outreach and marketing material to ensure program clarity. The program strategies that will be used are: . Residential New Construction . Residential Target Marketing 8.1.1 Program Strategy Description Residential New Construction: The program strategy for this part of the program is to expedite plan review and permitting to incent builders to include more energy efficient measures into condos converted from apartments. The City will reach condominium conversions developers by modifying plan review and permit applications to inform developers about the expedite process. Residential Target Marketing There are several parts to this strategy. The first is to provide face-te-face energy efficiency and conservation outreach to low income, elderly and other hard-te-reach customers. This will be done thorough mobile energy efficiency and conservation outreach exhibits (ECO Ex1u'bits) staffed by trained personnel. The mobile ECO 27 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-65 Exhibits will be located at City facilities and at regional centers such as shopping centers and malls throughout the Southbay. The second is to share lessons learned and best management practices (BMPs) with Southbay cities through a series of four workshops. The last element is to provide the City with funding to hire dedicated energy staff. Energy staff funded by the partnership will develop retrofit projects for both new and existing City buildings and facilities, working with SDG&E's Saving's by Design and Sustainable Communities Program to design and build City facilities that are at least 20% more energy efficient than state standards. 8.1.2 Program Indicators Encourage condominium conversion developers to upgrade the energy efficiency of converted units by committing to complying with applicable Title 24 requirements and by further incorporate measures that go beyond Title 24 requirements by at least 10% or by reducing energy use for each unit Increase public awareness by assisting an average of 160 people per day (average of 40 people per day at each ECO Exhibit) access and participate in energy efficiency and conservation programs. Sponsor and coordinate at least four energy efficiency and conservation workshops for cities every year. The goal of the workshop series is to initially assist South Bay cities develop energy action plans to manage energy. Major program objectives for the ECO Program projects are as follows: City Energy Efficient Facilities Showcase Project: Reduce the City's energy use by 5% per year for a cumulative reduction of 15% by 2008 relative to 2005 energy use. Eeo Exhibit Project: Increase public awareness by assisting an average of 160 people per day (average of 40 people per day at each ECO Exhibit) access and participate in energy efficiency and conservation programs. Energy Efficient Housing Project: Encourage condominium conversion developers to upgrade the energy efficiency of converted units by committing to complying with applicable Title 24 requirements and by further incorporate measures that go beyond Title 24 requirements by at least 10"10 or by reducing energy use for each unit by an average of 515 k W -br and IS therms per month. Participating developers will receive expedited plan review and permitting. At least 500 condominiums per year will be targeted for upgrades for a total of 1,500 energy efficient condominiums by 2008. Municipal Energy BMPs Education Projcet: Sponsor and coordinate at least four energy efficiency and conservation workshops for cities every year. The goal of the workshop series is to initially assist South Bay cities develop energy action plans to manage energy. By the four"Jl workshop, participating cities will have an Energy Action Plan to reduce their energy use. Workshops will be targeted to east county cities in year 2 and north county cities in year 3. 9. Program Objectives Major program objectives for the ECO Program projects are as follows: City Energy Efficient Facilities Showcase Project: Reduce the City's energy use by 5% per year for a cumulative reduction of 15% by 2008 relative to 2005 energy use. Eeo Exhibit Project: Increase public awareness by assisting an average of 160 people per day (average of 40 people per day at each ECO Exhibit) access and participate in energy efficiency and conservation programs. Energy Efficient Housing Project: Encourage condominium conversion developers to upgrade the energy efficiency of converted units by committing to complying with applicable Title 24 requirements and by further 28 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-66 incorporate measures that go beyond Title 24 requirements by at least 10% or by reducing energy use for each unit by an average of 515 k W.hr and 15 therms per month. Participating developers will receive expedited plan review and permitting. At least 500 condominiums per year will be targeted for upgrades for a total of 1,500 energy efficient condominiums by 200&. Municipal Energy BMPs Education Project: Sponsor and coordinate at least four energy efficiency and conservation workshops for cities every year. The goal of the workshop series is to initially assist South Bay cities develop energy action plans to manage energy. By the fourth workshop, participating cities will have an Energy Action Plan to reduce their energy use. Workshops will be targeted to east county cities in year 2 and north county cities in year 3. 10. Program Implementation The ECO Program consists of four projects to overcome barriers to implementing and participating in energy efficiency and conservation programs. Each project aims to achieve energy efficiency and conservation through a combination of energy efficiency retrofit projects at City facilities, public education and outreach at high traffic community destinations, expedited plan review and permitting services for condominium conversion projects and best management practices workshops for County cities. The projects and implementation plans are described below: a) City Energy Effident Facilities Showcase Project The goal of this element is to facilitate installation of energy efficiency measures and development of efficiency and conservation outreach best management practices (BMPs) for City facilities and employees by providing the City with funding to hire dedicated energy staff. Energy staff funded by the partnership will develop retrofit projects for City buildings and facilities. For existing facilities, energy staff will work with the San Diego Regional Energy Office's (SDRBO) to participate in SDG&E's Energy Savings Bid Program. SDREO will assist the City to assess opportunities through audits and identify incentives, development of an implementation plan, access project incentives, develop a funding mechanism and coordinate project execution to achieve energy savings. For new facilities, energy staff will work with SDG&E's Saving's by Design and Sustainable Communities Program to design and build City facilities that are at least 20% more energy efficient than state standards. Energy staffwill also work to develop, implement and train City personnel about energy BMPs to improve energy conservation practices by employees. The City's goal is to reduce baseline energy use at City facilities by at least 5% per year over the three-year period. The City's energy goals are captured in SDG&E's Energy Savings Bid Program. 29 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-67 b) ECO Exhibit Project The goal of this element is to provide face-to-face energy efficiency and conservation outreach to low income, elderly and other hard-to-reach customers. This project will reach the target audience through mobile energy efficiency and conservation outreach exhibits (ECO Exhibits) staffed by trained personnel. The mobile ECO Exhibits will be located at City facilities and at regicnal centers such as shopping centsrs and malls throughout the Southbay and potentially countywide. Specifically, the mobile ECO Exhibits locations will include but are not limited to a local City hall, at libraries, recreational centers, police stations, local shopping centers and regional shopping malls. The ECO Exhibits will be used to engage the target audience to learn about energy efficiency and energy conservation. Trained personnel will demonstrate energy efficient technology available in the marketplace to residents, educate residents about low or no.cost energy conservation practices, assist residents access programs offered by energy conservation program providers such as SDG&E and SDREO, allow residents to conduct home energy audits via the internet and direct residents to EnergyStar product retailers. The ECO Exhibits will also coordinate with SDG&E's Hard.to-Reach Lighting Turn.in Program to market and provide a venue for hard to reach customers to exchange inefficient lights for more efficient lights. Lastly, the ECO Exhibits will serve as an outlet to recruit participants for SDREO's Shade Tree Program. c) Energy Efficient Housing Project: The goal of this element is to improve the energy efficiency of existing multi.family housing units that are proposed for conversion from apartments to condominiums by providing expedited plan review and permitting services. The City will reach condominium conversions developers by modifying plan review and permit applications to inform developers about the expedite process. Ii) Municipal Energy BMPs Education Project The goal of this element is to share lessons learned and BMPs with Southbay cities through a series of four workshops. In November 2000, the City adopted a C02 Reduction Plan to reduce the City's greenhouse gas emissions. The C02 Plan's goala are to reduce the City's reliance on fossil fuel and to improve the energy efficiency of City buildings and facilities. Since 1990, the City has retrofitted and constructed buildings and facilities that are more energy efficient than the State's conservation standards (Title 24). The City will use existing forums and outlets to reach Southbay cities. The City will use the C02 Plan as a model to encourage and assist other cities develop their own strategic plan to achieve energy efficiency at their facilities and to incorporate low or no cost energy conservation BMPs into how they do business. The project's goal is to enable Southbay cities to develop and adopt strategic policies to improve their energy efficiency and reduce their environmental impact. 11. Customer Description City facilities and staff, residents, condominium conversion developers, Southbay cities in San Diego County are eligIble to participate in ECO Partoership programs. 12. Customer Interlace . City Energy Efficient Facilities Showcase Project: The Energy Administrator will coordinate internally with city staff to develop and implement retrofit projects for City 30 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-68 facilities. As described in the SDG&E's Energy Savings Bid Program, public agencies including the City of Chula Vista will receive the following energy efficiency project related services from the San Diego Regional Energy Office (SDRED) at no cost: o Energy audits o Technical assistance, and o Incentive documentation/processing . EeO Exhibit Project: The Energy Administrator will coordinate with SDREO, SDG&E, cities and the County to develop and place the mobile ECO Exhibits in bigh traffic locations. The ECO Exhibits staff will serve to engage customers to participate in energy efficiency and conservation programs. ECO Exhibits customers will have an opportunity to learn about energy efficient technology, receive information about low-or- no cost energy conservation best management practices and receive direct assistance to access offerings from other program providers. . Energy Efficient Housing Project: The Energy Administrator will coordinate with SDG&E and the City's Planning and Building staff to streamline the City's plan review and permitting process application for condominium conversions projects. The Energy Administrator will also act as a liaison between the City's Planning and Building staff and developers to resolve any potential issues. . Municipal Energy BMPs Education Project: The Energy Administrator will work with SDREO and SDG&E to develop a series of foux workshops per year to assists cities develop individual strategic plans to manage their energy use and budget more effectively. The Energy Ailmini>:t;rator will base the workshops on the City of Chula Vista's C02 Reduction Plan. The C02 Plan guides the City's effort to reduce reliance on fossil fuel, improve energy efficiency for buildings and vebicles and to reduce the City's overall impact on the environment. The workshops will be marketed to cities through existing working group technical committees such as San Diego County's pollution Prevention Committee and SANDAG's Energy Working Group. 13. Energy Measures snd Program Activities 13.1. Prescriptive Measures See SDG&E February 1, 2006 Filiog Workbook. 13.2. kWh LevelData- See SDG&E Februa.")' I, 2006 Filing Workbook.- Savings are included in the Energy Savings Bid Program 13.3. Non-Energy Activities- Audits, Education and Technical Assistance may be utilized 14. Subcontractor Activities None 15. Quality Assurance and Evaiustion Activities Quality assurance for city facilities projects will consist of on-site inspections by SDRBO through SDG&E's Energy Savings Bid Program. Quality assurance for condominium conversion projects will consist of on-site inspections by SDG&E's utility inspection department. An evaluation plan will be developed in accordance with the soon to be developed EM&V Protocols. Tbe CPUC Energy Division will be holding meetings, workshops and possibly 31 2006-2008 CITY OF CHULA VlSTAENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-69 hearings throughout the summer to develop these Protocols. SDG&E looks forward to participating and commenting on those activities and plans to file EM& V plans for all programs on October I, 2005 in conjunction with the ED, CEC, and the other IOUs 16. Marketing Activities The City will work with, SDREO, SDG&E, City of San Diego and the County of San Diego to develop and distribute marketing material to promote the ECO Partnership Programs to target customers through new and existing distribution channels. These channels will include but are limited to the four mobile ECO Exhibits, governing board meetings, public access cable stations, partner websites, partner publications (Chula Vista Spotlight), employee newsletters and local community newspapers., 17. CPUC Objective The Energy ECO Partnership betweeu SDG&E and the City of Chula Vista is a community wide effort that will enable the City, residents, developers and Southbay cities to implement sustainable energy efficiency and conservation measures. The program supports the CPUC objectives of minimizing lost opportunities and increasing the pursuit and implementation of cost-effective energy efficiency. 32 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERV ATWN OUTREACH PROGRAM AGREEMENT 11-70 EXHIBIT B EM&VPLAN [TO BE ATTACHED WHEN ISSUED BY THE COMl\fiSSION] 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-71 EXHIBIT C REPORTING REQUIREMENTS 1. Reporting 1.1 City shall provide SDG&E with the requisite information, in accordance with Section 9.4 of the Agreement, on the prior month's activities, accomplishments and expenditures related to its respective Authorized Work obligations, for purposes of preparing the Monthly, Quarterly and Annual Reports. 1.2 SDG&E shall provide City in accordance with the provisions of Section 25 of the Agreement, or otherwise make available to City on SDG&E's website, a copy of the filed Monthly Report within five (5) Business Days after filing. 2. Monthly Report 2.1 Program Data - A spreadsheet table or tables listing which includes the following infonnatlon: Program Costs (cast reported cumulative-ta-date (also referred to as inception-to-date)) a. Program identification number as provided by the Program Administrator b. Program name c. Total cumulative program authorized budget as adopted by the Commission d. Total cumulative program operating budget which includes any mid-course budget modifications (e.g., fund shifts) e. Total cumulative program expenditures f. Total program expenditures far the report month g. Total cumulative commitments (limited to incentive commitments) Program Impacts (cast reported cumulative-ta-date (also referred to as inception-to-date)) a. Total cumulative net kW, kWh, and Therm savings projections b. Total cumulative achieved net kW, kWh and Therm savings c. Total achieved net kW, kWh and Therm savings for the report month d. Total committed (limited to incentive commitments) net kW, kWh and Therm savings 2.2 Program ChangeslNew Program Information If applicable, the foilawmg information should be reported in the Monthly report: a. Identification of program with operating budgets reduced during the report month b. Identification of program with operarillg budgets increased during the report mouth c. Identification of program terminated during the report month 3. Quarterly Report 3.1 Portfolio Benefit/Cost Metrics (ClmIlwative to Date) a. Total cost to billpayers ('IRC, administrative cost and incremental cost per the Standard Practice Manual) b. Total savings to billpayers ('IRe) c. Net benefits to billpayers ('IRC) d. TRC Ratio e. PACRatio t: Cost per kWh saved (centsIkWh) (PAC) g. Cost per therm savings ($/therm) (PAC) 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-72 3.2 Measure List -A spreadsheet table for each program or program elementl containing each measure installed, service rendered, or measure/service committed during the report month for which the Program Implementer intends to claim savings. The Program Implementer should include any new measures as part of the quarterly report. The list should display each measure as it is tracked and recorded by the implementer and should include the following parameters at a minimum: a. Name of Measure or Service Rendered b. Measure or Service Description c. DEER Measure ID (where applicable) d. DEER Run ID (where applicable) e. Unit Definition f. Unit gross kWh savings g. Unit gross Thorms savings h. Unit gross kW demand reduction i. Incremental Measure Cost j. Net to Gross Ratio k. Effective Useful Life l. Detailed end use classification (using classification scheme in section 6) m. Quantity Installed during report period n. Quantity Committed during report period o. Rebate amount paid p. Market Sector classification (using classification scheme in section 6) q. Market Segment classification (using classification scheme in section 6) 3.3 Expenditures for the program per cost reporting format below (Appendix to Attachment contains list of allowable costs) : a. Commission Authorized Budget b. Operating Budget c. Total Expenditures i. Administrative Cost ii. Marketing/Advertising/Outreach Costs iii. Direct Implementation 3.4 GBI Report - Progress towards achieving goals of the Green Building Initiative, if applicable (Cumulative results) a. Estimate of expenditures on program activities that contribute towards GBl goals (including both public and non-public commercial participants) b. Net cumulative achieved kW, kWh and Therm savings contnlmting towards GBI goals. c. Net achieved kW, kWh and Therm savings contributing towards GBI goals for the quarter. d. A description of non-resource program activities that support the Green Building Initiative, including marketing and outreach activities. e. Estimate of square footage affected by program activities supporting the Green Building Initiative f. Items b, c and e above disaggregated by: 1. 2-digit NAlCS code li. Aggregated end use classification (using classification scheme in section 5) 3.5 Program Narratives - For the program, a description of the program activities occurring during the quarter. a. Administrative activities b. Marketing activities 1 Identification of distinct programs and program elements may be determined by CPUC staff at a later time. 35 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERV ATXON OUTREACH PROGRAM AGREEMENT 11-73 c. Direct Implementation activities d. City's assessment of program perfonnance and program status (is the program on target, exceeding expectations, or falling short of expectations, etc.) e. For non-resource programs and program elements (programs or program elements that are not claiming direct energy impacts), a discussion of the stams of program achievements. f. Discussion of changes in program emphasis (new program elements, less or more emphasis on a particular delivery strategy, program elements discontinued, measure discontinued, etc.) g. Discussion of near tenn plans for program over the coming months (e.g., marlceting and outreach efforts that are expected to significantly increase program participation, etc.) h. Changes to staffing and staff responsibilities, if any i. Changes to contacts, if any j. Changes to subcontractors and subcontractor responsibilities, if any k. Number of customer complaints received 1. Program Theory and Logic Model ifnot already provided in the program's implementation plan, or if revisions have been made. 3.6 Utility Quarterly Reports - SDG&E shal1 provide City a copy of the tiled Quarterly Report within two (2) Business Days after filing with the Commission in accordance with the provisions of the Agreement 4. Annual Reports The fonnat and content of the annual report is expected to be developed by the CPUC in fall 2006. The Program Implementer will be required to fulfill these reporting obligations for their program. 5. Reporting Terminology DefinitlQl's Adopted Program Budget - The program budget as it is adopted by the Commission. Inclusive of costs (+1-) recovered from other sources. Operating Program Budget - The program budget as it is defined by the program administrators for internal program budgeting and management purposes. Inclusive of costs (+1-) recovered from other sources. Direct Implementation Expenolitures - Costs associated with activities that are a direct interface with the customer or program participant or recipient (e.g., contractor receiving training). (Note: This is still an open issue, the items included in this definition may be changed by the CPUC pending discussion on the application of the State's Standard Practice Manual.) Report Month - The month for which a pa.Tticu1ar monthly report is providing data and information. For example, the report month for a report covering the month of July 2006, but prepared and delivered later than July 2006, would be July 2006. Prov"m Strategy - The method deployed by II program in order to obtain program participation. Program Element - A subsection of a program, or body of program activities within which a single program strategy is employed. (Example: A body of program activities employing both an upstream rebate approach and a direct insta1lapproach is not II single program element) 6. Mea.ure CIa..i1lcation M....ure End-Use Cla.sification Each energy efficiency measure reported should be classified into one of the following end-use categories 36 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-74 Residential End Uses Detailed End Use Clothes Dryer Clothes Washer Consumer Electronics Cooking Dishwasher Other Appliance Building Shell Space Cooling Space Heating Interior Lighing Exterior Lighting Pool Pump Freezers Refrigeration Water Heating Other (U.er Entered Text SlJiog De.cription) Nonresidential End Uses Detailed End Use Building Shell Space Cooling Space Heating Ventilation Daylighting Interior Lighting Exterior Lighting Office Equipment Compressed Air Cooking Food Processing Motors Process Cooling Process Heat Process Steam Pumps Refrigeration Other (Us.r Entered T.xt String Description) Aggregated End Use Appliances Appliances Consumer Electronics Cooking Appliances Appliances Appliances HVAC HVAC HVAC Lighting Lighting Pool Pump Refrigeration Refrigeration Water Heating Other Aggregated End Use HVAC HVAC HVAC HVAC Lighting Lighting Lighting Office Process Process Process Process Process Process Process Process Refrigeration Other M....ure Market SectorlM..rket Segment C1..ssification Where reports require market sector or market segment classification, the following classification scheme should be used. Market Sector Residential Sing Ie Family Multi Family Mobile Homes Marllet Segment NA NA NA NA 37 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-75 Nonresidential Commercial Industrial Agricultural Unknown NAICS CODE (greater than 2 digit not required) NAlCS CODE (greater than 2 digit not required) NAICS CODE (greater than 2 digit not required) NAICS CODE (greater than 2 digit not required) NA 7. Allowable Costs Allowable Costs Table The cost items listed on the Allowable Costs sheet are the only costs that can be claimed for ratepayer-funded energy efficiency work. The costs reported should be only for costs actually expended. Any financial commitments are to be categorized as commitments. If the reporting entity does not have a cost as listed on the cost reporting sheet, then no cost is to be reported for that item. These Allowable Cost elements are to be used whenever costs are invoiced or reported to the program administrator. If there is a desire to include additional AlIoWllble Cost elements, the program administrator should be contacted in order for the administrator to seek annroval from the CPUC. 313012006 Cost Cate!!ories Allowable Costs Administrative Cost Category Managerial and Clerical Labor IOU Labor. Clerical IOU Labor - Proaram Design IOU Labor - PrOOram Development IOU Labor - Pro<lram Plannina IOU Labor - ProaramlProiect Manaoement IOU Labor - Staff Manaaement IOU Labor - Staff Supervision Subcontractor Labor. Clerical Subcontractor Labpr - Proaram Desion Subcontractor Labor - Program Development Subcontractor Labor - Proaram Plannina Subcontractor Labor. prooramlProiect Manaoement Subcontractor Labor - Staff Manaoement Subcontractor Labor - Staff Supervision Human Resource SUDDOn and Development IOU Labor - Human Resources IOU Labor - Staff Deveiooment and Trainina IOU Benefits - Administrative Labor IOU Benefits - Direct Implementation Labor IOU Benefits - Marketina/Advertisina/Outreach Labor IOU Pavroll Tax - Administrative Labor IOU Payroll Tax - Administrative Labor IOU Pavroll Tax - Administrative Labor IOU Pension - Administrative Labor IOU Pension - Direct Implementation Labor IOU Pension - MarketinQ/Advertisino/Outreach Labor Subcontractor Labor- Human Resources Subcontractor Labor - Staff Develooment and Trainino Subcontractor Benefits - Administrative Labor Subcontractor Benefits - Direct Imolementation Labor Subcontractor Benefits - Marketina/Advertisina/Outreach Labor Subcontractor pavroll Tax - Administrative Labor Subcontractor Pavroll Tax - Direct Implementation Labor 38 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-76 Allowable Costs Tab!e The cost items listed on lbe Allowable Costs sheet are the only costs that can be claimed for ratepayer-funded energy efficiency work. The costs reported should be only for costs actually expended.. Any financial commitments are to be categorized as commitments. If the reporting entity does not have a cost as listed on the cost reporting sheet, then no cost is to be reported for that item. These Allowable Cost elements are to be used whenever costs are invoiced or reported to the program administrator. If there is a desire to include additional Allowable Cost elements, the program administrator should be contacted in order for the administrator to seek anoroval from the CPUC. 3/3012006 Cost Cateaorles Allowable Costs Subcontractor Pavroll Tax - MarketinQ/Advertisina/Outreach Labor Subcontractor Pension - Administrative Labor Subcontractor Pension - Direct 1m ole mentation Labor Subcontractor Pension - MarketinalAdvertisina/Outreach Labor Travel and Conference Fees IOU Conference Fees IOU Labor. Conference Attendance IOU Travel - Airfare IOU Travel - Lodoino IOU Travel - Meals IOU Travel- Mileaae IOU Travel. Parkina IOU Travel - Per Diem for Misc. Exoenses Subcontractor - Conference Fees Subcontractor Labor - Conference Attendance Subcontractor - Travel - Airfare Subcontractor - Travel - Lodaina Subcontractor - Travel - Meals Subcontractor - Travel - Mileaae Subcontractor - Travel - Parkina Subcontractor - Travel - Per Diem for Misc. Expenses OVerhead (General and Admlnlstratlvel - Labor and Materials IOU Equipment Communications IOU Eauipment COnlPutina IOU Eauipment Document Reoroduction IOU Eauioment General Office IOU Eauipment Transportation IOU Food Service IOU Office Suoclies IOU Postage IOU Labor - Accountina Sucoort IOU Labor - Accounts Payable IOU Labor - Accounts Receivable IOU Labor - Administrative IOU Labor - Facilities Maintenance IOU Labor. Materials Manaaement IOU Labor - Procurement IOU Labor. Shoo Services IOU Labor - Transoortation Services IOU Labor. Automated Systems IOU Labor - Communications IOU Labor - Infomnalion Technoloay IOU Labor - Telecommunications 39 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-77 Allowable Costs Table The cost items listed on the Allowable Costs sheet are the only costs that can be claimed for ratepayer-funded energy efficiency work. The costs reported should be only for costs actua1ly expended. Any financial commitments are to be categorized as commitments. If the reporting entity does not have a cost as listed on the cost reporting sheet, then no cost is to be reported for that item. These Allowable Cost elements are to be used whenever costs are invoiced or reported to the program administrator. lfthere is a desire to include additional Allowable Cost elements, the program administrator should be contacted in order for the administrator to seek aooroval from the CPUC. 3/30/2006 Cost Cateaories Allowable Costs Subcontractor Eauipment Communications Subcontractor Eouioment Comeutino Subcontractor Eauiement Document Reoroduction Subcontractor Eouioment General Office Subcontractor EOuioment Transoortation Subcontractor Food Service Subcontractor Office Supplies Subcontractor Postaae Subcontractor Labor - Accountino Supoort Subcontractor Labor - Accounts Pavable Subcontractor Labor - Accounts Receivable Subcontractor Labor - Facilities Maintenance Subcontractor Labor - Materials Manaaement Subcontractor Labor - Procurement Subcontractor Labor - Shop Services Subcontractor Labor - Administrative Subcontractor Labor - Transoortation Services Subcontractor Labor - Automated Svstems Subcontractor Labor - Communications Subcontractor Labor - Information Technoloav Subcontractor Labor - Telecommunications Marketlno/Advertisina/Outreach Cost CateaolV IOU - Advertisements I Media Promotions IOU - Bill Inserts IOU - Brochures IOU - Door Hanaers IOU - Print Advertisements IOU - Radio Soots IOU - Television Soots IOU - Website Develooment IOU Labor - Marketing IOU Labor - Media Production IOU Labor - Business Outreach IOU Labor - Customer Outreach IOU Labor - Customer Relations Subcontractor - BiJllnserts Subcontractor - Brochures Subcontractor - Door Hancers Subcontractor - Print Advertisements Subcontractor - Radio spots Subcontractor - Television Spots Subcontractor - Website Development Subcontractor Labor - Marketing 40 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-78 Allowable Costs Table The cost items listed on the Allowable Costs sbeet are the only costs that can be claimed for ratepayer-funded energy efficiency work. The costs reported should be only for costs actually expended. Any financial commi1ments are to be categorized as commi1ments. If the reporting entity does not have a cost as listed on the cost reporting sheet, then no cost is to be reported for that item. These Allowable Cost elements are to be used whenever costs are invoiced or reported to the program administrator. If there is a desire to include additional Allowable Cost elements, the program administrator should be contacted in order for the administrator to seek annroval from the CPUC. . 3/30/2006 Cost Cateoorles Allowable Costs Subcontractor Labor. Media Production Subcontractor Labor - Business Outreach Subcontractor Labor - Customer Outreach Subcontractor Labor - Customer Relations Direct Imolementatlon Cost Cllteoorv Financiallncentlves to Customers Actlvitv . Direct Labor IOU Labor - Curriculum Develooment IOU Labor - Customer Education and TraininQ IOU Labor - Customer Enuipment Testina and Diaonostics IOU Labor - Facilities Audits Subcontractor Labor - Facilities Audits Subcontractor Labor. Curriculum Develooment Subcontractor Labor - Customer Education and Trainino Subcontractor Labor - Customer Eouioment TestinQ and DiaQnostics Installation and Service. Labor IOU Labor - Customer Eouioment Rel'lair and ServicinQ IOU Labor - Measure Installation Subcontractor Labor - Customer EoulOment Reoair and ServicinQ Subcontractor Labor - Customer Eouioment Repair and ServicinQ Direct ImDlementatlon Hardware and Materials iOU Audit Aoolications and Forms IOU Direct Imolementation Literature IOU Education Materials IOU Energy Measurement Tools IOU Installation Hardware Subcontractor - Direct Implementation Literature Subcontractor - Education Materials Subcontractor - Enemv Measurement Tools Subcontractor - Installation Hardware Subcontractor -Audit APPlications and Forms Rebate Processina and Inspection - Labor BInd Materials IOU Labor - Field Verification IOU Labor - Site Insoections IOU Labor - Rebate Processino IOU Rebate Aoolications Subcontractor Labor - Field Verification Subcontractor Labor - Rebate Processino Subcontractor - Rebate Applications 41 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-79 EXHIBIT D MILESTONE SCHEDULE City shall achieve, during each Program year, the following targets by December 31 of such Program year: Municipal Energy BMP Education Project . Recruit & Hire intemslTemporary Expert Professionals . Identify Interested Local Government Peer Sectors . Contact & Survey Local Governments . Develop Potential Workshop-Outreach Activity Schedule-Peer Input . Conduct Targeted Workshop-Activities - that Foster Local Energy Plans . Conduct Remaining Workshops-Activities . Evaluate . Identify Targets for Future Productive Outreach Activities . Monitor Status, Record Quarterly Report and Evaluation Data ECO Exhibit Project . Recruit & Hire Interns/Temporary Expert Professionals . Create EXhibit Plan & Seek Approval from all Parties . Order Exhibit Displays and Graphics . Establish Distribution Strategy & Schedule . Distribute Exhibits and Implement Schedules- . Ongoing Support & Maintenance of Exhibits . Implement Resident Outreach Projects to Supplement Exhibits . Monitor Status, Record Quarterly Report and Evaluation Data Energy Efficient Housing SIWill Busmess and Mixed Use Project . Recruit & Hire intemsrremporary Expert Professioual . Establish Program Incentives . Apply Incentives to Existing City Programs . Coordinate, Communicate with Development Staff for Future Eligible Project . Implement Projects Adequate to Meet Kilowatt & Therm Reduction Objectives, . Monitor Status, Record Quarterly Report and Evaluation Data City Energy Efficient Facilities Showcase Project . Recruit & Hire Staff 42 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERV ATlON OUTREACH PROGRAM AGREEMENT 11-80 . IdentifY and Prioritize FacilitiesffechnologieslServices and Policies with Greatest Potential to Meet or Exceed Targeted Energy Reduction Goals . Develop Contract/Service Agreements . Implement Project Priorities . Monitor Status, Record Quarterly Report and Evaluation Data 43 2006-2008 CITY OF CHULA VISTA ENERGY EFFICIENCY AND CONSERVATION OUTREACH PROGRAM AGREEMENT 11-81 Exhibit B NONDISCLOSURE AGREEMENT In Connection with that certain Agreement to Jointly Deliver the 2006-2008 City of Chula Vista Energy Efficiency and Conservation Outreach Program ("Partnership Agreement") between San Diego Gas & Electric Company ("SDG&E') and the City of Chula Vista ("Other Party") relating to the implementation of the Program described therein ("Transaction"), SDG&E anticipates disclosing to Other Party, and Other party may learn of, Confidential Information (as defmed below). Capitalized terms used herein but not defmed herein shall have their meanings set forth in the partnership Agreement. As a condition to such disclosure by SDG&E to each of the Other Party's directors, officers, employees, agents or advisors who have a direct need to access such Confidential Information for the purpose of carrying out the Transaction (collectively "Representatives"), the parties hereby agree as follows: 1. DEFINITION "Confidential Information" shall mean proprietary information concerning the business, operations and assets of SDG&E, its present and future direct or indirect subsidiaries or affiliates, whether or not prepared in connection with the Transaction, which may include, without limitation, Confidential Customer Information (as defined in the Partnership Agreement), any business plans, documentation, source code, object code, diagrams, flow charts, research, development, processes, marketing techniques and materials, development or marketing timetables, strategies, development plans, customer, supplier or employee names or information, pricing policies and financial and valuation information, and other Information of a similar nature whether or not reduced to writing or other tangible form, and any trade secrets, whether or not defined as "trade secrets" under the Uniform Trade Secrets Act of California, excluding Information (1) known to Other party or its Representative prior to obtaining the same from SDG&E; (2) in the public domain at the time of disclosure by Other party; (3) obtained by Other Party or its Representative from a third party who did not receive same, directly or indirectly, from SDG&E subject to an binding and enforceable nondisclosure agreement; or (4) approved for release by written authorization of an authorized officer of SDG&E. 2. LIMITED USE; NONDISCLOSURE Other Party hereby agrees that it shall use, and shall cause its Representatives to use, the Confidential Information solely for the purpose of carrying out the Transaction, and not in any way detrimental to SDG&E, and that only its Representatives shall have access to the Confidential Information. Other party shall not, and shall cause its Representatives not to, (i) use the Confidential Information for its or its Representatives' own benefit other than for the limited purposes set forth herein, or (Ii) make any copies, backups or abstracts of such Confidential Information, however stored, without first obtaining the prior written consent of SDG&E unless necessary for the implementation or completion of the Transaction. Other party agrees to use the same degree of care it uses with respect to its own proprietary or confidential information oi" a reasonable standard of care to prevent unauthorized use or disclosure of the Confidential Information. Except as otherwise provided herein, Other Party will keep confidential and not disclose, and shall cause its Representatives to keep confidential and not disclose, the Confidential Information to any third party. Other Party shall cause each of its Representatives to become familiar with, and abide by, the terms of this Agreement. 1 11-82 3. COURT OR ADiMINISTRATIVEORDER Notwithstanding the provisions of Article 2 above, Other Party and its Representatives may disclose any of the Confidentiallnfonnation in the event,.but only to the extent, that, based upon advice of counsel, it is required to do so by the disclosure requirements of any law, rule, or regulation or any order, decree, subpoena or ruling or other similar process of any court, governmental agency or governmental or regulatory authority. Prior to making or permitting any of its Representatives to make such disclosure, Other Party shall provide SDG&E with prompt written notice of any such requirement so that SDG&E (with Other Party's assistance) may seek a protective order or other appropriate remedy. 4. PUBLICITY Without the prior written consent of SDG&E, Other Party shall not, and shall cause its Representatives not to, disclose to any person (i) the fact that the Confidential Information has been made available to Other party or its Representatives, or (ii) any information regarding the ongoing discussions between the parties, including the fact that such discussions are occurring; , however, that Other Party and its Representatives may disclose the information described in clauses (i) and (ll) above if such disclosure is required under any of the circumstances described in Article 3 above, in which case the procedures specified therein with respect to such disclosure shall apply. 5. DOCUMENT RETENTION At any time upon the request of SDG&E, Other Party shall promptly deliver (and return, if applicable) to SDG&E or destroy (with such destruction to be certified to SDG&E) (i) all Confidential Information existing in written form or recorded in any other tangible medium (and all copies, abstracts and backups thereof, however stored) furnished to Other Party or any of its Representatives, (Ii) all portions of all documents, instruments, data, reports, plans, specifications, abstracts and media (and all copies, abstracts and backups thereof, however stored) furnished to or prepared by Other party or any of its Representatives that contain Confidential Information, and (iii) all other portions of all documents, installments, data, reports, plans, specifications, abstracts and media (and all copies, abstracts and backups thereof, however stored) in Other Party's or its Representatives' possession that contain or that are based on or derived from Confidential Information. Notwithstanding the foregoing, Other Party may retain one copy of any work product produced by Other Party in the course of carrying out the Transaction for its own archival records (in which case the other confidentiality obligations contained in this Agreement shall continue to apply) or to comply with any disclosure requirement of any regulatory authority having jurisdiction over the Transaction. 6. SURVlV AL Notwithstanding the return or destruction of all or any part of the Confidential Information, the terms of this Agreement shall nevertheless remain in full force and effect with respect to specific Confidential Information until the date that is five (5) years after the date of disclosure of sucll Confidential Information, except that the terms of this Agreement shall remain in full force and effect with respect to Confidential Customer Information in perpetuity. 2 11 -83- 7. ASSIGNMENT Other party may not assign (by operation of law or otherwise) any of its rights or obligations hereunder without the prior written consent of SDG&E. 8. REMEDIES The parties acknowledge that the Confidential Information is valuable and unique, and that damages would be an inadequate remedy for breach of this Agreement and the obligations of Other Party and its Representatives are specifically enforceable. Accordingly, the parties agree that in the event ofa breach or threatened breach of this Agreement by Other Party, SDG&E shall be entitled to seek an injunction preventing such breach, without the necessity of proving damages or posting any bond. Any such relief shall be in addition to, and not in lieu of, money damages or any other legal or equitable remedy available to SDG&E. 9. NO IMPLIED LICENSES Nothing in this Agreement will be construed as granting any rights to the Other Party, by license or otherwise, to any Confidential Information, except as specifically stated in this Agreement. 10. NONWAIVER It is understood and agreed that no failure or delay by SDG&E in exercising any right, power or privilege available hereunder or under applicable law shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof the exercise of any other such right, power or privilege. 11. ENTIRE AGREEMENT; AMENDMENT This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and may be amended only in writing signed by both parties. This Agreement supersedes any previous confidentiality or nondisclosure agreement or contractual provisions between the parties to the extent they relate to the subject matter hereof. 12. GOVERNING LAW The formation, interpretation and performance of this Agreement shall be governed by the internal laws of the State of California. 13. ATIORNEYS' FEES If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party all costs, expenses (including expert testimony) and reasonable attorneys' fees, including allocated costs and fees of in-house counsel, incurred therein by the prevailing party. 14. VENUE AND ,JURISDICTION In the event of any litigation to enforce or interpret any terms of this Agreement, the parties agree that such action will be brought in the Superior Court of the County of San Diego, California (or, if the federal courts have exclusive jurisdiction over the subject matter of the dispute, in the U.S. 3 11-84 District Court for the Southern District of California), and the parties hereby submit to the exclusive jurisdiction of such courts. 15. NOTICES All notices to be given under this Agreement shall be in writing and either sent by (i) a nationally recognized overnight courier service, in which case notice shall be deemed delivered as of the date shown on the courier's delivery receipt; (ll) telecopy during business hours of the recipient, with a copy of the notice also deposited in the United States mail (postage prepaid) the same business day, in which case notice shall be deemed delivered on transmittal by telecopier provided that a transmission report is generated reflecting the accurate transmission of the notices; or (iii) United States mail, postage prepaid, in which case notice shall be deemed delivered as of two business days after deposit in the mail, addressed as follows: lfto SDG&E: With a copy to: If Other Party: San Diego Gas & Electric Company 8306 Century Park Court, CP42D San Diego, CA 92123-1530 Facsimile: (858) 654-0311 Attn: Julie Ricks Sempra Energy 101 Ash Street San Diego, CA 92101 Facsimile: (619) 696-4670 Attn: General Counsel City ofChula Vista 276 Fourth Avenue Chula Vista, CA 91910 Telephone: 619-409-5870 Facsimile: 619-476-5310 Attn: Michael Meacham These addresses may be changed by written notice to the other Party provided that no notice of a change of address shall be effective until actual receipt of the notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. 16. SA VlNGS CLAUSE; EFFECT OF UNIFORM TRADE SECRETS ACT If any provision of this Agreement or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of the Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect. In the event of any conflict between any provision hereof and any provision of the Uniform Trade Secrets Act of California, the provision affording the greater degree of protection to the disclosing party shall control. 17. NO REPRESENTATION OR WARRANTY Other Party acknowledges and agrees that neither SDG&E nor any of SDG&E's representatives or agents is making any representation or warranty, express or implied, as to the accuracy or 4 11-85 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below. City OfCh~ista ~ By: havid ;' Garcia Name: Approved as to legal form ~f-_~ cA- ~ Ann Moore f-r'.--' City Attorney Title: Citv Mana!!er Date: '6l~~ol SAN DmGO GAS & ELECTRIC COMPANY ~~~~ Name: tlltIlIr eff/t1t~f P~~/#,P Approved as to legal form ,-, . /; ... A fl1 ,lJ?V~l:'lZ I Title: ~t<- ~. ..>r"~ see.... ~ {IS o?- .A /. . ~ (Attorney's initials) Date: uL!.S// tJ ;z- 11-&9 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE. AGREEMENT WITH DOUGLAS R. NEWMAN RELATED TO THE WORK OF THE NATIONAL ENERGY CENTER FOR SUSTAINABLE COMMUNITIES AND THE CHULA VISTA RESEARCH PROJECT TO ANALYZE HOW THE RESULTS OF THE CHULA VISTA RESEARCH PROJECT RELATE SPECIFICALLY TO CALIFORNIA'S GLOBAL WARMING SOLUTIONS ACT OF 2006 (AB 32) AND INCREASING THE CONTRACT AMOUNT BY TEN THOUSAND DOLLARS ($10,000) WHEREAS, the National Energy Center for Sustainable Conununities (NECSe) was founded by the City of Chula Vista, San Diego State University (SDSU), and the Gas Technology Institute (GTI), with the support of the U.S. Department of Energy; and. WHEREAS, the NECSC's rnission is to promote healthier and more productive conununities by integrating cleaner energy systems and energy-smart planning and design into new development and redevelopment projects; and WHEREAS, the NECSC is currently undertaking the Chula Vista Research Project (CVRP), which will research technologies, plans, public policies and market-feasible business models for energy- and resource-efficient conununity development in Chula Vista; and WHEREAS, the NECSC intends to publish the results of the research in the form of reference guides; and WHEREAS, pursuant to Resolution No. 2008-002, the City Council approved an agreement with Douglas R. Newman to promote these reference guides and have them disseminated to local and state governmental agencies and private development companies throughout California; and WHEREAS, the State legislature adopted the California's Global Warming Solutions Act of2006 (AB 32); and WHEREAS, staff seeks to amend the contract with Mr. Newman to allow for a sub- consultant who will analyze the results of the CVRP as they relate to AB 32. J:\Attorney\RESO\AGREEMENTS\Douglas Newman Agreement First Amendment 04-22-08.doc - 11-87 Resolution No. 2008- Page 2 NOW, THEREFORE BE IT RESOLVED by the City Council of the City ofChula Vista as follows: 1. That it approves the First Amendment to the Agreement between the City and Douglas R. Newman related to the work of the National Energy Center for Sustainable Communities and the Chula Vista Research Project to analyze how the results of the Chula Vista Research Project relate specifically to California's Global Warming Solutions Act of 2006 (AB 32) and increases the contract amount by ten thousand dollars ($10,000). 2. That it authorizes the Mayor to execute the First Amendment to the Agreement. Presented by Approved as to form by David R. Garcia City Manager ~. 'I \ )!~ t..<L Ann Moore City Attorney ~ J:\Attomey\RESO\AGREEMENTS\Douglas Newman Agreement First Amendment_04-~-~.~c8 8 CITY COUNCIL AGENDA STATEMENT :$'Yf:.. CITY OF 'l::~ .~ CHULA VISTA 4/22/08, Item /:J.-' SUMMARY State and Federal regulations require the San Diego Association of Governments (SANDAG) to develop and adopt a Regional Transportation Improvement Program (RTIP) every two years in order to continue receiving Federal and State funding. All projects that the City of Chula Vista proposes to fund with Transnet funds must be included in the RTIP, which currently covers Fiscal Years 2008/09 through 2012/13. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity, allocation of funds for various Transnet Projects, for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 (b)(4) of the State CEQA Guidelines; therefore, pursuant to Section 15060 (c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Although environmental review is not necessary at this time, once the scope of the individual projects to be funded have been defined, environmental review will be required and a CEQA determination completed. RECOMMENDATION Council conduct the public hearing and adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. 12-1 4/22/08, Item~ Page 2 of 6 DISCUSSION The voters of San Diego County approved the Transnet Program as Proposition A in November 1987. This proposition enacted a half-cent increase in the countywide sales tax through 2008 to fund specified transportation programs and projects. One third of the revenues generated by the tax are allocated by SANDAG to the local agencies for local streets and roads purposes. These funds have been distributed to cities annually and programmed by cities into local projects. In November 2004, 67 percent of County voters supported Proposition A, which extends Transnet from 2008 to 2048. It was estimated that the Transnet extension would generate approximately $14 billion per year to be distributed among highways, transit, and local road projects. An estimated $4.48 billion will be allocated to local programs, with $3.950 billion distributed to local agencies based on population and maintained miles of roadway. The details of the Transnet program are outlined in the Transnet Extension Ordinance, which was adopted by the San Diego County Regional Transportation Commission on May 28, 2008 (Attachment I). As stated in Section 2 CI of the Ordinance, at least 70 percent of the funds allocated to local agencies for local road projects should be used to fund construction of new or expanded facilities, major rehabilitation and reconstruction of roadways, traffic signalization, transportation infrastructure to support smart growth, capital improvements for transit facilities, and operating support for local shuttle and circulator transit routes. No more than 30 percent of Transnet funds allocated to local agencies for local road proj ects are expected to be used for local street and road maintenance. However, local agencies may deviate from the 70-30 "rule" if they are able to provide sufficient justification to obtain concurrence from SANDAG. This requirement is a significant change from the way original Transnet funding could be used and requires more stringent implementation and monitoring strategies. The SANDAG Board has subsequently adopted guidelines implementing this policy (Attachment 2). The Maintenance and Non-Congestion Relief category (limited to 30 percent of funding) includes maintenance activities such as pothole repair, seals, traffic signal and lamp replacement, roadway signing and striping and overlays less than one-inch thick). The Congestion Relief category (at least 70 percent of funding) was elaborated to define Major Reconstruction and Rehabilitation as including pavement reconstruction as well as overlays one-inch thick or greater, grinding and overlay and roadway drainage improvements for the purpose of reducing significant roadway flooding. This category also includes various traffic operations improvements, such as traffic signal coordination and interconnection, traffic signal upgrades, video surveillance and data collection for performance monitoring purposes. Pedestrian improvements, such as new sidewalks, pedestrian ramps and pedestrian traffic signals, are included in the 70 percent category only if they are in Smart Growth areas. SANDAG has identified IS existing or potential Smart Growth areas within Chula Vista, including several areas within Otay Ranch, as well as the Bayfront, the H Street corridor, Palomar Gateway, Southwestern College and Third Avenue downtown. Agencies are required to provide specific descriptions, locations and limits for all proj ects within the Congestion Relief Category. With respect to pedestrian and bicycle facilities, SANDAG cites Section 4(E)(3) of the Transnet Ordinance, which states, "All new projects, or major reconstruction projects, funded by revenues provided under this Ordinance shall accommodate travel by pedestrians and bicyclists, except where pedestrians and bicyclists are prohibited by 12-2 ,'\ 4/22/08, Item~ Page 3 of 6 law from using a given facility or where the cost of including bikeways and walkways would be excessively disproportionate to the need or probable use." Staff feels that this should not apply to rehabilitation projects or the provision of bicycle facilities on streets not included in the City's Bikeway Master Plan. SANDAG staff acknowledged this plan in January 2005 as complete, consistent with the 2030 Regional Transportation Plan and coordinated with adj acent jurisdictions. SANDAG Board Policy 31 is titled, "Transnet Ordinance and Expenditure Plan Rules". Rules 16 through 20 were adopted by the SANDAG Board after passage of the Transnet Extension. These include rules on repayment of commercial paper, Maintenance of Effort audits, the 70-30 percent funding issue and rules for selection of Independent Taxpayers Oversight Committee (ITOC) Members. Rule 20 (Attachment 3) was recently passed by the SANDAG Board of Directors and relates to accommodating bicyclists and pedestrians. This rule states that evaluating bicycle and pedestrian accommodation is required for all major reconstruction projects included under Congestion Relief under the 70-30 requirement. The decision not to provide for pedestrian and bicycle facilities in a construction or major reconstruction project must be made for good cause, such as severe topographic or biologic constraints. It further states that cities may use a bicycle or pedestrian master plan adopted by the city council and approved by SANDAG to determine the appropriate means of accommodating bicyclists and pedestrians in a given project. A table is included which discusses the level of pedestrian and bicycle accommodation required for various types of streets and transit facilities. However, new proj ects or major reconstruction projects may not need to include the expected bikeway facility when a suitable route with the appropriate accommodations exists within II.-mile. Agencies are also not required to acquire additional right-of-way to improve pedestrian and bicycle access. Sidewalks are not required to be provided for overlay projects where there are no curb, gutter and drainage facilities and may also be excluded where there are no uses (including bus stops) that would create a need for pedestrian access. Agencies are required to submit their proposed projects for inclusion in the 2008 RTIP by April 23,2008. All jurisdictions must submit signed resolutions with proof of holding a public hearing by June 30, 2008. The 2008 RTIP is tentatively scheduled for adoption by the SANDAG Board on July 25, 2008 with submittal to the State on August 1, 2008. The RTIP will cover five fiscal years between Fiscal Year 2008-09 through Fiscal Year 2012-13. Attachment 4 includes a list of all projects that are proposed for inclusion in the RTIP along with annual and total five-year funding recommendations. For Fiscal Year 2008-09, the City's program meets the Transnet 70-30 rule. The spreadsheet has been divided into Congestion Relief (70 percent) and Maintenance (30 percent) portions. The following are the major projects that are being proposed. These amounts will be reflected in the proposed Capital Improvement Program for Fiscal Year 2008-09. 1. Pavement Minor Rehabilitation: Based on the 70-30 split, the Pavement Rehabilitation Program is being split into two parts. This portion includes $600,000 available from the maintenance portion of Transnet, which is proposed to be supplemented with Proposition 42 revenues (estimated at $1.0 million). 12-3 ,~ 4/22/08, Item ~ Page 4 of 6 2. Pavement Maior Rehabilitation: This includes the portion of the Pavement Rehabilitation Program that includes overlays (one-inch and greater) and reconstruction. Compliance with the American with Disabilities Act (ADA) is required. The available amount for Fiscal Year 2008-09 is $1,410,000. The City is required to provide the locations of the street segments included in this program. Since the exact number of locations in this program will not be certain until the award of the contract, staff is proposing to provide SANDAG with a list of the maximum number oflocations that may be included. These streets have been selected in accordance with the priorities established in the City's Pavement Management System for overlays and reconstruction projects and are included as Attachment 5. 3. North Broadwav Reconstruction (STM354): Transnet funding ($2.0 million) was transferred out of this project and into the Pavement Management Program on May 1, 2008 by Resolution 2007-108. Staff anticipates receiving a Federal Transportation Appropriations (FTA) grant for $2,178,000 in Fiscal Year 2008-09. If these funds are received, an additional $895,995 is needed from Transnet in order to fully fund this proj ect. 4. Palomar Gatewav (STL280): This project involves construction of pedestrian and bicycle improvements in the vicinity of Palomar Street and Industrial Blvd. The City has received a $2.0 million SANDAG-administered Pilot Smart Growth Incentive Program. The total project cost is estimated at $3.075 million, and $200,000 will be requested from Transnet. 5. 1-5/ H Street Interchane:e Improvements (STM361): The City received $2.16 million in Federal grants (SAFETEA-LU) to investigate ways to relieve congestion at the 1-5/ H Street interchange. Staff has requested that the project description be changed to, "1-5 Multi-Modal Corridor Improvement Study". This project is to study 1-5 from SR-54 to south of Main Street. However, the funds cannot be shifted to the new project until Congress approves the change. Legislation is currently pending. A 20 % local match is required. This includes a Transnet allocation of $50,000 in Fiscal Year 2007-08 and $490,000 in Fiscal Year 2008-09. 6. Transportation Proe:rams: This relates to City staff costs associated with various major corridor transportation projects, including carpool ramps on 1-805 at East H Street and East Palomar Street, SR-54 improvements and arterial coordination, and the Otay Mesa transportation system. Some funds may also be used for initial work on the 1-5 Multi- Modal Corridor Study. A total of$110,000 is included for Fiscal Year 2008-09. Staff has evaluated all these projects for compliance with the bicycle and pedestrian regulations. The following streets are classified as collectors and higher with posted speed limits above 35 miles per hour and do not have existing bicycle facilities: A. North Broadway Reconstruction from C Street to D Street. Sidewalks are provided along this aligrunent. This location is also in compliance with the Bikeway Master Plan. Although bikeways are not provided along this portion of Broadway due to the heavy traffic, there is nearby alternative existing bike route along Fifth Avenue within Y..-mile. 12-4 4/22/08, Item \2- Page 5 of 6 B. Main Street from the West I-80S Interchange to Oleander Ave. This location will be posted as a Class 3 bike route before or in conjunction with the overlay contract in compliance with the Bikeway Master Plan. This location crosses the freeway and there is insufficient right-of-way for a Class 2 bike lane. The following streets on the Recommended Overlay list have missing sidewalks: C. North Side of East H Street from East of Hidden Vista Drive to Del Rey Blvd.: Staff feels that there is sufficient right-of-way to construct an ADA-compliant sidewalk from east of Hidden Vista Drive to Terra Nova Drive. However, there is insufficient right-of- way between Terra Nova Drive and Del Rey Blvd. The hilly undeveloped area directly to the north of East H Street is a Multiple Species Conservation Program (MSCP) area with San Diego Coastal Sage, which is a preferred habitat for the California gnatcatcher. Due to right-of-way, topographic and environmental issues, construction of sidewalk between Terra Nova Drive and Del Rey Blvd. is not recommended at this time. D. Wueste Road from Otay Lakes Road to Lake Coast Drive: This is a two-lane road through undeveloped land without existing curb, gutter and drainage facilities. Since there is no adjacent development, there is minimal pedestrian demand. Therefore, the City should not be required to construct sidewalks in this location per Rule 20 of SANDAG Board Policy 31. E. Broadway from Faivre Street to Beyer Blvd.: This is a two-lane road without existing curb, gutter and drainage facilities. The adj acent property is either vacant or industrial, so there is minimal pedestrian demand. Therefore, the City should not be required to construct sidewalks in this location per Rule 20 of SANDAG Board Policy 31. It is also recommended that this segment continue to be posted as a Class 3 bike route in accordance with the Bikeway Master Plan. It is anticipated that curb, gutter and sidewalk will be constructed with additional development in this area. The Transnet Extension Ordinance also requires that the City exact from the private sector a minimum of $2000 per new residential unit (EDU), effective July 1, 2008, with annual escalation based on the ENR (or similar) Construction Cost Index. These exactions are to pay for the proportional share of funding to improve the Regional Arterial System. Low to moderate income housing units are exempt. The City's Transportation Development Impact Fee has been in place for many years for the area of the City east of I-80S. On March 18, 2008 Council enacted the Western Chula Vista Transportation Development Impact Fee (WTDIF) at the rate of $3243 per EDU. The City is now in compliance with these requirements. The WTDIF will begin to be collected on May 19, 2008. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found that a conflict exists, in that Councilmember McCann has property holdings within 500 feet of the boundaries of the 1- 805 interchanges and Bonita Road between Otay Lakes Road and the easterly City limits, which are some of the projects that are a subject of this action. Staff has reviewed the property holdings of the City Council and has found that a conflict exists, in that Councilmember Ramirez has property holdings within 500 feet of the boundaries of 12-5 4/22/08, Item 12. Page 6 of 6 Orange Avenue between Elden Avenue and Fourth Avenue, which is one of the projects that are a subj ect of this action. FISCAL IMPACT There will be no impact to the General Fund. ATTACHMENTS I. Transnet Extension Ordinance, pages 7 to 15 2. Transnet Ordinance and Expenditure Plan Implementation Guidelines 3. Rule 20 of SANDAG Board Policy No. 31 4. Transnet Allocation - FY2009 through FY2013 5. Recommended Overlays Prepared by: Elizabeth Chopp, Senior Civil Engineer, Engineering Dept. M:IEngineerIAGENDAICAS2008\04-22-08IRTIP 2009-130 rev2 ec-no highlight-REV.doc #KY174 File 12-6 ATTACHMENT Excerpt from Transnet Extension Ordinance 10. SR 78 Corridor Sprinter/BRT service providing high-quality east-west transit service improvements by upgrading and extending the Sprinter rail line, providing BRT service along the Palomar Airport Road corridor, or a combination of the two - $197 million. 11. BRT service from San Diego State University to Downtown San Diego along the EI Cajon Boulevard/Park Boulevard corridor with arterial improvements with bus priority treatments, stations and vehicles - $89 million. 2. Operating SuPport for the BRT and Rail Transit Capital Improvements: Of the total funds available, an estimated $1,100 million will be used to operate and maintain the services described under Section 2(A)(1)(b). 3. Environmental Mitigation: An estimated $600 million, including $450 million for direct mitigation costs and $150 million for economic benefit, will be used to fund the habitat-related mitigation costs of the major highway and transit projects identified in the Regional Transportation Plan as part of the Environmental Mitigation Program described in Section 2(D). B. Congestion Relief Program - Transit System Service Improvements and Related Programs: An estimated $2,240 million will be used to provide ongoing support for the reduced-price monthly transit programs for seniors, persons with disabilities, and students and for the continuation and expansion of rail. express bus, local bus, community shuttles, and dial-a-ride services, including specialized services for seniors and persons with disabilities, and related capital improvements. C. Congestion Relief Program - Local System Improvements and Related Programs: An estimated total of $4,480 million will be allocated to local programs in the following three categories: 1. Local Street and Road Program: An estimated $3,950 million will be allocated on a fair and equitable basis, using the formula specified in Section 4(D)(1), to each city and the County of San Diego (hereinafter referred to as local agencies) to supplement other revenues available for local street and road improvements. In developing the biennial list of projects to be funded with these revenues as required under Section 5(A), local agencies shall give high priority in the use of these funds to improvements to regional arterials, grade separation projects, and related facilities contributing to congestion relief. At least 70% of the revenues provided for local street and road purposes should be used to fund direct expenditures for construction of new or expanded facilities, major rehabilitation and reconstruction of roadways, traffic signal coordination and related traffic operations improvements, transportation-related community infrastructure improvements to support smart growth development, capital improvements needed to facilitate transit services and facilities, and operating support for local shuttle and circulator routes and other services. No more than 30% of these funds should be used for local street and road maintenance purposes. A local agency desiring to spend more than 30% of its annual revenues on local street and road maintenance-related projects shall provide justification to the Commission as part of its biennial project list submittal. The Commission shall review each local agency's biennial project list submittal and make a finding of consistency with the provisions of this 7 12-7 Ordinance and with .the Regional Transportation Plan prior to approving the local agency's project iist for funding. The Independent Taxpayer Oversight Committee shall also review the proposed project lists and make recommendations to the Commission. 2. Environmental Mitigation: An estimated $250 million, including $200 million for direct mitigation costs and $50 million for economic benefit. will be used to fund the habitat- related mitigation costs of local transportation projects consistent with the Regional Transportation Plan as part of the Environmental Mitigation Program described in Section 2(D). 3. Smart Growth Incentive Program: An estimated $280 million will be allocated to the Smart Growth Incentive Program to provide funding for a broad array of transportation-related infrastructure improvements that will assist local agencies in better integrating transportation and land use, such as enhancements to streets and public places, funding of infrastructure needed to support development in smart growth opportunity areas consistent with the Regional Comprehensive Plan, and community planning efforts related to smart growth and improved land use/transportation coordination. These funds shall be allocated on a regional competitive grant basis. It is intended that these funds be used to match federai, state, local, and private funding to maximize the number of improvements to be implemented. The Commission shall establish specific project eligibility criteria for this program. D. Transportation Project Environmental Mitigation: An estimated $850 million will be used to fund habitat-related environmental mitigation activities required in the implementation of the major highway, transit and regional arterial and local street and road improvements identified in the Regional Transportation Plan. Of this total. an estimated $250 million is related to mitigation requirements for locai transportation projects and an estimated $600 million is related to mitigation requirements for the major highway and transit projects identified in the Regional Transportation Plan. The intent is to establish a program to provide for large-scale acquisition and management of critical habitat areas and to create a reliable approach for funding required mitigation for future transportation improvements thereby reducing future costs and accelerating project delivery. This approach would be implemented by obtaining coverage for transportation projects through existing and proposed multiple species conservation pians. If this approach cannot be fully implemented, then these funds shall be used for environmental mitigation purposes on a project by project basis. Additional detail regarding this program is described in the documents titied "TransNet Extension Environmental Mitigation Program Principles" and "Environmental Enhancement Criteria Mitigating Highway 67, 76, and 94 Expansion Impacts", which are hereby incorporated by reference as if fully set forth herein. E. Bicycle, Pedestrian and Neighborhood Safety Program: A total of two percent of the total annual revenues available (an estimated $280 million) will be allocated to the Bicycle, Pedestrian and Neighborhood Safety Program to provide funding for bikeway facilities and connectivity improvements, pedestrian and walkable community projects, bicycle and pedestrian safety projects and programs, and traffic calming projects. These funds shall be allocated on a regional competitive grant basis. It is intended that these funds be used to match federal, state, local. and private funding to maximize the number of 8 12-8 improvements to be implemented. The Commission shall establish specific project eligibility criteria for this program. F. Administration and Independent Taxpayer Oversight Committee: Up to one percent of the total annual revenues available will be used for administrative expenses and up to $250,000 per year will be used for the operation of an Independent Taxpayer Oversight Committee. SECTION 3. IMPOSITION OF TRANSACTIONS AND USE TAX: In addition to any other taxes authorized by law, there is hereby imposed in the incorporated and unincorporated territory of the County of San Diego, in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Division 12.7 of the Public Utilities Code commencing with Code Section 132000, an extension of the existing transactions and use tax at the rate of one-half of one percent (1/2%) commencing April 1 ,2008, for a period of forty years, ih addition to any existing or future authorized state or local transactions and use tax. If, during this time period, additional state or federal funds become available which would fund the projects and services contained in the Regional Transportation Plan, then the tax may be reduced by action of the Commission. SECTION 4. EXPENDITURE PLAN PURPOSES: The revenues received by the Commission from the existing measure as extended by this measure, after deduction of required Board of Equalization costs for performing the functions specified in Section 132304(b) of the Public Utilities Code, shall be used to improve transportation facilities and services countywide as set forth in the Expenditure Plan and in a manner consistent with the long-range Regional Transportation Plan and the short- range, multi-year Regional Transportation Improvement Program, and for the administration of the San Diego County Regional Transportation Commission Act (hereinafter referred to as the "Act") commencing with Public Utilities Code Section 132000. Commencing July 1, 2008, after the deduction of administrative expenses, Independent Taxpayer Oversight Committee expenses, and funding for the Bicycle, Pedestrian and Neighborhood Safety Program as described in Sections 2(E), 2(F), 11 and 12, the remaining annual revenues shall be allocated as follows: A. Forty-two and four-tenths percent for the major highway and transit Congestion Relief projects specified in Section 2(A)(1), including four and four-tenths percent for the habitat- related mitigation costs of the major highway and transit projects as described in Section 2(A)(3) to be used to fund a portion of the Environmental Mitigation Program described in Section 2(0). B. Eight and one-tenth percent for operation of the specific transit Congestion Relief projects as described in Section 2(A)(2). This funding is for the operation of new or expanded services only and is not available for the operation of services in existence prior to the effective date of this Ordinance. C. Sixteen and one-half percent for the transit programs described in Section 2(B). The revenues made available annually for transit purposes shall be allocated and expended pursuant to the following distribution formula and priorities: 1. Two and one-half percent of the funds made available under Section 4(C) shall be used to support improved transportation services for seniors and disabled persons. These funds shall be used to support specialized paratransit services required by the federal Americans with Disabilities Act (ADA). 9 12-9 2. Three and one-fourth percent of the funds made available under Section 4(C) shall be used to support a competitive grant program for nonprofit organizations and local agencies. The funds shall be used to provide specialized transportation services for seniors focusing on innovative and cost-effective approaches to providing improved senior transportation, including, but not limited to, shared group services, speciai shuttle services using volunteer forces, and brokerage of multijurisdictional transportation services. 3. From the remaining revenues, there shall be expended such sums as necessary to guarantee in the North San Diego County Transit Development Board and Metropoiitan Transit Development Board areas of jurisdiction for the duration of the measure (1) a monthly regional transit pass for senior (60 years or older) and disabled riders priced at not more than 25 percent of the cost of the regular regional monthly transit pass, and (2) a monthly regional youth transit pass for students (18 years or under) priced at not more than 50 percent of the cost of the regular regional monthly transit pass. 4. Remaining revenues shall be allocated for transit service improvements, including operations and supporting capital improvements. The revenues shall be allocated through the annuai transit operator budget process and the improvements to be funded shall be consistent with the Short Range Transit Plan. . 5. To maintain eiigibility for the receipt of funds under Section 4(C), a transit operator must iimit the increase in its total operating cost per revenue vehicle hour for bus services or the increase in its total operating cost per revenue vehicle mile for rail services from one fiscal year to the next to no more than the increase in the Consumer Price Index for San Diego County over the same period. If the requirement is not achieved, the operator may not receive any additional funding under Section 4(C) in the following year above the amount received in the previous fiscal year adjusted for any increase in the Consumer Price Index for San Diego County. If there were unusual circumstances in a given fiscal year, the operator may request the approval of the Commission to calculate the requirement as an average over the previous three fiscal years. The operator may also request the approval of the Commission to exclude from the calculation certain cost increases that were due to external events entireiy beyond the operator's control, including, but not limited to, increases in the costs for fuel, insurance premiums, or new state or federal mandates. D. Thirty-three percent for the Local Programs described in Section 2(C) in the following three categories: 1. Twenty-nine and one-tenth percent for the local street and road program described in Section 2(C)(1). The revenues available for the local street and road program shall be allocated and expended pursuant to the following distribution formula: a. Each local agency shall receive an annual base sum of $50,000. b. The remaining revenues after the base sum distribution shall be distributed to the each local agency on the following basis: 1. Two-thirds based on total population using the most recent Department of Finance population estimates. 10 12-10 2. One-third based on maintained street and road mileage. c. For the purposes of Section 4D(1)(a) and (b), any new incorporations or annexations which take place after July 1 of any fiscal year shall be incorporated into the formula beginning with the subsequent fiscal year. The San Diego Association of Governments population estimates of such new incorporations or annexations shall be used until such time as Department of Finance population estimates are available. 2. One and eight-tenths percent for the habitat-related mitigation costs of local transportation projects described in Section 2(C)(2) to be used to fund a portion of the Environmental Mitigation Program described in Section 2(D). 3. Two and one-tenth percent for the Smart Growth Incentive Program described in Section 2(C)(3). E. General Provisions: 1. In implementing the projects funded under Section 4(A), priority shall be given to projects included in the Expenditure Plan for Proposition A as passed by the voters in 1987 that remain uncompleted, such as the eastern ends of the SR 52 and SR 76 highway improvement projects and the Mid-Coast light rail transit project. The Commission shall ensure that sufficient funding or bonding capacity remain available to implement such projects as expeditiously as possible once the environmental clearance for these projects is obtained and needed state and federal matching funds are committed. 2. Once any state highway facility or usable portion thereof is constructed to at least minimum acceptable state standards, the state shall be responsible for the maintenance and operation thereof. 3. All new projects, or major reconstruction projects, funded by revenues provided under this Ordinance shall accommodate travel by pedestrians and bicyclists, except where pedestrians and bicyclists are prohibited by law from using a given faciiity or where the costs of including bikeways and walkways would be excessively disproportionate to the need or probable use. Such facilities for pedestrian and bicycle use shall be designed to the best currently available standards and guidelines. 4. All state highway improvements to be funded with revenues as provided in this measure, including project development and overall project management, shall be a joint responsibility of Caltrans and the Commission. All major project approval actions including the project concept, the project location, and any subsequent change in project scope shall be jointly agreed upon by Caltrans and the Commission and, where appropriate, by the Federal Highway Administration and/or the California Transportation Commission. 11 12-11 SECTION 5. EXPENDITURE PLAN PROCEDURES: A. Each local agency shall biennially develop a five-year list of projects to be funded with revenues made available for local street and road improvements under Section 4(D). A local public hearing on the proposed list of projects shall be held by each local agency prior to submitting its project list to the Commission for approval pursuant to Section 6. B. All projects to be funded with revenues made available under Section 4 must be consistent with the Regional Transportation Plan (RTP). Project priorities or phasing shall also be consistent with the RTP. The Expenditure Plan shall be reviewed for consistency with RTP following each major update of the RTP as required by state or federal law. The Expenditure Plan shall be amended as necessary to maintain consistency with the Regional Transportation Plan. If funds become available in excess of the amount allocated in the Expenditure Plan, additional projects shall be added to the Expenditure Plan consistent with the priorities in the Regional Transportation Plan. Any amendments to the Expenditure Plan shall be made in accordance with the procedures for amending this ordinance as provided for in Section 16. C. In the allocation of all revenues made available under Section 4, the Commission shall make every effort to maximize state and federal transportation funding to the region. The Commission may amend the Expenditure Plan, in accordance with Section 16, as needed to maximize the transportation funding to the San Diego region. SECTION 6. PROJECT PROGRAMMING APPROVAL: The Commission shall biennially approve a five- year project list and a biennial program of projects to be funded during the succeeding two fiscal years with the revenues made available under Section 4 herein. The program of projects will be prepared as a part of the Regional Transportation Improvement Program (RTIP) process as required by state and federal law. A public hearing will be held prior to approval of the program of projects. The Commission may amend the program of projects as necessary in accordance with the RTIP amendment procedures. Projects shall not be funded with the revenues made available under Section 4 unless the projects are in the approved program of projects. SECTION 7. COOPERATIVE FUND AGREEMENTS: Except as provided for herein, the distribution of funds as set forth in Section 4 shall be met over the duration of the measure. To maximize the effective use of funds, revenues may be transferred or exchanged under the following circumstances: A. The Commission, or agencies receiving funds by annuai or multi-year agreement, may exchange or loan funds provided that the percentage of funds allocated for each purpose as provided in Section 4 is maintained over the duration of the measure and reviewed as part each 10-year comprehensive program review as described in Section 17. All proposed exchanges, including agreements between agencies to exchange or loan funds, must include detailed fund repayment provisions, including appropriate interest earnings such that the Commission suffers no loss of funds as a result of the exchange or loan. All exchanges must be approved by the Commission and shall be consistent with any and all rules approved by the Commission relating thereto. B. The Commission may exchange revenues for federal. state, or other local funds allocated or granted to any public agency within or outside the area of jurisdiction of the Commission to maximize effectiveness in the use of revenues. Such federal, state, or local funds shall be distributed in the same manner as the revenues from the measure. 12 12-12 SECTION 8. MAINTENANCE OF EFFORT: It is the intent of the Legislature, as stated in the Act, and the Commission that revenues provided from this measure be used to augment. not supplant existing local revenues being used for the purposes set forth In Section 4 herein. Each local agency receiving revenues pursuant to Section 4(D) shall annually maintain as a minimum the same level of local discretionary funds expended for street and road purposes on average over the last three fiscal years completed prior to the operative date of this Ordinance (Fiscal Years 2000-01, 2001-02, 2002-03), as was reported in the State Controller's Annual Report of Financial Transactions for Streets and Roads and as verified by an independent auditor. The maintenance of effort level as determined through this process shall be subject to adjustment every three years based on the Construction Cost Index developed by Caltrans. Any increase in the maintenance of effort level based on this adjustment shall not exceed the growth rate in the local jurisdiction's General Fund revenues over the same time period. The Commission shall not allocate any revenues pursuant to Section 4(0) to any eligible local agency in any fiscal year until that local agency has certified to the Commission that it will include in its budget for that fiscal year an amount of local discretionary funding for streets and roads purposes at least equal to the minimum maintenance of effort requirement. An annual independent audit shall be conducted to verify that the maintenance of effort requirement for each agency was met. Any local agency which does not meet its maintenance of effort requirement in any given year shall have its funding under Section 4(0)(1) reduced in the following year by the amount by which the agency did not meet its required maintenance of effort level. In the event that special circumstances prevent a local agency from meeting its maintenance of effort requirement, the local agency may request up to three additional fiscal years to fulfill its requirement. Such a request must be approved by the Commission. The Independent Taxpayer Oversight Committee shall also review such requests and make recommendations to the Commission. Any locai street and road revenues not allocated pursuant to the maintenance of effort requirement shall be redistributed to the remaining eligible agencies according to the formula described in Section 4(0)(1). The maintenance of effort requirement also shall apply to any local agency discretionary funds being used for the other purposes specified under Section 4. In addition, revenues provided from this Ordinance shall not be used to replace other private developer funding that has been or will be committed for any project. SECTION 9. REGIONAL TRANSPORTATION CONGESTION IMPROVEMENT PROGRAM (RTCIP): A. New Development Exactions Starting on July 1, 2008, each local agency in the San Diego region shall contribute $2,000 in exactions from the private sector, for each newly constructed residential housing unit in that jurisdiction to the RTCIP. These exactions shall ensure future development contributes its proportional share of the funding needed to pay for the Regional Arterial System and related regional transportation facility improvements, as defined in San Diego Association of Governments' (SANDAG's) most recent, adopted Regional Transportation Plan. New residential housing units constructed for extremely low, very-low, low, and moderate income households, as defined in California Health and Safety Code Sections 50105,50106,50079,5 and 50093, will be exempted from the $2,000 per unit contribution requirement. The amount of contribution shall be increased annually, in an amount not to exceed the percentage increase set forth in the Engineering Construction Cost Index published by the Engineering News Record or similar cost of construction index. Each local agency shall establish an impact fee or other-revenue Funding Program by which it collects and funds its contribution to the RTCIP, Each local agency shall be responsible for establishing a procedure for providing its monetary contribution to the RTCiP. The RTCIP revenue will be used to construct improvements on the Regional Arterial System such as new or widened arterials, traffic signal coordination and other traffic improvements, freeway interchange and related freeway improvements, railroad grade separations, and improvements required for regional 13 12-13 express bus and rail transit. This action is predicated on the desire to establish a uniform mitigation program that will mitigate the regional transportation impacts of new development on the Arteriai system. While the RTCIP cannot and should not fund all necessary regional transportation network components and improvements, the RTCIP will establish a new revenue source that ensures future development will contribute its pro rata share towards addressing the impacts of new growth on regional transportation infrastructure. B. Oversight, Audit and Funding Allocations The Regional Transportation Congestion Improvement Program (RTCIP) shall be overseen by SANDAG and implemented by each local agency, with the objective of developing a consolidated mitigation program for the San Diego region as a funding source for the Regional Arterial System. The RTCIP and each local agency's Funding Program shall be subject to an annual review and audit to be carried out by the SANDAG and the Independent Taxpayers Oversight Committee, as defined in Section 11 of this Ordinance. Any local agency that does not provide its full monetary contribution required by Section 9(A) in a given fiscal year will not be eligible to receive funding for local streets and roads under section 4(D)(1) of the TransNet Ordinance for the immediately following fiscal year. Any funding not allocated under 4(D)(1) as a result of this requirement shall be reallocated to the remaining local agencies that are in compliance with this Section. C. Implementation of the Regional Transportation Improvement Program (RTCIP) Provisions for implementation of the RTCIP are described in the document titled "TransNet Extension Regional Transportation Congestion Improvement Program," which is hereby incorporated by reference as if fully set forth herein. SECTION 1 O. BONDING AUTHORITY: Upon voter approval of the ballot proposition to approve the extension of the tax and the issuance of bonds payable from the proceeds of the tax, bonds may be issued by the Commission pursuant to Division 12.7 of the Public Utilities Code, at any time, and from time to time, payable from the proceeds of the existing tax and its extension and secured by a pledge of revenues from the proceeds of the tax, in order to finance and refinance improvements authorized by Ordinance 87-1 and this Ordinance. The Commission, in allocating the annual revenues from the measure, shall meet all debt service requirements prior to allocating funds for other projects. SECTION 11. INDEPENDENT TAXPAYER OVERSIGHT COMMITTEE: An Independent Taxpayer Oversight Committee (iTOC) shall be established to provide an enhanced level of accountability for expenditure made under the Expenditure Plan. The ITOC will help to ensure that all voter mandates are carried out as required and will develop recommendations for improvements to the financial integrity and performance of the program. The roles and responsibilities of the ITOC, the selection process for ITOC members, and related administrative procedures shall be carried out in substantially the same manner as further described in the document titled "Statement of Understanding Regarding the Implementation of the Independent Taxpayer Oversight Committee for the TransNet Program," which is hereby incorporated by reference as if fully set forth herein. Up to $250,000 per year, with adjustments for inflation based on the Consumer Price Index for San Diego County, may be expended for activities related to the ITOC. SECTION 12. ADMINISTRATIVE EXPENSES: Revenues may be expended by the Commission for staff salaries, wages, benefits, and overhead and for those services, including contractual services, necessary to administer the Act: however, in no case shall such expenditures exceed one percent of the annual revenues provided by the measure. Any funds not utilized in a given fiscal year shall 14 12-14 remain available for expenditure in subsequent fiscal years. Costs of performing or contracting for project related work shall be paid from the revenues allocated to the appropriate purpose as set forth in Section 4 herein. An annual independent audit shall be conducted through the Independent Taxpayers Oversight Committee to assure that the revenues expended by the Commission under this section are necessary and reasonable in carrying out its responsibilities under the Act. SECTION 13. ESTABLISHMENT OF SEPARATE ACCOUNTS: Each agency receiving funds pursuant to Section 4 shall have its funds deposited in a separate Transportation Improvement Account. Interest earned on funds allocated pursuant to this Ordinance shall be expended only for those purposes for which the funds were allocated. SECTION 14. IMPLEMENTING ORDINANCES: Upon approval of this measure by the voters, the Commission shall, in addition to the local rules required to be provided pursuant to this ordinance, adopt implementing ordinances, rules, and policies and take such other actions as may be necessary and appropriate to carry out its responsibilities. SECTION 15. EFFECTIVE AND OPERATIVE DATES: This Ordinance shall be effective on November 3, 2004, if one of the following events occurs: 1) two-thirds of the electors voting on the ballot proposition approving the ordinance vote to approve the ballot proposition on November 2, 2004; or 2) a law is passed on or before November 2, 2004 that lowers the voter approval threshold applicable to this Ordinance and the number of electors voting in favor of this Ordinance meets that threshold. The extension of the tax authorized by Section 3 of this Ordinance shall be operative on April 1 , 2008. Bonds payable from the proceeds of the tax may be issued at any time prior to, on or after April 1, 2008. The provisions of Section 4 of this Ordinance, relating to the allocation of revenues, shall be operative on July 1, 2008. SECTION 16. AMENDMENTS: With the exception of Sections 2(D), 3, 4(E)(1), 8, 9, and 11 which require a vote of the electors of the County of San Diego to amend, this ordinance may be amended to further its purposes by ordinance, passed by roll call vote entered in the minutes, with two-thirds of the Commission concurring consistent with the Commission's standard voting mechanism. Separate documents incorporated by reference in the Ordinance in Sections 2, 9, and 11 also may be amended with a two-thirds vote of the Commission. SECTION 17. TEN-YEAR COMPREHENSIVE PROGRAM REVIEW: The Commission shall conduct a comprehensive review of all projects and programs implemented under the Expenditure Plan to evaluate the performance of the overall program over the previous ten years and to make revisions to the Expenditure Plan to improve its performance over the subsequent ten years. Such comprehensive program reviews shall be conducted in Fiscal Years 2019, 2029 and 2039. Revisions to the Ordinance and Expenditure Plan required as a result of the ten-year review shall be subject to the amendment process in Section 16. SECTION 18. DESIGNATION OF FACILITIES: Each project or program in excess of $250,000 funded in whole or in part by revenues from this Ordinance shall be clearly designated during its construction or implementation as being provided by revenues from this Ordinance. SECTION 19. SEVERABILITY: If any section, subsection, part, clause or phrase of this Ordinance is for any reason held unenforceable or unconstitutional by a court of competent jurisdiction, that holding shall not affect the validity or enforceability of the remaining funds or provisions of this Ordinance, and the Commission declares that it would have passed each part of this Ordinance irrespective of the validity of any other part. Notwithstanding the foregoing, if any part, clause, or 15 12-15 IATTACHMENT 2 TransNet Local Street and Road Program TransNet Ordinance and Expenditure Plan Implementation Guidelines June 23. 2006 The TransNet Ordinance requires that at least 70 percent of the revenues provided for local street and road purposes should be used to fund direct expenditures for facilities contributing to congestion relief. No more than 30 percent of these funds should be used for local street and road maintenance purposes. The required multi-year Regional Transportation Improvement Program (RTIP) project lists submitted by local agencies that are found to be out of compliance with this requirement will not be approved. Local agencies may request an exception to this requirement and must provide justification for such a request as part of its project list submittal. The following table categorizes and lists the more typical types of facilities that are considered to contribute to congestion relief. For other facilities not listed, it must be demonstrated that congestion relief can be obtained before the project can be considered part of the 70 percent Congestion Relief category. Maintenance costs of items listed in the 70 percent Congestion Relief category are eligibie under the 30 percent category. Facilities that are not considered to contribute to congestion relief (Items 28-30) are eligible under the 30 percent category. New or Expanded Facilities 1. New roadways and bridges 2. Roadway and bridge widening 3. Roadway widening for bike lanes Major Rehabilitation and Reconstruction 4. Roadway rehabilitation (grinding and overlay, or new structural pavement, or new overlay 1-inch thick or greater) 5. Roadway realignment 6. Bridge retrofit or replacement 7. Roadway drainage improvements for the purpose of improving capacity-impeding conditions such as significant and frequent roadway flooding 8. New sidewalk or sidewalk widening Traffic Operations 9. Median installation for safety improvement or left- turn movement 10. New traffic signal, passive permissive left turn (PPLT) installation, signal removal for congestion relief reasons, traffic signal upgrades, intersection lighting 11. Traffic signal coordination 12. Traffic signal interconnection 12-16 . Lane removal for bike lanes. . Pavement overlay (less than 1 inch) . Pot hole repair, chip seal, fog seal, crack seal (except when part of roadway rehabilitation project) . Roadway realignment that does not increase roadway capacity . Bridge replacement for aesthetic purposes . Minor drainage improvements not part of a congestion relief project . Stand alone landscaping project of an existing median . Traffic signal replacement, bulb replacement, hardware, software, inductive loop repair 3 13. Centrally controlled traffic signal optimization system 14. Traffic surveillance or detection system (video) 15. Traffic data collection system for performance monitoring purposes (in pavement detection, radar) Smart Growth..Related Infrastructure * 16. Traffic calming measures 17. Pedestrian ramps 18. Pedestrian traffic signal activation 19. Pedestrian crossingsJovercrossings 20. Buffer area between sidewalk and street 21. Pedestrian roadway lighting . Light bulb replacement Transit Facilities 22. New bus stops 23. Bus stop enhancements 24. Bus-only lanes . Bus-only lanes that do not provide congestion relief 25. Queuejumper lanes for buses 26. Traffic signal priority measures for buses 27. Transit operational costs -for shuttle and circulator routes Non..Congestion Relief 28. Erosion control (unless required as part of a congestion relief project) 29. Landscaping (unless required as part of a congestion rei ief project) 30. Roadway signing and delineation (unless it is a congestion relief project) Note: Staff costs for congestion relief project development (environmental. preliminary engineering, design, right-of-way acquisition, and construction management) are eligible expenditures under the 70 percent category. Staff costs for transportation infrastructure maintenance or traffic operations efforts are eligible under the 30 percent category. Costs for general TransNet fund administration and transportation planning are eligible up to 1 percent of annual revenues. To receive credit for providing congestion relief under the 70 percent category, smart growth-related infrastructure must be provided in one of the existing or planned (not potential) seven Regional Comprehensive Plan smart growth land use type characteristic areas: Metropolitan Center, Urban Center, Town Center, Community Center, Transit Corridor, Special Use Center, or Rural Community. Smart growth-related infrastructure built outside of one of the seven types of characteristic areas is eligible under the 30 percent category. 4 12-17 San Diego Association of Governments ATIACHMEi\n r> ..::::) EXECUTIVE COMMITTEE February 8, 2008 AGENDA ITEM NO.: 5 Action Requested: RECOMMEND PROPOSED AMENDMENT TO BOARD POLICY NO. 031 ON ACCOMMODATING BICYCLISTS AND PEDESTRIANS File Number 3000800 Introduction The TransNet Extension Ordinance includes a provision (Section 4(E)(3)) that requires all projects funded under the ordinance to provide accommodations for bicyclists and pedestrians to the extent it is reasonable to do so. Over the past year, staff has consulted with the Bicycle- Pedestrian Working Group (BPWG) and the Cities/County Transportation Advisory Committee (CTAC) to develop policy guidelines for the implementation of this provision. The draft guidelines included as Attachment 1 to this report are the result of that effort. The BPWG, CTAC, and the Independent Taxpayers Oversight Committee (ITOC) have all recommended that the guidelines be adopted by the SANDAG Board of Directors. In July, the SANDAG Transportation Committee discussed the proposed guidelines and recommended approval as well. The guidelines would be incorporated as Rule 20 of Board Policy No. 031: TransNet Ordinance and Expenditure Rules. The Executive Committee discussed the proposed policy at Its October 2007 meeting. Questions were raised by members of the Executive Committee regarding the potential impact on local street and road projects and the process for implementation. Since that time, staff has met with the Committee members who raised concerns to discuss issues and clarify the compliance process. Key points in the discussions were that the guidelines were developed with the intent of minimizing complications in the project development process by encouraging early engagement of stakeholders and by incorporating the steps to comply with the guidelines into existing regional transportation improvement programming processes. In addition, the decision regarding compliance with the proposed policy ultimately rests with the members of the Transportation Committee and Board of Directors. Finally, the proposed guidelines include a requirement that they be reviewed within three years of implementation. This will provide an opportunity to assess how well the guidelines are meeting the objectives of the ordinance and allow any necessary adjustments to be made. The Discussion section below reiterates the material presented to the Executive Committee at its October 2007 meeting. 12-18 Discussion Section 4(E)(3) of the TransNet Extension Ordinance reads: All new projects, or major reconstruction projects, funded by revenues provided under this Ordinance shall accommodate travel by pedestrians and bicyclists, except where pedestrians and bicyclists are prohibited by law from using a given facility or where the cost of including bikeways and walkways would be excessively disproportionate to the need or probable use. Such facilities for pedestrian and bicycle use shall be designed to the best currently available standards and guidelines. The 2030 Regional Transportation Plan that was adopted by SANDAG in 2003, known as MOBILlTY2030, states that SANDAG will develop guidelines to ensure all regionally funded transportation projects preserve or enhance non-motorized access (See MOBILlTY2030, Chapter 6, Action Item 31). Section 4(E)(3) was included in the TransNet Ordinance in response to that requirement. Providing better access for pedestrians and bicyciists also implements the Regional Comprehensive Plan (RCP) because it contributes toward more transportation choices and is an essential element of the smart growth development. This provision also benefits the region because the most cost-effective way to ensure our transportation system accommodates pedestrian and bicycle traffic is to provide for it when projects are first constructed or when coordinated with other major reconstruction work. Section 4(E)(3) of the TransNet Extension Ordinance establishes an obligation to address bicyclist and pedestrian mobility needs wherever it is reasonable to do so. These draft guidelines and procedures were developed to clarify three main points in the ordinance: . What constitutes adequate accommodation for pedestrian and bicycle travel? . When is the cost of accommodating bicyclists and pedestrians too expensive for the anticipated use? . What are the best available standards to which projects must be designed? Adequate Accommodation_ What constitutes appropriate facilities for pedestrian and bicycle traffic is largely dependent upon context. What is adequate on a residential street is different from what would be needed on a major arterial, and what is sufficient in a rural setting is much different from an urban one. Therefore, the attached rule includes a matrix of appropriate facility types for different road types and settings. The bicycle and pedestrian accommodation measures in that matrix were developed based on recognized state and national design standards, and existing best practices within the region. The provisions for rural areas were developed to be consistent with the County of San Diego's street design standards that are proposed under the County's general plan update, GP 2020. Since the Transportation Committee reviewed and recommended approval of these provisions, staff became aware of one technical correction that needed to be made to the matrix. Under pedestrian facilities for highway projects; the guidelines should specify that there should be no more than 0.3 mile between pedestrian crossings. The previous wording had said "no less than 0.3 mile," but the point is to ensure that pedestrians do not have to walk an unreasonable 2 12-19 distance to cross a highway whenever a highway project disrupts previously existing pedestrian access. Reasonable Cost. The question of reasonable cost is in large part a question of expected demand. Even at very low cost. it probably does not make sense to require a sidewalk along the side of a road if there is no reason to expect pedestrian traffic there. Streets along steep slopes or aiong freeway rights-of-way are examples where this could apply. On the other hand. the street should always provide for bicycle and pedestrian traffic if at all possible where there is a demonstrated existing or planned need. In making this determination. the need for access to and from public transit is a particularly important consideration. The federal guidelines on the provision of bicycle and pedestrian facilities recommend that these facilities always be provided unless the cost of doing so exceeds 20 percent of the total project cost. The proposed rule for the TransNet Ordinance does not include a cost limit. because staff believes there could be circumstances were 20 percent of the project cost would clearly be an excessive amount to spend relative to the need. At the same time. on some smaller projects. 20 percent may not be enough to fund the needed improvements. The approach taken in the proposed rule is to allow the policymakers to decide when the cost is too high. The guidelines are based on the assumption that bicyclists and pedestrians will be properly accommodated in nearly all situations. In those feV\( cases where an agency proposes not to provide the appropriate bicycle or pedestrian facilities. the proposed administrative procedures would require the agency to state so explicitly in its public hearing on the projects. and to notify SANDAG so that the decision could be reviewed by stakeholders and policymakers. The decision on whether or not the requirements of the Ordinance would be met by the proposed project would be made by the Transportation Committee. Design Standards. An adequate design standard for bicycle facilities is available in Chapter 1000 of the California Highway Design Manual (HDM). Since this is a recognized institutional standard for bikeway design. all bikeway improvements constructed under the TransNet program should conform to Chapter 1000 of the HDM. No similar state guidelines exist for pedestrian facilities. However. the American Association of State Highway Transportation Officiais (AASHTO) publishes the Guide for the Planning. Design. and Operation of Pedestrian Facilities. which provides reasonable and widely recognized design standards that are proposed as the standard under this rule. SANDAG has published Planning and Designing for Pedestrians. but that document was developed as a reference manual. not as a design standard. In order to reduce the administrative burden of this provision. staff incorporated the process into the existing administrative procedures for programming projects into the TransNet Program of Projects. Every project funded under the Ordinance is noticed in pubiic hearings held by the sponsoring agency and SANDAG. Those hearings provide an appropriate setting for agencies to certify compliance with Section 4(E}(3) of the Ordinance. and to identify and justify any projects that do not provide the expected accommodation. The administrative process defines the roles of Caltrans. local agencies. and SANDAG. including its working groups. Policy Advisory Committees. and the Board. 3 12-20 Next Steps Following the Executive Committee recommendation, the proposed rule will go to the SANDAG Board of Directors for final approval and incorporation into Board Policy No, 031, The rule would take effect with any new projects added to the TransNet Program of Projects subsequent to that action. BOB LEITER Director of Land Use and Transportation Planning Attachment: 1, Draft Rule 20 of Policy No, 031: Accommodating Bicyclists and Pedestrians under the TransNet Extension Ordinance Key Staff Contact: Stephan Vance, (619) 699-1924, sva@sandag.org 4 12-21 Attachment 1 Draft Rule 20 of Board Policy No. 031 Accommodating Bicyclists and Pedestrians under the TransNet Extension Ordinance Accommodation of Bicyclists and Pedestrians. Adequate provisions for bicycle and pedestrian travel is determined within the context of the roadway type, its existing and planned surrounding land uses, existing bicycle and pedestrian plans, and current or planned public transit service. When addressing the access needs dictated by land use, the responsibie agency must consider demand created by current and expected land uses (as determined by the local general plan) within the useful life of the TransNet project. The table entitled Appropriate Bicycle and Pedestrian Accommodation Measures provides a guide to appropriate accommodation measures for each transportation facility type and land use context. In the table, "urban" means within the urbanized area as defined by U.S. Census Bureau. Aoorooriate Bicvcle and Pedestrian Accommodation Measures' Context/Facilitv Tvoe Bicvcle Measures Pedestrian Measures Urban Highway 0 Required facility type will be 0 Continuous sidewalks and based on the recommendations marked crosswalks through for any regional bikeway freeway interchanges corridors in urban highway where sidewalks exist or alignments developed through an are planned on the adopted Regional Bicycle Plan. intersecting roadway. Pending completion of this plan, 0 Where new freeway appropriate bicycle construction severs existing accommodation will be pedestrian access, grade developed on a project by project separated pedestrian basis by local and regional crossings with no more authorities in consultation with than 0.3 mile between appropriate stakeholders. crossi ngs. 0 Freeways and freeway interchanges may not eliminate existing bikeways or preclude planned bikeways on local streets and roads. Transit Project 0 Bicycle lockers and racks at 0 Direct sidewalk connections stations sufficient to meet normal between station platforms expected demand and adjacent roadway 0 Bicycle access to all transit sidewalks vehicles except those providing 0 Pedestrian crossings where exclusive paratransit service to a new transit way severs the disabled as required by the existing pedestrian access Americans with Disabilities Act. with no more than 0.3 0 Transit priority measures on miles between crossings. roadways may not prevent bicycle access. 5 12-22 Appropriate Bicycle and Pedestrian Accommodation Measures' Context/Facility Type Bicycle Measures Pedestrian Measures Major Urban Street . Class 2 bike lanes. . Continuous sidewalks or pathways', both sides of the street with marked crosswalks at traffic controlled intersections. . Americans with Disabilities Act (ADA) compliant bus stop landings for existing and olanned transit service Urban Collector Street . Class 2 bike lanes . Continuous sidewalks or (design speed >35 mph) pathways', both sides of the street with marked crosswalks at traffic controlled intersections. . ADA compliant bus stop landings for existing and olanned transit service Urban Collector Street . Shared roadway. Where planned . Continuous sidewalks or (design speed :S 35 mph) average daily motor vehicle pathways' both sides of the traffic exceeds 6,500, the outside street travel lane should be at least 14 . ADA compliant bus stop feet wide. landings for existing and olanned transit service Urban Local Street . Shared roadway . Continuous sidewalks or pathways' both sides of the street . ADA compliant bus stop landings for existing and planned transit service Rural Highway . Minimum 8-foot paved shoulder . ADA compliant bus stop landings for existing bus stoos. Rural Collector Road . Minimum 8-foot paved shoulder . Not required with no fronting uses . Paved or graded walkway consistent with community character on streets with fronting uses. . ADA compliant bus stop landings for existing bus stoos. 6 12-23 Approoriate Bicvcle and Pedestrian Accommodation Measures' Context/Facility Type Bicvcle Measures Pedestrian Measures Rural Local Road . Minimum 6-foot paved shoulder . Not required with 85'" percentile speeds S 25 mph . Paved or graded walkway consistent with community character on streets with fronting uses and 85th percenti Ie speeds> 25 mph. . ADA compliant bus stop landings for existing bus stops. 1. Application of these accommodation measures is subject to sound planning and engineering judgment to ensure the facility is reasonable and appropriate within the land use and transportation context of the overall project. 2. Unpaved pathways of decomposed granite or other suitable material that are set back from the roadway where feasible would be considered appropriate only on roads serving areas that are rural in nature. Where a local jurisdiction has a bicycle or pedestrian master plan adopted by the city councilor Board of Supervisors and approved by SANDAG, the local agency may use that plan to determine the appropriate means of accommodating bicyclists and pedestrians in a given project and at a minimum provide the facilities called for in the plan. These plans must be updated and approved no less than every five years to qualify as a means of satisfying this provision. Best Available Standards. All bicycle facilities must be designed to the standards established in the California Highway Design Manual, Chapter 1000. Bicycle parking facilities should conform to the guidelines established in the Regional Bicycle Plan adopted by SANDAG. Shared roadways on collector streets should have a curb lane or curb lane plus shoulder that measures at least 14 feet. Where parallel parking is in piace, consideration should be given to installing the shared lane pavement marker. All sidewalks must be designed consistent with the design standards established in the AASHTO Guide for the Planning, Design, and Operation of Pedestrian Facilities, the Department of State Architect's California Access Compliance Reference Manual, and the US Department of Transportation ADA Accessibility Guidelines for Buildings and Facilities (ADAAG). Consistency with the design recommendations in the SANDAG Planning and Designing for Pedestrians is encouraged. Bicycle and Pedestrian Accommodation in Reconstruction Projects. Street and road reconstruction is the time to re-evaluate the function of a road and its context, and to reallocate the right-of-way if appropriate to meet the needs of bicyclists and pedestrians. An agency is not required to acquire additional right-of-way to improve bicycle and pedestrian access. However, the agency should consider reduced motor vehicle lanes and lane widths, and reduced median widths as a means of providing the appropriate bicycle or pedestrian facility. While such an evaluation is recommended for reconstruction projects of any size, compliance with these guidelines is required for "major" reconstruction projects meeting the definitions established under Rule 18 of SANDAG Board Policy No. 031 regarding the guidelines for implementing the "70/30" requirement. 7 12-24 When Provisions for Bicyclists and Pedestrians Accommodation May Be Excluded. Section 4(E)(3) is based on the premise that pedestrians and bicyclists need safe and convenient access to the same destinations as other users of the public right of way. Consequently, those portions of the transportation network where pedestrians and bicyclists need not be accommodated are the exception, and the decision not to provide for them in a construction or major reconstruction project must be made by the responsible agency for good cause such as severe topographic or bioiogical constraints. Any impacts on the roadway's motor vehicle capacity that result from providing for pedestrian and bicycle access would not. in themselves, justify excluding bicycle and pedestrian facilities. However, these impacts and their mitigation costs should be considered in determining if the cost of providing the facilities is disproportionate to the probable use. This provision only requires an agency to provide appropriate bicycle or pedestrian facilities that are within the construction or reconstruction area of the project. Consideration of the provision of sidewalks as part of major rehabilitation roadway projects involving only new pavement overlays of 1-inch thickness or greater (see Rule 18 under Board Policy No. 031) on streets where sidewalks do not currently exist would only be required if curb, gutter, and related drainage facilities were already in place. The cost of providing for bicycle and pedestrian access can vary significantly relative to the overall project cost. For this reason, specifying a proportional or absolute limit on spending for bicycle or pedestrian improvements relative to probable use would not allow the kind of discretion necessary to make a significant investment in facilities when necessary, or to withhold an investment when the benefits are marginal. Therefore, the decision to exclude accommodations for bicyclist and pedestrians must be a policy-level decision made by the Board of Supervisors or city council based on the body of information about context, cost. and probable use available at the time. Such a decision must be made in the public hearing required by Section 5(A) of the Ordinance. Pedestrian Access. Sidewalks or other walkways may be excluded from a project when it can be demonstrated that there are no uses (including bus stops) that would create demand for pedestrian access. In making this determination, the agency must consider the potential for future demand within the useful life of the project. Access to and from public transit, including crossing improvements, also must be considered and accommodated where there is existing or planned transit service. Bicycle Access. A new project or major reconstruction project may not include the expected bikeway treatment when a suitable parallel route with the appropriate accommodations exists that would require no more than Y4-mile total out of direction travel. Procedures for Excluding Accommodations for Pedestrians and Bicyclists from Projects. When an agency determines not to include bicycle or pedestrian accommodations in a project because the cost of doing so would be excessively disproportionate to the need or probable use, the agency must include a notice of that decision in the notice of the public hearing required by Sections 5(A) and 6 of the Ordinance. In submitting the project to SANDAG for inclusion in the TransNet Program of Projects as part of the Regional Transportation Improvement Program (RTIP) process, the agency must notify SANDAG that bicycle andlor pedestrian facilities, as described in Table 1 or in its bicycle or pedestrian master plan, will not be included in the project along with 8 12-25 written justification for that decision. The decision and justification is subject to review and comment by SANDAG through the Bicycle-Pedestrian Working Group, which would forward its comments to the SANDAG Transportation Committee. The Independent Taxpayer Oversight Committee also would review and comment on such projects as part of its role in the RTIP process. The Transportation Committee in approving the TransNet Program of Projects must make a finding that the local decision not to provide bicycle or pedestrian facilities is consistent with the provisions of this Ordinance prior to approving the project for funding under the TransNet Program. If this consistency finding is not made, the agency would have the opportunity to revise its fund programming request for consideration in a future RTIP amendment. Effective Implementation. This rule will be effective for projects added to the TransNet Program of Projects subsequent to the rule's adoption by the SANDAG Board of Directors. Within three years of adoption, this rule will be re-evaluated by SANDAG to ensure it is effectively encouraging provision of a balance transportation network without imposing an excessive cost burden on projects funded under the program. 9 12-26 ATTACHMENT 4 TRANSNET ALLOCATION - FY 2009 THROUGH FY 2013 Major Pavement Rehabilitation (Reconstructionl Overlays) Traffic Signal System Optimization (TF350) 1-805, SR54 and Otay Mesa Transportation System Improvements $90,000 $90,000 $90,000 N. Broadway Reconstruction (STM354) Palomar Gateway (STL28D) 1-5/ H Street Interchange Improvements (STM362) SUBTOTAL Congestion Reliel -" Congestion Relief (TF354) $75,000 $75,000 $75,000 $75,000 $75,000 '" Sidewalk Installation! Rehabilitation $100,000 I '" Pedestrian! Bicycle Master Plans $61,000 ..... Harborside Elementary Pedestrian Improvements $85,000 Minor Pavement Rehabilitation Program (Including seals) $600,000 $850,000 $925,000 $1,100,000 $1,150,000 Advance Plmming Studies (OP202) $45,000 $47,000 $50,000 $52,000 $55,000 Traffic Monitoriog Program (TF321 and TF325) $75,000 Urban Core Level of Service Thresholds Study $50,000 Traffic Signing (TF332), Studies and Signal Upgrade $250,000 $55,000 $55,000 $55,000 SUBTOTAL Mainlenance $1,341,000 $1,105,000 $1,282,000 $1,335,000 TOTAL $4,596,99 $4,770,000 $5,022,000 $5,225,00 Prepared 4/8/08 ~ I'.) I I'.) 00 ATTACHMENT 5 RECOMMENDED OVERLAYS Street Name Bet!innine: Endin~ RESOLUTION NO. 2008 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUBMITTAL OF CERTAIN PROJECTS FOR THE TRANSNET LOCAL STREET IMPROVEMENT PROGRAM TO THE SAN DIEGO ASSOCIATON OF GOVERNMENTS FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2008-09 THROUGH 2012-13 WHEREAS, on November 3, 1987, the voters of San Diego County approved the San Diego Transportation Improvement Program Ordinance and Expenditure Plan (Ordinance); and WHEREAS, on November 4, 2004, the voters of San Diego County approved the San Diego County Transportation Improvement Program Ordinance and Expenditure Plan (04-01) extension (Extension Ordinance); and WHEREAS, the Ordinance and the Extension Ordinance provide that the San Diego Association of Governments (SANDAG), acting as the Regional Transportation Commission, shall approve a multi-year program of projects submitted by local jurisdictions identifying those transportation projects eligible to use transportation sales tax (TRANSNET) funds; and WHEREAS, every two years, SANDAG updates the Regional Transportation Improvement Plan (RTIP) and releases new funding projections for the cities within San Diego County; and WHEREAS, on March 18, 2008, pursuant to Ordinances No. 3106 through No. 3110, the City Council adopted the Western Chula Vista Transportation Development Fee (WTDIF) at a rate of$3,243 per Equivalent Development Unit; and WHEREAS, on January 25,2005, pursuant to Resolution No. 2005-014, the City Council adopted the City's Bikeway Master Plan; and WHEREAS, in January 2008, SANDAG staff acknowledged this Plan as complete, consistent with the 2030 Regional Transportation Plan, and coordinated with other jurisdictions; and WHEREAS, Section 4.E.3 of the Extension Ordinance states that all new projects, or major reconstmction projects, funded by revenues provided under this Ordinance shall accommodate travel by pedestrians and bicyclists, except where pedestrians and bicyclists are prohibited by law from using a given facility or where the costs of including bikeways and walkways would be excessively disproportionate to the need or probable use; and HIENGINEER\RESOS\Resns2008\04-22-08\Trallsnet FY09.FYIJ Reso revised by e'isn.r~~:~9 Resolution No. 2008- Page 2 WHEREAS, on February 8, 2008, the SANDAG Executive Committee considered a proposed amendment to SANDAG Board Policy 31 to establish guidelines for the implementation of Section 4.E.3 of the Extension Ordinance (Rule 20 Amendment); and WHEREAS, staff believes that the Rule 20 Amendment was adopted by the SANDAG Board based on conversations with SANDAG staff; and WHEREAS, the Rule 20 Amendment states that a local jurisdiction may use a bicycle or pedestrian master plan adopted by the city council and approved by SANDAG to determine the appropriate means of accommodating bicyclists and pedestrians in a given project and at a minimum provide the facilities called for in the plan; and WHEREAS, the Rule 20 Amendment also lists the circumstances when provisions for bicyclists and pedestrians may be excluded; and WHEREAS, the Rule 20 Amendment states that a new project or major reconstruction project may not include the expected bikeway treatment when a suitable parallel route with the appropriate accommodations exists that would require no more than Ij,,-mile total out of direction travel; and WHEREAS, the Rule 20 Amendment states that sidewalks or other walkways may be excluded from a project when it can be demonstrated that there are no uses (including bus stops) that would create demand for pedestrian access and that in making this determination, the agency must consider the potential for future demand within the useful life of the project; and WHEREAS, the Rule 20 Amendment states that an agency is not required to acquire additional right-of-way to improve bicycle and pedestrian access; and WHEREAS, the Rule 20 Amendment states that the provision of sidewalks for major rehabilitation projects involving only new pavement overlays of one-inch thickness or greater would only be required if curb, gutter, and related drainage facilities were already in place; and WHEREAS, the Rule 20 Amendment states that the agency may consider context, cost, probable use, and severe topographic or biological constraints in its decision not to provide provisions for bicyclists and pedestrians; and WHEREAS, the Rule 20 Amendment states that the procedure for excluding accommodations for pedestrians and bicyclists includes the agency notifying SANDAG that bicycle and/or pedestrian facilities will not be included in the project along with written justification for that decision; and WHEREAS, the Rule 20 Amendment states that the decision to exclude accommodations for bicyclists and pedestrians must be made in the public hearing required by Section 5.A of the Extension Ordinance; and H:\ENG[NEER\RESOS\Resos2008\04~22-08\Transnet FY09-FY 1 J1~S~ ~vded by elisa-FINAL.doc Resolution No. 2008- Page 3 WHEREAS, the proposed list of projects to be funded by TRANSNET during Fiscal Years 2008-09 through 2012-13 is consistent with the City's existing Capital Improvement Program (CIP) and the proposed changes to the CIP for Fiscal Year 2008-09; and WHEREAS, the streets included in the Major Pavement Rehabilitation Program are chosen from the list which was compiled on the basis of the City's Pavement Management System; and WHEREAS, the City Council held a Public Hearing on April 22, 2008, as required by Section 5.A of the Extension Ordinance. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City ofChula Vista as follows: 1. That it approves the submittal of certain projects for the TRANSNET Local Street Improvement Program to the San Diego Association of Governments for inclusion in the Regional Transportation Improvement Program for Fiscal Years 2008-09 through 2012-13. 2. That it certifies that pursuant to Section 2.C of the Extension Ordinance, no more than 30 percent of its annual TRANSNET revenues shall be spent on maintenance-related projects. 3. That it certifies that, pursuant to Section 8 of the Extension Ordinance, the required minimum annual level of local discretionary funds to be expended for street and road purposes will be met throughout the five-year period consistent with the most recent Maintenance of Effort Requirements adopted by SANDAG. 4. That it certifies that, pursuant to Section 9.A of the Extension Ordinance, the City will extract at least $2,000 from the private sector for each newly constructed residential housing unit to comply with the provisions of the Regional Transportation Congestion Improvement Program. 5. That it certifies that, pursuant to Section 13 of the Extension Ordinance, a separate Transportation Improvement Account has been established, with earned interest expended only for those purposes for which the funds were allocated. 6. That it certifies that, pursuant to Section 18 of the Extension Ordinance, each project of $250,000 or more will be clearly designated during construction with TRANSNET project funding identification signs. 7. That the City will indemnify, hold harmless and defend SANDAG, the San Diego County Regional Transportation Commission, and all officers and employees thereof against all causes of action or claims related to local TRANSNET funded projects. H :\ENG IN EER\RESOS\Resos2008\04-22-08\ Transnet FY09~FY 131 ~s~ ~v~sed by elisa.f(NAL.doc Resolution No. 2008- Page 4 8. That it certifies that, pursuant to Section 4.E.3 of the Extension Ordinance, all new projects, or major reconstruction projects, funded by TRANSNET revenues shall accommodate travel by pedestrians and bicyclists with the following exceptions, along with the accompanying justification: A. The North Broadway Reconstruction project (STM354) qualifies as a major reconstruction project under the Rule 20 Amendment. Staff intends to exclude the bikeway treatment in the North Broadway Reconstruction project because a parallel route with appropriate accommodations exists on Fifth Avenue that would require no more than I/.-mile total out of direction travel. The parallel route on Fifth Avenue is included in the Bikeway Master Plan. B. Because the new overlay project on Main Street from the west I-80S interchange to Oleander Avenue will be over one inch thick, the project qualifies as a major rehabilitation project under the Rule 20 Amendment. Staff intends to exclude the bikeway treatment on Main Street from the west I-80S interchange to Oleander Avenue because Main Street, which is currently designated as a Class 3 bike route in the Bikeway Master Plan, crosses the freeway and there is insufficient lane width for a Class 2 bike lane. Staff intends to consider additional bicycle facilities in conjunction with future interchange improvements. C. Because the new overlay project on the north side of East H Street between Terra Nova Drive and Del Rey Boulevard will be over one inch thick, the project qualifies as a major rehabilitation project under the Rule 20 Amendment. Staff intends to exclude sidewalks on the north side of East H Street between Terra Nova Drive and Del Rey Boulevard for the following reasons: (I) due to its location adjacent to the City's Multiple Species Conservation Program area, there are severe topographic and biological constraints; (2) there is insufficient right-of-way; and (3) there is no development adj acent to the proj ect so there is no demand for pedestrian access or the potential for future demand for pedestrian access. D. Because the new overlay project on Wueste Road between Otay Lakes Road and Lake Crest Drive will be over one inch thick, the project qualifies as a major rehabilitation project under the Rule 20 Amendment. Staff intends to exclude sidewalks on Wueste Road between Otay Lakes Road and Lake Crest Drive for the following reasons: (I) it is a two-lane road without existing curb, gutter and drainage facilities; and (2) there is no development adjacent to the project so there is no demand for pedestrian access or the potential for future demand for pedestrian access. H :\ENG INEER\RESOS\Resos2008\04~22-08\ Transnet FY09-FY 131 ~s~ ~v~ed by elisa-FINAL.doc Resolution No. 2008- Page 5 E. Because the new overlay project on Broadway from Faivre Street to Beyer Boulevard will be over one inch thick, the project qualifies as a major rehabilitation project under the Rule 20 Amendment. Staff intends to exclude sidewalks on Broadway from Faivre Street to Beyer Boulevard for the following reasons: (1) it is a two-lane road without existing curb, gutter and drainage facilities; (2) there are only industrial facilities adjacent to the project and these uses do not create a demand for pedestrian access or the potential for future demand for pedestrian access; and (3) it is currently being maintained as a Class 3 bike route in accordance with the City's Bikeway Master Plan. 9. That it certifies that all applicable provisions of the Ordinance, the Extension Ordinance, and SANDAG Board Policy 31 have been met. Presented by Approved as to form by Jack Griffin Engineering and General Services Director ~ tLC~~ !rrv Ann Moore City Attorney H :\ENG IN EER\RESOS\Resos2008\04.22-08\Transnet FY09-FY 131 ~s~ ~Y~ed by elisa-FINAL.doc CITY COUNCIL AGENDA STATEMENT ~\{f:. CITY OF -- - - (HULA VISTA 4/22/2008, Item '''3. ITEM TITLE: QUARTERLY FINANCIAL REPORT FOR THE QWiliTER ENDED MARCH 31, 2008 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2007-2008 BUDGET, IN ACCORDA.NCE \VITH THE BUDGET TRANSFER POLICY, BY TRAJ'lSFERRING $482,383 FROM THE FIRE DEPARTMENT PERSONNEL SERVICES CATEGORY TO ITS SlJPPLIES AND SERVICES CATEGORY SUBMITTED BY: DIRECTOR OF FINANCE/TREASURER ~rl'~ /: REVIEWED BY: CITY MANAGER YES 0NO D SUMMARY Section 504 (f) of the City Charter requires quarterly financial reports to be filed by the Director of Finance through the City Manager. The Fire Department is requesting the transfer of $482,383 from the personnel services budget category to the supplies and services budget category to fund the transfer of the Fire Communications Center. Council approved this transfer of Fire Communication services on December II, 2007 as part of the Fire Department budget reduction proposals that were adopted. In the report, staff informed Council that it would be returning to seek approval for this transfer of funds ENVIRONMENTAL REVIEW Not Applicable RECOMMENDATION That Council accepts the report and approves the resolution. 13-1 April 22, 2008, Item_ BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION Ouarterlv Fiscal Update Attached for your consideration is the financial report for the third qU81ier of fiscal year 2007-08. The detailed financial report for the quarter ending March 31, 2008 discusses the fmancial outlook for the City's General Fund for the remainder of fiscal year 2007-08. Budget Transfer Request A resolution requesting a budget transfer from the Fire Department personnel services budget category to the supplies and services budget category in the amount of $482,383 is necessary in order to process the final payments related to the transition of the Fire Communications Center to the City of San Diego. Council approved this transfer of Fire Communication services on December I L 2007 as part of the Fire Department budget reduction proposals that were adopted. In the report, staff informed Council that it would be returning to seek approval for this transfer of funds DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by accepting this repo11 and has determined that it is not site specific and consequently the 500 foot rule found in the California Code of Regulations section 18704.2( a)( 1) is not applicable. FISCAL IMPACT Ouarterlv Fiscal Update For fiscal year 2007-08, due to the continued decline in the economy and housing m81'ket a General Fund deficit of $2.9 million is currently projected. A projected revenue shortfall of $15.1 million partially offset by estimated expenditure savings of $12.6 million account for $2.5 million of the deficit. The remaining amount is due to mid-year budget amendments of $1.0 million with offsetting revenues of $0.6 million for a net impact of $0.4 million. -:':.,'.:,: Gen'~fai FuridR.~s~l'1Ie Reserves - July 1, 2007 Projected Revenues & Transfers In Expenditures & Transfers Out Projected Deficit Amended '. . stief ef $ 10A 165.5 (1659 (OA) Fund Balance as of June 30, 2008 Percenta e of Operat!n Bud et $ 10.0 $ 7.5 4.8% 13-2 April 22, 2008, Item_ Due to the continued projected gap, a citywide administrative freeze has been placed on all discretionary spending such as traveL conferences, vehicle purchases, reference materials, contractual services etc. Based on current spending levels, savings trom the administrative freeze could generate additional savings in the current fiscal vear. - - . Budget Transfer Request There is no fiscal impact to the General Fund related to the transfer request. The cost of transferring the dispatch center to the City of San Diego was addressed as part of the mid-year budget reduction process. ATTACHMENTS Attachment 1 - Quarterly Financial Report 13-3 ~~~ :--A = ~ - -- ~~~;: CITY OF (HULA VISTA City of Chula Vista Quarterly Financial Report - General Fund Third Quarter Ending March 31, 2008 April 22, 2008 OVERVIEW This financial report summarizes the City's General Fund financial position for the fiscal year through March 31, 2008. The purpose of this report is to provide the City Council, management and the citizens of Chula Vista an update on the City's fiscal status based on the most recent financial information available. ECONOMIC UPDATE [n its first quarterly report of 2008, released March 11, the UCLA Anderson Forecast remains confident that the national economy was not in a recession through January 2008 and continues to forecast weak growth but no official recession in 2008. As in their recent forecasts, UCLA Anderson Forecast economists shed a negatIve light on the real estate sector, with problems there continuing to be a drag on the economy as a whole, particularly as the home mortgage crisis becomes a credit crisis In California, the economic outlook continues to mirror that of the nation, despite questions by some regarding the possibility of a state recession in the absence of a national recession. The Anderson Forecast concludes that California is too closely tied to the nation for such an occurrence, and the outlook appears much the same - slow growth as the fallout from the real estate sector slowly works its way out of the economy. The University of San Diego's Index of Leading Economic Indicators for San Diego County fell 1.1 percent in February after falling 1.2 percent in January. The biggest contributors to the decline were sharp drops in consumer confidence and help wanted advertising. Down more moderately were building permits, local stock prices, and the outlook for the national economy. The only positive component was initial claims for unemployment insurance, which reflects a large drop in claims for the month. With February's decrease, the USD Index has now fallen in 22 of the last 23 months, with the declines in the last five months being relatively severe. While there has not been a massive loss of jobs as was the case in the early 1990s, job growth has come to a virtual standstill, with only 300 more jobs countywide in February compared to the year before. The weak housing market remains the culprit, with more than 13,000 jobs lost in real estate-related sectors compared to a year ago. The continued sharp declin€s in the Leading Indicators indicate no turnaround in sight at the current time. San Diego Index of Leading Economic Indicators 150.0 1450 140,0 1350 130.0 125.0 120.0 1150 Jan-03 Jan-04 Jan-05 Jan-06 Jan-07 Jan-08 GENERAL FUND SUMMARY City Council Policy No 220-03 recommends the City maintain at least an 8% reserve level. As of June 30, 2007, the General Fund reserve level was 6.3%. Amended GeneialFund Reserve Budget Projected Reserves - July 1, 2007 $ 104 $ 104 Projected Revenues & Transfers In 165.5 1504 Expenditures & Transfers Out (16591 115331 Projected Deficit (04) (2.9) Fund Balance as of June 30, 2008 $ 10.0 $ 7.5 PercentaQ8 of Operating Budget 4.8% For fiscal year 2007-08, due to the continued decline in the economy and housing market a General Fund deficit of $2.9 million is currently projected compared to a second quarter estimate of $3.5 million. A projected revenue shortfall of $15.1 million partially offset by estimated expenditure savings of $12.6 million account for $2.5 million of the deficit The remaining amount is due to mid-year budget amendments of $1.0 million with offsetting revenues of $0.6 million resulting in an additional impact of $04 million. 13-4 QUARTERLY FINANCiAL REPORT THIRD QUARTER OF 2007-08 Page 2 of 4 in the second quarter, the City Manager authorized a citywide administrative freeze that was implemented on February 11th. The freeze was placed on all discretionary spending such as travel, conferences, vehicle purchases, reference materials, contractual services etc. Based on current spending levels, savings from the administrative freeze could generate additional savings in the current fiscal year. Revenues In the first quarter, several discretionary revenues were adjusted downward by $7.6 million. In the second quarter property and sales tax were adjusted down by $2.1 million. Per the most recent data available further adjustments to discretionary revenues are not necessary. . .. Adjusted 3rdQuarter . Discretionarv Revenues Budget Profected Delta Sales Tax $ 29.836 $ 29,096 ($740) Property Tax 30.250 29,085 (1165) Motor Vehicle License Fee 19,651 19,651 0 Franchise Fees 8,813 8,813 0 Utility Users Tax 7,052 7.052 0 Transient Occupancy Tax 2.672 2,672 0 Real Pronertv Transfer Tax 1,000 750 (250) Total $ 99,275 $ 97,119 1$2,155) In the chart below it can be seen that departmental programmatic revenues are being affected by continued declines In development related revenues, grant reductions, capital improvement project revenues and other fees for city services. Adjusted 3rd Quarter . Revenue Cateaoiv " Bud"e! Proiected Delta Development Revenue $12,502 $ 10,063 ($2,439) licenses and Permits 869 822 (46) Fine, Forfeitures & Penalties 1,771 1,347 (424) Police Grants 1,575 1,638 63 Other Agency Revenue 3,423 4,069 646 Charges for Services 6,928 6,750 (177) Interfund Reimbursements 11,919 11,326 (592) Transfers From Other Funds 10,487 10,529 42 Total $ 49,472 $ 46,545 1$2,928 Sales Tax, City staff met with the City's sales tax consultant, MuniServices, to review sales tax revenues though the end of calendar year 2007. Per the most recent reports, jurisdictions across California have 13-5 experienced slow downs or even declines in sales tax revenue during the fourth quarter of 2007. The City experienced same quarter over quarter growth of 5.2% compared to countywide change of -1.7%. The percentage change in other areas of California were 0.1 % statewide, 0.5% in Northern California and -0.2% in Southern California. The above chart refiects Chula Vista's sales tax with that Ci" ofChuIaVista-S,Z<lt.; .~ ,~ .~ ':"".. i.- i i ~ f , i , 1 !' ~ ! , , [ , ; r f , , i j of other jurisdictions in the County during the fourth quarter of the calendar year. Although the sales tax numbers are encouraging the Sales Tax $35 I ~ .Q $30 , :E $25 '20 $15 $10 $5 ,0 FY90 FY92 FY94 FY96 FY98 FY90 FY02 FY04 FY06 FY08 projections will remain at the same levels as identified in the second quarter report in order to maintain a conservative projection. Property Taxes. Property tax is the City's second largest revenue source, representing 18.3% of the total General Fund revenue in fiscal year 2006-07. The City's assessed value has increased at historical rates over the past seven years With the largest percent increase of QUARTERLY FI NANCIAL REPORT THIRD QUARTER OF 2007-08 Page 3 of 4 20% occurring in fiscal year 2005-06. Based on the June 2007 County Assessor's annual valuation report, the assessed values in Chula Vista grew by 14% resulting in a corresponding increase in the property tax roll for fiscal year 2007-08, Since the Assessor's report was issued, there has been a significant increase in the number of foreclosures in Chula Vista from the prior year. As reported in the second quarter report, per DataQuick Information Systems, notices of default (indicates the homeowner is 90 days late on their mortgage payment) increased from 1,018 in 2006 to 2,617 in 2007 an increase of 157%. Trustee sales (loss of home) went from 194 in 2006 to 1,060 in 2007 an increase of 446%. This is primarily due to the subprime mortgage issue that has resulted in the tightening of mortgage lending practices. Property Tax Projection Is Reduced By $1,2 Million Foreclosures are having an additional negative impact on property tax revenues in the city by depressing housing values. The drop in assessed values has triggered Proposition 8, a constitutional amendment passed in 1978 that allows a temporary reduction In assessed value when real property suffers a "decline- in-value". Therefore, as assessed values fall, homeowners can apply for a reassessment of their homes which wouid lead to a reduction of property taxes based on the lower assessment. Anticipating some level of impact to the city, the fiscal year 2007-08 property tax projections were adjusted in the second quarter report from the reported 14% increase in assessed value to 10%, The adjustment resulted in a reduction in projected property tax revenues of $1.2 million. Property tax projections will continue to be conservative in fiscal year 2008-09 based on the assumption that the housing market will not recover during this period. Motor Vehicle License Fee (VLF). With the State Budget Act of 2004, the allocation of VLF revenues to cities and counties was substantially changed. For FY05-06 and beyond, the majority of VLF revenues for each city will grow essentially in proportion to the growth in the change in gross assessed valuation, Franchise Fees. An analysis of prior fiscal year Franchise Fees revealed that revenues were down by $1.2 million due to the reduced operation of the South Bay power plant. As a result, revenues for the current fiscal year were revised downward by $1,6 million in the first quarter report. $12.0 100% ~ z 1$~6 0 80% ~ $10.0 r- ~ , ~ 60% $8.0 'J$3.a' 1$2.B ]$1.6 1M DSO:'S:: I " 40% I '. - $2.1 $2.1 $2.1 $6.0 L-.: 20% $2.1 0% $4.0 -20% $2.0 -40% $0,0 -60% 2002 2003 2004 2005 2006 2007 2008 2009 -$2.0 -80% c:::J Trash/Cable Energy - Consumer c=:= Energy . Power Plant --::::...- % Change: Utility Users Tax (UUT). Revenues are projected to come in higher than budget by $368,877 due to higher actual revenues realized in the prior fiscal year and were adjusted in the first quarter report. Real Property Transfer Tax. This tax IS based on the sale of real property, A revision in the projected tax is warranted due to the current slowdown in the housing market. The tax is projected to be $0.8 million which is a significant reduction in revenue from the all time high of $24 million in fiscal year 2005. Plan Check Fees. The first quarter projection of $1.7 million reflects the change in the projected number of building permits to be issued from 1,200 to 600 for the current fiscal year. 4.000 ______.__.__._.____.___._._____n.______._n_..._'.,__..___'___" i 3.500 ~ il I i \, ! in I I I 'f" nr,I.!',- 'I 'I 11"2'dl ' : 3'''.1 ' II ,,2,929\ 'I 'r: __12,488!'2'22~ \ : 2,55; '12,216;1 , 'I'I II j, )140&;-' 11281 I ' II' i I 11 j(' I \,.,..,..-,.,." "'~"C~," q"~"'7"'1 500 "l II I ,I.' '1843 ,":.,"..O'l;~ti:rt-':,i,i,O& II if l.!1 }l il i! !. I ~))h~ ~~,,:r,:1 ~'.:,,-i' " '.. ,. I "" .. ','..:.'..."......""""".'." ~ : I- 3 000 ~ z ~ 2.500 < ~ 2.000 z ~ 1,500 ii11,OOO " o 97.9898.9999-0000-01 01-0202-0303--0404--0505-0606--0707--0808-0909.10 FISCAL YEAR Building Permits. The first quarter projection of $2.5 million refiects the revised projected number of building permits to be issued from 1,200 to 600 for the current fiscal year, Through the end of the third quarter 374 permits have been issued. Other Development Related Revenues. Development related revenues have dropped slightly from the second 13-6 QUARTERLY FINANCIAL REPORT THIRD QUARTER OF 2007-08 Page 4 of 4 quarter ($500,000) due to the continued deterioration of the housing market. Interfund Transfers/Reimbursements. Interfund Transfers and reimbursements are being reduced due to revised gas tax projections, loss of library grant funds, and reduced staff time reimbursements. Expenditures The General Fund's Amended Budget reflects the Council's adopted budget and all mid-year appropriations ($1,015,107) approved by City Council and prior year encumbrances ($880,631). The Adjusted Budget reflects the approved mid-year budget reduction plan of $9.2 million. As reflected in the chart Departmental operating costs are at 69.65% of Adjusted Budget at the close of the third quarter. This is lower in comparison to the prior year third quarter expenditures of 72.5%. Amended Adjusted YTO Percentage ExnA'nditures BUdn"t Budnet Actuals Exnended City Council $ 1,394 $ 1.312 $ 930 70.89% Boards and Commissions 15 15 7 45.50'% City Clerk 1,297 1,209 753 62.25% City Attorney 2,670 2,440 1,587 65.06% Administration 3,469 3,229 2,270 70.31% Information Technology 4,178 3,979 2.777 69.79% Human Resources 4.998 4,698 3.086 65.68% Finance 3.184 2,932 2,143 73.07% Non Departmental 4.038 4,038 3,533 87.48% General Services 11,172 9,916 7,399 74.62% Community Development 1,932 1,794 1,119 62.38% Planning and Building 9,752 9,664 6,471 66.96% Engineering 6,698 5,753 4,170 72.49% Public Works 18,103 16,153 11,659 72.18% Police 50,794 49,892 34,210 68.57% Fire 25019 23,909 16,710 69.89% Recreation 6.675 6,118 4,030 65.87% Library 9,963 9,203 6,038 6561% Nature Center 1,260 1.198 777 64.85% Total General Fund $166,612 $157454 $109,669 69.65% Mid-Year Budget Amendments Mid-year appropriations during the quarter totaled $557,548 with offsetting revenues of $165,729 for a net impact of ($391,819). The majority of the appropriations were for ballot measure expenditures and for an increase in public liability claim expenditures. Mid-year budget amendments for the fiscal year have a net impact to the General Fund of ($399,969). 13-7 Bud etAmendments Revenue Eimendlture Imcact Animal Care microchipping program 10,000 10,000 CFD 12-M funds for landscape maintenance 63.495 63,495 Donation to Animal Care Facility from TAVA 2,522 2,522 Scripps Health Community benefit grant 39,800 39,800 Stephen & Mary Birch donation to Fire Dept 28,515 28,515 Califomia Division of Recycling grant 5,000 5,000 Office of Traffic Sai~tv OUt Enforcement "rant 160,600 160,600 First Quarter Bud at Amendments $309,932 $ 241,437 , 68,495 Grant from Kaiser Foundation Hospitals for Kids 19,115 19,115 Emergency slope repair along the SR-125 76,645 (76,645) Office of Traffic Saf;t\~' OUI Enforcement aranl 120,362 120,362 Second Quar:er Bud et Amendments $139,477 $ 216,122 $ 176645 Signature verification for charter amendment 20,000 (20,000) Signature vertf"lcation for infliative petition . 12,000 (12,000) Cost for placement of initiative on ballot 54,000 (54,000) Energy conservation grant 78,502 49,321 29,181 Fire overtime reimb~~:~ent and donation 87,227 87.227 . Costs for Public Liabil" Claims . 335,000 (335,000 Third Quarter Bud et Amendments $165,729 I 557,548 $391,819 Year-to-Date Bud et Amendments $615,138 $1,015,107 $399,969 Budget Transfers There was one administrative budget transfer of $1,500 during the third quarter. The transfer from Administration Services and Supplies budget category to the Utilities category transferred some cell phone budget to the land lines budget RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2007-2008 BUDGET, IN ACCORDANCE WITH THE BUDGET TRANSFER POLICY, BY TRANSFERRING $482,383 FROM THE FIRE DEPARTMENT PERSONNEL SERVICES CATEGORY TO ITS SUPPLIES AND SERVICES CATEGORY WHEREAS, the Council Policy on Financial Reporting and Transfer Authority established in January 1996 indicates that transfers in excess of $15,000 require City Council approval; and WHEREAS, on December II, 2007, the City Council approved the tranSitIOn of Fire Communication services to the City of San Diego, as part of the Fire Department budget reduction; and WHEREAS, there will be savings realized in the Fire Department's Communication Center Personnel Services budget category because of the transition; and WHEREAS, a budget transfer from the Fire Department Personnel Services budget category to the Supplies and Services budget category in the amount of $482,383 is necessary in order to process the final payments related to the transition of the Fire Communications Center to the City of San Diego; and WHEREAS, the recommended transfer between the Personnel Services budget category and Supplies and Services budget category can be achieved within the Fire Di:::partment's existing budget. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista amends the City's fiscal year 2007-2008 budget, in accordance with the Council Policy on Financial Reporting and Transfer Authority, by transferring $482,383 from the Fire Department Personnel Services budget category to its Supplies and Services budget category. Presented by Approved as to form by ~~~~~\\, Ann Moore City Attorney Maria Kachadoorian Finance/Treasurer Director J:\AtlomeyIRESO\FINANCElAmend FY 07.08 r"ireTrJnsfer_04-22-U8-cleJn cc_doc 13-8 SfJeQAL ()^-pe~.J ()Jfl-1i<-/ /ltHJvOU- { Two requirements to (almost) eliminate false alarms Peter Watry 1. Suggested new False Alarm fee schedule: During the 12 months after first registering an alarm: First 2, free Third one, $50 Fourth on, $500. During each succeeding 12 month period: First one, free. Each succeeding one, $500. 2. New requirement of alarm companies: Require alarm companies to visually verify alarm legitimacy before calling the police. Sometimes called "verified response. " The "Goddess of Justice" carries the torch at the Human Rights Torch Relay kickoff in Athens, Greece, Aug. 9, 2007. (photo credit: The Epoch Times) The Global Human Rights Torch Relay: The Olympics and Crimes Against Humanity Cannot Coexist in China! The Human Rights Torch Relay is an international campaign that seeks to raise awareness of and bring an end to human rights abuses by the Chinese communist regime. During the run up to the 2008 Olympics, the HRTR will unite all concerned parties and sponsor events in 37 countries on 6 continents to bring the message of hope. The HRTR lit its sacred flame in Athens, Greece on August 9, 2007. As of Feb. 1,2008, the HRTR has already visited more than 30 cities in Europe, Oceania, Africa and part of the Asian continent. The Torch will come to the US at the end of March. The HRTR was initiated by the Coalition to Investigate the Persecution of Falun Gong (CIPFG, www.cipfg.org) Why a Human Rights Torch Relay? We ask the CCP to respect human rights and release all prisoners of conscience before the 2008 Olympics. China was granted the right to host the Olympics after it pledged to adhere to the Olympic Charter and improve its human rights record. Instead, its human rights abuses have worsened: _ The Olympics have been used thus far by the Chinese Communist Party (CCP) as a pretext to further crack down on Christians, Catholics, Tibetans, Uyghurs, dissidents, independent journalists and rights advocates. _ The CCP has intensified the persecution of Falun Gong practitioners which, according to Amnesty International, constitute 66% of those persecuted by the CCP in China today. _ Falun Gong members and other prisoners of conscience are murdered for their organs to supply a thriving transplant industry. ( www.OrganHarvestInvestigation.net ) _ The above groups are among the II categories and 43 types of people that are to be excluded from the Beijing Olympics. _ The CCP's continuing destruction of the environment and land seizures to make way for the Olympic "show" is undermining the quality of life for the Chinese people. _ Outside of China, the CCP supports other totalitarian regimes in perpetrating slaughter upon their citizens in Darfur, Burma, Zimbabwe, and North Korea. Previous Olympics have proven to be propaganda bonanzas for their dictatorial hosts, such as the Nazis in 1936 and the Soviets in 1980, which is opposite of the Olympic ideal. HRTR participants -- government officials, Olympic medalists, other individuals and organizations -- will carry the torch, a symbol of justice and human dignity to cities around the world. We believe this effort can save lives, and we invite all to join us. Human rights groups greeted the Torch on its arrival in Auckland, New Zealand. 12/2007 (Photo: The Epoch Times) rally and us for human rights in China Global Human Rights Torch Relay San Diego Date: May 3, 2008, 12:00pm-4:00pm Location: Balboa Park, Spreckels Organ Pavilion, San Diego, CA 92101 Contact: Gisela Sommer, gisela3@cox.net Your Action Makes a Difference! Renowned human rights attorney Mr. Gao Zhisheng and his family. Gao was detained and his family has since been under house arrest and cut off from contact with the outside world. "As we approach the Beijing Olympics, I ask you to pay attention to the ongoing human rights disaster in China [and] seriously consider the extent to which the values of morality, justice, and humanity are undermined in China. " - Gao Zhisheng, Sept. 20, 2007, from his letter to the U.S. Congress. Gao Zhisheng, a Christian, Nobel peace prize nominee and recipient of the American Board of Trial Advocacy's 2007 Courage Award, was secretly detained by the CCP on Sept. 23 following his open letter to the U.S. Congress. "We Want Human Rights, Not the Olympics! - Yang Chunlin, human rights advocate of Northern China. Yang Chunlin initiated the "We Want Human Rights, Not the Olympics" movement inside China. In early 2007, he walked from villages to villages in the cold weather, visiting families after families in his hometown and collected 11,035 signatures. These signatures were brought overseas and submitted to International Olympics Committee. Yang Chunlin was detained by the communist regime on July 6, 2007. Voices from the West Human Right Torch Relay- An International Effort to Stop Human Rights Abuses by the Chinese Communist Party "... it's simply impossible in my view to have torture and killing going on in one part of Beijing and the Games going on in another part of Beijing.... It's totally incompatible with the Olympic spirit and it must not and cannot go on." - Hon. David Kilgour,former Canadian Secretarv of State for Asia Pacific The City of San Jose Human Rights Commission (November 7,2007) and the New York State Senate (September 28, 2007) both passed a resolution/proclamation to support the aims and intentions of the global Human Rights Torch Relay campaign. www.HumanRighISTorCh.llrg The Olympics and Crimes Against Humanity Cannot Coexist in China ~ , ,. - ,. , " i 4 + '" * % till" , You': Voi\:~:sigll the:~tiiii!~: , ~ , ' "" t Z +" ill R" "',. R Co-sign the letter to International Committee of Olympics at the HRTR website: www.humanrightstorch.org. Participate in "Millions of Signatures" anti- persecution petition by the Coalition to Investigate the Persecution ofFalun Gong (CIPFG) at www.ciDfg.org. J ''The Same World, the SMle Rights"- . HRTR to Entel' China . .. .,.;,.~- i. .~~. ~~. ,it"G.""'" ;"" ~ - Join the Relay Your Action Makes a Difference! www.HumanRightsTorch.org The HRTR will enter China in the spring of 2008, to allow the Chinese people to participate in this endeavor. For safety reasons, it will take various formats such as wearing yellow T-shirts, yellow ribbons, sending cell phone messages, flyers, sending off balloons, etc. May 3, 2008, San Diego Balboa Park, Spreckels Organ Pavilion Sample Proclamation [Your Community] The Office of [Official's Name], [Title] Whereas, The Chinese communist regime has been granted the honor of hosting the 200k Beijing Olympics with the provision that it improve its treatment of Chinese citizens; Whereas, Human rights violations have increased since this honor was granted; Whereas, The Chinese regime imprisons millions of Falun Gong practitioners, democracy advocates, Christians, labor organizers and other innocent citizens in slave labor camps without trial; Whereas, The Chinese regime illegally harvests organs for sale without consent from these prisoners of conscience; Whereas, The Chinese regime continues to occupy Tibet, and to attempts to erase the cultures of Tibetans and Muslim Uighurs; Whereas, The Chinese regime forces women to get abortions, even in the third trimester of pregnancy, to enforce the "One Child per Family" rule; Whereas, The Chinese regime is guilty of murdering more of its citizens than Hitler, Stalin, and Pol Pot combined; Whereas, The Olympic Charter calls for the Games to represent "respect for universal fundamental ethical principles... the harmonious development of man, with a view to promoting a peaceful society concerned with the preservation of human dignity.. .Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement"; And Whereas, The CIPFG Human Torch Relay is dedicated to righting these wrongs, ending human rights abuses in China, and preserving the Olympic spirit; ""'~ Now, Therefore, I, [Official's Name], by the authority vested in me as [Titlel of the State of IState], do hereby proclaim that [City] supports the aims and intentions of the Human Rights Torch Relay and invite all our citizens to join me in supporting this effort to improve society by ending human rights violations in China. In Whiteness Whereof; I have hereunto set my hand and caused to be affixed the official seal of the (Your Community], [State], this XX'h day of [Month], A.D., 200X. [Name, Title, Signature, Seal[